Allahabad High Court
C/M Digamber Jain Inter College And ... vs State Of U.P. And 2 Others on 3 November, 2017
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.:-43 1. Case :- WRIT - A No. - 27537 of 2017 Petitioner :- C/M Digamber Jain Inter College And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Akhilesh Kumar,Ritesh Upadhyay Counsel for Respondent :- C.S.C.,J.P.Singh 2. Case :- WRIT - A No. - 5887 of 2017 Petitioner :- C/M, Digamber Jain Inter College, Baraut Baghpat & Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi Counsel for Respondent :- C.S.C. 3. Case :- WRIT - A No. - 1438 of 2017 Petitioner :- Prateek Jain Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Ashish Mishra,Rohit Pandey Counsel for Respondent :- C.S.C.,Vikas Budhwar ______ Hon'ble Pradeep Kumar Singh Baghel,J.
All the three petitions involve similar question of law, therefore, they are being disposed of by this common judgment.
The petitioners in two of the writ petitions i.e. Writ-A No. 27537 of 2017 and Writ-A No. 5887 of 2017 are Committee of Management of an Intermediate College. The petitioners in these two writ petitions are praying for issuance of a writ of Certiorari for quashing the orders dated 6.6.2017 and 3.10.2016 respectively passed by the District Inspector of Schools1 whereby he has directed the petitioner-Committee Management for the joining of the third respondent - Prateek Jain on compassionate ground on the post of the Assistant Teacher. Prateek Jain has also filed one of the writ petitions i.e. Writ-A No. 1438 of 2017 for issuance of a direction upon the District Inspector of Schools to ensure his joining as Assistant Teacher on compassionate ground.
All the above petitions relate to the appointment on compassionate ground in a recognized minority institution which receives financial aid from the State. The case arose in the following circumstances.
Digamber Jain Inter College, Baraut, Bahpat2 is recognized by the U.P. Board of High School and Intermediate Education3. The State has enlisted it for financial aid. It was declared a minority institution by the State Government vide order dated 9.6.2000. Its affairs are run and conducted by the petitioner-Committee of Management. The Institution is governed under the provisions of the U.P. Intermediate Education Act, 1921(U.P. Act No. II of 1921)4 and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 19715.
One Virendra Kumar Jain was a lecturer in the Institution. He unfortunately died on 25.5.2014 while in harness. His son, the third respondent-Prateek Jain, made an application on 30.5.2014 for compassionate appointment in the Institution. Later, he moved another application seeking his appointment to the post of Assistant Teacher as in the meantime he had completed B.Ed. Course in the year 2015. In his application the third respondent had shown his qualification B.Com., M.B.A., M.Com. and B.Ed, which was forwarded by the Principal of the Institution to the District Inspector of Schools on 20.6.2016. He also made a representation before the District Inspector of Schools for his appointment as an Assistant Teacher.
On 3.10.2016 the District Inspector of Schools made a recommendation in favour of the third respondent for his appointment on the post of Assistant Teacher in the Institution. The Committee of Management of the Institution did not issue appointment letter in his favour. When the order of the DIOS was not complied with, the third respondent preferred Writ Petition No. 1438 of 2017 before this Court for a direction upon the petitioner/ the Management to offer him appointment in terms of the order passed by the District Inspector of Schools.
The Committee of Management also challenged the order dated 3.10.2016 passed by the DIOS by means of Writ Petition No. 5887 of 2017 for quashing the said order. While entertaining the petition on 8.2.2017 the Court did not grant any interim order, however, it made it clear that the appointment of the third respondent shall abide by the decision of the writ petition.
The order dated 3.10.2016 was also challenged by one Nishant Jain, a prospective candidate, by means of Writ-A No. 2718 of 2017. No interim order was granted by the Court, however, it was provided in the order dated 19.1.2017 that in case any appointment letter is issued by the Committee of Management to Prateek Jain (third respondent herein) in pursuance of the recommendation made in his favour the same shall be subject to final decision in the said writ petition.
In spite of the fact that this Court in Writ-A No. 5887 of 2017 has not passed any interim order and the matter was pending, the petitioner-Committee of Management proceeded to advertise the vacancy of one post of lecturer and four posts of Assistant Teachers on 1/2.4.2017 and 1/4.4.2017 in newspapers Rashtriya Sahara and Times of India.
