Allahabad High Court Large Bench Constituted for Minority School LT Grade Teacher Recruitment Case
Minority Institution -
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 15/3/2013
Delivered on 26/4/2013
Case :- WRIT - A No. - 56673 of 2009
Petitioner :- C/M Swami Lila Shah Adarsh Sindhi Inter College & Anr
Respondent :- State Of U.P. & Others
Petitioner Counsel :- K.P. Shukla,Anurag Shukla
Respondent Counsel :- C.S.C.,R.N.Sharma
Hon'ble Ashok Bhushan,J.
Hon'ble A.P. Sahi,J.
(Delivered by Hon'ble Ashok Bhushan,J)
This Division Bench has been constituted by order of Hon'ble the Chief Justice dated 24/11/2009, to answer the following three questions framed by one of us (A.P. Sahi,J).
1. Whether the institution claiming itself to be a minority institution and acknowledged as such by the State Government is entitled to not to consider the claim of promotion of teachers of the primary section of Intermediate Colleges claiming promotion under the Government Order dated 25.11.2005 whereby 25% quota is reserved in their favour, on the ground that it offends Article 30 of the Constitution of India.
2. Whether the law laid down in the case of M.B. Lal Vs District Inspector of Schools case (supra) and in the case of Committee of Management, Sri Kund Kund Jain Inter College, Muzaffarnagar Vs. State of U.P. & others reported in [2006 (3) E.S.C. 1528 (All)] requires reconsideration in view of the law laid down by the Apex Court in the case of Kolawana Gram Vikas Kendra case Vs State of Gujrat & others with Civil Appeal Nos. 7624-7625/04 decided on 20.10.2009.
3. Whether the provisions relating to promotion in respect of teachers of Intermediate College can be treated to be regulatory in nature, keeping in view, the law laid down in the case of Management Committee of M.M. Inter College, Chandpur, District Bijnor Vs Deputy Director of Education, IIIrd Region, Bereilly and others reported in 1984 (1) U.P.L.B.E.C., page 271, and they do not offend Article 30 of the Constitution of India.
Brief facts of the case which necessitated this reference are:
Swami Lila Shah Adarsh Sindhi Inter College, Charbagh, Shahganj, Agra, is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921, "hereinafter referred to as the "Act, 1921". The institution is receiving grant-in-aid from the State Government up to High School. The institution has been recognized as minority institution vide Government Order dated 09/6/2004. There are 8 vacancies of L.T. Grade teacher in the institution. The Committee of Management vide letter dated 14/11/2007, requested the District Inspector of Schools, Agra to accord permission to fill up vacant posts of L.T. Grade teachers.
The District Inspector of Schools, vide letter dated 21/11/2007, raised certain queries. Petitioners claim to have replied the querries. The institution issued an advertisement in the Newspaper "Dainik Jagran" dated 25/7/2009, inviting applications for filling up Eight posts of L.T. Grade Assistant Teacher by direct recruitment. The District Inspector of Schools, raised an objection on 27/8/2009, informing the institution that according to the Government Order dated 25/11/2005, the Assistant Teachers working in the primary institution are entitled for promotion to the extent of 25% promotion quota and the proceedings initiated by the Committee of Management for direct recruitment is contrary to the said Government Order. The Committee of Management replied the said letter informing that the institution is a minority institution which is empowered to recruit the teachers in the institution. The District Inspector of Schools, subsequently passed an order on 19/10/2009, asking the Committee of Management to desist from holding the interview for appointment on the post of Assistant Teachers scheduled to take place on 20/10/2009. The petitioners' which is a Committee of Management of the Institution has filed this writ petition praying for following reliefs:
"a) issue a writ order or direction in the nature of CERTIORARI quashing the impugned order dated 19.10.2009 passed by the District Inspector of Schools, Agra (Annexure No. 13 to the writ petition).
b) issue a writ order or direction in the nature of MANDAMUS commanding the District Inspector of Schools, Agra not to interfere in the selection process of L.T. grade teacher initiated by the Committee of Management of Committee of Management of Swami Lila Shah Adarsh Sindhi Inter College, Charbagh, Shahganj, Agra.
c) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
d) award cost of the writ petition in favour of the petitioners."
When writ petition was heard by the learned Single Judge on 29/10/2009, the learned counsel for the petitioners had placed reliance on the judgment of a learned Single Judge of this Court in Committee of Management, Sri. Kund- Kund Jain Inter College, Muzaffarnagar Vs. State of U.P. & Ors, 2006 (3) E.S.C 1528 (All). Learned Standing Counsel had placed reliance on the judgment of the Apex Court in Kolawana Gram Vikas Kendra Vs. State of Gujarat & Ors, (2010) 1 SCC 133.
The petitioners claim in the writ petition that they have a right to fill up the post of Assistant Teachers which right is protected under Article 30 of the Constitution of India. The Division Bench judgment dated 31/8/1984, passed in Writ Petition No.9776/1984, N.B. Lal Vs. District Inspector of Schools, & Ors, was also noticed by the learned Single Judge, which had occasion to consider the Regulation 5 of Chapter II framed under the Act, 1921. The Division Bench had taken the view that Regulation 5 of Chapter II of the Act, 1921 having been not specifically made applicable to the minority institution, the teachers cannot claim any right for promotion.
Learned Single Judge has also noticed the judgment of this Court in Management Committee of M.M. Inter College, Chandpur, District Bijnor Vs. Deputy Director of Education,IIIrd Region, Bareilly & Ors, 1984 (1) U.P.L.B.E.C, 271, in which a learned Single Judge of this Court had taken the view that the Regulations framed under the Act, 1921 being regulatory in nature shall also be applicable on the minority institution. In view of the above submissions and contrary view taken by the different judgments of this Court, three questions as noted above have been referred.
