Ashok Bhushan, J.
This writ petition has been placed before this Bench under order of Hon''ble the Chief Justice dated 28.9.2010 for answering the reference on the following question:
"Whether the provisions of Regulation 4 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 impinge upon the rights of the minority institutions as guaranteed under Article 30 of the Constitution of India?"
The facts giving rise to the above reference in brief are that K.L. Jain Inter College Sashni Hathras is a recognised institution within the meaning of U.P. Intermediate Education Act, 1921 and is also receiving aid from the State of U.P. The institution has been recognised as a minority institution. For selection and appointment of teachers in the institution, provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder are applicable. The committee of management of the institution issued an advertisement on 26.11.2006 advertising various posts of teachers. The selection committee considered the candidature of the applicants and vide letter dated 11.5.2007 forwarded its recommendation for approval as required under Section 16FF of the 1921 Act. The name of the petitioner was forwarded for approval on the post of Lecturer Physics. Although the approval to certain other teachers, who were recommended along with the petitioner, was granted but no approval was granted with regard to recommendation in favour of the petitioner.
The petitioner''s case in the writ petition is that he personally met the Joint Director of Education, who informed the petitioner that since he is the son of the present working Principal namely Sri K.M. Sharma, therefore, no approval can be granted in favour of the petitioner. The petitioner''s appointment having not been approved, he filed a writ petition praying for a writ of mandamus commanding the respondents to make payment of salary to the petitioner.
The District Inspector of Schools filed a counter affidavit in which it has been stated that the petitioner being the son of the principal of the same institution and there being a statutory restriction on the appointment of the son of the principal, the selection of the petitioner was wholly illegal. It was also stated that the appointment being not in accordance with law was rightly not approved by the Regional Level Committee.
The writ petition was heard by a learned Single Judge on 17.9.2010. A judgment of another learned Single Judge in Satendra Kumar Misra vs State of U.P. reported in 2007(1) LBESR 204 was cited by the petitioner in support of the petition, wherein it has been held that there is no bar under the provisions of Section 16FF of U.P. Intermediate Education Act, 1921 with regard to any kind of relationship existing between a Principal already working and the person to be selected. Another judgment of a learned Single Judge in Committee of Management Kund Kund Jain Inter College Vs. State of U.P. and others reported in 2006(3) ESC 1528 was cited, wherein it has been held that there is no provision under the U.P. Intermediate Education Act, 1921 which can compel the committee of management to make appointment by promotion. Learned Single Judge in the aforesaid judgment has relied on a Division Bench judgment in N.B. Lal Vs. District Inspector of Schools, Writ Petition No. 9776 of 1984 decided on 31.08.1984. The Division Bench in N.B. Lal''s case has taken the view that provisions of Chapter III Regulation 4 of the Regulations framed under the U.P. Intermediate Education Act,1921 violate the rights of minority institutions protected under Article 30 of the Constitution of India. The learned Single Judge, who heard the present writ petition on 17.9.2010 noticing a reference already made to reconsider the judgment of N.B. Lal''s case in Swami Lila Shah Adarsh Sindhi Inter College Agra and another Vs. State of U.P. reported in 2009(10) ADJ 611, has made the above reference for an authoritative pronouncement. The Division Bench judgment in N.B. Lal''s case has further been referred by an order dated 26.4.2013, passed in writ petition No. 56673 of 2009 to be answered by a larger Bench.
However, the question which has been raised in the present case is not the question of a right of promotion of teachers already working in the institution and whether the management has a right to deny such promotion in exercise of rights guaranteed under Article 30 of the Constitution of India, but the question is as to whether the restrictions contained under Chapter III Regulation 4 of the Regulations framed under the U.P. Intermediate Education Act,1921, which prohibit the relatives of the committee of management to be appointed in the institution violate the rights of the minority institution guaranteed under Article 30 of the Constitution of India. We have therefore, proceeded to hear the parties to decide the reference as noted above.
The U.P. Intermediate Education Act, 1921 was enacted for regulating and supervising the system of High School and Intermediate Education in U.P. All institutions which are recognised under the 1921 Act are to be regulated by the provisions of the Act and the Regulations framed thereunder. Section 16E of the 1921 Act provides the procedure for selection of teachers and head of institutions. Section 16G(1) provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by the Regulations and any agreement between the management and and employee in so far as it is inconsistent with the provisions of the Act and Regulations shall be void. Section 16G(1) is as follows:
"16G. Conditions of service of Heads 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 inconsistent with the provisions of this Act or with the Regulations shall be void."
Under section 15 of the Act, 1921, the Board has been empowered to frame Regulations for the purpose of carrying into effect the provisions of the Act. Under section 8 of the Act, the State Government exercising powers under the Act, 1921 as amended by Intermediate Education (Amendment) Act, 1958 framed regulations. Regulation 4 of Chapter III prohibits the appointment of a candidate as a teacher who is related to any member of the committee of management or the Principal or Head Master. Regulation 4 of Chapter III is as follows:
"4. No teacher shall be appointed whether in a temporary or clear vacancy in an institution who is related to any member of committee of management or the Principal or Headmaster, nor shall a Headmaster or Principal be appointed in an institution who is related to any member of the committee of management.