At this juncture the third respondent made the representations to the District Inspector of Schools as well as the District Magistrate, Baghpat inviting their attention that though the matter is pending and no interim order is operative, the Committee of Management illegally advertised the posts in question. The District Inspector of Schools on 16.4.2017 issued a direction to the petitioner-Committee of Management restraining them from making any selection.
The petitioner-Committee of Management challenged the order of the District Inspector of Schools dated 16.4.2017 by means of Writ Petition No. 17974 of 2017 inter-alia on the ground that the directions issued by the District Inspector of Schools and the District Magistrate are without any authority as the petitioner's Institution is a Minority Institution. The said writ petition was allowed by this Court on 2.5.2017 and the District Inspector of Schools was directed to pass a fresh order in accordance with law regarding permission to the Committee of Management to fill up the vacancy. A further direction was issued that the claim of the third respondent-Prateek Jain for appointment on compassionate ground shall also be considered. It is material to note that the Court has also observed that the provisions of the Dying-in-Harness are applicable to the Minority Institution. In compliance thereof the DIOS vide impugned order dated 6.6.2017 has directed the Committee of Management to appoint the third respondent-Prateek Jain on the post of Assistant Teacher. The DIOS has referred the decision of the District Selection Committee dated 30.9.2016 whereby a recommendation has been made for the appointment of the third respondent. Aggrieved by the said order the petitioner-Committee of Management has preferred one6 of the writ petitions mentioned above.
The State authorities have preferred not to file counter affidavit as neither counter affidavit has been filed nor any time was sought on their behalf. The third respondent-Prateek Jain has filed counter affidavit. His stand is that after the death of his father on 25.5.2014 he immediately moved an application for his appointment on 30.5.2014, however, the Committee of Management did not pass any order on his application. In the meantime he appeared in B.Ed. Entrance Examination-2013 conducted by Kumaun University, Nainital and he passed the B.Ed. examination. This fact was intimated to the Committee of Management and the District Inspector of Schools on 20.6.2016.
The third respondent claims that his application was jointly forwarded by the Manager and the Principal of the College to the District Inspector of Schools for his appointment on compassionate ground.
The further stand of the respondents is that the Committee of Management had challenged the order of the District Inspector of Schools in Writ Petition No. 17974 of 2017 and while allowing the writ petition, the Court has recorded a finding that the provisions of Dying-in-Harness are also applicable to the minority institutions, therefore, the claim of Prateek Jain could not have been ignored. The said finding has not been challenged by the Committee of Management hence it has become final between the parties that the District Inspector of Schools has rightly passed the impugned order in compliance of the said direction.
The respondent in paragraphs 39 to 41 of the counter affidavit has averred that he has been discriminated as on the death of one Rajesh Sharma, Assistant Teacher in 2008 his son Ajay Raj Sharma was appointed in March, 2010. In compliance of the order of the DIOS dated 25.3.2010 and 29.3.2010 said Ajay Raj Sharma is still working in the Institution as an Assistant Teacher.
I have heard Sri Ritesh Upadhyay, learned counsel for the petitioner-Committee of Management, Sri Ashok Khare, learned Senior Advocate assisted by Sri J.P. Singh, learned counsel for the third respondent-Prateek Jain and the learned Standing Counsel.
Learned counsel for the petitioners submits that the Institution in question is a minority Institution established and administered by the Jain Community hence the provisions of Regulations 103 to 107 of the Regulations framed under the U.P. Intermediate Education Act, 1921 are not applicable to the Institution. Article 30(1) of the Constitution of India protects the right of minorities to establish and administer educational institutions of its choice. It includes the choice to constitute its governing body, to appoint its staff (teaching and non-teaching) etc.. Section 16-FF of the U.P. Act No. II of 1921 saves the aforesaid right of minority institutions by providing safeguards therein to the effect that the Regional Deputy Director of Education or the Inspector shall not withhold the approval for selection made under Section 16-FF of the U.P. Act No. II of 1921.
