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Judgment
M. Katju, J.—An important and interesting question of law arises in this case as to whether minority educational institutions, which have the protection of Article 30 of the Constitution, can be compelled by the authorities to make appointments under the dying-in-harness rules (compassionate appointment) on a class III or class IV post.
By means of this petition the Petitioner has prayed for a writ of certiorari to quash the impugned Government order dated 21.11.1995 (Annexure-3 to the writ petition) passed by the Respondent No. 2 the Joint Secretary, U.P. Government, Lucknow, order dated 17.4.2002 passed by the Respondent No. 5, Assistant Director of Higher Education, U.P. at Allahabad, (Annexure-4 to the writ petition) ; the order dated 22.7.2003 passed by the Respondent No. 6 Regional Higher Education Officer, Gorakhpur (Annexure-5 to the writ petition) and the order dated 7.8.2002 passed by the Respondent No. 4 Joint Director of Higher Education, U.P. at Allahabad (Annexure-6 to the writ petition).
In this case on 23.4.2003 learned standing counsel was granted three weeks time to file counter-affidavit but no counter-affidavit has been filed on behalf of the Respondent Nos. 1 to 6. The only counter-affidavit has been filed is on behalf of Respondent No. 7.
The Petitioner is the governing body of a minority institution and it is registered under the Societies Registration Act. The St. Andrew''s College, Gorakhpur is a Post-Graduate College affiliated to Gorakhpur University, and is one of the 12 minority institutions declared as such by the State Government by letter dated 18.1.1996 vide Annexure-2 to the writ petition.
The Petitioner is aggrieved against the impugned orders, which have directed issuance of appointment order to Respondent No. 7 Suneet Kumar Nanda as a routine clerk under the dying-in-harness rules. It may be mentioned that Suneet Kumar Nanda was the dependent of the late Suresh Chandra Nanda, a lecturer in the college who died-in-harness. Suresh Chandra Nanda was the Head of Physical Education Department of the College who died on 30.7.2000 and his son the Respondent No. 7 applied to the Principal to give him the job vide Annexure-10 to the writ petition. The governing body of the society on 23/24.2.2001 resolved that the Respondent No. 5 may be appointed as routine clerk only if an additional permanent post of class III staff is created by the Director of Higher Education, U.P. and this is the liability of the State Government. True copy of the resolution is Annexure-11 to the writ petition.
In paragraph 18 of the writ petition it is stated that the Assistant Director, Higher Education on behalf of the Director, Higher Education, U.P., passed an order dated 17.4.2002 directing the Principal of the college to appoint the Respondent No. 7 as routine clerk on the vacancy caused by the retirement of Kamlesh Prasad Pandey a routine clerk. It is alleged that no new post of clerk was created by State Government though the governing body in its resolution dated 23/24.2.2001 had clearly resolved that until a new post of routine clerk is created the appointment of Respondent No. 7 cannot be made. The Petitioners have alleged that under Articles 29 and 30 of the Constitution the college is a minority institution and is entitled to the protection of the said Articles, and hence it cannot be compelled to appoint Respondent No. 7.
Under Chapter XXIII, Statute 39 of the Gorakhpur University Statutes, the dying-in-harness rules are applicable but it is submitted that this provision applies only to the general institution and not to minority institutions.
It is stated in paragraph 23 of the writ petition that neither in the U.P. State Universities Act, 1973, nor in the Statute of Gorakhpur University is there are provision for appointment under the dying-in-harness rules in respect of minority institution. However, by Government order dated 21.11.1995 (Annexure-3 to the writ petition) the State Government has directed appointment under dying-in-harness rules. The Petitioners have alleged that this Government order dated 21.11.1995 is ultra vires Articles 29 and 30 of the Constitution.
A counter-affidavit has been filed by the Respondent No. 7 and we have perused the same. It is alleged in paragraph 4 that this is the third writ petition. As regards Writ Petition No. 33961 of 2002, decided on 4.3.2003 vide Annexure-9 to the writ petition, it may be mentioned that a perusal of the judgment in that case shows that the petition was dismissed only because it was filed by a member of the Managing Committee and not by the Managing Committee. Moreover, this judgment dated 4.3.2003 itself states that the dismissal of that petition will not affect the right of the Committee of Management to file a fresh petition, if so entitled. Hence no benefit can be derived by the Respondents by the dismissal of Writ Petition No. 33961 of 2002. As regards the Writ Petition No. 33298 of 2002 is concerned the validity of the Government order dated 21.11.1995 has not been challenged in that petition as stated in paragraph 7 of the writ petition. Hence, in our opinion, those two writ petitions cannot come in the way of the Petitioners in seeking relief in this case.
