# Gopal Ji Trivedi v. State of U.P. and others

- **Citation:** (2005) 4 ILRA 1158
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-11
- **Case number:** Civil Misc. Writ Petition No. 12979 of 1999
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-ji-trivedi-v-state-of-u-p-and-others-40572
- **Pages:** 11

## Headnote

U.P. Intermediate Education Act-1921
Chapter
III
Regulation
103Compossionate appointment-on the post
of Trained graduate teacher-in minority
institution-not
permissible.
However
such dependant of deceased teacher
working in minority institution can be
appointed-on
non
teaching
postnecessary direction issued.

Held: Para 23, 24 and 25

It is further to be noted that although
with regard to appointment on the
teaching post of the dependent of the
deceased employee in a non-minority
institution there is a specific provision as
contained in Section 16 third proviso and
regulation 103 but there is no express
provision permitting the appointment of
dependent of deceased employee on a
teaching post in a minority institution.
This is obvious because legislature is
concious that permitting appointment on
teaching post on compassionate ground
is
violative
of
rights
of
minority
guaranteed under Article 30 of the
Constitution of India.

As
held
above,
the
dependent
of
deceased
employee
of the minority
institution
is
not
entitled
for
appointment on teaching post, hence his
claim for appointment on teaching post
in non-minority institution can also not
be
considered.
The
alternative
submission raised by the counsel for the
petitioner can also not be accepted.

The Governing Body of the registered
Society
designated
as
St.
Andrew's
College
Association,
Gorakhpur
and
another Versus State of U.P. and others
(supra) the dependent of deceased
employee of a minority institution is
entitled
for
consideration
for
appointment on a non teaching post. The
claim of the petitioner for appointment
against the non teaching post requires
consideration
by
the
respondents.
Consequently, the respondent no. 4 is
directed to consider the claim of the
petitioner
for
compassionate
appointment against non teaching post
as dependent of deceased employee
expeditiously preferably within a period
4 All] Gopal Ji Trivedi V. State of U.P. and others
1159
of three months from the date of
production of a certified copy of this
order.
Case law discussed:
2000 (1) AWC-857
2002 (3) AWC-2221
1998 (1) SCC-206
2002 (8) SCC-481
AIR 1987 SC-311

## Text

1158 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
fact he was acquitted on 15.4.1997. The
Apex Court has continuously held that the
High Courts should be slow in reversing
the order of acquittal by the trial judge
suffers manifestly from gross illegality
otherwise it should not be interfered with.
The Magistrate while passing the order
dated 15.4.1997 has clearly given a
finding that the alleged letter do not
constitute an offence of defamation and
he prima facie did not consider it a fit
case for summoning the accused to face
the tail. In the circumstances, the
argument
of
the
counsel
for
the
complaint/applicant do not inspire any
confidence. It is a case where the view
taken by the courts below can not be said
to the perverse or at any rate which was
not
reasonably
possible.
In
the
circumstances, I do not find that the
revisional
order
challenged
in
this
application suffers from any illegality.

The
application
is
accordingly,
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 12979 of 1999

Gopal Ji Trivedi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare

Counsel for the Respondents:
S.C.
U.P. Intermediate Education Act-1921
Chapter
III
Regulation
103Compossionate appointment-on the post
of Trained graduate teacher-in minority
institution-not
permissible.
However
such dependant of deceased teacher
working in minority institution can be
appointed-on
non
teaching
postnecessary direction issued.

Held: Para 23, 24 and 25

It is further to be noted that although
with regard to appointment on the
teaching post of the dependent of the
deceased employee in a non-minority
institution there is a specific provision as
contained in Section 16 third proviso and
regulation 103 but there is no express
provision permitting the appointment of
dependent of deceased employee on a
teaching post in a minority institution.
This is obvious because legislature is
concious that permitting appointment on
teaching post on compassionate ground
is
violative
of
rights
of
minority
guaranteed under Article 30 of the
Constitution of India.

As
held
above,
the
dependent
of
deceased
employee
of the minority
institution
is
not
entitled
for
appointment on teaching post, hence his
claim for appointment on teaching post
in non-minority institution can also not
be
considered.
The
alternative
submission raised by the counsel for the
petitioner can also not be accepted.