We have heard Shri K.P. Shukla, learned counsel for the petitioners, Shri Alok Dwivedi has appeared on behalf of the respondent nos.4 and 5 and the learned Standing Counsel has appeared for the State respondents.
Shri K.P. Shukla, learned counsel for the petitioners submitted that the institution being the minority institution, the Committee of Management has right to make selection on the post of teachers of the institution and the teachers of the primary institution have no right to claim promotion against the 25% quota. He submitted that the Division Bench judgment of this Court in N.B. Lal's case (supra) is clearly applicable on the facts of the present case. He submitted that the Division Bench in N.B. Lal's case (supra) has held that the provisions of Regulation 5 of Chapter II which required 40% posts of L.T. Grade Teachers to be filled up by promotion from C.T. Grade is not applicable to the minority institution. He submits that the same analogy applies to the issue raised in the present case and the District Inspector of Schools has no jurisdiction and authority to stop the Management from proceeding to fill up all the vacant posts of Assistant Teachers by direct recruitment. He has further placed reliance on another judgment of the learned Single Judge in Committee of Management, Shri Kund Kund Jain Inter College, (supra) where the learned Single Judge of this Court has following the judgment of Division Bench in N.B. Lal's case (supra) has held that in a minority institution teachers cannot claim promotion.
Learned counsel for the petitioners apart from placing reliance on the judgment of the Division Bench in N.B. Lal's case (supra) and judgment of this Court in Committee of Management, Shri Kund Kund Jain Inter College, (supra) has placed reliance on the Apex Court judgment in Yunis Ali Sha Vs. Mohamed Abdul Kalam, 1999 (3) SCC 676 and N.Ammad Vs. Manager, Emjay High School & Ors 1999, LLJ Supplement 3, 1470, Brahmo Samaj Education Society & Ors Vs. State of West Bengal & Ors, AIR 2004, SC 3358, Secy., Malankara Syrian Catholic College Vs. T. Jose & Ors, (2007) 1 SCC 386 and the judgment of the Apex Court in Sindhi Education Society & Anr. Vs. Chief Secretary, Government of NCT of Delhi & Ors, 2010 (8) SCC 49.
Learned Standing Counsel as well as Shri Alok Dwivedi appearing for the respondents refuting the submissions of the learned counsel for the petitioners contended that requirement of promoting 25% teachers of primary institution to L.T. Grade post is a measure providing for service conditions of teachers which advances the good administration in the institution and in no manner violates the rights of the minority institution. It is submitted that the State is fully empowered to make regulations in the institution receiving aid from the State Government and no exception can be taken to the regulations which are regulatory in nature and does not offend any right of Committee of Management. It is submitted that right to affect promotion is still with the Committee of Management and the right to make selection is not impaired by the regulation.
Learned Standing Counsel has placed reliance on the judgment of this Court in Smt. Beenish Jalal Vs. Joint Director of Education, Azamgarh Region & Ors, 2010 (6) ADJ, 849 and Committee of Management, National Inter College & Ors. Vs. State of U.P. & Ors, 2012 (6) ADJ, 741.
Before we proceed to consider the rival submission of the learned counsel for the petitioners, it is useful to note the statutory scheme of the Act, 1921 and the regulations framed thereunder.
Act, 1921, was enacted for the establishment of a Board of High School and Intermediate Education for regulating and supervising the system of the High School of Uttar Pradesh. The provisions of the Act, 1921 were amended by U.P. Act No.26 of 1975.
Section 16-FF was inserted which provided for constituting Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution. Section 16-FF is quoted below:
"16-FF. Savings as to minority institutions.-(1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management:
Provided that one of the members of the Selection Committee shall-
(a) in the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the Institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless-
(a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final."
Section 16-FF sub-clause (4) uses the phrase "person selected possesses minimum qualification prescribed and is otherwise eligible". The word "prescribed" has been defined in Section 2(c) of the Act, 1921 as "( c ) "Prescribed" means prescribed by Regulations".
Minimum qualifications for appointment of Head of the Institution and Teachers has been prescribed in Chapter II Regulation 1, thus Chapter II Regulation 1 has to be read for finding out the minimum qualifications prescribed.
Chapter II contains various provisions for appointment of teachers, filling up of temporary vacancies, seniority of teachers, promotion and the procedure for holding selection.
Regulation 17 provides for procedure for filling up the vacancy of the head of the institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF. Thus, Regulation 17, is a procedure prescribed for the recruitment of teachers of the minority institution.
Regulation 17, sub-clause (a) provides "after the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager." The use of the words "the management has determined the number of vacancies to be filled up by direct recruitment" itself indicate the exercise by the management as to how much posts are to be filled up by direct recruitment and to how much posts are to be filled up by promotion. The aforesaid Regulation thus indicates that the posts are also to be filled up by promotion as well as by direct recruitment. Had the legislature intended that all the posts are to be filled up by direct recruitment, the wordings of Regulation 17(a) would have been not in the above manner. The provisions of the Act, 1921 and the Regulations apply to the minority institution, and wherever some special provisions or procedures in variance with general provisions is required to be mentioned the same has been mentioned in the Regulations.
In Chapter III of the Regulations, there are several provisions pertaining to other service conditions of the employee which have to be applied to the teachers of the non minority institution as well as of the minority institution, although there is no specific reference in the regulations that they shall apply to the minority institution or not apply to the minority institution, for example, Regulation 46 provides that employees shall be allowed the scale of pay sanctioned by the State Government from time to time. The scale of pay sanctioned by the State Government has to be paid to the teachers of the minority institution as well as of the non-minority institution, although there is no indication in the said regulations that they are specifically applicable to the minority institution. It is useful to quote Regulations 46 to 50 of Chapter III which are as follows:
"46. Employees shall be allowed the scale of pay sanctioned by the State Government from time to time.
