# COMMITTEE OF MANAGEMENT, KANYA JUNIOR HIGH SCHOOL BAL A VIDYA MANDIR, ETAH, U.P v. SACHIV, U.P. BASIC SHIKSHA PARISHAD ALLAHABAD, U.P. AND ORS

- **Citation:** [2006] Supp. 4 S.C.R. 813
- **Court:** Supreme Court of India
- **Decided:** 2006-08-21
- **Case number:** Civil Appeal No. 9595 of2003
- **Bench:** S.B. Sinha, Dal Veer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/committee-of-management-kanya-junior-high-school-bal-a-vidya-mandir-etah-u-p-v-21825
- **Pages:** 28

## Headnote

Service Law:
Uttar Pradesh Recognized Basic School (Recruitment and Conditions C
of Service of Teachers and Other Conditions) Rules, 1975: Rule 11.
Dismissal and Removal of Teachers-Minority institution-Imposition
of penalty on teachers-Prior approval of District Basic Education OjjicerRequirement of-School was established and administered by the Jain
community which was recognized as a minority community by the State D
Government-Assistant teacher was removed from service for acts of
indiscipline-Single Judge held that the services of the said teacher could
not be terminated without prior permission from the District Basic Education
Ojjicer-Yalidity of-Held: The institution established and administered by
the Jain Community is recognized as minority by the State Government- E
Hence, prior approval of the District Basic Education Officer was not necessary
before terminating the services of a teacher-Uttar Pradesh Recognized
Basic Schools (Junior High Schools) (Recruitment and Conditions of Services
of Teachers) Rules, 1978, R. 16.
Practice and Procedure:
Division Bench Judgment-Binding nature of-On a Single Judge of
the same High Court-Held: A Single Judge of the High Court is bound by
the decision of the Division Bench of the same High Court and, therefore, a
Single Judge could not take a contrary view.
The appellant-school was established and administered by the Jain
community which was recognized as a minority community by the State
Government. Respondent No. 3 was working as an Assistant Teacher in the
appellant-school. A show-cause notice was sent to respondent No. 3 by the
813
F
G
H
814
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A Principal of the appellant-school directing her to stop her acts of indiscipline.
The appellant did not receive any satisfactory reply from respondent No. 3
and, therefore, a suspension order was passed. After enquiry, respondent No.
3 was removed from the service of the school.
Being aggrieved, respondent No. 3 filed a writ petition before the High
B Court contending that she could not be removed from service without taking
prior approval from the District Basic Education Officer under Rule 11 of
the Uttar Pradesh Recognized Basic School (Recruitment and Conditions of
Strvice of Teachers and Other Conditions) Rules, 1975. A Single Judge of
the High Court dismissed the writ petition on the ground of availability of
C alternative remedy under Rule 16 of the Uttar Pradesh Recognized Basic
Schools (Junior High Schools) (Recruitment and Conditions of Services of
Teachers) Rules, 1978.
Respondent No. 3, aggrieved by the order of the Single Judge, preferred
a Special Appeal before a Division Bench of the High Court. The Division
D Bench dismissed the Special Appeal on the ground that the appellant-school
had been accorded the status of a minority institution and, therefore, no prior
approval of the District Basic Education Officer for terminating the services
of a teacher in a minority institution was required to be taken.
In subsequent proceedings in writ petition, a Single Judge while
E altogether ignoring the said judgment of the Division Bench had held that, in
the Special Appeal, the Court had not considered the question regarding the
minority status of the appellant-school and held that the services of respondent
No. 3 could not be terminated without prior permission from the District Basic
Education Officer. Hence the appeal.
F
The following questions arose before the Court:-
(1) Whether in view of the judgment of the Division Bench it was open
to the Single Judge of the same High Court to take a contrary view?
(2) Whether prior approval of the District Basic Education Officer was
G required for terminating the services of a teacher in a minority institution
under the Uttar Pradesh Recognized Basic School (Recruitment and
Conditions of Service of Teachers and Other Conditions) Rules, 1975?
Allowing the appeal, the Court
H
HELD: 1.1. The approach adopted by the Single Judge in this case is
..

## Text

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COMMITTEE OF MANAGEMENT, KANYA JUNIOR HIGH SCHOOL BAL A
VIDYA MANDIR, ETAH, U.P.
v.
SACHIV, U.P. BASIC SHIKSHA PARISHAD ALLAHABAD, U.P. AND ORS.
AUGUST 21, 2006
B
[S.B. SINHA AND DAL VEER BHANDARI, JJ.]
Service Law:
Uttar Pradesh Recognized Basic School (Recruitment and Conditions C
of Service of Teachers and Other Conditions) Rules, 1975: Rule 11.
Dismissal and Removal of Teachers-Minority institution-Imposition
of penalty on teachers-Prior approval of District Basic Education OjjicerRequirement of-School was established and administered by the Jain
community which was recognized as a minority community by the State D
Government-Assistant teacher was removed from service for acts of
indiscipline-Single Judge held that the services of the said teacher could
not be terminated without prior permission from the District Basic Education
Ojjicer-Yalidity of-Held: The institution established and administered by
the Jain Community is recognized as minority by the State Government- E
Hence, prior approval of the District Basic Education Officer was not necessary
before terminating the services of a teacher-Uttar Pradesh Recognized
Basic Schools (Junior High Schools) (Recruitment and Conditions of Services
of Teachers) Rules, 1978, R. 16.