The Governing Body of the registered
Society
designated
as
St.
Andrew's
College
Association,
Gorakhpur
and
another Versus State of U.P. and others
(supra) the dependent of deceased
employee of a minority institution is
entitled
for
consideration
for
appointment on a non teaching post. The
claim of the petitioner for appointment
against the non teaching post requires
consideration
by
the
respondents.
Consequently, the respondent no. 4 is
directed to consider the claim of the
petitioner
for
compassionate
appointment against non teaching post
as dependent of deceased employee
expeditiously preferably within a period
4 All] Gopal Ji Trivedi V. State of U.P. and others
1159
of three months from the date of
production of a certified copy of this
order.
Case law discussed:
2000 (1) AWC-857
2002 (3) AWC-2221
1998 (1) SCC-206
2002 (8) SCC-481
AIR 1987 SC-311

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard counsel for the petitioner
and
the
learned
standing
counsel.
 Counter and rejoinder affidavits have
been exchanged between the parties and
with the consent of the parties the writ
petition is being finally decided.

2. By this writ petition the petitioner
has prayed for a writ, order or direction
commanding the respondents to forthwith
grant compassionate appointment to the
petitioner as an Assistant Teacher in L.T.
Grade in any recognised and aided higher
secondary school of district Kanpur
Nagar.

Brief facts necessary for deciding the
controversy raised in the writ petition
are;__________

3. Petitioner's father Raj Kumar
Tripathi was permanent Assistant Teacher
in Christ Church Inter College, Kanpur
which is a recognised and aided minority
institution. Sri Raj Kumar Tripathi died
on 16th May, 1994 while still in service.
Petitioner being son of the deceased Raj
Kumar Tripathi, made an application on
26.7.1994 praying for appointment on
compassionate ground in clerical cadre.
The qualification of the petitioner as
disclosed
in
the
application
was
intermediate, he being student of B.Sc.
Part II at the time of making the
application. Petitioner claims to have
made
several
applications
to
the
respondents for giving appointment on
compassionate ground. Petitioner passed
B.Sc. In 1995 and B. Ed. In 1996. An
application was made in the year 1997 by
the petitioner claiming appointment on
the post of Assistant Teacher. The District
Inspector of Schools wrote a letter dated
12.8.1997 to the State Government
expressing difficulty in appointing the
petitioner as Assistant Teacher in view of
the fact that Christ Church Inter College
is
a
minority
institution
and
the
Regulations as amended vide Government
order dated 2.2.1995 were not applicable
on the minority institution. The District
Inspector of Schools in the said letter also
referred to a letter dated 14.10.1994 of the
District
Inspector
of
Schools
recommending
appointment
of
the
petitioner on Class IV post in Christ
Church
Inter
College
against
a
supernumerary post. Petitioner's case in
the writ petition is that no communication
was ever received by the petitioner from
the respondent with regard to claim of the
petitioner of compassionate appointment.

4. A counter affidavit has been filed
on behalf of the respondents stating that
the petitioner was given appointment on
Class IV post on 14.10.1994 but he has
not joined the post. A judgment of the
learned Single Judge dated 23.4.1998
passed in writ petition No. 41564 of 1997
Sanjeev Kumar Dubey Versus District
Inspector of Schools and others has also
been referred by which judgment the
provisions
of
giving
compassionate
appointment on the post of Assistant
Teacher was held to be ultra vires. A
Government order dated 8.1.1999 issued
in pursuance of the above mentioned
judgment has also been referred and
1160 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
relied. Rejoinder affidavit has been filed
by the petitioner stating that the petitioner
was at no point of time offered any kind
of appointment on compassionate ground.
It is denied that the petitioner was given
appointment on Class IV post. The
judgment of the learned Single Judge in
Sanjeev Kumar Dubey Versus District
Inspector of Schools and others has been
set aside by the Division Bench in Special
Appeal No. 426 of 1998 Sanjeev Kumar
Dubey Versus District Inspector of
Schools and others reported in 2000 (1)
A.W.C. 857. A copy of judgment has
been annexed as Annexure-R.A.I The
Division Bench held that the provision of
third proviso to Section 16 (1) of U.P. Act
5 of 1982 is intra vires and the
notification dated 2.2.1995 substituting
regulations 105 and 106 were also held
not to be ultra vires to Article 14 of the
Constitution of India,