47. The pay of an employee on his first joining service in an institution shall be fixed at the initial stage of the time-scale attaching to his post:
Provided that if he has served previously in another institution and earned increments, he may be given the benefit of such increments under conditions laid down by Government or the regulations:
Provided further that advance increments may be allowed in special cases with the prior approval of Government.
48. A promotion to a higher post and the initial pay of an employee will be fixed at the minimum of the new scale if his pay is less than his minimum otherwise at the stage of the new time-scale next above his pay.
49. The Committee will pay the salary of an employee for a month by the 15th day of the following month.
50.The payment of salary will be made in cash or by cheque. If an employee desires regular payment to be made by cheque instead of in cash necessary arrangements shall be made by the Committee, provided banking facilities are locally available. On receiving his salary by cheque or in cash, the employee shall sign the acquaintance roll duly stamped (if necessary), in token of such payment."
Article 30 of the Constitution provides all minorities, shall have the right to establish and administer educational institutions of their choice. Article 30 of the Constitution had been the subject mater of discussion and interpretation before the Apex Court in several judgments beginning from the Constitution Bench judgment in Re:Kerala Education Bill AIR 1958 SC 956.
A Nine Judges' Bench in The Ahmedabad St. Xaviers Society & Anr. Vs. State of Gujarat & Anr, (1974) 1 SCC 717, had occasion to consider the ambit and scope of Article 30 of the Constitution. It is useful to quote paragraph 30 of the said judgment where the Apex Court held that in the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. It was held that the right to administer is to be tempered with regulatory measures to facilitate smooth administration. Following was laid down in paragraph 30:
"30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline: between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the, common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The, qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions, to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectic in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or Proclaim its minority character."
Yunis Ali Sha (supra) was a case where the Apex Court held that the Managing Committee of the institution was entitled to terminate the services of the teachers without obtaining prior approval of the Director or Inspector of Schools. There cannot be any quarrel to the proposition as laid down in the said case.
In N. Ammad (supra), it was claimed that the senior most available person cannot claim appointment as a Head Master as per Rule 44 (1) of Kerala Education Rules. The Apex Court held that the post of Principal of a College is a pivotal post in the institution and the Management has right to choose a qualified person as a Head Master of the School which right is well protected under Article 30 of the Constitution of India. In the said case following was laid down in paragraphs 28 and 29:
"28. Thus the management's right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void.
29. In the present case, nobody has alleged that 4th respondent does not possess the qualifications prescribed for the post of Headmaster. If that is the position, management has the right and freedom to appoint him as the Headmaster of the school whether it is by brining him down from another school or even from outside the State. We therefore concur with the conclusion of the Division Bench of the High Court in the impugned Judgment and dismiss these appeals."
The Eleven Judges Bench in T.M.A. Pai Foundation & Ors Vs. State of Karnataka & Ors, 2002 (8) SCC 481, had again occasion to consider the scope and ambit of Article 30 of the Constitution. The Apex Court in the said case has framed various questions. One of the question 5(c) which is relevant in the present case was also framed. It is useful to quote paragraphs 136, 137 and also paragraph 161 in which the Answer to question 5(c) is given, which are as under:
"136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also -- for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. 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).
161. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.
ANSWERS TO ELEVEN QUESTIONS:
Q.1. ...............
Q.2. ...............
Q.3..................
Q.4 .................
Q5(a)................
Q5(b)................
Q5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principal including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the mater of day-to- day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."
The next judgment relied on by the counsel for the petitioners is the case of Brahmo Samaj Education Society & Ors (supra), in which following was laid down in paragraph 7.
"7.But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T M A Pai (cited supra at page 551, paragraph 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorized accredited States to conduct State Level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification of a teacher. Petitioner's right to administer includes the right to appoint teachers of its choice among the NET/SLET qualified candidates."
In Islamic Academy of Education & Anr Vs. State of Karnataka & Ors, (2003) 6 SCC, 697, a Five Judges Bench had again considered the issue of Article 30 of the Constitution and the Apex Court had occasion to consider the exception of regulatory measure which can be enforced against a minority institution. Paragraphs 121, 122 and 123 which are relevant is quoted below:
"121. The right to administer does not amount to the right to maladminister and the right is not free from regulation. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions.
Extent of Regulations :
122. Article 30(1) of the Constitution does not confer an absolute right. The exercise of such right is subject to permissible State regulations with an eye on preventing maladministration. Broadly stated there are "permissible regulations" and "impermissible regulations".
123. Some of the permissible regulations/restrictions governing enjoyment of Article 30(1) of the Constitution are:
(i) Guidelines for the efficiency and excellence of educational standards (See Sidhajbhai v. State of Gujarat; State of Kerala v. Mother Provincial, (1970) 2 SCC 2079; All Saints High School v. Government of Andhra Pradesh, :
(ii) Regulations ensuring the security of the services of the teachers or other employees [see Re Kerala Education Bill, 1957, Re and All Saints High School v. Government of A.P. (supra) ;
(iii) Introduction of an outside authority or controlling voice in the matter of service conditions of employees (See All Saints High School v. Government of A.P.);
(iv) Framing Rules and Regulations governing the conditions of service of teachers and employees and their pay and allowances (See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra).
(v) Appointing a high official with authority and guidance to oversee, that Rules regarding conditions of service are not violated, but, however such an authority should not be given blanket, uncanalised and arbitrary powers (See All Saints High School v. Government of Andhra Pradesh (supra);
(vi) Prescribing courses of study or syllabi or the nature of books (see State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P).
