C/M National Inter College And ... vs State Of U.P. And Others
2012 Latest Caselaw 2441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

High Court of Judicature at Allahabad
 

 
***********
 

 
A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 30670 of 2008
 

 
Petitioner :- C/M National Inter College And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- M.A. Khan,Ashok Khare
 
Respondent Counsel :- C.S.C.,I.R. Singh
 

 
Hon'ble Devi Prasad Singh,J.

1. This writ petition under Article 226 of the Constitution of India, has been preferred against the impugned orders dated 6.5.2008 and 16.6.2008 passed by the District Inspector of Schools, Varanasi contained in Annexure No.7 and 8 to the writ petition, granting compassionate appointment to the opposite party No.4 in the petitioner's Institution, a minority Institution duly recognized under the U.P. Intermediate Education Act, 1921 (in short 'the 1921 Act') and the regulations framed thereunder and also receiving grant-in-aid from the State Government.

The question involved in the writ petition is of public importance, as to whether, the minority educational institution protected under Article 30 of the Constitution of India, can be compelled by the authorities under the 1921 Act and the regulations framed thereunder, to make appointment on compassionate ground?

2. The petitioner No.1, is the Committee of Management of a recognized Intermediate College under the 1921 Act and receiving grant-in-aid from the State Government. Admittedly, it is governed by the provisions of the 1921 Act as well as the U.P. High Schools and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971 (in short 'the 1971 Act').

3. Admittedly, it is established and administered by the Muslim Minority Community and has been granted minority status by the Government. Being minority Institution, it is not governed by the U.P. Secondary Education (Service Selection Boards) Act, 1982. The appointment of teachers and staff is done by the Committee of management. The Institution namely, National Inter College, Pilikothi, Varanasi (in short 'the Institution'), impart education in pursuance of the curriculum of U.P. High School and Intermediate Board.

4. One Mohd. Yunus Ansari was a permanent Assistant Teacher in LT Grade of the Institution, who died in harness on 26.5.1998. The respondent No.4 Imtiyaz Ahmad Ansari, is the son of the deceased teacher Mohd. Yunus Ansari who died in harness on 26.5.1998.

The respondent No.4 possesses certificate of Bachelor of Arts, Bachelor of Education.

5. Shortly, after the death of Mohd. Yunus Ansari the deceased Assistant Teacher, the respondent No.4 submitted an application dated 15.6.1998 seeking compassionate appointment as an Assistant Clerk in the Institution. A copy of the application of the respondent No.4 is annexed to the writ petition as Annexure No.2. In the application moved, it has been mentioned that he was having certificate of Inter Mediate and appeared in the second year B.A. Examination from Kashi Vidyapeeth. It appears that instead of appointing the petitioner on compassionate ground, one Azhar Hasib was given appointment and the appointment was duly approved by the District Inspector of Schools, Varanasi, on 28.9.1998. On account of having no vacancy, the case of the opposite party No.4 could not be considered for appointment.

It appears that the opposite party No.4 when failed to get any response from the petitioner's Institution for compassionate appointment in spite of representation submitted for the purpose, he filed Civil Misc. Writ Petition No.56146 of 2007 which was decided by this Court, vide judgment and order dated 7.12.2007. The judgment and order dated 7.12.2007 is reproduced as under:

"Hon'ble Devi Prasad Singh, J.

The grievance of the petitioner is that the petitioner's father was Assistant Teacher in the National Inter College, Pili Kothi, Varanasi and died in harness on 26.5.1998 After his death petitioner applied for appointment from on compassionate ground. The petitioner's application has been kept pending by the respondents and it has not been decided till date. The petitioner also submitted representation to ventilate his grievance but has failed to get response.

Accordingly, the competent authority is directed to look into the matter and decide the representation a copy of which has been filed as Annexure No.7, 8 and 9 to the writ petition by passing a speaking and reasoned order within a period of two months from the date of receipt of a certified copy of this order and communicate the decision to the petitioner.

Subject to above direction, the writ petition is disposed of finally.

December 7, 2007"

6. The opposite party No.4 submitted a copy of aforesaid judgment along with the representation and in consequence thereof, the District Inspector of Schools, Varanasi, has invited the Committee of Management to clear its stand. The petitioner's Institution in response to it, informed the District Inspector of Schools, Varanasi, that in the Institution, there is no sanctioned post of trained teacher and the Committee of Management is not aware of the order passed by this Hon'ble Court.