Practice and Procedure:
Division Bench Judgment-Binding nature of-On a Single Judge of
the same High Court-Held: A Single Judge of the High Court is bound by
the decision of the Division Bench of the same High Court and, therefore, a
Single Judge could not take a contrary view.
The appellant-school was established and administered by the Jain
community which was recognized as a minority community by the State
Government. Respondent No. 3 was working as an Assistant Teacher in the
appellant-school. A show-cause notice was sent to respondent No. 3 by the
813
F
G
H
814
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A Principal of the appellant-school directing her to stop her acts of indiscipline.
The appellant did not receive any satisfactory reply from respondent No. 3
and, therefore, a suspension order was passed. After enquiry, respondent No.
3 was removed from the service of the school.
Being aggrieved, respondent No. 3 filed a writ petition before the High
B Court contending that she could not be removed from service without taking
prior approval from the District Basic Education Officer under Rule 11 of
the Uttar Pradesh Recognized Basic School (Recruitment and Conditions of
Strvice of Teachers and Other Conditions) Rules, 1975. A Single Judge of
the High Court dismissed the writ petition on the ground of availability of
C alternative remedy under Rule 16 of the Uttar Pradesh Recognized Basic
Schools (Junior High Schools) (Recruitment and Conditions of Services of
Teachers) Rules, 1978.
Respondent No. 3, aggrieved by the order of the Single Judge, preferred
a Special Appeal before a Division Bench of the High Court. The Division
D Bench dismissed the Special Appeal on the ground that the appellant-school
had been accorded the status of a minority institution and, therefore, no prior
approval of the District Basic Education Officer for terminating the services
of a teacher in a minority institution was required to be taken.
In subsequent proceedings in writ petition, a Single Judge while
E altogether ignoring the said judgment of the Division Bench had held that, in
the Special Appeal, the Court had not considered the question regarding the
minority status of the appellant-school and held that the services of respondent
No. 3 could not be terminated without prior permission from the District Basic
Education Officer. Hence the appeal.
F
The following questions arose before the Court:-
(1) Whether in view of the judgment of the Division Bench it was open
to the Single Judge of the same High Court to take a contrary view?
(2) Whether prior approval of the District Basic Education Officer was
G required for terminating the services of a teacher in a minority institution
under the Uttar Pradesh Recognized Basic School (Recruitment and
Conditions of Service of Teachers and Other Conditions) Rules, 1975?
Allowing the appeal, the Court
H
HELD: 1.1. The approach adopted by the Single Judge in this case is
...
-
·•
'
COMMITTEE OF MANAGEMENT,., SACHIV, U.P. BASIC SHIKSHA PARISHAD
8 J 5
against the settled principle of law. Law is consistent and clear that the Single A
Judge of the High Court is bound by the decision of the Division Bench. In
view of the clear findings of the Division Bench of the same High Court, the
Single Judge of the same High Court could not take a contrary view. The
Single Judge was bound by the judgment of the Division Bench of the said
High Court. (827-D; 833-A(
1.2. It is not in dispute that the appellant-institution established and
administered by the Jain Community is recognized as minority by the State
Government from the date of its establishment continuously for 25 years and
the said benefit could not be nullified by the Single Judge who had ignored
B
the specific finding of the Division Bench. (833-B]
C
2. Jain religion indisputably is not a part of Hindu religion. The
question as to whether Jains are part of the Hindu religion is open to debate.
Jains have a right to establish and administer their own institutions. But,
only because an institution is managed by a person belonging to a particular
religion, the same would not ipso facto make the institution determinable by D
reference to the demography of a State. Whether an institution is established
and administered by a minority community or not may have to be determined
by the appropriate authority in terms of the provisions of the statute governing
the field. Furthermore, minority institutions are not immune from the
operations of the measures necessary to regulate their functions. To what E
extent such regulations would operate, however, again is a matter which would
be governed by the statute. (838-A-DJ
The Commissioner Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR (1954) SC 282, In Re:
Kera/a Education Bill, (1957) AIR 1958 SC 956, Gateppa v. Eramma, AIR F
(1927) Mad 228, Hirachand Gangji v. Rowji Sojpa/, AIR (1939) Born 377,
Aldo Maria Patroni v. E.C. Kesavan, AIR (1965) Ker 75, Commissioner of
Wealth Tax, West Bengal v. Smt. Champa Kumari Singhi, AIR (1968) Cal 74,
Arya Sama} Education Trust, Delhi v. The Director of Education, Delhi
Administration, Delhi; AIR (1976) Del 207, D.A. V College, Jul/undur 'I. Swte G
of Punjab, AIR (1971) SC 1737, A.M. Jain College v. Government of Tamil
Nadu, (1993) 1 MLJ 140 and St. Stephen's College v. University of Delhi,
(1992) l sec 558, referred to.
Dr. S. Radhakrishnan: "Indian Philosophy" Vol. I, Jawahar Lal Nehru:
"Discovery of India", Dr. Jyoti Prasad Jain: "Jainism - The Oldest Living H
Religion", G. T. Bettany: "The Encyclopaedia of World Religions",
816
SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.