(vii) Regulation in the interest of efficiency of instruction, discipline, health sanitation, morality, public order and the like (see Sidhajbahi v. State of Gujarat (supra)]"
Reliance has been placed by the learned counsel for the petitioners on the judgment of the Apex Court in Sindhi Education Society & Anr Vs. Chief Secretary, Government of NCT of Delhi & Ors, (2010) 8 SCC 49. The Apex Court in the said judgment had also laid down that regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees. It is useful to extract following observations made in paragraphs 94, 97 and 111:
"94.It is also equally true that the right to administer does not amount to the right to maladminister and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent maladministration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books etc. Some of the impermissible regulations are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the governing body or the managing committee of minority institution to conduct its affairs etc. These have been illustrated by this Court in State of Kerala v. Very Rev. Mother Provincial [1970) 2 SCC 417, All Saints High School v. Govt. of A.P. [(1980) 2 SCC 478] and T.M.A. Pai's case (supra).
97. It is not necessary for us to examine the extent of power to make regulations, which can be enforced against linguistic minority institutions, as we have already discussed the same in the earlier part of the judgment. No doubt, right conferred on minorities under Article 30 is only to ensure equality with the majority but, at the same time, what protection is available to them and what right is granted to them under Article 30 of the Constitution cannot be diluted or impaired on the pretext of framing of regulations in exercise of its statutory powers by the State. The permissible regulations, as afore-indicated, can always be framed and where there is a maladministration or even where a minority linguistic or religious school is being run against the public or national interest, appropriate steps can be taken by the authorities including closure but in accordance with law. The minimum qualifications, experience, other criteria for making appointments etc are the matters which will fall squarely within the power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unenforceable.
111. A linguistic minority has constitution and character of its own. A provision of law or a Circular, which would be enforced against the general class, may not be enforceable with the same rigors against the minority institution, particularly where it relates to establishment and management of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration."
The judgment of the Apex Court in Secy. Malankara Syrian Catholic College (supra) has also been relied on by the learned counsel for the petitioners. In the said case, the provision of Section 57(3) of the Kerala University Act, 1974 came up for consideration which provided that the post of Principal when vacant is to be filled up by promotion on the basis of seniority-cum-fitness. The said provision was challenged that it offends the right of the institution to make appointment on the post of Principal. In the said case, the Apex Court had taken note of its earlier judgments explaining the scope and ambit of Article 30 of the Constitution and laid down that regulatory measures can be provided by the State regulating the service conditions of the employees without interfering with the overall administration and control of the Management over the staff. Following was laid down in paragraphs 19 and 21:
"19. The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights :
a) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
b) To appoint teaching staff (Teachers/Lecturers and Head-masters/Principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;
c) To admit eligible students of their choice and to set up a reasonable fee structure;
d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.
(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).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational procedure of selection.
(v) Extention of aid by the State, does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).
21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystalised in T.M.A. Pai. The State can prescribe:
(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff.
(iii) a mechanism for redressal of the grievances of the employees,
(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.
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."
On the question as to whether Section 57 (3) of the Kerala University Act, 1974 interferes with the right of the management, referring to its several earlier judgments the Court held that the management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. Following was laid down in paragraphs 28 and 29:
"28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions.
29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided."
The last judgment which needs consideration and which has been referred to is the Kolawana Gram Vikas Kendra (supra). In the said case, the institution was receiving 100% government grant. The question arose as to whether the prior approval from the State Government/competent authority required as per the Government Circular before appointment of a candidate is infringement of right under Article 30 of the Constitution. The circular was upheld holding that the said does not offend the right of minority under Article 30 of the Constitution. Following was laid down in paragraph 7:
"7. From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the frame work of the rules considering the workload and the availability of the post in that institution and, secondly; whether the selected candidates had the necessary qualifications for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also."
In view of the ratio laid down by the Apex Court in the abovenoted cases, it is clear that regulations can be made and applied to a minority institution receiving grant-in-aid by the State Government provided those regulations do not impinge the right of the minorities which are protected under Article 30 of the Constitution. The regulations which are regulatory in nature and advances the efficient administration by the minority institution have been held to be valid. The regulations providing service conditions of the teachers have also been held to be permissible regulations provided they do not interfere with the choice of the management to choose a teacher who fulfills the qualification.
In the present case, the question is as to whether the provision providing of filling of 25% of the post by promotion of teachers working in the primary institution impinge upon the rights of the candidates under Article 30 of the Constitution. The case of the petitioners is that they are entitled to fill up all the posts by direct recruitment and filling up the post by direct recruitment is a part of the right guaranteed under Article 30 of the Constitution of India.
We are of the view that providing 25% posts to be filled up by promotion of primary teachers of the primary institution is a regulation providing service conditions of the teachers and is a provision providing avenue for promotion to the primary teachers so that they may not stagnate nor they feel frustrated by not getting a career advancement, providing beneficial service conditions to the teachers of the minority institution is with the object of better administration and cannot be said to take away any right of Management. The question as to whether teachers are entitled to be promoted or whether they are fit to be promoted is again in the domain of the Management who is to affect promotion. It cannot be held that the Management has right to make appointment only by direct recruitment on all the posts, permitting the management to make appointment on all the posts by direct recruitment only shall breed discontent in the existing teachers who look forward for such conditions of service which may provide for career advancement so that they may feel contended and give their best to the students.
The Division Bench judgment in N.B. Lal's case (supra) had considered Regulation 5 of Chapter II. The Division Bench in the said case held that the said provision is not applicable to the minority institution since the said provision has not been specifically applied to the minority institution. It is useful to quote the Division Bench judgment which is to the following effect:
"Having heard learned counsel for the petitioner we find no merit in this petition.
The petition is liable to be dismissed on a short ground. Admittedly the institution of which the petitioner is a teacher is a minority institution. To such an institution the provisions of U.P. Secondary Education Services Commission and Selection Boards Act do not apply. Neither does Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act apply to such an institution as the same has not been made applicable to a minority institution.