5. Learned counsel for the petitioner
in support of the writ petition submitted
that the petitioner is fully entitled to be
considered for appointment as Assistant
Teacher as dependent of the deceased
employee
in
accordance
with
the
regulation
framed
under
the
U.P.
Intermediate Education Act, 1921. The
judgment of the learned Single Judge in
Sanjeev Kumar Dubey Versus District
Inspector of Schools and others holding
that the third proviso to Section 16 of Act
5 of 1982 has been set aside by the
Division Bench in Sanjeev Kumar
Dubey Versus District Inspector of
Schools
and
others
(supra).
The
appointment on the post of Assistant
Teacher on compassionate ground is fully
permissible. It is further contended that
the proviso to regulation 103 which
exempted the minority institution from
the applicability of regulations 101 to
regulation 107 has been deleted vide
amendment dated 9.8.2001. The judgment
of the learned Single Judge reported in
2002 (3) A.W.C. 2221 Committee of
Management, M.A.H. Inter College and
another Versus District Inspector of
Schools
and
others
holding
the
regulation providing for compassionate
appointment in minority institution is in
violation of Article 30 of the Constitution
of India, has been over ruled by the
Division Bench judgement reported in
2003 (4) A.L.R. 381 The Governing
Body
of
the
registered
Society
designated as St. Andrew's College
Association, Gorakhpur and another
Versus State of Uttar Pradesh and
others. Learned counsel for the petitioner
further contended that even with regard to
minority institution provisions can be
made governing the conditions of service
of teacher, for the general welfare of the
institution and teachers and providing for
social
welfare
measures;
hence
the
regulations framed under Chapter III of
the Intermediate Education Act, 1921
providing for compassionate appointment
do not contravene the provisions of
Article 30 of the Constitution of India.
Reliance has been placed on judgement of
the apex Court (1987) 4 Supreme Court
Cases 691 Christian Medical College
Hospital
Employees'
Union
and
another
Versus
Christian
Medical
College Vellore Association and others;
(1988) 1 Supreme court Cases 206 All
Bihar Christian Schools Association
and another Versus State of Bihar and
others; (2002) 8 Supreme Court Cases
481 T.M.A. Pai Foundation and others
Versus State of Karnataka and others
and A.I.R. 1987 Supreme Court 311
Frank
Anthony
Public
School
Employees' Association Versus Union
of India and others. Alternatively it is
4 All] Gopal Ji Trivedi V. State of U.P. and others
1161
contended that even if permitting of
compassionate appointment against a
teaching post in a minority institution
contravene Article 30 of the Constitution,
there exist no justification for excluding
the dependent of deceased employee of a
minority institution from being considered
for compassionate appointment against a
teaching
post
in
a
non-minority
institution.

6. Learned standing counsel refuting
the submission of the petitioner's counsel
submitted that the appointment on the
post of Assistant Teacher in a minority
institution is not permissible in view of
the
right
guaranteed
to
minority
institution under Article 30 of the
Constitution of India. It is further
contended that even in Division Bench
judgment relied by the counsel for the
petitioner in the The Governing Body of
the registered Society designated as St.
Andrew's
College
Association,
Gorakhpur and another Versus State
of Uttar Pradesh and others (supra) the
Division Bench made observations that
the compassionate appointment cannot be
made on the post of Head Master or
teacher in a minority institution which
may amount to infringing the right of
minority
under
Article
30
of
the
Constitution.

7. I have considered the submissions
of counsel for the parties and perused the
record.

8. Before coming to the respective
submissions raised by the counsel for the
parties it is necessary to glance the
statutory
provisions
governing
the
appointment in recognised and aided
minority institutions.