Next, he submits that Section 16 of the U.P. Secondary Education (Services Selection Boards) Act, 1982 (U.P. Act No. 5 of 1982)7 provides appointment and selection of teachers on the recommendation of the Board. Section 30 of the Act, 1982 excludes the applicability of the Act, 1982 to the minority institutions referred to in Clause-1 of Article 30 of the Constitution of India.
It was sought to be argued that in the year 1995 the provision of compassionate appointment in trained graduate grade was introduced in view of Regulation-103 of Chapter-III of the Regulations framed under the U.P. Act No. II of 1921 along with existing regulations providing compassionate appointment on non-teaching posts, however, in 1995 a proviso was inserted to Regulation 103 excluding the applicability of regulation to recognized and aided minority institutions, thus protecting the right of selection of academic and non-academic staff by the minority institutions.
Later, vide notification dated 9.8.2001 the said proviso to Regulation 103 was repealed and Regulation 103 without proviso came to be substituted. This said notification was stuck down by this Court in the case of Committee of Management, M.A.H. Inter College and another v. District Inspector of Schools, Ghazipur and others8. Learned counsel for the petitioner relied on the following judgments; Nausad Alam v. State of U.P. and others9; Gopal Ji Trivedi v. State of U.P. & others10, and in the case of C/M Sukmi Lila Shah Adarsh Sindhi Inter College v. State of U.P. & others11.
Sri Ashok Khare, learned Senior Advocate appearing for the third respondent submitted that the provisions of compassionate appointment are beneficial provisions and in no manner rights guaranteed to the minorities under Article 30 of the Constitution are interfered with. He further submitted that the judgment of the learned Single Judge in the case of Committee of Management, M.A.H. Inter College and another v. District Inspector of Schools, Ghazipur and others, 2002 (3) AWC 2221 has been impliedly overruled by a Division Bench. He has placed reliance on the following judgments; Governing Body of Registered Society Designated as St. Andrew College of U.P. And others v. State of U.P. & others, 2003(4) ESC 2190 (DB); Committee of Management, National Inter College & others v. State of U.P. & others, 2012(4) ESC 2183 (All) (DB); and Furkan Ahmad Khan v. State of U.P. Through Secy. Deptt. Of Secondary Edu. Lko. & others, Service Single No. 2140 of 2013, dated 16.4.2013.
The learned counsel asserted that the Division Bench has held that the regulations made for the welfare of the teachers cannot be said to cause any interference in the rights of the minorities.
It is contended that in the case of minority institutions, their right is not absolute right under Article 30(1) of the Constitution of India but certain regulations can be made applicable to them like promotion of the teachers and employees and other similar other beneficial provisions.
It was strenuously urged that the compassionate appointment on the post of teacher can be made in terms of the Regulations. The amendment made in the Regulations vide notification dated 15.2.1998 was challenged before this Court in the case of Sanjeev Kumar Dubey v. DIOS, Etawah and others12, and the Regulations were found liable to be interfered with.
The aforesaid order of the learned Single Judge was affirmed in Special Appeal No. 272 of 2013 (The C/M Forbes Intermediate College Faizabad v. State of U.P. & Ors.) by order dated 31.5.2013; Zaiba Idrees v. State of U.P. & Others13; a Full Bench decision of this Court in the case of Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College & Another v. State of U.P. & others14; Committee of Management, M.A.H.S.S. Gorakhpur and another v. State of U.P. & others15; Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others16.
Lastly, it was urged that the action of the respondents is discriminatory as in the case of Ajay Raj Sharma, the Committee of Management has appointed him on compassionate ground in compliance of the orders passed by the DIOS dated 25.3.2010 and 29.3.2010. Although Sri Ajay Raj Sharma was not a member of Jain Community and he is still working in the Institution. Hence the action of the respondents is arbitrary and discriminatory and is hit by Article 14 of the Constitution.
I have considered the submissions of learned counsel for the parties and perused the record.