7. Subject to aforesaid backdrop, the District Inspector of Schools, Varanasi, after inviting response from the petitioner's Institution, had considered the case of the opposite party No.4 and arrived at the conclusion that the opposite party No.4 is entitled for compassionate appointment. The District Inspector of Schools, Varanasi, noted that in spite of repeated letters sent to the petitioner's Institution, the petitioner's Institution has not responded to the query made by it. The Principal, vide his letter dated 2.1.2008 informed that since the opposite party No.4 has not pursued the matter and having no sanctioned post of the trained Assistant Teacher, he could not be appointed. However, from the report submitted by the Principal, the District Inspector of Schools, Varanasi, took note of the fact that in Primary Section, there was one vacant post of the Assistant Teacher. The District Inspector of Schools, Varanasi further noted that in pursuance of the order dated 30.7.1992, an addition has been made in the original Notification dated 24.11.1959 adding Regulation 101 to 107 and arrived at the conclusion that being a trained teacher, the opposite party No.4 was qualified for appointment on the post of Assistant Teacher. In consequence thereof, the District Inspector of Schools, Varanasi by the impugned order dated 6.5.2008 contained in Annexure No.7 to the writ petition, finally decided the representation of the petitioner and held that the opposite party No.4 is entitled for appointment on the post of Assistant Teacher. By the subsequent impugned order dated 16.6.2008 contained in Annexure No.8 to the writ petition, the District Inspector of Schools, Varanasi directed the petitioner's Committee of Management to ensure the appointment within three days in terms of earlier order dated 6.5.2008

Feeling aggrieved, the petitioner preferred the present writ petition.

8. While assailing the impugned order, Sri Ashok Khare, learned Senior Counsel, relied upon the cases reported in 2002 (3) AWC 2221: Committee of Management, M.A.H. Inter College and another Vs. District Inspector of Schools, Ghazipur and others, passed by the Hon'ble Single Judge of this Court and a case reported in 2003 (4) ESC 2190: Governing Body of Registered Society Designated as St. Andrew College of Association, Gorakhpur. Vs. State of U.P. and others (DB) and one other recent judgment of this Court decided by the judgment and order dated 21.7.2009 in Civil Misc. Writ Petition No.65710 of 2008: Mahfooz Ahmad Khan. Vs. The State of U.P. and others. It shall be appropriate to consider the relevant statutory provisions of the Act and the Regulations framed thereunder.

9. Section 16 (FF) of the U.P. Intermediate Education Act, 1921 deals with the minority institutions regulating the procedure for appointment. In view of the constitution of the Board (supra), no appointment can be made by the Committee of Management under the Act so far as the aided or non-aided recognized institutions are concerned. But Section 16 (FF) saves the minority institutions from interference by the Board. The Committee of Management has got power to fulfil the vacancies at its own subject to fairness in action. For convenience, Section 16 (FF) of the Act is reproduced as under:

"Section 16-FF. Saving 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 of India 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 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 an 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 qualifications 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 Head of Institution, and to the Regional Deputy Director of Education in the case of a 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."

10. From the plain reading of Section 16 (FF) of the Act, it reveals that in lieu of Clause (1) of Article 30 of the Constitution of India, a definite procedure has been given for selection and appointment by the Committee of Management. Under Clause (3) of Section 16 (FF), it is a condition precedent to seek prior approval from the District Inspector of Schools, wherever a selection is done. Under sub-section (4) of Section 16 (FF), power has been conferred to approve selection, on the District Inspector of Schools with rider that ordinarily, selection shall not be disapproved or withheld in case candidate possesses minimum qualification prescribed and is otherwise eligible. In the event of disapproval of appointment, the Committee of Management has been conferred power to represent its cause before the Director in the case of the Head of Institution and to the Regional Deputy Director of Education in the case of teacher.

11. It may be noted that under the U.P. Secondary Education (Service Selection Boards) Act, 1982 (in short 'that 1982 Act'), the Board has been conferred power to select teachers by direct recruitment on the basis of vacancy determined by the Management in pursuance of the provisions under Section 10 of 1982 Act.