In paragraph 12 of the counter-affidavit it is stated that the college has made appointment under dying-in-harness rules in respect of several employees and hence there is discrimination against the Respondent No. 7. It is further stated in paragraphs 15 and 17 of the same that under the First Statute of the Gorakhpur University Statutes appointment can be made under dying-in-harness rules.
A rejoinder-affidavit has also been filed and we have perused the same.
The important question in this case is whether the authorities can compel the management of a minority institution to make appointment under the dying-in-harness rules (compassionate appointment) on a class III or class IV post.
Article 30(1) of the Constitution states:
"All minorities, whether based on religion or language shall have the right to establish and administer educational institu-tions of their choice."
It has been held in the landmark judgment of an eleven Judge Bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka 2002 (4) AWC 3297 (SC): (2002) 8 SCC 481(paragraphs 135 to 137) that the right under Article 30(1) is not an absolute right but is subject to reasonable regulations pertaining to health, morality, standard of education, etc. In paragraph 137 of the aforesaid judgment the Supreme Court has observed:
"By the same analogy there is no reason why regulations or conditions concerning generally the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere as such provisions do not in any way interfere with the right of administration or management under Article 30(1)."
Thus, the Supreme Court has laid down that even for minority institutions regulations can be made for the welfare of teachers. In our opinion, a provision for making compassionate appointment on the death of a serving teacher is certainly for the welfare of teachers because such teachers will know that even if they die in service, their dependents will not starve. Hence they can teach and function free of worry about what will happen to their families if they die. Hence, in our opinion, the impugned Government order dated 21.11.1995, as well as the other impugned orders are perfectly valid as they are regulations made for the welfare of teachers in minority institutions and as such, they do not in any way interfere with the right of administration or management under Article 30(1) of the Constitution.
Learned Counsel for the Petitioner has invited our attention to the decision of a learned single Judge of this Court in Committee of Management, M.A.H. Inter College v. D.I.O.S., Ghazipur, (2002) 3 AWC 2221, in which a contrary view has been taken by the learned single Judge. The learned single Judge was of the view that since an appointment on compassionate grounds is not made on merit since there is no competition with the candidates from the open market, hence it cannot be said that a direction for making such appointments in minority institutions will be conducive to efficiency and standards of education in the said institution. We respectfully disagree with the reasoning given by the learned single Judge. As held by the Supreme Court in T. M. A. Pai''s case (supra) a regulation for the welfare of teacher does not infringe the right of a minority institution under Article 30 of the Constitution. We do not see how appointment on a class III or class IV post will affect the standard of education in a minority institution. After all, a class III post is not a teacher''s post.
In the present case the facts reveal that a teacher, Suresh Chandra Nanda died-in-harness and the impugned order directed that his son Suneet Kumar Nanda be appointed as a routine clerk on compassionate grounds. We do not see as to how this infringes Article 30(1) of the Constitution. In fact the impugned Government order and the impugned orders are for the welfare of teachers as they can do teaching with a free mind knowing that even if they die-in-harness their family will not starve, as a dependant will get a job on compassionate ground.
Moreover, in the present case, a vacancy on the post of routine clerk had been caused by the retirement of one Kamlesh Prasad Pandey, a routine clerk and hence the Respondent No. 7 could have easily been appointed on that vacancy. We cannot understand why the Petitioner has taken such a rigid view in the matter.
As regards the decision of the Supreme Court in Yunus Ali Shah v. Mohd. Ali Kalam, JT 1999 (3) SC 32, which has been followed by a Division Bench of this Court in S. K. Varshney v. Principal, Our Lady of Fatima Higher Secondary School, Aligarh 1999 (4) AWC 3244 and in Committee of Management v. Raj Kumar Shukla 1999 (4) AWC 3240, and the decision of the Supreme Court in Committee of Management, St. John Inter College v. Girdhari Singh AIR 2001 SC 189, those decisions are clearly distinguishable. In those decisions, all that has been said is that no approval of any authority required before termination of service of a lecturer in a minority educational institution in view of Article 30 of the Constitution. Those decisions have nothing to do with appointments under the dying-in-harness rules, and hence can have no application.
As regards the decision of the Supreme Court in N. Ammad v. Manager, Emjay High School 1998 (6) SCC 764, all that has been held in that decision is that the management has full freedom to appoint any person as Head Master. This again has nothing to do with compassionate appointment on a class III post. Hence this decision is also distinguishable.
We see no reason why humanitarian regulations, such as the kind, which has been impugned in this petition, cannot be made for minority institution. 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.
The petition is dismissed. Let the Registrar General of this Court send copy of this judgment forthwith to the Principal Secretary, Education, U.P., who will send copies to all District Inspectors of School, R.I.G.S., Deputy Directors of Education and other concerned authorities in the State.