For the purpose of this regulation, ''relation'' includes the following:
Father, grandfather, fatherinlaw, paternal or maternal uncle, son, grandson, soninlaw, brother, daughter, granddaughter, wife, grandmother, nephew, first cousinpaternal or maternal, wife''s brother, sister''s husband, husband, husband''s brother, husband''s sister, wife''s sister, daughterinlaw, sister, sisterinlaw, being the wife of a brother of first cousin, mother motherinlaw, auntpaternal or maternal."
Section 16FF was inserted by U.P. Act No. 26 of 1975 providing for Savings as to minority institutions. Section 16FF provides for constitution of selection committee for appointment of the head of a institution or a teacher so as to conform to the rights of the minority enshrined under Article 30 of the Constitution of India.
"16FF. Savings as to minority institutions. (1) Notwithstanding anything in subsection (4) of Section 16E, and Section 16F, 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 subsection (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 subsection (5) shall be final."
The minimum qualifications for appointment of teachers in an institution are provided in Regulation 1 Chapter II which refers to Appendix ''A''. From the provisions of Section 16FF (4) of the 1921 Act a noticeable legislative intent is clearly decipherable namely that apart from requiring a selected candidate to possess the minimum qualifications prescribed, it also requires a selected candidate to be "otherwise eligible". Section 16FF was inserted in 1921 Act by U.P. Act No. 26 of 1975 and at the time when it was inserted Regulation 4 Chapter III providing restrictions for appointment of relatives was already there. The Legislature will therefore be presumed to be well aware of the existing provisions of the Regulations as provided for in Section 16FF of the 1921 Act i.e. the requirement of selection of teachers in a minority institution; (i) the candidate should possess the minimum qualifications prescribed (ii) and is otherwise eligible. The above provisions in no uncertain terms indicates that merely possessing of minimum qualifications is not sufficient for a candidate to be selected in a minority institution and the scheme contemplates possession of other eligibilities as prescribed by Regulations.
As noted above, the question to be answered in the present reference is as to whether the provisions of Regulation 4 Chapter III of the Regulations framed under the Act, 1921 impinges upon the rights of a minority institution as guaranteed and protected under Article 30 of the Constitution of India.
Article 30 provides for rights of the minority to administer an educational institution. Article 30(1) of the Constitution of India is quoted below:
(1)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."
Twin rights granted under Article 30 of the Constitution of India are; (i) the right to establish and (ii) the right to administer educational institutions of their choice. In the present case, we are concerned with the scope and ambit of the right to administer educational institutions. Whether in the right to administer the institution, the management of a minority institution can claim that they have a right to appoint the relatives of the management in the institution and that such a right is protected under Article 30, is the moot question. Right to administer an educational institution has several facets and dimensions. The right to establish and administer educational institution is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and educational standards for 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).
The scope and ambit of Article 30 in the context of right of minorities to administer their institution came up for consideration from time to time before the apex Court in several judgements. In Re. The Kerala Education Bill, in re. AIR 1958 SC 956, a Constitution Bench of the apex Court laid down that the right guaranteed to a minority group to administer educational institutions cannot be treated to be a right to maladminister an institution.
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."
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 questions, 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 dayto day management like the appointment of staff, teaching and nonteaching, 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."
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)"
The apex Court in (2007) 1SCC 386 Secy., Malankara Syrian Catholic College Vs. T. Jose and others had again considered the extent of right to administer the educational institution and the extent of permissible regulations by the State. In the above case, the apex Court laid down that State can regulate the service conditions of the teachers of the minority institutions to ensure quality of education. Following was laid down in paragraphs 20:
"20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of State fund. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with nonminority educational institutions. Such standards can be attained and maintained only by having well qualified professional teachers. An institution can have the services of good qualified professional teachers only if the condition of service ensures security, contentment and decent living standards. That is why State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the managements over the staff."
In Sindhi Education Society & Anr Vs. Chief Secretary, Government of NCT of Delhi & Ors, (2010) 8 SCC 49, the Apex Court had 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 aforeindicated, 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 grantinaid 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."
In (2010) 1SCC 133 Kolawana Gram Vikas Kendra Vs. State of Gujrat and others, the question as to whether prior approval of the State Government or competent authority required as per the Government Circular violates the right of minority guaranteed under Article 30 of the Constitution of India was answered. Following was laid down in paragraphs 7 to 9:
7.In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counteraffidavit.
8.Para 3 of the said affidavit reads as under:
"Minority institutions are free to select their teaching and nonteaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the Government in the administration of the schools. However, N.O.C. is required to be obtained to verify whether there is a vacancy of a teacher of a particular subject as per the workload fixed by the Gujarat Secondary and Higher Secondary Education Board specially when the government is providing grantinaid and that he possesses minimum required qualification for the post he is appointed."