12. Under the 1971 Act, all the Government aided recognized institutions under the Act receiving grant-in-aid, shall be governed by the procedure contained therein. It may be noted that under 1971 Act, the payment of salary to the institutions receiving grant-in-aid is regulated and salary is paid by the Government Act. The 1971 Act does not extend any exemption to the minority institutions. It is equally applicable to the minority and non-minority institutions. For convenience, the definition of Inspector and Institution as contained in Section 2 (a) and 2 (b) of 1971 Act is reproduced as under:

"2. Definitions.--In this Act unless the context otherwise requires,---

(a) 'Inspector' means the District Inspector of the Schools and in relation to girls institution the District Inspectress of Girls Schools or the Regional Inspectress of Girls Schools as the case may be, and in each case includes any other officer authorised by the State Government to perform all or any of the functions of the Inspector under this Act.

(b) 'Institution' means a recognized institution for the time being receiving maintenance grant from the State Government and includes a Sanskrit Mahavidayalaya or a Sanskrit Vidayalaya receiving maintenance grant from the State Government."

Section 4 of 1971 Act read with Section 5 empowers the District Inspector of Schools to inspect every recognised institutions receiving grant-in-aid and regulate the payment of salary. The provisions contained under Section 5 of 1971 Act equally applies to the teachers and staff. In the event of default of payment of salary in terms of directions issued, appropriate action may be taken under Section 6 of 1971 Act.

Under Section 10 of 1971 Act, the liability with regard to payment of salary is on the State Government. For convenience, Section 10 is reproduced as under:

"10. Liability in respect of salary.-- (1) The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after March 31, 1971.

(2) The State Government may recover any amount I n respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution.

(3) Nothing in this section shall be deemed to derogate from the liability of the institution for any such dues to the teacher or employee."

Under Section 15, the Government has been conferred power to remove difficulties by modifying or adding the provisions contained in the Act by issuing appropriate order. For convenience, Section 15 is reproduced as under:

"15. Powers to remove difficulties.---(1) If any difficulty arises in giving effect to the provisions of this Act, or by reason of anything contained I n this Act, the State Government may, as occasion requires by notification in the Gazette, make such incidental or consequential provisions, including provisions for adapting or modifying any provision of this Act or of the Intermediate Education Act, 1921, or the regulations, but not affecting the substance, as it may think necessary or expedient for the purposes of this Act.

(2) No order under sub-section (1) shall be made after the expiration of a period of three years from the commencement of this Act.

(3) Every order made under sub-section (1) shall be laid as soon as may be, before both the Houses of the State Legislature."

13. Under the U.P. Aided Colleges Transfer of Teachers Rules, 2005, the teachers of Government aided colleges of higher education may be transferred from one institution to other subject to fulfilment of necessary conditions.

14. Regulation 102 to 107 contains the provisions with regard to appointment on compassionate ground. For convenience, Regulation 102, 103, 104, 105, 106 and 107 are reproduced as under:

"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 विनियम 105 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।"

15. A plain reading of Regulation 103 reveals that after death of a teacher or other employee, his/her dependent may be appointed. A person who is trained graduate, may be appointed as a trained teacher and others may be appointed as employee or in non-teaching staff. Regulation 103 has been made applicable on or after 1.7.1981.

16 Keeping in view the fact that the appointment and selection in minority institution is not governed by 1981 Act and the Board, the Committee of Management is the appointing authority, the opposite party No.4 could have been appointed on compassionate ground under Regulation 103.

17. Under Regulation 104, it shall be the statutory duty of the Committee of Management to inform the District Inspector of Schools with regard to death of its teacher or other employees within seven days giving details of the family condition as well as the dependents' qualification and suitability with regard to appointment on compassionate ground.

18. In the present case, from the record it appears that the petitioner's Committee of Management has not discharged its statutory obligation in pursuance of the provisions contained in Regulation 104. In consequence thereof, there appears to be deliberate inaction and delay on the part of the Committee of Management to finalize the matter and compelling the opposite party No.4 to approach this Court by earlier writ petition.

18. Though, under the Regulation 105, the dependent of deceased employee may move application to the District Inspector of Schools but in the present case, it appears that originally, the application was moved to the Manager of the College (Annexure No.2). It was incumbent on the Manager of the College to forward the application dated 15.6.1998 to the District Inspector of Schools, Varanasi with its recommendation or comment but the Management failed to discharge its statutory obligation.