9. Uttar Pradesh Intermediate
Education
Act,
1921
contains
the
provisions for appointment on teaching
and non-teaching post. The provisions
regulating the appointment in minority
institutions are different as compared to
provisions regulating the recruitment on
the post of teachers. The Selection
Committee with regard to non-minority
institutions is to be constituted in
accordance with Section 16F whereas
with regard to minority institutions
Section 16FF provides the manner and
procedure of selection of teachers in
minority institutions. The management
has been given much more freedom in
selection of teachers as compared to nonminority
institutions.
Although
the
selection of the teachers requires prior
approval but emphasis in the provision is
that no such prior approval be withheld
except on the ground that the candidate
does
not
possess
the
minimum
qualification prescribed and is otherwise
eligible. The Uttar Pradesh Secondary
Education (Services Selection Board) Act,
1982 has been enacted providing for
constitution of
Selection Board for
selecting teachers in the recognised
institutions. A complete change has been
affected by the aforesaid 1982 Act with
regard to procedure and manner of
selection
of
teachers
in
recognised
institutions. However, an exemption has
been given to the minority institutions
from the applicability of U.P. Act 5 of
1982. Section 30 of the Act is quoted
below :-

"30.
Exemption
to
minority
Institutions,_______ Nothing in this Act
shall apply to an institution established
and administered by a minority referred
to in Clause (1) of Article 30 of the
Constitution of India."
1162 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
10. The exemption to the minority
institutions has been given to safeguard
the rights of minority as guaranteed under
Article 30 of the Constitution of India.
The
appointment
on
compassionate
ground was governed by a Government
order
dated
21.9.1981
in
aided
institutions.
By
notification
dated
30.7.1992 regulations 101 to 107 were
added in Chapter III of the U.P.
Intermediate Education Act providing for
giving compassionate appointment to the
dependent of deceased teacher or non
teaching staff while dying in service.
Initially, the regulations contemplated
appointment on compassionate ground
only on non teaching post. By subsequent
amendment dated 2.2.1995 regulation 103
was substituted providing for appointment
on the post of teacher or on non teaching
post. The proviso was, however, added to
regulation 103 to following effect:-

"Provided that anything contained in
this regulation would not apply to any
recognised aided institution established
and administered by any minority class."

11. It is relevant to note that the
provisions of U.P. Secondary Education
 (Services Selection Board ) Act, 1982
were also amended by the U.P. Act No.
XV of 1995 with effect from 28.12.1994
by adding the following as third proviso:-

"Provided also that the dependent of
a teacher or other employee of an
institution
dying
in
harness
should
possess qualification prescribed under the
U.P. Intermediate Education Act, 1921,
may be appointed as teacher in trained
graduate grade in accordance with the
regulation made in sub-section (4) of
Section 9 of the said Act."

12. As noted above, Section 16 or
the amended proviso is applicable only to
non-minority
institutions
and
the
amendment under the U.P. Act 5 of 1982
permitting appointment on teaching post
was
with
regard
to
non-minority
institutions and regulations amended vide
notification dated 2.2.1995 containing
proviso to regulation 103 exempting
minority institutions from applicability of
regulations was in consonance with the
rights of minority. The above proviso to
regulation 103 has been subsequently
deleted vide notification dated 9.8.2001
again amending the regulation 103.

13. The question to be answered in
this case is as to whether the appointment
on compassionate ground can be given on
a teaching post in a minority institution.
There is no dispute on entitlement of
appointment on a teaching post in nonminority institution by express provisions
of Section 16 (3rd proviso) and regulation
103
of
Chapter
III
of
the
U.P.
Intermediate Education Act, 1921. The
Division Bench judgement of this Court
in the case of Sanjeev Kumar Dubey
Versus District Inspector of Schools,
Etawah and others (supra) which was a
case of non-minority institution, has no
bearing while considering the entitlement
of compassionate appointment on a
teaching post in minority institution.

14. The issue of compassionate
appointment in minority institutions was
considered by a learned Single Judge in
the case of Committee of Management,
M.A.H. Inter College and another
Versus District Inspector of Schools
and others (supra). The notification dated
9.08.2001 which has effect of deleting the
proviso to regulation 103 has been
quashed by the learned Single Judge. The
4 All] Gopal Ji Trivedi V. State of U.P. and others
1163
learned Single Judge took the view that
no
compassionate
appointment
is
permissible in a minority institution either
on the post of teacher or non-teaching
post and any such appointment shall
infringe the rights of minority under
Article 30 of the Constitution. A Division
Bench had occasion to consider the above
judgment of the learned Single Judge in
the case of The Governing Body of the
registered Society designated as St.
Andrew's
College
Association,
Gorakhpur and another Versus State
of Uttar Pradesh and others (supra).
The Division Bench was considering
similar government order providing for
compassionate appointment in minority
institutions in a Degree College. The
Division Bench took the view that the
regulation providing for appointment of
the deceased employee even in a minority
institution is regulatory in nature and
permissible and does not offend Article
30 of the Constitution. The order
impugned in the writ petition was an
order giving appointment of one of the
respondents as routine grade clerk in the
College on compassionate ground due to
death of his father who was lecturer in the
College.
The
Division
bench
in
concluding the part of the judgment made
following observations:-

"We see no reason why humanitarian
regulations, such as the kind, which has
been impugned in 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.