The State Government exercising its power under Section 9 of the Act, 1921 has framed the Regulations. The procedure for appointment has been laid down in Regulation 17 of Chapter II of the Regulations for minority institutions. A perusal of the said regulation shows detail procedure which has to be followed by minority Institutions is provided therein. This clearly demonstrates the intendment of the rule making authority that minority Institutions have not been given complete freedom to make recruitment. The recruitment process has been regulated under the regulations. Similarly Chapter-III of the said Regulations deals with the conditions of service. Regulation 102 to 107 of the Regulations framed under the U.P. Act No. II of 1921 deal with the provisions relating to the appointment on compassionate ground. The Regulations 102 to 107 are extracted herein-below:
"102. किसी मान्यता प्राप्त, सहायता प्राप्त संस्था में शिक्षणेत्तर पद धारण करने वाले किसी कर्मचारी की सेवा-निवृत्ति के फलस्वरूप होने वाली रिक्ति की सूचना उसकी सेवा निवृत्ति के दिनांक से तीन माह पूर्व दी जायेगी और मृत्यु, पद त्याग के कारण या किसी अन्य कारणों से हुई किसी रिक्ति की सूचना उसके होने के दिनांक से सात दिन के भीतर नियुक्ति प्राधिकारी द्वारा निरीक्षक को दी जायेगी।
103. इस विनियमावली में दी गई किसी बात के होते हुए भी जहां किसी मान्यता प्राप्त, सहायता प्राप्त संस्था का अध्यापक या शिक्ष्रणतेत्तर कर्मचारी बर्ग के किसी कर्मचारी की, जो विहित प्रक्रिया के अनुसार नियुक्त किया गया हो, सेवा काल में मृत्यु हो जाये, तो उसके कुटुम्ब के एक सदस्य को, जो 18 वर्ष से कम आयु का न हो, प्रशिक्षित स्नातक की श्रेणी में अध्यापक के पद रूप में या किसी शिक्ष्णेत्तर पद पर यदि वह पद के लिये विहित अपेक्षित शैक्षिक प्रशिक्षण अर्हतायें, यदि कोई हो, रखता हो और नियुक्त के लिये अन्यथा उपयुक्त हो, नियुक्त किया जा सकता हैः स्पष्टीकरण--इस विनियम के प्रयोजनार्थ 'कुटुम्ब का सदस्य' का तात्पर्य मृत कर्मचारी की विधवा/विधुर, पुत्र, अविवाहित या विधवा पुत्री से होगा।
टिप्पणी-- यह विनियम और विनियम 104 से 107 तक उन मृत कर्मचारियों के संबंध में लागू होंगे जिसकी मृत्यु 1 जनवरी 1981 को या उसके पश्चात हुई हो।
104. किसी मान्यता प्राप्तत, सहायता प्राप्त संस्था का प्रबन्धतन्त्र मृत्यु होने के दिनांक से सात दिन के भीतर निरीक्षक को मृत कर्मचारी के कुटुम्ब के सदस्यों की एक रिपोर्ट प्रस्तुत करेगा जिसमें मृत कर्मचारी का नाम, धृत पद, वेतनमान, नियुक्ति का दिनांक, मृत्यु का दिनांक, नियोजक संस्था का नाम और उसके कुटुम्ब के सदस्यों के नाम, उनकी शैक्षिक प्रशिक्षण अर्हताएं यदि कोई हों, और आयु का विवरण भी दिया जायेगा। निरीक्षक अपने द्वारा रखे जाने वाले रजिस्टर में मृतक की विशिष्टियां दर्ज करेगा।
105. विनियम 103 मे निर्दिष्ट मृत कर्मचारी के कुटुम्ब क कोई सदस्य सम्बिन्धत निरीक्षक को यथास्थिति, प्रशिक्षित स्नातक श्रेणी में अध्यापक या शिक्षणेत्तर संवर्ग के किसी पद पर नियुक्ति के लिए आवेदन करेगा। आवेदन पत्र पर समिति द्वारा विचार किया जायेगा और यदि समिति उसकी नियुक्ति की संस्तुति करे, तो निरीक्षक मान्यता प्राप्त, सहायता प्राप्त उस संस्था के जिसमें आवेदक को नियुक्त किया जाना है, प्रबन्ध तन्त्र को आवेदन-पत्र विनियम 106 और 107 के अनुसार नियुक्ति आदेश जारी करने के लिये भेजेगा।
समिति में निम्नलिखित होंगे--
1. निरीक्षक --अघ्यक्ष
2. जिला विद्यालय निरीक्षक के कार्यालय में लेखाधिकारी --सदस्य