Learned counsel for the petitioner submitted that as the procedure for selection of teachers even of minority institutions has been laid down under Section 16FF of the Intermediate Education Act, it implies that in regard to the minority institutions also the quota of 40 percent reserved for promotees contemplated under Regulation-5 aforesaid shall be maintained.
We do not agree with this contention. To a minority institution which is protected under Article 30 of the Constitution, such a restriction cannot be read by implication. In our opinion the mere fact that the procedure prescribed for selection is the same or similar to that applicable to other institutions cannot automatically bring in Regulation 5 of Chapter II. This provision not having been specifically applied to minority institution the petitioner cannot base any claim thereon.
Learned counsel for the petitioner next contended that the right to promotion under Regulation 5 against the 40 percent quota was a condition of the petitioner's services and therefore, Regulation 5 should be deemed to be applicable to minority institutions also. As Regulation 5 does not apply to a minority institution, it cannot be treated as forming part of the petitioner's conditions of service. A minority institution enjoys complete autonomy in respect of selections and appointment of teachers except to the extent specially restricted by the Intermediate Education Act. In the scheme of that Act we find nothing which may have taken away the right of a minority institution to fill in the posts of teachers by direct recruitment regardless of the restrictions imposed as regards the quota of promotees contemplated in Regulation 5.
The petition is accordingly dismissed summarily."
In the above case the Division Bench held that Regulation 5 of Chapter II not to be applicable to minority institution only on the ground that the said regulation has not been made specifically applicable to the minority institution.
We have already noted the scheme of the Act, 1921 and the Regulations framed thereunder. There are several provisions in the Regulations which have not been specifically made applicable to the minority institution, but they are applicable to the minority institution. In fact, in the Act, 1921 apart from the provisions providing for constitution of the Selection Committee for minority institution there are no other provisions which have been made specifically applicable to the minority institution.
Section 16-G sub-section (1) of the Act, 1921 provides that every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by Regulations. Section 16G sub-section (1) is quoted below:
"16-G. Conditions of service of Head of Institutions, teachers and other employees.-(1) Every person employed in a recognized institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is consistent with the provisions of this Act or with the Regulations shall be void."
Regulations have been framed governing service conditions of teachers in Chapter II and III. Under Chapter II where the provisions are not made applicable to the minority institution an exception has been enacted in the provision itself, for example, Chapter II Regulation 2 sub-regulation (1) provides that a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding 6 months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of the Head of Institution shall be filled by the promotion of the senior most qualified teacher. The said provision further clearly indicates that the provision is not applicable to the institution referred to in Section 16-FF.
Regulation II proviso 1 is quoted below:
"2.(1) The post of the Head of Institution shall except as provided in clause (2) be filed by direct recruitment after reference to the Selection Committee constituted under sub-section (1) of Section 16-F or, as the case may be, under sub-section (1) of Section 16-FF:
Provided that in the case of any institution not being an institution referred to in Section 16-FF a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding 6 months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of the Head of Institution shall be filled by the promotion of the senior most qualified teacher, if any, in the highest grade in the institution."
As observed above, Regulation 17 sub-clause (a) uses the phrase "after the management has determined the number of vacancies to be filled up by direct recruitment" which clearly inheres an idea that there has to be determination as to how many posts are to be filled up by direct recruitment and how many posts are to be filled up by promotion. There is nothing in Regulation 5 Chapter II which provides for promotion to indicate that the provision is not applicable to the minority institution.
The observation of the Division Bench in N.B. Lal's case (supra) that Chapter II Regulation 5 has not been specifically made applicable to the minority institution thus needs a reconsideration since there are several provisions in the Regulations which have not been made applicable specifically to a minority institution, but they are applicable for example Regulations 44 to 48.
The Division Bench in N.B. Lal's case (supra) has not referred to any other reason for not applying Chapter II Regulation 5. We are of the view that the said Division Bench judgment needs reconsideration specially in view of the law laid down by the Apex Court in its several judgments as noted above that Regulations can be enforced against the minority institutions which relate to the conditions of service and which are beneficial to the teachers and promote excellence.
The judgment of the learned Single Judge in Committee of Management, Sri Kund Kund Jain Inter College (supra) relies on N.B. Lal's case (supra), we having taken the view that the N.B. Lal's case itself needs reconsideration, the said judgment cannot be said to be lay down good law. The learned Single judge in Management Committee of M.M. Inter College (supra) while considering Regulations 35 to 37 providing for procedure to conduct disciplinary proceedings against a teacher held that the said regulations are regulatory in nature and does not offend Article 30 of the Constitution. Following was laid down in paragraphs 12 and 13:
"12. The question remains still whether the Managing Committee can claim to have acted in accordance with law, despite the failure to observe the provision contained in Regulations 35 to 37, referred to above. Despite the order of the appellate authority being ignored, the dismissal of the respondent no.3 from service may not be upheld until it were to be found that the action taken by the Managing Committee was in conformity with the mandatory requirements of law. The provision contained in Regulations 35 to 37 is designed to carry out the requirement of section 16-G (1)/(2) in so far as these Regulations prescribe the conditions and the procedure under which the punishment may be imposed. Faced with this, Sri Zaidi urged that these Regulations be held ultra vires Article 39 (1) of the Constitution. This argument has merely to be stated and rejected. The regulatory power of the Legislature has been upheld in relation to the educational institutions established and administered by religious and linguistic minorities. The validity of section 51-A(1) (a) of the Gujarat University Act, 1949, which makes provisions for giving a reasonable opportunity of showing cause against a penalty to be proposed on a member of the staff of an educational institution was held to be valid in the Ahmadabad St. Xavier's College Society and anothers case (supra). The provision therein is that no member of the staff (including a teacher) shall be dismissed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges and until he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him. The provision thus is in pari materia with that contained in Regulations 35, 36 and 37. In paragraph 105 of that case Khanna,J observed:-
Although disciplinary control over the teachers of a minority educational institution would be with the governing council regulations, in my opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amongst the teachers. Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate Article 30 (1).