Under Regulation 105 a provision has been made with regard to constitution of a committee headed by the District Inspector of Schools to consider the recommendation of Committee of Management. Regulation 105 provides that the dependent of the deceased employees ordinarily shall be appointed in the same institution but in the absence of vacancy, the District Inspector of Schools, may accommodate the dependent in some other institution of the district. It shall be obligatory on the part of the Committee of Management to implement the order passed by the District Inspector of Schools within a month with due communication to the District Inspector of Schools.

19. It is settled proposition of law that fundamental rights conferred by Article 30 (1) of the Constitution of India, have been made absolute but it is subject to regulating measures of the Government.

20. Sri Ashok Khare, learned Senior Counsel has relied upon the judgment of Honble Single Judge in the case of M.A.H. Inter College following by Mahfooz Ahmad Khan (supra). In Mahfooz Ahmad Khan (supra), learned Single Judge relied upon the judgment of M.A.H. Inter College. In M.A.H. Inter College, learned Single Judge noted that the proviso to Regulation 107 deleted by the State Government whereby rights of minority institutions were secured, makes out no different. Learned Judge recorded findings as under:

"19. When the Regulations 103 to 107 were originally introduced, there was no specific provision under the Intermediate Education Act or the Regulations exempting minority institutions from their application. The result was that in case an appointment were to be thrust by the District Inspector of Schools exercising power under these Regulations upon a minority institution, the action would have offended Article 30(1) and the Regulations themselves were vulnerable being an encroachment upon minority rights under that article. It appears that the proviso exempting the minority institution was added as a clarification to the already existing legal position that such appointments as were contemplated under the scheme of the Regulations, could not be made in a minority institution. The repeal of the proviso exempting the minority institutions has revived the violation of Article 30(1), which these Regulations, unless read down as being inapplicable to minority institutions, bring about. It does not appear, as Mr. V.K. Shukla contends, that the repeal is valid as it creates a uniformity between all aided and recognised institutions and as these institutions are receiving grant from the State and have been granted recognition, they cannot complain against the uniformity of treatment. It is now well-settled that no conditions on providing grants-ln-aid or recognition can be imposed which would offend the rights guaranteed under Article 30(1) of the Constitution. The theoretical basis of the preferential treatment given to a minority has been explained in St, Xavier's case (supra), relying upon the advisory opinion of the permanent court of International Justice in the matter of Albania. The following lines of the opinion quoted in the judgment of the Apex Court are extracted below :

"There must be equality in fact as well as ostensible legal quality in the sense of the absence of discrimination in the words of the law. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.

It is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would result in inequality, in fact ; treatment of this description would run counter to the first sentence of paragraph 1 of Article 5. The equality between members of the majority and of the minority must be an effective, genuine equality ; that is the meaning of this provision."

20. From the aforesaid discussion, the following findings are arrived at :

(1) These Regulations 103 to 107 give free hand to the District Inspector of Schools to fill up all vacancies in a minority institution open to direct recruitment on the post of L.T. grade teacher or Class IV or Class III employee, whether arising by death or otherwise to be filled up by the nominee of the District Inspector of Schools being a family member of an employee of another institution or of the minority institution itself, dying-in-harness.

(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.

(5) Regulations 103 to 107 are not aimed at preventing maladministration or for maintaining efficiency in standards of education. The appointments of teachers or Class III and Class IV employees on compassionate grounds are rather sacrifice to the rule of merit. They are not in the interest of the institution or the minority community or in the national interest.

(6) The proviso to Regulation 103 exempting minority institutions served the purpose of preventing the provisions of Regulations 103 to 107 offending Article 30(1) and Article 29.

(7) The Regulations offend Articles 30(1) and Article 29 of the Constitution of India and are outside the scope of the regulatory powers of the State and such conditions cannot be imposed on the foundation that the Institutions have obtained recognition and are under grants-in-aid.

22. The question now arises as to what relief is to be granted. Two options are open. One that the provisions of Regulations 103 to 107 be read down as inapplicable to minority institutions and to quash the recommendations made by the District Inspector of Schools and the other to also strike down the notification dated 9.8.2001 impugned in this writ petition. It has already been held that if the Regulations are applied to a minority institution, they would infringe Articles 30(1) read with Article 29 and, therefore, the recommendations made by the District Inspector of Schools are liable to be quashed."