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 possibly
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. That 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."

15. While considering the learned
Single Judge's judgment in Committee of
Management, M.A.H. Inter College and
another Versus District Inspector of
Schools and others (supra) following
observation was made by the Division
Bench:-

"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 Versus DIOS, Ghazipur 2002 (2)
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 (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
1164 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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."

16. The apex Court had examined
various aspects of the rights of minority
guaranteed under Article 30 of the
Constitution. In (2002) 8 Supreme Court
Cases 481 T.M.A. Pai Foundation and
others Versus State of Karnataka and
others. Following observations were
made by the apex Court in paragraphs
136, 137 and 139:-

"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 th 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 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).

139.
Like any other private
unaided institutions, similar unaided
educational institutions administered by
linguistic or religious minorities are
assured maximum autonomy in relation
thereto; e.g. method of recruitment of
teachers, charging of fees and admission
of students. They will have to comply with
the conditions of recognition, which
cannot be such as to whittle down the
right under Article 30."

17. The apex Court in the same
judgement had further observed with
regard to those minority institutions
which are receiving grant in aid from the
State. The apex Court observed in
paragraph 141 of the judgement that for
granting aid there cannot be abject
surrender of right of management. The
receipt of aid cannot be reason for altering
the nature or character of recipient of the
education institution. Choosing teachers
who will carry on the educational
institution toward excellence has been
held to be right of management of
minority institutions.

18. Now the judgment relied by the
counsel for the petitioner are next to be
considered. The apex Court judgement in
Christian Medical College Hospital
Employees' Union and another Versus
Christian
Medical
College
Vellore
Association and others (supra) was a
case in which the apex Court held that the
provisions of Sections 9-A, 10, 11-A, 12
and 33A of the Industrial Disputes Act,
1947 are also applicable on the minority
institutions. The apex Court held that the
4 All] Gopal Ji Trivedi V. State of U.P. and others
1165
provisions of the Industrial Disputes Act
is enacted as a social security measure in
order to ensure the welfare of the
teachers. The Act provide for a machinery
for collective bargaining. The Act being a
general law for settlement of the industrial
dispute, cannot be construed to be the law
which directly interfere with the rights of
minority educational institutions. The
apex Court in the said judgment held that
the aforesaid provisions of Industrial
Disputes Act do not interfere with any
right of the minority guaranteed under
Article 30. The said judgment is of no
help to the petitioner in the present case.

19. All Bihar Christian Schools
Association and another Versus State
of Bihar and others (supra) was a case in
which the apex Court had examined
various
provisions
of
Bihar
NonGovernment Secondary Schools (Taking
over of Management and Control) Act,
1981. The apex Court laid down in the
said
case
that
statutory
measures
regulating standard and excellence of
minority educational institutions do not
offend Article 30 of the Constitution of
India. While considering Section 18 (3)
Clause (b) which require Managing
Committee of the minority institution to
appoint teachers possessing requisite
qualification with the concurrence of the
School
Service
Board.
 Following
observation was made by the apex Court
in paragraph 13:-