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 nonteaching staff also.
9. In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals."
From the above pronouncement of the apex Court, it is clear that State in an aided institution can lay down (i) the minimum qualifications for appointment of teachers, (ii) procedure to be followed for conducting the selection and (iii) other eligibilities for selection. As noted above, all regulatory measures are to be provided for in the interest of standard of education looking to the interest of the students who are to receive education in a minority institution. Any regulatory measure which advances the object cannot be said to be undue interference in right of administration envisaged under article 30(1) of the Constitution of India.
If, it is held that State cannot put any restriction on management of a minority institution in appointing their relatives and family members, the result would be a strong likelihood of the appointment of relatives and family members of the management overlooking more meritorious candidates which ultimately shall sacrifice the educational standard of the institution, thus depriving the students to have the services of the best teachers. In case the restriction is held to be violative of the rights of minority institution guaranteed under Article 30, the result would be that all such institutions would be mostly packed by teachers who are relatives/family members of the management committee/principal. The restriction is with the object to maintain high standard of education and has to be held a valid regulatory measure taken by the State to prevent nepotism which can amount to maladministration directly opposed to the object of excellence in education.
Reliance has been placed by Sri R.K. Ojha, learned Counsel for the petitioner on the judgment of a learned Single Judge in Satendra Kumar Misra vs State of U.P. reported in 2007(1) LBESR 204. The said judgment supports the submission of learned Counsel for the petitioner. It has been observed therein that there is no bar under section 16FF with regard to any kind of relationship existing between the persons already working and persons to be selected. In the said case, the District Inspector of Schools refused to grant approval to the appointment of the petitioner on the ground that he was the nephew of the Principal. Order was challenged in this Court. Learned Single Judge in paragraphs 5 and 6 held as follows:
"5. The impugned order dated 9.11.2004 does not say that the petitioner does not have the requisite qualification but merely refuses to grant approval on the ground of relationship. There is no bar under the provisos of Section 16(FF) of the Act with regard to any kind of relationship existing between the persons already working and persons to be selected.
6.The only requirement under the above section is that persons must be duly qualified. The impugned order of the District Inspector of Schools dated 9.11.2004 on the face of it is bad. The District Inspector of Schools has failed to examine the question whether the petitioner is qualified or not and possess the requisite qualifications under section 16 (FF) of the Act. The reasons given in the impugned order have nothing to do with the requirement of Section 16(FF). The impugned order, is therefore, arbitrary and is set aside by this Court. The matter is remanded to the District Inspector of Schools for proper consideration to see whether the petitioner is duly qualified under the provisions of Section 16(FF) of the Act and whether he can be given benefit of Section 16(FF)."
Section 16FF(4) of the 1921 Act contains two requirements for selected candidates; firstly he should possess minimum qualifications and secondly "is otherwise eligible." The words "is otherwise eligible" are wide enough to save any valid conditions for appointment which have been provided in the regulations. Section 16FF (4) has to be read along with the regulations framed under the U.P. Intermediate Education Act, 1921. The mere fact that Section 16FF does not contain any provision for prohibition of appointment of relatives does not lead to the inference that relatives can be appointed despite the statutory restrictions provided for under Chapter III Regulation 4. Learned Single Judge in Satendra Kumar Misra''s (supra) case has not referred to Chapter III Regulation 4 hence, the said judgment cannot be said to laying down the correct law.
The judgment of Committee of Management Kund Kund Jain Inter College Vs. State of U.P. and others (supra) relied on Division Bench judgment in N.B. Lal''s case supra. Both the above cases related to the right of promotion of existing teachers in a minority institution and the applicability of provisions of Regulation 5 of Chapter III. As noted above, the judgment of N.B. Lal''s case has been doubted by a Division Bench and has been referred for reconsideration by a Full Bench by order dated 26.4.2013. The judgment in Committee of Management Kund Kund Jain Inter College Vs. State of U.P. and others and N.B. Lal''s case was with regard to Chapter II Regulation 5 which related to right of promotion of existing teachers and is not on Chapter III Regulation 4. The same therefore being in a different context need not detain us from answering the reference.
In view of the foregoing discussions, we are of the considered opinion that Chapter III Regulation 4 does not violate the right of minority institutions to administer their educational institutions guaranteed under Article 30(1) of the Constitution of India. The provisions of Regulation 4 Chapter III is a valid regulatory measure framed by the State in the interest of standard of education and has to be upheld in its applicability to minority institutions as well.
We accordingly answer the question referred to us as follows:
"Provisions of Regulation 4 Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 do not impinge upon the rights of a minority institution as guaranteed under Article 30 of the Constitution of India and is applicable as a restriction for appointments in a recognised and aided minority institution covered by the 1921 Act "
Let the writ petition be placed before the Hon''ble Single Judge for passing appropriate orders.