21. However, later on, the judgment of M.A.H. Inter College (supra) was considered by the Division Bench of this Court. The Division Bench virtually overruled the judgment of learned Single Judge in the case of M.A.H. Inter College (supra) relying upon the judgment of Special Bench of Hon'ble Supreme Court consisting 11 Hon'ble Judges in the case reported in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481. The relevant portion from the judgment of Snt. Andrew Inter College (supra), are reproduced as under:

"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.

19. We see no reason why humanitarian regulations, such as the kind which has been impugned I n this petition, cannot be made for minority institutions. We cannot see how such humanitarian measures of the kind with which we are dealing in this petition can be said to infringe the right under Article 30 of a minority institution.

20. It may have been a different matter if the compassionate appointment was sought to be made on the post of Head Master or teacher, and there it possible could have been said that this infringes the right of the minority institution under Article 30 of the Constitution. Since teaching work is certainly related to the standard of education imparted. This is not the case here. Here we are concerned with an appointment on a Class III post in a minority institution on compassionate ground. We see no violation of Article 30 of the Constitution in such a case, or in case of a class IV post."

22. It appears that in the later judgment of this Court i.e., case of Mahfooz Ahmad Khan (supra), the attention of the learned single Judge was not invited to the Division Bench judgment. The judgment of the M.A.H. Inter College (supra), seems to loose its binding effect and the case of Mahfooz Ahmad Khan (supra) is per incuriam to Division Bench judgment (supra).

23. In TMA Pai's case (supra), Articles 29 and 30 of the Constitution have been considered by Hon'ble Supreme Court while observing with regard to right of minority aided and non-aided institutions. It shall be appropriate to reproduce Articles 29 and 30 as under:

"Cultural and Educational Rights

29. Protection of interests of minorities.--(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

30. Right of minorities to establish and administer educational institutions.--(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

24. The case of TMA Pai's case (supra) was the subject matter of consideration by a Constitution Bench of Hon'ble Supreme Court in the case reported in (2003) 6 SCC 697: Islamic Academy of Education and another. Vs. State of Karnataka and others. Keeping in view the provisions of sub-clause (2) of Article 30 of the Constitution and the finding recorded in TMA Pai's case, the Constitution Bench of Hon'ble Supreme Court in the case of Islamic Academy (supra) observed as under:

"43. The right of a minority educational institution to adopt its own method of selection is subject to the restrictions contained in clause (2) of Article 29 of the Constitution of India, if the institution is an aided one. It was held that allowing minority educational institutions to select its own method of selection for admission of students to the extent of 50% of the seats would not impinge upon the right under Article 30 of the Constitution of India. It was further

held that regulations can be imposed by the State for intake of minority categories with regard to need of the minority in the area which the institution intends to serve."

46. From the above decisions of this Court, it is evident that though the right engrafted under Article 30(1) of the Constitution does not lay down any limitations or restrictions upon the right of a minority to administer its educational institutions, yet the right cannot be

used absolutely and unreasonably."

25. In Islamic Academy's case (supra), the Constitution Bench had further considered the public interest vis-a-vis national interest and the rights of institutions, to quote relevant portion para 211, 212, 213, 214 asunder:

"212. Poverty to a great extent can be combated through education.

213. Having regard to globalisation and opening up of the market, the State expects various medical colleges and educational institutions and Universities to move in. Under WTO and GATT human development has taken its firm root. A decent life to the persons living in the society in general is perceived.

214. In the said scenario this Court in Kapila Hingorani observed: (SCC p.34, paragraph 71)

"71. The States of India are Welfare States. They having regard to the constitutional provisions adumbrated in the Constitution of India and in particular Part IV thereof laying down the Directive Principles of the State Policy and Part IVA laying down the Fundamental Duties are bound to preserve the practice to maintain the human dignity."

26. It appears that a doubt was raised with regard to finding recorded in Islamic Academy (supra) considering the ratio of TMA Pai's case (supra) hence the matter was again considered by a Special Bench of seven Hon'ble Judges in the case reported in (2005) 6 SCC 537: P.A. Inamdar and others. Vs. State of Maharashtra and others. Though, there is minor variation in the observations made by Hon'ble Supreme Court in the case of P.A. Inamdar's case (supra) than the finding recorded in Islamic Academy (supra), but so far as the aided minority institutions are concerned, the mandate of Article 29 (2) of the Constitution does not suffer from much variation.