A Encyclopedia Britannica, Dr. S. Radhakrihnan: "The Cultural Heritage of
India, 6th Vol. and Dr. Raj Bali Pandey; "Hindu Dharam Kosh", referred to.
3. Minority communities do not have any higher rights than the
majority, They have merely been conferred additional protection.1838-DI
B
P.A. lnamdar v. State of Maharashtra, 1200516 SCC 537, followed.
Bal Patil v. Union of lndia, 120051 6 SCC 690, referred to.
4. In the instant case, the State at one point of time accepted the school
in question as having been established and administered by the Jain community
C which is a minority community in the State. It was recognized as such by
reason of a Div~ion Bench Judgment of the High Court. There was, thus, no
reason for the authorities of the respondents to take steps in relation to the
self-same institution in a different manner. !839-G, H; 840-A I
5. Indisputably, under the Uttar Pradesh Recognized Basic School
D (Recruitment and Conditions of Service of Teachers and Other Conditions)
Rules, 1975 governing the field, prior approval of the District Basic Education
Officer was not necessary before terminating the services of a teacher. As
the appellant's institution was recognized as a minority institution, the High
Court was not correct in interfer-ing in the manner it did. 1840-BI
E
F
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9595 of2003.
From the Judgment and Order dated I 0.4.2003 of the High Court of
Judicature at Allahabad in C.M.W.P. No. 15255 of2003.
R.B. Mehrotra and Rajesh for the Appeliant.
Shobha Dikshit, Subodh Markandeya, Mohd. Tahir Siddiqui, F.K. Jha,
lndu Misra, Chitra Markandeya, Vibha Arora and Bhishmendra Pratap Singh
Shakya for the Respondents.
The Judgment of the Court was delivered by
DAL VEER BHANDARI, J. This appeal is directed against the judgment
and order dated I 0.4.2003 passed by the High Court of Judicature at Allahabad
in Civil Writ Petition No. 15255 of2003.
Respondent no. 3 Smt. Santosh Upadhyay was working as an Assistant
H Teacher in the Kanya Junior High School Bal Vidya Mandir, Etah. A letter
COMMITTEE OF MANAGEMENT"· SACHIV. U.P. BASIC SHIKSHA PARISHAD [DAL VEER BHANDARI. JJ8 J 7
dated 8.9.2001 in the form of a show-cause-notice was sent to respondent no. A
3 by the Principal of the school directing her to stop her acts of indiscipline.
The letter dated 8.9.2001 reads as under:
"(Minority Institution)
G. Jr. High School Bal Vidya Mandir, Etah
B
(Permanently Recognized from Government for the Class from
Nursery to VIIIth)
From:
Principal
To:
Smt. Santosh Upadhyay, Asstt. Teacher, G. Jr. H. School, Bal Vidya
Mandir, Etah
Dated: 8.9.2001
Subject: Regarding indiscipline etc.
Madam,
You are not complying with the following instructions despite
c
D
number of oral as well as written orders:-
E
I.
Refusal to sign on the Order Register and on other information
etc.
2
Laxity in teaching work.
3.
Non performing the duties of your charge.
F
4.
Use of indecent language and shouting for giving reply.
5.
Using caste related words to spoil the atmosphere.
6.
Instigating other teachers and provoking them to neglect their
duties.
G
7.
Non-cooperation in the development of school and increasing
the number of students.
8.
Threats to me· (Principal) for dire consequences, in my office and
also giving threats on my residential telephone through other
H
818
A
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
unsocial elements.
I hereby give you this last warning to improve your attitude and
work as a model teacher. Please note that earlier also your services
had been terminated because of such type of your attitude and you
had been reinstated in the service after your apologizing and you had
B
assured that you will never repeat such mistakes and indiscipline in
future.
c
D
E
F
G
H
Therefore, being the Principal of School, I advise you to stop
these acts of indiscipline and work as a model teacher.
Yours faithfully,
Sd/-
(Smt. Kusum Sharma)
Principal
G. Jr. High School, Bal Vidya Mandir, Etah
Copy forwarded to following for information and necessary action:-
I.
Manager. G. Jr. H. School, Bal Vidya Mandir, Etah
2.
District Basic Education Officer, Etah
Sd/-
(Smt. Kusum Sharma)
Principal
G. Jr. High School, Bal Vidya Mandir, Etah"
The appellant did not receive any satisfactory reply from respondent
no. 3 and on 24.9.2001 a suspension order was passed. The suspension order
dated 24.9.200 I reads as under:
"G. Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized
from Government for the Class from Nursery to Vlllth)
From:
Manager
To:
Smt. Santosh Upadhyaya, Asstt. Teacher, G. Jr. H. School, Bal
Vidya Mandir, Etah
Dated: 24.9.2001
COMMITIEE OF MANAGEMENT'· SACHIV. U.P. BASIC SHIKSHA PARISHAD [DAL VEER BHANDARI, J.J8 J 9
. "
ORDER
A
Consequent upon not receiving the satisfactory reply for the
following charges, Smt. Santosh Upadhyaya, A.T., Girls Junior High
School, Bal Vidya Mandir, Etah is placed under suspension with
immediate effect. The charge-sheet will be issued after the detailed
enquiry, within two week's period.