3. जिला बेसिक शिक्षा अधिकारी --सदस्य
106. मृत कर्मचारी के कुटुम्ब के सदस्य की नियुक्ति उसकी शैक्षिक अर्हताओं के अनुसार प्रशिक्षित स्नातक श्रेणी में या किसी शिक्षणेत्तर पद पर यथासम्भव उसी संस्था में की जायेगी जहां मृत कर्मचारी अपनी मृत्यु के समय सेवारत था। यदि ऎसी संस्था में प्रशिक्षित स्नातक श्रेणी में किसी अध्यापक या शिक्षणेत्तर संवर्ग में कोई पद रिक्त न हो तो उसकी नियुक्ति जिले की किसी अन्य मान्यता प्राप्त, सहायता प्राप्त संस्था में जहां ऎसी रिक्ति हो की जायेगी--
प्रतिबन्ध यह है कि यदि जिले की किसी मान्यता प्राप्त, सहायता प्राप्त संस्था में कोई रिक्ति तत्समय विद्यमान न हो तो उस संस्था में जहां मृतक अपनी मृत्यु के समय सेवारत था, नियुक्ति प्रशिक्षित स्नातक श्रेणी के अध्यापक के या चतुर्थ श्रेणी के शिक्षणेत्तर पद के प्रति किसी अधिसंख्य पद के प्रति तुरन्त की जागेगी। ऎसे अधिसंख्य पद को इस प्रयोजन के लिये सृजित किया गया समझा जायेगा और उसे तब तक जारी रखा जायेगा जब तक कोई रिक्ति उस संस्था में या जिले की किसी अन्य मान्यता प्राप्त, सहायता प्राप्त संस्था में उपलब्ध न हो जाये, और ऎसी स्थिति में अधिसंख्य पद के पदधारी द्वारा की गई सेवा की गणना वेतन निर्धारण और सेवा निवृत्ति लाभों के लिये की जायेगी।
107. उस मान्यता प्राप्त, सहायता प्राप्त संस्था के प्रबन्धतन्त्र द्वारा, जिसको विनियम105 के अधीन निरीक्षक द्वारा आवेदन-पत्र भेजा गया या आवेदन-पत्र को प्राप्ति के दिनांक के एक माह की अवधि के भीतर निरीक्षक को सूचना देते हुए नियुक्त पत्र जारी किया जायेगा।"
In 1993 when these regulations were framed, there was no exemption of applicability of these regulations to the minority institutions. Regulations 1993 were followed by the minority institutions. Later, vide notification dated 2.2.1995 a proviso was inserted exempting the minority institutions from the appointment on compassionate ground. On 9.8.2001 the Regulation 103 was again amended and the proviso exempting the minority institutions was not retained in the amended regulations. The validity of the said notification was challenged in M.A.H. Inter College (supra), wherein this Court held that the said notification is violative of Article 30 of the Constitution.
A Division Bench in the case of Governing Body of Registered Society Designated as St. Andrew's College Association (supra) had occasion to consider the issue of appointment on compassionate ground in minority Institutions. The Division Bench did not agree with the view taken in M.A.H. Inter College (supra) and it followed the Eleven-Judge Bench judgment in the case of TMA Pai Foundation v. State of Karnataka17. The following passage is, in this regard, apposite:
"12. It has been held in the landmark judgment of an eleven Judge bench of the Supreme Court in TMA Pai Foundation v. State of Karnataka, 2002 (5) ESC 1), that the right under Article 30 (1) is not an absolute right but it is subject to reasonable regulations pertaining to health, morality, standard of education etc. In paragraph 137 of the aforesaid judgment the Supreme Court has observed:
"By the same analogy there is no reason why regulations or conditions concerning generally the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere as such provisions do not in any way interfere with the right of administration or management under Article 30 (1)."