13. This was affirmed also in the subsequent decisions in Lily Kurien v. St. Lewina and others (supra): Gandhi Faize-Am College case (supra). The provision contained in Regulations 35 to 37 being regulatory in the character and intended to ensure fairness in procedure incorporating the essential features of natural justice in matters of imposition of punishment may not be regarded as contravening Article 30(1) of the Constitution. Sri Zaidi argued also that there is no authority provided to revise or sit in appeal over the decision arrived at by the Managing Committee. This cannot be made a basis to contend that this Court does not have the power to interfere in exercise of the jurisdiction under Article 226 of the Constitution where it is found that the Managing Committee has acted illegally and exercised jurisdiction not conferred under the Act."
The judgment of the learned Single Judge in the case of Smt. Beenish Jalal (supra) has taken the view that the prescription of quota for promotion does not infringe the right of the Management to make appointment inasmuch the power to appoint continuous with the Management. Following was laid down in paragraphs 7 and 12:
"7.Posts in aided minorities institutions are created under Section 9 of U.P. Act No. 24 of 1971 under orders of the Director of Education. It is in respect of these posts alone that the State has taken the responsibility to make payment of salary. The power to frame the regulations flows from Section 9 of Intermediate Education Act. The Regulation 5 which provides for 50% seats to be filled up by way of promotion has been so framed in exercise of statutory powers. Such prescription of quota for promotion does not infringe the right of the Management to make appointment inasmuch as the power to appoint continuous with the Management. Only the matter of selecting the candidates has been restrained for the purpose of appointment through promotion to 50% of total cadre strength.
12.This Court, therefore, hold that the right of minority institution to offer appointment by way of promotion against 50% of the total cadre posts does not infringes the constitutional right guaranteed under Article 30 of the Constitution of India. Challenge made to the validity of Regulation 5 is, therefore, repelled. Since 50% of the posts have already been filed by promotion no relief can be granted.
The writ petition is dismissed."
The Division Bench judgment in Committee of Management, National Inter College and Ors Vs. State of U.P. & Ors, 2012 (6) ADJ 741, held that the provision for making appointment on compassionate ground of a teacher who dies in harness of a minority institution is a provision providing a better condition of service to the teachers of minority institution and does not infringe the right under Article 30 of the Constitution of India.
In view of the foregoing discussions, we are of the view that the Division Bench judgment in N.B. Lal Vs. District Inspector of Schools & Ors., Writ Petition No.9776/1984, decided on 31/8/1984 needs to be referred to a larger Bench to examine as to whether the said judgment lays down the correct law or not.
The following questions need to be referred to be answered by a Full Bench.
(1) Whether the law laid down in the case of N.B. Lal Vs. District Inspector of Schools (supra) that provisions of Chapter II Regulation 5 providing for filling up 50% post by promotion of Assistant Teacher violates the right of minority institution guaranteed under Article 30 of the Constitution.
(2) Whether the institution claiming itself to be a minority institution and acknowledged as such by the State Government is entitled to not to consider the claim of promotion of teachers of the primary section of Intermediate Colleges claiming promotion under the Government Order dated 25.11.2005 whereby 25% quota is reserved in their favour, on the ground that it offends Article 30 of the Constitution of India.
(3) Whether the provisions relating to promotion in respect of teachers of Intermediate College contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, can be treated to be regulatory in nature, not violative of rights under Article 30 of the Constitution of India.
Let this order be placed before the Hon'ble the Chief Justice for constituting a larger bench for consideration of the questions as framed above.
Order Date :-26.4.2013
SB
Court No. 9
Civil Misc. Writ Petition No. 56673 of 2009
C/M, Swami Lila Shah Adarsh Sindhi Inter College, Charbagh, Shahganj, Agra & Another
Vs.
State of U.P. & Others
*****
Hon'ble Ashok Bhushan, J.
Hon'ble A.P. Sahi, J.
(Delivered by Hon'ble A.P. Sahi, J.)
I entirely agree with the issues framed and the reasons in support thereof for referring the matter to a larger bench as reasoned out by my esteemed colleague Hon'ble Mr. Justice Ashok Bhushan. However, I would humbly further add to the reasons in support of the reference keeping in view the intricate involvement of the issue of interplay of fundamental rights guaranteed under the Constitution.
Whether a teacher, employed for teaching Primary and Junior Classes in an Intermediate College, governed by the provisions of the U.P. Intermediate Education Act, 1921 and recognized as a minority institution, can seek promotion in the next higher grade under the 25% promotion quota envisaged by the Government Order dated 25.11.2005, is the doubt that is to be resolved through a further reference to a larger bench.
The background in which this problem is posed for a discussion can be better understood with reference to the provisions for promotion of teachers under the 1921 Act. At the outset it would be appropriate to clearly point out that there is a separate provision for appointment of teachers in a minority institution. The Section is 16-FF coupled with the Regulation 17 framed for the said purpose. These provisions do not make any recital about promotion or a quota meant for the same. On the other hand, Regulation 5 of Chapter II provides for 50% promotion quota to be filled up accordingly from amongst eligible teachers which of course does not draw any distinction between minority and non-minority institutions. This provision has also been engrafted in the U.P. Secondary Education Services Selection Boards Act, 1982 which at present covers the field. The minority institutions are however totally exempt from the applicability of the 1982 Act. Thus, so far as minority institutions are concerned, they continue to be governed by the Act of 1921.