B
I.
Refusal to sign on the Order Register and on other information
etc.
2.
Laxity in teaching work.
3.
Non-performing the duties of your charge.
c
4.
Use of indecent language and shouting for giving reply.
5.
Using caste related words to spoil the atmosphere.
6.
Instigating other teachers and provoking them to neglect their
duties.
D
7.
Non-cooperation in the development of school and increasing
the number of students.
8.
Threats to the Principal for dire consequences and also giving
threats on her residential telephone through other unsocial
elements.
E
During the period of suspension, you will be entitled to get
Subsistence Allowance according to the Rule 53 of Financial Hand
Book Part 2 (Part 2 to 4). During the period of suspension, you will
remain attached with S.K.S. Girls Junior High School, Etah.
F
Sd/-
(Dev Rishi Jain)
G. Jr. High School, Bal Vidya Mandir, Etah
Endst. No. 1-5/2001-2002 Dated: 24.9.2001
G
•at
Copy forwarded to following for information and necessary action:-
I.
Smt. Santosh Upadhyaya, A.T., G. Jr. High School, Bal Vidya
Mandir, Etah.
'
2.
District Basic Education Officer, Etah for information.
...
H
820
SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.
A
3.
Account Officer, Finance & Accounts Basic Education, Etah
B
4.
Smt. Kusum Sharma, Principal, Bat Vidya Mandir, Etah.
5.
Guard File.
Sci/-
(Dev Rishi Jain)
G. Jr. H. School, Bal Vidya Mandir, Etah.
24.9.2001"
On 17.10.200 I, the Manager, G.J. High School, Bal Vidya Mandir, Etah
received a letter from the District Basic Education Officer, Etah indicating that
C for a minority institution there is no requirement of prior approval for imposing
penalty on Assistant Teachers from the District Basic Education Officer. The
letter dated 17.10.2001 reads as under:
D
~
>
E
F
G
H
"Office of the District Basic Education Officer, Etah
No. 3381-82
Dated: 17. I 0.200 I
The Manager, G. J. High School,
Bal Viclya Mandir, Etah.
As per Govt. Order No. 1091/15.6.95 dated 14th July, 1995 in the
matters of penalty to the Assistant Teachers and Principals of
Recognized Junior High School, there is no requirement of prior
approval from the District Basic Education Officer, therefore, in view
of these provisions, the order No. B.S. /Sus./3196/2001-2002 dated
10.10.2001 issued by the undersigned regarding re-instatement ofSmt.
Santosh Upadhyaya, Assistant Teacher (Under Suspension) is hereby
cancelled, and it is decided that no interference will be made in the
enquiry proceedings till the final disposal by Manager. This School
has been recognized as Minority Institution and as per departmental
rules, I have no right to interfere in its matters and as per Govt. orders,
the decision taken by the Manager shall be acceptable to all.
Endst. No.
Sd/-
(Tilak Singh Rajput)
District Basic Education Officer, Etah.
12001-2002 even date
,.
, -
COMMITTEE OF MANAGEMENT'· SACHIV, U.P. BASIC SHIKSHA PARISHAD (DALVEERBHANDARI, J.]821
I.
Copy to Smt. Santosh Upadhyaya, Assistant Teacher (Under A
Suspension), G. J. High School, Bal Vidya Mandir, Etah for
information.
Sd/-
(Tilak Singh Rajput)
District Basic Education Officer, Etah." B
The appellant institution, namely Kanya Junior High School Bal Vidya
Mandir, was established and administered by the Jain community which has
been recognized as a minority community. In this School education is imparted
up from Nursery to standard VIII. An enquiry was conducted and after
receiving the enquiry report from the Enquiry Officer, meeting of the Managing C
Committee was called on 9.11.2001 which was attended by all the members of
the Managing Committee. The enquiry report and reply to the show cause
notice were considered. The charges levelled against respondent no. 3 were
unanimously proved. In the interest of the institution and its good reputation,
respondent no. 3 was removed from the service of the school. The order of
termination dated I 0.11.200 I reads as under:
D
"From: Manager,
G. J. High School,
Bal Vidya Mandir, Etah.
To: Smt. Santosh Upadhyaya,
Assistant Teacher (Under Suspension)
G. J. High School, Bal Vidya Mandir, Etah.
No. 18-20/2001-2002
Dated: I 0.11.200 I
Subject: Order of Termination from service.
Madam,
E
F
After the submission of the Enquiry Report by the Enquiry Officer
regarding suspension of Smt. Santosh Upadhyaya, meeting of G
Managing Committee was called on 9.11.2001 and formal resolution
was passed as per rules and all the members of Managing Committee
and Principal attended this meeting. The Enquiry Report and
explanation (Show Cause Notice) were considered carefully and
thereafter it has been decided unanimously that the charges levelled H
822
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A
against Smt. Santosh Upadhayaya, on the basis of statements and
,, .
evidence, have been found fully proved. These cannot be considered
as wrong in any manner. It would be in the interest of school and its
reputation that Smt. Upadhyaya be removed from the services of this
School. Therefore, notice of termination from service may be sent to
B
her and competent officer may also be informed on this subject.
