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4. The major change brought about by the amendments in 1995 was that the post of L.T. grade teacher also was thrown open for compassionate appointment and a proviso was inserted to Regulation 103 exempting institutions established or administered by a minority community from its application. Although the proviso was added only to Regulation 103 which provides for appointment to a family member of an employee dying-in-harness but as the Scheme of Regulations 103 to 107 is an integrated one, the proviso in effect carves out an exception to all these Regulations. The effect of the proviso was that minority institutions continued to enjoy free hand subject to the regulatory provisions of Section 16FF of the Intermediate Education Act in the matter of appointments. The proviso to Regulation 103 was repealed and a new Regulation 103 without the proviso was substituted by notification dated 9.8.2001, which is the notification under challenge in these petitions. The substituting Regulation 103 merely re-enacts the substituted Regulation without the proviso. In effect, the proviso stands repealed.

6. In the ordinary course all vacancies on the post of teachers in a minority institution, whether caused by death, retirement or otherwise, are to be filled up by management committee under Section 16E(1) in accordance with the provisions of Section 16FF. The selection committee of a teacher envisaged under Regulation 105 is widely different from the selection committee constituted under Section 16FF. Section 16FF provides that the selection committee shall consist of five members to be nominated by the Committee of Management one of whom is to be the head of the institution. The choice of the management is subject only to the restriction that the candidate appointed must possess the necessary minimum qualifications prescribed. The appointment is subject, no doubt, to the approval of the District Inspector of Schools but the scope of his powers is limited to considering whether the candidate has the necessary minimum qualifications. While Section 16E read with Section 16FF applicable to regular appointment of teachers provides a virtual autonomy to a minority institution in making appointments. Regulations 105 read with Regulation 107 which relates to appointments to the family members of a deceased employee allow no power to the management except of issuing an appointment letter to the nominee of the District Inspector of Schools selected by a panel of three members on which there is no representative of the management.

12. It was then submitted by Sri V.K. Shukla that appointments on compassionate ground fulfil an entirely different purpose being relief against financial distress and cannot be equated to regular appointment and their validity, therefore, cannot be judged on the test of efficiency. These appointments constitute a different class and, therefore, the distinctly different procedure provided is valid. The argument, though apparently attractive, is devoid of merit. The proviso to Section 16(2) of the U.P. Secondary Education and Selection Board Act, 1982, permits appointments of a family member of a deceased employee by Regulation framed under Section 9(4) of the Act. But for such compassionate appointments, appointments of teachers is to be made in accordance with the provisions of the Secondary Education and Selection Board's Act, 1982, on pain of being void if made in contravention. The provisions of this Act are, however, inapplicable to a minority institution by virtue of Section 30 of the Act. The proviso to Section 16(2) is, therefore, also inapplicable ; the result being that no exception to the ordinary manner of appointment of teachers provided under Section 16E read with Section 16FF of the Intermediate Education Act is contemplated for minority institutions. The managing committee is the appointment authority under Section 16E(1) and the committee to be constituted for selection of teachers is the one provided in Section 16FF consisting of the head of the institution and nominees of the management. All vacancies on the post of teacher in a minority institution, whether arising by death or retirement or otherwise, have to be filled up according to this procedure of Section 16FF. The application of Regulations 103 to 107 to a minority institution would have the consequence that the vacancies on post of L.T. grade teachers or other employee of Class III and IV can be filled up by the special procedure in the Regulations by appointment of the nominee of the District Inspector of Schools selected by the committee constituted under Regulation 105 in which the management is not represented at all. As the Regulations carve out an exception to the procedure provided under Section 16E and Section 16FF, the Regulations being subordinate must yield to the Act. These regulations are, therefore, ultra vires Section 16E and Section 16FF of the Act in the matter of appointment of teachers. In Nabi Ahmad v. Manager, Emjay High School, AIR 1999 SC 5O, the Supreme Court emphasised the importance of the freedom of the management of a minority institution to choose the head master. Para 28 of the judgment of the Apex Court is quoted below :

(2) The selection committee constituted under Regulation 105 is not only different from that envisaged under Section 16FF but consists of no representative of the management.

(3) In the field covered by the Regulations 103 to 107, the management has no choice in appointment of teachers or other staff and is bound to make appointment of the nominee of the District Inspector of Schools.

(4) The Regulations are also ultra vires Section 16E read with Section 16FF in the matter of appointment of teachers.