The present case arises out of a claim by teachers of the institution which professes itself to be an institution established and administered by the "Sindhi" minority community. The said status has been disputed in the counter affidavit filed by the teachers on the ground that the status is founded on the strength of a Government Order dated 9.6.2004 which has been annulled in relation to another institution which decision is reported in 2006 (8) ADJ Pg. 109 C/M Inter College Dharaon, Chandauli Vs. State. A special appeal no. 903 of 2006 against the same has also been dismissed. We are however not entering into this question as it is neither a point of reference nor has the government order in relation to this institution been challenged. It is however undisputed between the parties that the institution is receiving full grant-in-aid from State funds for payment of salary against sanctioned posts, which includes the promotional posts in question.
The legal tangle emanates on account of a somewhat limited view expressed by a division bench in the case of N.B. Lal Vs. District Inspector of Schools and others, writ petition no. 9776 of 1984 decided on 31.8.1984. The claim of a teacher to get promoted in a higher grade in a minority institution was repelled on the ground that the provisions of Chapter II Regulation 5 as it then existed providing for 40% promotion quota did not apply to minority institutions which are exempted under the 1921 Act. It was held that there are separate provisions for minority institution to which such quota does not apply. Thus in the absence of any legislative intent, it was held that such a claim has to be negatived and the petition was accordingly dismissed. This decision has been followed in the case of C/M Kund Kund Jain Inter College Vs. State reported in 2006 (3) ESC Pg. 1528. According to these pronouncements, the restriction on appointments through direct recruitment in minority institution by way of a promotion quota do not apply. There is however a detailed discussion in the case of C/M Kund Kund Jain (supra) on the protection under Article 30 of the Constitution of India.
In the aforesaid backdrop, the same logic on the basis of the ratio of the abovementioned decisions, is pressed into service in the present case which involves the claim of promotion, though under a different provision of the government order dated 25.11.2005. It is not necessary at this stage to entail the procedure of promotion under 25% quota of the abovementioned G.O., as the moot question is as to whether the right of the management of a State aided minority institution is in any way impinged violating Article 30 of the Constitution of India by enforcing the provisions of promotion of a teacher from a lower to higher grade in the same institution.
Having perused the referring order and the decisions cited at the bar as well as the judgments mentioned above, it appears that the issue requires a reconsideration. This is also evident from the subsequent decisions of the apex court that have been relied on by Sri Shukla learned counsel for the management, Sri Dwivedi for the aggrieved teachers and the learned Standing Counsel for the State.
To make a provision for the promotion of a teacher to a higher grade in the same institution, which is State aided, can be treated to be regulatory without encroaching upon the right of the management to make an appointment of its own choice. The teacher, who is seeking promotion is within the same institution and his appointment as such did not offend Article 30 of the Constitution when he was inducted into the cadres of the institution. The management has a right to promote a teacher provided he is fit and eligible to be promoted. The teacher has a right to be considered but the ultimate authority to appoint is with the management. The management has the right to assess the fitness of a candidate for promotion which means fitness in all respects as indicated in the apex court decision in the case of Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another reported in (2000) 6 SCC 698.
This right to choose is not taken away from the management if the zone of consideration is limited to the teachers already appointed and available in the same institution. If their initial appointment did not offend the rights of the management, who chose them to be appointed, then it does not stand to any reason or rationale as to why the management cannot reconsider them at the time of promotion. As an illustration, a teacher teaching a particular subject, gets promoted and continues to teach the same subject in higher classes, the same by any logic does not affect the right of the minority or its status in any way. The decisions of the apex court as referred to in C/M Kund Kund Jain case (supra) are in relation to the Head of the Institution with which we are not concerned in this reference. This is not a dispute of promotion to the post of the Head of the Institution. The said decisions stand on a different footing as the appointment of the Head of the Institution also entails a large number of supervisory and administrative responsibilities.
The provision for promotion therefore regulates the appointment that does not restrict the right to appoint. The question is about the presence of a legislative intent to that effect. Any procedure that is not prohibited expressly cannot be said to be inapplicable unless it offends the statute or any fundamental right guaranteed under the Constitution. There is no such prohibition expressed or implied under the 1921 Act. The procedure being regulatory and for the benefit of teachers cannot offend Article 30 as has been held in a large number of decisions and explained clearly in the case of Secretary Malankara Syrian Catholic College Vs. T. Jose and others, 2007 (1) SCC Pg. 386. The latest decision in the case of Sindhi Education Society and another Vs. The Chief Secretary of Govt. of NCT Delhi and others, 2010 (8) SCC Pg. 49 also clarifies that regulatory measures can be enforced by the State including service conditions to secure the rights of employees. The imposition of a rule to appoint a class of persons or a particular person was only found to be arbitrary and unreasonable. The view expressed by a learned Single Judge in relation to regulations under the 1921 Act were held to be regulatory and not offending Article 30 of the Constitution reported in 1984 (1) U.P. L.B.E.C. Pg. 271 C/M M.M. Inter College Vs. Deputy Director of Education and others. A learned Single Judge in the case of Smt. Beenish Jalal Vs. Joint Director of Education, Azamgarh Region and others reported in 2010 (6) ADJ Pg. 849 has taken a view that runs counter to N.B. Lal's case, but without noticing it.
There is yet another aspect on the constitutional plane that has to be gone into and which is the fundamental question relating to the defence taken by the management of the institution. An employee under the general rules of service jurisprudence has a right to be considered for promotion which has been acknowledged as a fundamental right protected under Article 16 of the Constitution of India. Reference be had to the decision in the case of Ajit Singh and others Vs. State of Punjab and others reported in (1999) 7 SCC 209, paragraphs 22, 24 to 27. Promotion is a consideration for occupying a higher post as per rules on the basis of the qualifications so prescribed. The concept of promotion comes into picture only if a person has entered into a cadre strength of the organization. What is promotion has been explained by the apex court in the case of A.K. Subraman and others Vs. Union of India and others reported in (1975) 1 SCC 319, paragraph 22. If the right for consideration of promotion is a fundamental right then it has to be further examined as to whether this individual right in any way trenches upon the social protection guaranteed under Article 30 of the Constitution of India.