I.
After receiving the report of District Basic Education Officer
regarding your in-disciplinary activities in the School, your one
annual increment had been stopped. This annual increment had
been stopped w.e.f. 1st January, 2001 and the above said Basic
c
Education Officer had been transferred from this District in June,
200 I. During this period of 6 months, you never made any
~pplication regarding stopping of this annual increment, reasons
of which are best known to you. It shows that you were very well
aware that the annual increment has been stopped on your noncomplying with the department rules and you had no sufficient
D
evidence against these charges, therefore, above said charges
are found proved against you.
2.
A charge sheet had been issued to you by the undersigned, vide
letter No. 7-3-2001/2002 dt. 1.10.2001 regarding your working style
against the interests of school, but you did not submit any
E
evidence with your reply to the said charge sheet. It is thus clear
that you have admitted the charge Nos. 6, 7, 8, 9 because you
have not submitted any evidence regarding these charges.
3.
The Enquiry Officer, vide his letter dated 10.10.2001 had issued
to you the evidence related to the charge, but instead of producing
F
any evidence or document in this regard, you only made
allegations against the Principal, other teachers and the
management. In the show cause notice vide letter dated 26.9.2001,
you had been charged with the charge of character assassination
of undersigned Manager, for which you have neither submitted
any evidence nor your explanation.
G
As far as the question of your orders of reinstatement issued by
the District Basic Education Officer vide his letter dated I 0.10.200 I is
..
concerned, the same has been considered ex-parte and beyond his
jurisdiction, therefore, the same have been cancelled vide his letter
No. 3381-82 dated 17.10.2001.
H
COMMITTEE OF MANAGEMENT'- SACHIV, U.P. BASIC SHIKSHA PARISHAD [DAL VEER BHANDARI,!.] 823
In his second decision, it has been admitted by the District Basic A
Education Officer that this School is of 'Minority Community' and he
should have not interfered in its matter. As far as your statement, that
it is not a Minority Community's school, is concerned, it is not within
your competency, you have worked as a Teacher and it is not within
your competency to challenge the rules, regulations and government
orders related to this School. It is a matter of gross indiscipline on B
your part. The allegations made by you regarding fees etc. are baseless
and beyond the facts. It has been found fully proved that you have
misappropriated the funds of students fee and used the same for
personal interests.
In this manner, you have failed to submit any evidence and C
documents with regard to charges levelled against you in the show
cause notice on the basis of that your matter should have been
reviewed.
In the absence of same, the reply to show cause notice received D
from you within the stipulated time, is not satisfactory and in these
circumstances, there is no justification to keep you in service of this
School. Consequent upon your failing to submit an appropriate
evidence and document before the undersigned, despite the sufficient
opportunities to explain, your services are terminated with immediate
effect.
E
Yours faithfully,
Sd/-
(Dev Rishi Jain)
Manager
G. Jr. High School, Bal Vidya Mandir, Etah. F
Copy to: - For information -
I.
District Basic Education Officer, Etah
2.
Finance and Accounts Officer -
Basic Education, Etah
Sci/- G
(Dev Rishi Jain)
Manager
G. Jr. High School, Bal Vidya Mandir, Etah."
Respondent no. 3 challenged the order of termination dated 10.11.2001
before the High Court of Judicature at Allahabad by filing a writ petition, H
824
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A which was decided by the learned Single Judge on 7.12.2001.
A preliminary objection was raised on behalf of the appellant that in
view of the provisions of Rule 16 of the Uttar Pradesh Recognized Basic
Schools (Junior High Schools) (Recruitment and Conditions of Services of
Teacher) Rules, 1978, the provisions of Rule 16 are applicable to the teachers
B and Headmaster of the institution run by Basic Shiksha Parishad and according
to 1978 Rules order of termination, dismissal or removal is an appealable order.
c
The learned Single Judge accepted the preliminary objection regarding
availability of alternate remedy and declined to interfere with the termination
order dated I0.11.200 I and dismissed the Writ Petition.
Respondent no. 3, aggrieved by the order of the learned Single Judge,
preferred a Special Appeal before a Division Bench of the High Court of
Judicature at Allahabad. It was incorporated in the said order of the Division
Bench that respondent no. 3 's services were terminated after holding an
D enquiry by the Managing Committee by an order dated 10.11.200 I. The
grie"lance of respondent no. 3 was that the order passed by the Managing
Committee was without taking approval from the District Basic Education
Officer, therefore, the order of termination dated 10.11.200 I is a nullity and that
the learned Single Judge had committed a serious error in dismissing the writ
petition.
E
The learned counsel appearing for the appellant institution specifically
submitted before the Single Judge that the appellant is a minority institution
being run by the Jain Community and has been recognized as such. Therefore,
there was no requirement for obtaining prior approval of the District Basic
Education Officer before terminating the services of respondent no. 3. The
F counsel appearing for the appellant had drawn the attention of the learned
Single Judge about the order which was passed way back as on 25.8.1976 by
the concerned authorities that the appellant institution was a minority
institution. The order dated 25.8.1976 reads as follows:
G
"Office of the District Inspector of School, Etah
Order No. B.S.P./11264176-77 Dt. 25.8.1976
ORDER
On the basis of recommendations dated 27.7.1976, District Basic
H
Education Officer Girls Junior High School, Bal Vidya Mandir, Etah
..