27. In the case of P.A. Inamdar (supra), Hon'ble Supreme Court reiterated the well settled proposition of law that once aided, the autonomy conferred by the protection of Article 30(1) on the minority educational institution is diluted as provisions of Article 29(2) will be attracted. Certain conditions in the nature of regulations can legitimately accompany the State aid. Their lordships proceeded to observe as under:

"94. Aid and affiliation or recognition, both by State, bring in some amount of regulation as a condition of receiving grant or recognition. The scope of such regulations, as spelt out by 6-Judge Bench decision in Rev. Sidhrajbhai case AIR 1963 SC 540 and 9-Judge Bench case in St. Xavier's must satisfy the following tests: (a) the regulation is reasonable and rational; (b) it is regulative of the essential character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it; (c) it is directed towards maintaining excellence of the education and efficiency of administration so as to prevent it from falling in standards. These tests have met the approval of Pai Foundation. However, Rev. Sidhrajbhai's case and St. Xavier's go on to say that no regulation can be cast in 'the interest of the nation' if it does not serve the interest of the minority as well. This proposition (except when it is read in the light of the opinion of Quadri, J.) stands overruled in Pai Foundation where Kirpal, CJ, speaking for majority has ruled (vide para 107) ___

"Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf".

100. Much of controversy can be avoided if only the nature of the right conferred by Articles 29 and 30 is clearly understood. The nature and content of these articles stands more than clarified and reconciled inter se as also with other articles if only we understand that these two articles are intended to confer protection on minorities rather than a right as such. In St. Stephen's, their Lordships clearly held (vide para 28) that Article 30(1) is "a protective measure only" and further said (vide para 59) that Article 30(1) implied certain 'privilege'. Articles 29 and 30 can be better understood and utilized if read as a protection and/or a privilege of minority rather than an abstract right."

28.In view of the above, there appears to be no room of doubt that the petitioner No.1 being recognised Government aided institution, shall be governed by the Regulations framed under the Act. Accordingly, at the thrust of clause (2) of Article 29 of the Constitution, for fairness, good administration and make the institution accountable to the grant provided by the pubic exchequer, the conduct of minority institutions may be regulated by the statutory provisions or the Government orders.

29.Article 29 of the Constitution is a general provision and it confers the citizens to preserve their language, script, culture of their own established institutions or bodies and regulate in their own manner subject to constitutional limitation but in case they run and maintain their institution or the cultural organisation on the fund raised from the State, then, the right conferred by clause (1) of Article 29 of the Constitution, shall be diluted and they cannot deny the State's regulatory power into their cultural organisation or institution whatsoever may be. The purpose behind the clause (2) of Article 29 is that the fund raised from the Government or the public exchequer is generated from the tax paid by the citizens of the country in different forms without any privilege on the basis of cast, creed, culture or religion. Hence it shall be accountable to people of the country. India, being a secular State cannot provide fund or grant on the basis of caste, creed, religion or cultural entity.

30.It is trite in law that while interpreting the statutory provisions or even Constitutional provisions, it should be interpreted without making any provision redundant i.e., every word, every line, and entire statute or the Constitution as a whole, should be taken into account while interpreting a provision. No part of Constitutional, provision may be made redundant or inapplicable vide, 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi.

31.Hon'ble Supreme Court of India had held that while interpreting the Constitution, the literal construction or the golden rule of construction may be applied; when the language is plain and clear and literal construction produces no difficulty to the constitutional scheme, the same has to be resorted to, vide (2004) 2 SCC 267: M.T. Khan. Vs. State of Andhra Pradesh; (2006) 7 SCC page 1: Kuldip Nayar Vs. Union of India.

32.Procedure prescribed by the statute for doing a thing has left no abeyance or gap, even then if the court by strain construction prescribed for different method for doing that thing, the decision will become open to serious objection and criticism. (Principle of Statutory Interpretation by Justice G. B. Singh: page 255).