13. Thus the Supreme Court has laid down that even for minority institutions regulations can be made for the welfare of teachers. In our opinion, a provision for making compassionate appointment on the death of a serving teacher is certainly for the welfare of teachers because such teachers will know that even if they die in service their dependents will not starve. Hence they can teach and function free of worry about what will happen to their families if they die. Hence in our opinion the impugned Government Order dated 21.11.95 as well as the other impugned orders are perfectly valid as they are regulations made for the welfare of teachers in minority institutions and as such they do not in any way interfere with the right of administration or management under Article 30 (1) of the Constitution.
14. Learned counsel for the petitioner has invited our attention to the decision of a learned single Judge of this Court in Committee of Management, MAH Inter College v. DIOS, Ghazipur, 2002 (3) AWC 2221, in which a contrary view has been taken by the learned single Judge. The learned single Judge was of the view that since an appointment on compassionate grounds is not made on merit since there is no competition with the candidates from the open market hence it cannot be said that a direction for making such appointments in minority institutions will be conducive to efficiency and standards of education in the said institution. We respectfully disagree with the reasoning given by the learned single Judge. As held by the Supreme Court in TMA Pai's case (supra) a regulation for the welfare of teacher does not infringe the right of a minority institution under Article 30 of the Constitution. We do not see how appointment on a class III or class IV post will affect the standard of education in a minority institution. After all, a class III post is not a teacher's post."
(emphasis supplied) This Court has consistently taken the same view in a series of cases. In the case of Furkan Ahmad Khan v. State of U.P. & others, SS No. 2140 of 2013 the view taken by the learned Single Judge was challenged in Special Appeal No. 272 of 2013, C/M Forbes Intermediate College Faizabad v. State of U.P. And others, wherein the Division Bench has considered the judgment in the case of M.A.H. Inter College (supra), and it concurred with the view taken by the Division Bench in the case of Governing Body of Registered Society Designated as St. Andrew College of U.P. (supra). The Division Bench held as under:
"9. Having heard the rival submissions made on behalf of the parties and considering the relevant decisions on the point in controversy, it is clear that the minority institutions are not outside the purview of Regulations 103 to 107 in the case of appointment on the post of Class-III and Class-IV posts. Keeping in view this legal position, the learned Single Judge has allowed the writ petition and has directed the respondent no.4 to consider the entire matter afresh and pass appropriate orders within a period of one month. There appears to be no illegality in the order and we see no ground of interference in the impugned judgment."
A similar view has been taken by the learned Single Judge in the case of Committee of Management, National Inter College (supra) (wrongly mentioned in the journal as Division Bench).
As regards the submissions of learned counsel for the petitioner that the regulations providing compassionate appointment in the case of minority institutions is violative of Article 30 of the Constitution, I find that the said submission has no force. Articles 29 and 30 of the Constitution deal with the protection provided to minorities. They are under the head of cultural and educational rights. Article 29(1) enjoins that any section of the citizens has fundamental rights to conserve its language, script or culture. Article 29(2) of the Constitution provides that no citizen shall be denied admission to any educational institution which receives financial aid from the State on the ground of religion, race, caste, language or any of them.
Article 30(1) of the Constitution gives a right to all religious or linguistic minorities to establish and administer the educational institutions of their choice. The fundamental right provided to the minorities under Article 30 of the Constitution fell for consideration for the first time in Re; Kerala Education Bill18.
In the said judgment the Supreme Court held that the true intention of Article 30 is to equip minorities with a shield whereby they could defend themselves against attacks by majorities religious or linguistic and not to arm them with a sword whereby they could compel the majority to grant compensation. The Court has further held that the State is under a positive obligation to give positive aid or recognition to an educational institution including those of the minorities religious or linguistic.
The Constitution Bench of Nine Judges of the Supreme Court considered the issue elaborately in the case of Ahmedabad St. Xavier's School v. State of Gujarat19. The Court held that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice, is not absolute right and this right is not free from regulations. The regulatory measures are necessary for efficient administration. Relevant part of the judgment in Ahmedabad St. Xavier's College (supra) reads as under:
"20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration."