A full bench judgment of the Bombay High Court in the case of St. Francis De Sales Education Vs. State of Maharashtra and another reported in 2002 (1) BOM CR 650, while proceeding to assess these competing rights, one individual and the other in favour of the community at large, came to the conclusion that reservation in a minority institution would be in conflict with the positive fundamental rights and that the rule of reservation cannot be compulsorily enforced in a minority institution as it would violate Article 30 of the Constitution.
The said full bench judgment also in Para 32 held as follows:-
"32. Mr. Bhushan, learned Government Pleader, relied upon the observations of the Supreme Court in N. Ammad (supra) and sought to derive a negative proposition therefrom. He contended that in N. Amamd (supra) the Supreme Court has emphasised the right of a headmaster and taken a view that the appointment of a headmaster was an integral part of the power of management of the minority institution. Conversely, he contends that, with regard to other teachers, the situation would not be so. There are two difficulties in accepting the argument of the learned Counsel. In the first place, as observed by Lord Chancellor Halsbury in Qwinn v. Leathem H.L., (I) 1901 495, a judgment in an authority for what it decides and not for any proposition which may flow from it logically. As far as the judgment in N. Ammad (supra) is concerned, the Supreme Court was concerned only with the power of appointment of headmaster and not of other teachers. It is, therefore, not possible to accept that the Supreme Court has held in N. Ammad (supra) that with regard to other teachers, the power of appointment was not an integral facet of the guaranteed fundamental right under Article 30(1). Secondly, we are of the view that considering the reason why Article 30(1) has been enacted, the power of appointment of every teacher, from the junior most to the principal/headmaster, must be considered to be an integral facet of the power of administration of a minority institution guaranteed under Article 30(1). In this connection, we may point out that in St. Xaviers College (supra) the Supreme Court was considering a law which interfered with minorities choice of qualified teacher or its disciplinary control over the teachers and other staff and in terms observed that such a law would be void as violative of Article 30(1)."
However, while dealing with the catena of apex court decisions the full bench also in Para 25 summarized the law as follows:-
"25. Thus, we see that right from the Kerala Education Bill (supra) to Sidhrajbhai (supra) to St. Xaviers College (supra) to St. Stephen's College (supra), to N. Ammad (supra) the law has been enumerated to the following effect:-
(a) the fundamental right guaranteed under Article 30(1) is absolute and not subject to reasonable restrictions as under Article 19.
(b) Notwithstanding the absolute character of the fundamental right under Article 30(1), it is permissible for the State to make regulations in the interest of efficiency, instruction, discipline, health, sanitation, morality, public order and the like; such regulations are not restrictions on the substance of the right guaranteed by the constitution, but are intended to advance that right.
(c) the right of selection of the head of the minority education institution or teachers therein or the right of admission of students thereto is a facet of right to administer the minority educational institution. Consequently, any restriction thereupon would impinge on the fundamental right guaranteed under Article 30(1)."
The aforesaid pronouncement of the full bench of the Bombay High Court came to be considered by a Division Bench in the case of Hussain Khan Vs. Shah Babu Education Society decided on 26th April, 2006, reported in 2006 (4) BOM CR 726. The said case was a direct case of promotion to the post of Head Master under the rules and the conditions of service that was involved therein. The prayer made was to strike down the offending provisions that restricted the claim of promotion and the division bench was being persuaded to again refer the matter that was decided by the full bench in St. Francis case (supra) to a larger bench. This issue relating to the right to be considered for promotion was agitated by the employee on the ground that if his right of consideration is taken away, the same would offend Article 16 and also Article 14 of the Constitution. The division bench, however, did not find it necessary to refer the matter further as it was of the opinion that this claim of promotion to the post of Head Master would also be covered by the full bench decision and the ratio thereof as extracted hereinabove.
Thus it has to be seen that this conflict between an individual fundamental right and the larger absolute fundamental right guaranteed under Article 30 has to be read together in the context of the issue involved as the interplay of such rights guaranteed under Part III of the Constitution has to be harmonized without creating any constitutional imbalance.
In view of the nature of the dispute involved herein, what has to be seen is the extent of the regulatory power of the State in such matters. This aspect of competing fundamental rights has also not been traversed in the division bench judgment of N.B. Lal (supra), and therefore, the same also deserves to be adjudicated upon as there are other views available as indicated hereinabove.
Accordingly, for these additional reasons, the matter requires an authentic pronouncement upon a reconsideration of the view expressed in N.B. Lal's case (supra).
Date:- 26th April, 2013
Sahu
By The Court
In view of the above opinions expressed by us, following questions are referred to be answered by a Full Bench.
(1) Whether the law laid down in the case of N.B. Lal Vs. District Inspector of Schools (supra) that provisions of Chapter II Regulation 5 providing for filling up 50% post by promotion of Assistant Teacher violates the right of minority institution guaranteed under Article 30 of the Constitution.
(2) Whether the institution claiming itself to be a minority institution and acknowledged as such by the State Government is entitled to not to consider the claim of promotion of teachers of the primary section of Intermediate Colleges claiming promotion under the Government Order dated 25.11.2005 whereby 25% quota is reserved in their favour, on the ground that it offends Article 30 of the Constitution of India.
(3) Whether the provisions relating to promotion in respect of teachers of Intermediate College contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, can be treated to be regulatory in nature, not violative of rights under Article 30 of the Constitution of India.
Let this order be placed before the Hon'ble the Chief Justice for constituting a larger bench for consideration of the questions as framed above.
(Hon'ble A.P. Sahi,J) (Hon'ble Ashok Bhushan,J)
Order Date :-26.4.2013
SB