"13. Section 18(3) provides that
recognised minority secondary schools
shall be managed and controlled in
accordance with the provisions contained
in clauses (a) to (k). Clause (a) requires a
minority secondary school to have a
managing committee registered under the
Societies Registration Act, 1862 and to
frame
written
bye-laws
regulating
constitution
and
functions
of
the
managing
committee.
The
bye-laws
regarding
the
constitution
of
the
managing committee are required to be
framed by the minority institution itself.
The State or any other authority has no
power or authority to impose any terms or
conditions for the constitution of the
managing committee. If a society running
a minority institution frames written byelaws providing for the constitution of
managing committee entrusted with the
function of running and administering its
school
it
would
ensure
efficient
administration. This clause is in the
interest of the minority institution itself,
as no outsider is imposed as a member of
the managing committee, there is no
interference with the minorities' right to
administer its school. Clause (b) provides
for two things, firstly it requires the
managing committee or of a minority
school to appoint teachers possessing
requisite qualifications as prescribed by
the State Government for appointment of
teachers of other nationalised schools,
secondly, the managing committee is
required to make appointment of a
teacher with the concurrence of the
School Service Board constituted l; under
Section 10 of the Act. Proviso to clause
(b) lays down that the School Service
Board while considering the question of
granting approval to the appointment of a
teacher, shall ascertain if the appointment
is in accordance with the rules laying
down qualifications, and manner of
making appointment framed by the State
Government. The proviso makes it clear
that the School Service Board has no
further power to interfere with the right of
managing committee of a minority school
in the appointment of a teacher. Under
clause (b) the managing committee is
1166 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
required to make appointment of a
teacher with the concurrence of the
School Service Board. The expression
'concurrence'
means
approval.
Such
approval need not be prior approval, as
the clause does not provide for any prior
approval. Object and purpose underlying
clause (b) is to ensure that the teachers
appointed in a minority school should
possess requisite qualifications and they
are appointed in accordance with the
procedure
prescribed
and
the
appointments are made for the sanctioned
strength. The selection and appointment
of teachers is left to the management of
the
minority
school;
there
is
no
interference with the managerial rights of
the institution. In granting approval the
School Service Board has limited power.
The appointment of qualified teachers in a
minority school is a sine qua non for
achieving educational standard and better
administration of the institution. Clause
(b) is regulatory in nature to ensure
educational excellence in the minority
school. Clause (C) requires a minority
school
to
frame
rules
regulating
conditions of service of its teachers; such
rules should be consistent with principles
of natural justice and the prevailing law.
The clause further requires the minority
institution to submit a copy of such rules
to the State Government. This clause in
substance lays down that the management
of a recognised minority school shall
frame rules, regulating conditions of
service of teachers and such rules shall
conform to principles of natural justice
and prevailing law. These provisions are
directed
to
avoid
uncertainty
and
arbitrary exercise of power. If rules are
framed by the management those rules
would bring uniformity in administration
and
there
would
be
security
of
employment to teachers. In a civilised
society the observance of principles of
natural justice is an accepted rule; these
principles contain basic rules of fair play
and justice n and it is too late in the day
to contend that while administering a
minority school the management should
have right to act in contravention of the
principles of natural justice. Clause (c) is
regulatory in nature which requires the
managing committee to frame rules of
employment consistent with principles of
natural justice and the prevailing law. No
outside agency is required to frame rules
of employment of teachers instead the
management itself is empowered to frame
rules. There is therefore no element of
interference with the management's right
to administer a minority school."

20. The judgement of the apex Court
in
Frank
Anthony
Public
School
Employees' Association Versus Union
of India and others (supra) was a case in
which the apex Court considered various
provisions of Delhi Education Act qua
their applicability to minority institutions;
following observations were made in
paragraph 13 :-

"13. Thus, there, now, appears to be
a general and broad consensus about the
content
and
dimension
of
the
Fundamental Right guaranteed by Article
30(1) of the Constitution. The right
guaranteed to religious and linguistic
minorities by Art. 30 (1) is two fold, to
establish and to administer educational
institutions of their choice. The key to the
Article lies in the words" of their own
choice". These words indicate that the
extent of the right is to be determined, not
with reference to any concept of State
necessity and general societal interest but
with
reference
to
the
educational
institutions themselves, that is, with
4 All] Gopal Ji Trivedi V. State of U.P. and others
1167
reference to the goal of making the
institutions
"effective
vehicles
of
education for the minority community or
other persons who resort to them". It
follows that regulatory measures which
are designed towards the achievement of
the
goal
of
making
the
minority
educational
institutions
effective
instruments
for
imparting
education
cannot be considered to impinge upon the
right guaranteed by Article 30(1) of the
Constitution. The question in each case is
whether the particular measure is, in the
ultimate analysis, designed to achieve
such goal, without of course nullifying
any part of the right of management in
substantial measure."