Again in the case of Lily Kurian v. Lewina20 the position was highlighted. In this case the Supreme Court held that a minority Institution cannot ask as a matter of right for recognition or financial aid without providing the sufficient infrastructure, competent teachers and the welfare of the students thus before proceeding the recognition or the financial aid, the State can insist that the Institution has to follow the reasonable regulations to ensure the excellence of the Institution. Relevant part of the judgment reads as under:
"29. Thus, a contention based on the absolute freedom from State control of the minorities' right to administer their educational institutions was expressly negatived in this case. The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed."
The same issue fell for consideration in the case of Frank Anthony Public School v. Union of India & others, (1986) 4 SCC 707. The Court observed that excellence in an institution would depend directly on the excellence of the teaching staff and condition of service pertaining to qualification of teachers their salaries and other conditions of service which ensure security, contentment and good living standard to the teachers which will enable them to render a better service to the Institution. The Court further held that Manager of the minority institution cannot be permitted under the guise of fundamental right guaranteed under Article 30(1) of the Constitution to oppress or exploit its employees. Such oppression lay to discontent and deterioration of the education imparted in the Institution. The management of minority Institution cannot complain of invasion of fundamental rights to administer the Institution when it denies the principles on its staff of opportunity to achieve the excellence.
The Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka21 has elaborately dealt with the rights of minority institutions in respect of admission of the students and administration of their institution. The Court held that their rights are not absolute rights and the State can regulate them for proper administration of the Institution. The following passage is, in this regard, apposite:
"The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions."
The judgment in T.M.A. Pai Foundation (supra) has further been explained in the case of P.A. Inamdar v. State of Maharashtra 2005 (6) SCC 537. In the case of Secretary, Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386 the Supreme Court took note of its earlier decisions. Following discussion and conclusion are apt and relevant for our purpose:
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(v)...
An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff."
In the case of Sindhi Education Society v. Chief Secretary, Government of NCT of Delhi and others22 the Court has held that the service conditions of the employees can be prescribed by the State without interfering with the overall administrative control, mechanism of redressal of the employees. Relevant paragraphs of the judgment are extracted herein below:
"69...In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions...."
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92. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority education institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen's right under Article 29(2) is not infringed."
These decisions leave no scope for doubt that the State can regulate the administration of the minority institution which is not obstructive or innhalative of the substance to the right of Article 30(1). To put it differently it can be said that providing compassionate appointment to a dependent of a teacher or staff, which provides security to the teaching staff, cannot be said to cause any interference in the Management. A dependent of a teacher/ staff can only be appointed on the post of teacher in terms of Regulation 103 of Chapter-III of the Regulations framed under the U.P. Act No. II of 1921. In fact, it will enable them to render better service to the Institution.
No submission has been made to demonstrate that in case a dependent of a teacher or staff is provided compassionate appointment in the Institution how it will affect the administration of the minority institution.
It is true that in absence of regulations it was not possible to appoint an Assistant Teacher under the provisions of Dying-in-Harness Rules, but the Regulation 103 gives a legal right to the dependent of an employee to seek the appointment on the post of Assistant Teacher also if he/she possesses the essential qualification. If a person is appointed on the post of Assistant Teacher who possesses the essential qualification it cannot be said that the standard of education will be diluted by such appointment.
In the present case the District Selection Committee, which is constituted under the Regulations, has considered the qualification of Prateek Jain and it has found him eligible for the appointment as Assistant Teacher.
The learned counsel for the Management could not deny the fact that a similarly placed person has been given appointment on the post of Assistant Teacher on compassionate ground. In the said case the Management has complied with the directions of the District Inspector of Schools to appoint him on the post of Assistant Teacher on compassionate ground. As noted above, the said fact has not been denied by the Management. Hence, I find considerable force in the submissions of learned counsel for third respondent that action of the Management is discriminatory.
For the reasons recorded herein-above, I find no merit in the writ petitions being Writ-A No. 27537 of 2017 and Writ-A No. 5887 of 2017 filed by the Committee of Management of the Institution and same are accordingly dismissed.
In view of the above, the writ petition filed by Prateek Jain being Writ-A No. 1438 of 2017 is allowed. The District Inspector of Schools and the Committee of Management of the Institution are directed to ensure joining of Prateek Jain in accordance with law within six weeks from the date of production of a certified copy of this order.
No order as to costs.
Order Date :- 3.11.2017 Digamber