33.The fund generated from the tax payer is meant for public welfare and to secure public interest by the State and the Central Government. It cannot be granted to anyone on the basis of caste, creed, religion or cultural group. The Government is a trustee of public fund and have to use such fund for the welfare of peoples of the country without being influenced by the religion, caste, creed or cultural group. The grant-in-aid, given to any body, organisation, shall always be subject to public scrutiny and public accountability.

34.Along with the counter affidavit, the respondent No.4 had filed a letter dated 23.6.1998 sent by the District Inspector of Schools, Varanasi, directing the Committee of Management to proceed in accordance with Rules and send action taken report. Thereafter, the respondent No.4, the dependent of the deceased employee has sent numerous representation but failed to get any response. In the meantime he continued with studies and obtained B. Ed. Degree and became qualified for appointment to L.T. Grade Teacher.

35.The family condition of the respondent No.4 was so pathetic and strain that respondent's mother took loan of Rs.1,25,000/- for treatment of deceased employee with regard to kidney ailment but could not be saved. All the heirs and dependents of the deceased employee submitted application in favour of the respondent No.4 for his appointment. In such a situation, it was incumbent on the Committee of Management to immediately consider the case of the respondent No.4 and to appoint him on a suitable post but as usual, the Committee of Management for some or the other reasons, kept the matter pending and proceeded to make appointment through direct recruitment to fill up the vacancy. The action on the part of the petitioner institution shows, the abuse of privilege and indulgance into mal-administration.

36.In view of the above, the respondent No.4 is entitled to be considered for appointment on compassionate ground. There was no option with the Committee of Management to refuse the appointment to respondent No.4 on compassionate ground. In case, in the year 1998, the respondent No.4 would have been given appointment, then the Committee of Management would have appointed him against some class-III vacancy but since during the period in question, the respondent No.4 acquired higher qualification, the District Inspector of Schools has committed no wrong while appointing the respondent No.4 on the post of Assistant Teacher. Accordingly, there appears to be no reason to interfere with the impugned order so far as the right of the respondent No.4 to seek appointment is concerned. However, there appears to be procedural flaw. In the present case, though the District Inspector of Schools, is the competent authority but while doing so, the matter should have been placed before the committee constituted under Regulation 105 of Chapter-III of Regulations framed under Intermediate Education Act. The District Inspector of Schools should not have proceeded to take decision on his own keeping in view the statutory mandate conferred by Regulation 105 (supra).

37.Now, after lapse of almost 4 years, whether the impugned order should be quashed and the matter should be relegated to the committee for decision afresh. The Constitution has conferred extraordinary power to this Court under Article 226 of the Constitution to pass order for substantial justice. Since gross injustice has been done to the respondent No.4 at the behest of the Committee of Management, and the respondent No.4 seems to be entitled for appointment on compassionate ground, under the fact and circumstances of the present case, quashing of the impugned order and remitting the matter again to the District Inspector of Schools to pass a fresh order through its committee, shall not only multiply the hardship to the respondent No.4 but it shall also further aggravate the situation of the bereaved family.

38.It is well settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. (Vide Dal Singh Vs. King Emperor of India, AIR 1917 PC 25; Collector, Land Acquisition Anantnag Vs. Mst. Katiji & Ors., AIR 1987 SC 1353; Mohammad Swalleh & Ors. Vs. IIIrd Additional District Judge, Meerut & Anr., AIR 1988 SC 94; and Sree Jain Swetambar Terapanthi Vid (s) Vs. Phundan Singh, AIR 1999 SC 2322).

39.Accordingly, while declining to interfere with the impugned order, the relief is moulded. The petitioner is directed to permit the respondent No.4 to resume duty forthwith but not later than six weeks from the date of receipt of a certified copy of the present order. In the meantime, the District Inspector of Schools, shall constitute the committee under Regulation 105 and place the matter for its post decisional approval of the impugned orders dated 6.5.2008 and 16.6.2008 in the light of the observations made in the present judgment. Subject to approval by the committee, the respondent No.4 shall be permitted to continue in service with all consequential benefits including arrears of salary from the date of the impugned order.

40.The writ petition is disposed of accordingly. No cost.

[Justice Devi Prasad Singh]

Rajneesh AR-PS)

Judgment Delivered on.....01.06.2012........under Chapter-VII Rule 1 (3) of Allahabad High Court Rules, 1952.

[...Justice A. P. Sahi............................]