21. From the various judgements of
the apex Court as noted above, it is now
well settled that the regulatory measure
can be validly made regard to minority
institutions also provided those regulatory
measure
are
designed
towards
the
achievement of the goal of making the
minority educational institutions effective
instruments for imparting education. The
object of every minority institution is to
achieve excellence thus the regulatory
measure which advance the aforesaid
objective does not impinge upon any of
the rights of the minority. However, any
regulation which does not promote the
aforesaid object and fetters the right of
management to choose its teachers and
staff cannot be held to be valid regulation.
Selection and appointment of a teacher of
minority educational institutions by any
one other then the management of the
minority institution certainly fetters the
right of management as guaranteed under
Article 30. The appointment of dependent
of deceased employee as a teacher cannot
be said to be towards achieving the
excellence
in
educational
standard.
Selecting the dependent of deceased
employee even though he may possess
minimum qualification is not selection by
management out of best candidates out of
large number of applicants who normally
apply
against
any
post
in
aided
institutions.

22. The judgement of the Division
Bench in the The Governing Body of the
registered Society designated as St.
Andrew's
College
Association,
Gorakhpur and another Versus State
of U.P. and others (supra) has also not
approved the appointment on the post of a
teacher in a minority institution rather the
observations of the Division Bench as
quoted above are to the effect that the
appointment of dependent of deceased
employee on teaching post shall be
violative
of
rights
of
minority
as
guaranteed under Article 30 of the
Constitution.

23. It is further to be noted that
although with regard to appointment on
the teaching post of the dependent of the
deceased employee in a non-minority
institution there is a specific provision as
contained in Section 16 third proviso and
regulation 103 but there is no express
provision permitting the appointment of
dependent of deceased employee on a
teaching post in a minority institution.
This is obvious because legislature is
concious that permitting appointment on
teaching post on compassionate ground is
violative of rights of minority guaranteed
under Article 30 of the Constitution of
India.

24. Now remains the alternative
submission raised by the counsel for the
petitioner that even if the dependent of
deceased employee of minority institution
1168 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
is not entitled for appointment on a
teaching post in a minority institution, he
may very well can be considered for
appointment on teaching post in other
non-minority institution. Right of a
dependent of deceased employee flow
from service conditions to which the
deceased was governed. The dependent of
deceased
employee
of
a
minority
institution is entitled for the benefit which
flow from service conditions of the
employee from whom he is claiming
right. As held above, the dependent of
deceased employee of the minority
institution is not entitled for appointment
on teaching post, hence his claim for
appointment on teaching post in nonminority institution can also not be
considered. The alternative submission
raised by the counsel for the petitioner
can also not be accepted.

25. In view of forgoing discussions
the petitioner has not made out any case
for issuing writ of mandamus for
appointment on teaching post. In the
counter affidavit the respondent has
referred to a class IV appointment offered
to the petitioner on 14.10.1994. Reference
of said appointment is made in the letter
dated 12.8.1997 of the District Inspector
of Schools to the State Government filed
as Annexure-16 to the writ petition. From
perusal of the said letter it appears that a
letter dated 14.10.1994 was written by the
District Inspector of Schools proposing
appointment of the petitioner on Class IV
post against the supernumerary post and
the Principal was directed to permit the
joining of the petitioner. The petitioner
has categorically denied receiving of such
information or letter. The copy of the said
letter dated 14.10.1994 has also not been
brought on record nor there is any
material brought by the respondent to
show that the petitioner was ever
communicated any such appointment. The
petitioner
has
categorically
denied
receiving
of
any
appointment
or
information. In this view of matter the
claim of the respondent that the petitioner
was offered Class IV appointment on
14.10.1994, cannot be accepted. In view
of the Division Bench judgement in the
case of The Governing Body of the
registered Society designated as St.
Andrew's
College
Association,
Gorakhpur and another Versus State
of U.P. and others (supra) the dependent
of deceased employee of a minority
institution is entitled for consideration for
appointment on a non teaching post. The
claim of the petitioner for appointment
against the non teaching post requires
consideration
by
the
respondents.
Consequently, the respondent no. 4 is
directed to consider the claim of the
petitioner for compassionate appointment
against non teaching post as dependent of
deceased
employee
expeditiously
preferably within a period of three months
from the date of production of a certified
copy of this order.

The writ petition is disposed of
accordingly. Parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 1633 of 2005

India Casting & Krishi Udyog ...Petitioner
Versus
State of U.P. and others ...Respondents