•
COMMITTEE OF MANAGEMENT''· SACHIV, U.P. BASIC SHIKSHA PARISHAD [DAL VEER BHANDARI. J] 825
is declared a Minority Institution under Regulation I I for the A
Recognized Basic School (Recruitment and Conditions of Service of
Teacher's and other Conditions) Rule, 1975, notified on 20.5.1975
because this Institution is being established and managed by minority
category mentioned under Article 30( I) of the Constitution.
Sci/- B
(Ram Prakash Singh)
District Inspector of School, Etah
No. B.E.P.//11264/76-77 even date
Copy forwarded to following for information & necessary action
please:-
C
I.
District Basic Education Officer, Etah With reference to his office
letter No. CA-4404/12/B.R.D. Minority/76-77 dated. 27.7.76.
2.
Manager Girls Junior High School, Bal Vidya Mandir, Etah.
3.
Dy. Director of Education, Region-II, Agra.
4.
Regional Inspector of Girls School Region-II, Agra.
5.
Director of Education, U.P. Peerpur House, Tilak Marg, Lucknow.
D
Sd/-
(Ram Prakash Singh) E
District Inspector of School,
Etah"
Rule 11 of the Uttar Pradesh Recognized Basic School (Recruitment and
Conditions of Service of Teachers and Other Conditions) Rules, 1975 reads
as under:
"11. Dismissal and Removal of Teachers.-No order dismissing,
removing or terminating the services of a teacher or other employee
of a recognized school shall be passed save with the prior approval
in writing of the Basic Shiksha Adhikari:
Provided that in case of recognized schools estahlished and
administered by minority referred to in clause (I) of Article 30 of the
Constitution, such an order shall not require the approval of the Basic
Shiksha Adhikari but shall be reported to him."
F
G
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SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.
A
It may be pertinent to mention that a letter dated 7.3 .2003 sent by the
B
c
D
E
F
G
District Inspector of School, Etah to the Basic Eduction Officer, Etah regarding
verification of the Girls Junior High School Bal Vidya Mandir, Etah Minority
Institution is as under:
"From,
District Inspector of School, Etah.
To,
To Basic Education Officer, Etah.
Letter No.
/2002-03
Dated 7.3.2003
Sub: In regard to verification of Girls Junior High School Bal Vidya
Mandir, Etah Minority Institution.
Sir,
In the ab11ve matter kindly peruse your office letter B.S. 7493/200203 dated 24.2.2003.
In the regard by this office 2.9.2002, the position is made clear,
where as the then District Inspector of School, Etah in accordance
with the then Rules was competent authority to declare the
aforementioned School as Minority Institution or not? It is informed
in this regard, as per para 3 under heading "Minority Institution" of
Madhyan I 0, photo copy of the same is enclosed the then District
Inspector of School was Competent Authority to decide the Minority
Institution.
Please be aware accordingly and take necessary action.
Enclosed: As above."
Sd/-
7.32003
(K. N. Kanaujiya)
District Inspector of School, Etah.
According to the appellant institution, it is clearly mentioned that the
District Basic Education Officer was competent to decide regarding minority
H status of the institution. The Division Bench of the Allahabad High Court in
L. I !
~
COMMITI"EEOF MANAGEMENT''· SACHIV, UP BASIC SHIKSHA PARISHAD [DALvEER BHANDARI, l] 827
Special Appeal 1207/2001, after hearing the parties, observed as under:
A
;
"The institution has been accorded the status of a minority
institution thus no prior approval of the District Basic Education
Officer for tenninating the services of a teacher in a minority institution
is required to be taken in view of the proviso to Rule 15 of the 1978
Rules."
The appeal filed by respondent no. 3 was dismissed by an order dated
13.112002.
B
In subsequent proceedings in Writ Petition No. 1525 of 2003, the learned
Single Judge of the Allahabad High Court on 10.4.03, while altogether ignoring C
the said judgment of the Division Bench of the same Court in the Special
Appeal No. 1207 of 2001, (by which he was bound), had observed in the
judgment that ir. a Special Appeal the· Court had not considered the question
regarding the minority status of the institution. This observation of the
learned Single Judge is wholly untenable.
The approach adopted by the learned Single Judge in this case is
against the settled principle of law. Law is consistent and clear that the Single
Judge of the High Court is bound by the decision of the Division Bench.
D
In support of the view taken by the Division Bench adequate material
exists. We deem it proper to recapitulate references to the decided cases and E
other relevant material.
The Government of Madhya Pradesh, by a notification dated 29.5 .200 I,
declared the Jain community in the State of Madhya Pradesh as a minority
community.
The Founding Fathers of the Constitution had unequivocally recognized·
the Jains as a minority community as is evident from the proceedings of the
Constituent Assembly. While keeping in view that the Jains are a minority
community, a representative of the Jain community was taken in the Minority
F
Advisory Committee of the Constituent Assembly.
G
On 3rd September, 1949, while addressing a public meeting at Allahabad,
the first Prime Minister of India, Shri Jawahar Lal Nehru said. We quote a few
lines from the said speech -
"No doubt India has a vast majority of Hindus, but they could not H
828
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A
forget the fact that there were also minorities-Muslims, Parsis,
Christians, Sikhs and Jains. If India was understood as a Hindu
Rashtra, it meant that the minorities were not cent percent citizens of
this country."
The said speech was reported in the English daily newspaper "The Statesman'
B dated 5.9.1949.
c
D
E
F
On 3 lst January, 1950, the PPS to the then Prime Minister of India sent
a letter to the Jain Deputation on behalf of the then Prime Minister, which
reads as under:
"With reference to the deputation of certain representatives of the
Jains, who met the Prime Minister on the 25th January, 1950, I am
desired to say that there is no cause whatever for the Jains to have
any apprehensions regarding the future of their religion and community.
Your deputation drew attention to Article 25, explanation II of the
Constitution. This explanation only lays down a rule of construction
for the limited purpose of the provision in the article and as you will
notice, it mentions not only of Jains but also Buddhists and the Sikhs.
It is clear therefore, there is no reason for thinking that Jains are
considered as Hindus. It is true that Jains in some ways closely linked
to Hindus and have many customs in common, but there can be no
doubt that they are a distinct religious community and constitution
does not in any way affect this well recognized position.
Yours faithfully,
Sd.
A. V.Pai
Principal Private Secretary to the Prime Minister"
Dr. S. Radhakrishnan, the fonner President of India, in his celebrated
book '"Indian Philosophy Vol I" mentioned as under:
"The Bhagawat Purana endorses the view that Rishbhadeva was
G
the founder of Jainism. There is evidence to show that so far back as
the first century B .C. there were people who were worshipping
Rishabhadeva, the first Tirthankara. There is no doubt that Jainism
prevailed even before Vardhamana Mahaveera or Parsvanatha. The
Yajurveda mentions the names of three Tirthankaras-Rishab, Ajitnath
H
& Aristanemi."
COMMITIEE OF MANAGEMENT"· SACHIV. U.P. BASIC SHIKSHA PARISHAD [DAL VEER BHANDARI, J J 829
A well known German Oriental scholar, Dr. Hermann Jacob mentioned A
before the 3rd International Congress for the History of Religions as under:
"In conclusion let me assert my conviction that Jainism is an
original system, quite distinct and independent from all others and
that therefore it is of great importance for the study of philosophical
thought and religious life in ancient India." (This was mentioned in B
Vol. 2, p. 66 Oxford.)
Pt. Jawahar Lal Nehru, in his celebrated book "Discovery of India",
mentioned as under:
"Buddhism and Jainism were certainly not Hinduism or even the C
Vedic Dharma. Yet they arose in India and were integral parts of Indian
life, culture and philosophy. A Buddhist or Jain, in India, is a hundred
per cent product of Indian thought and culture, yet neither is a Hindu
by faith. It is, therefore, entirely misleading to refer to Indian culture
as Hindu culture."
As Dr. Jyoti Prasad Jain, an eminent Jain scholar mentioned in his
treatise "Jainism-The Oldest Living Religion":
D
"In fact, there is whatsoever no tangible evidence to show that
Jainism branched off from the Vedic religion or from any of its later
development, at such and such time, nor there is any marked similarity E
between the fundamental doctrines and essential features of the two
systems, which might favour that possibility. Jainism with its perfectly
non-violent-creed, animistic belief, subtle and peculiar karma theory,
its rejection of a creator and the creation theory, and the like, is not
only quite an original system but is also absolutely independent of F
all other systems. In its origin, it is not only non-Aryan and preAryan, in the sense that these terms are now generally understood,
but it is also primitive and absolutely indigenous."
A well known book on Jainism written by Madam M. R. Guseva,
[Candidate of Historical Sciences at the Institute of Ethnography of the G
Academy of Sciences, USSR and Jawaharlal Nehru Prize Winner (1973)],
revealed the historical and ethnographic roots of Jainism, tracing the
development of the Jain community since ancient times evaluating the Jain
contribution to Indian literature and art. In particular the book makes a point
that Jainism has such substantially distinguishing features that they do not
H
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A afford any possibility of regarding Jainism as an offshoot of Brahmanism.
One of the hotly debated issues in the United Nations was the question
of defining what constitutes a 'minority'? Besides considering many proposed
definitions, the UN had two authoritative definitions before it. The PCIJ (in
an advisory opinion of July 31, 1930) had defined a community in the GraecoB Bulgarian Communities case as:
c
"By tradition, the ·community' is a group of persons living in a given
country of locality, having a race, religion, language and traditions of
their own and united by this identity of race, religion, language and
traditions, in a settlement of solidarity, with a view to preserving their
traditions, maintaining their form of worship, ensuring the instruction
and upbringing of their children in accordance with the spirit and
traditions of their race and rendering mutual assistance to each other."
The Government of Karnataka by a circular dated 12.6.1996 considered
D Jains belonging to backward clas~es. The circular reads as under:
E
F
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H
"'GOVERNMENT OF KARNATAKA No. SWD 84 BCA 96
Karnataka Government Secretariat-2
Multistoreyed Building Ban3alore, dated 12-06-1996
CIRCULAR
Sub:- Regarding the issue of certificate of Backward classes to the
candidates belonging to Jain Digambaras.
In the list of Backward Class Communities published in Government
Order No. SWD 150 BCA 94 dated 17-9-94, the Jain (Digambara)
Community has been included in category Ill (b ). After considering
the representations received from the various Associations of Jain
Community and also the clarifications sought for by some of the Dy.
Commissioners and Tahsildars in this regards, it is directed that the
candidates belonging to Jain (Digambara) Community become eligible
for reservation under Category Ill (b) only after production of reliable
documents by them. The concerned candidate should prove, either
through documentary evidence or through witness that he, his father
or their ancestors belong to Jain (Digambara) Community. In cases
where the Jain (Digambara) has not been clearly mentioned in the
documents, t:1e officer authorized to issue such certificates or the
inquiring officer should hold local enquiry and only if he is satisfied
--
COMMIITEE OF MANAGEMENT'- SACHIV, U.P. BASIC SHIKSHA PARISHAD [DALVEER BHANDARI. J] 83 J
as to the correctness of th~ claims of the candidates during course A
of such enquiry, that he should issue certificates. He should, however,
draw up a clear and detailed proceedings of his enquiry before issue
of the Certificate. Disciplinary action will be taken against the Officers
who issue Caste certificates/Inquiry Certificates in violation of rules
of reservations.
Sdl-
(B. S. Rukmini)
Under Secretary to Govt.
S;icial Welfare Department"
B
Jn Re: Kera/a Education Bill, 1957 reported in AIR 1958 SC 956, the C
Apex Court accepted the literal meaning of word "minority" to mean numerically
less than 50%.
The Encyclopaedia of World Religions by G. T. Bettany mentioned the
Jain religion as independent of the other religions. According to the said
Encyclopedia, Jainism is co-equal with, if not slightly older than, Buddhism, D
and took its rise in the same development of Brahman asceticism and reaction
from Brahmanical tyranny.
Encyclopaedia Britannica defines the Jain religion in the following
words:
"Jainism" a religion and philosophy in India, founded in about
the 6th century BC by Vardhmana Mahavira - the 24th of the Jinas
(Conquerors), or great religious figures on whose example the religion
E
is centered in protest against the orthodox Vedic (early Hindu ritualistic
cult of the period. Jainism, which does not espouse beliefin a creator
god, has as its ethical core the doctrine of ahimsa, or non injury to F
all living creatures, and as its religious ideal the perfection of man's
nature, to be achieved predominantly through the monastic and ascetic
life."
Dr. Radhakrishnan, who edited the 6th Volume of The Cultural Heritage
of India, mentioned as under:
G
"The Jains claim a great antiquity for their religion. Their earliest
prophet was Rishabhdeva. Who is mentioned even in the Vishnu and
Bhagawat Puranas as belonging to a very remote past. In the earliest
Brahmanic literature are found traces of the existence of a religious H
832
A
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SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
Order, which ranged itself strongly against the authority of the Vedas
and the institution of animal sacrifice. According to the Jain tradition,
at the time of the Mahabharata war, this Order was led by Neminatha,
who is said to have belonged to the same Yadava family as Krisna and
who is recognized as the twenty-second Tirthankara. The Order
gathered particular strength during the eighth century B.C. under
Parsvanatha the twenty-third Tirthankaran, who was born at Varanasi.
This order we may call the sramana sangha (as distinct from the Vedic
Order), which later became divided into the Jain and the Buddhist
Orders under Mahaveera and the Buddha, respectively."
C
According to Dr. Raj Bali Pandey's book "Hindu Dharam Kosh" Jainism
is described as a distinct religious order existing in Indian polity since times
of great antiquity and was opposed to ritualistic cult of Vedic philosophy.
According to him, Jainism is existing in India since at least 700 B.C.
According to the learned Single Judge, minority status could be granted
D only by the U. P. Basic Shiksha Parishad and since it was not granted to the
appellant institution by the said Parishad, the appellant institution could not
tenninate the services of respondent no. 3 without prior permission from the
District Basic Education Officer. The appellant aggrieved by this order preferred
this appeal before this Court.
E
This Court, on 11.7.2003, while issuing notice directed that the status
quo as on that date shall be maintained until further order. On 5.12.2003 this
Court, while granting leave, directed the parties to continue to maintain the
status quo.
In this appeal the appellant raised a substantial question of law. The
F appellant raised the plea that in view of the judgment of the Division Bench
whether it was open to the learned Single Judge of the High Court to take
a contrary view by its judgment dated 10.4.2003. The Division Bench observed
as under:
G
H
"Having heard the learned counsel for the parties we find that it is not
in dispute that the appellant writ petitioner was working as a teacher
in recognized loasic school. The institution has been accorded the
status of minority institution thus no prior approval of the District
Basic Education Officer for tenninating the services of the teacher in
a minority institution is required to be taken in view of the provision
Rule 15 of the 1978 Rule."
•
(
COMMITIEEOF MANAGEMENT"· SACHIV, U.P. BASIC SHIKSHAPARISHAD [DALVEER BHANDARI, J.J 833
In view of the said clear findings of the Division Bench of the same High A
Court, the learned Single Judge of the same High Court could not take a
contrary view.