SHUSIL JAMES Vs. STATE OF U P

JUDGEMENT

(1.) AFORESAID two writ petitions have been filed by Shusil James and Rajiv Henry to challenge the order dated 12.6.2002 as Annexure-1 in Writ Petition No. 5796 (S/S) of 2002 and the same order as Annexure-9 in Writ Petition No. 5931 (S/S) of 2002 and the other two orders as Annexure-2 in Writ Petition No. 5796 (S/S) of 2002 and as Annexure-10 in Writ Petition No. 5931 (S/S) of 2002 by which the services of the petitioners have been terminated on the basis of the common order of the District Inspector of Schools dated 12.6.2002 impugned in both the writ petitions. The facts of aforesaid writ petitions are near about the same and the stand taken by the opposite parties in both the writ petitions is also the same.

(2.) ACCORDING to the petitioners, James Harvey Memorial Higher Secondary School, Nawabganj, district Gonda (hereinafter referred to as the 'Institution') is an institution recognized by the U. P. Intermediate Education Board and is a minority institution. This institution is governed by the U. P. Intermediate Education Act and the regulations framed thereunder applicable with all the provisions as contained under Section 16 (FF) of the Intermediate Education Act (hereinafter referred to as the 'Act'). It is alleged that one post of Assistant Teacher L.T. Grade (English) fell vacant on 1.7.2000 due to retirement of Shri C. V. Upadhyaya and another post of Assistant Teacher, L.T. Grade (General) fell vacant on 1.7.2001 due to retirement of Shri V. P. Dutt. Since the post of Assistant Teacher, L.T. Grade (English Teacher) was lying vacant with effect from 1.7.2000 and another post of L.T. Grade (General) was going to fell vacant on 1.7.2001 and as such the posts were advertised in the months of May, 2001 itself in the daily newspaper 'Jan Morcha' and 'Dainik Jagran' and the last date for submission of the application forms was 23.5.2001. Although the posts were advertised but due to some unknown reasons, the selection process to fill up the aforesaid posts was cancelled by the management of the institution. These two posts were again advertised on 12.10.2001 in the daily newspaper 'Jan Morcha' and on 13.10.2001 in the daily newspaper 'Dainik Jagran'. Sunil James was selected for the post of Assistant Teacher, L.T. Grade (General) and Rajeev Henry was selected for Assistant Teacher post of L.T. Grade (English Teacher). The papers were sent to the District Inspector of Schools for approval on 10.10.2001 but the District Inspector of Schools did not take any decision either approving or disapproving the appointments of the petitioners. It is alleged that the appointment in the minority institution are made by the Committee of Management under Section 16 (FF) of the U. P. Intermediate Education Act and the detailed procedure has been given in Regulation 17 (g) of the Regulations in Chapter II of the Act. This Regulation 17 (g) provides that in case District Inspector of Schools does not take any decision within one month from the date of receipt of the letter, the approval would be deemed to have been accorded. Since the papers were received in the office of the District Inspector of Schools on 4.12.2001 and no decision was taken within one month by the District Inspector of Schools, the selection to the appointment of the petitioner was deemed to have been approved under Regulation 17 (g) of the Regulations and as such on 1.2.2002, the Manager of the College sent a letter informing the District Inspector of Schools on 1.2.2002. As such this letter (Annexure-4 of first writ petition) was received in the office of the District Inspector of Schools on 5.2.2002. It is alleged that on 10.5.2002, the District Inspector of Schools, Gonda wrote a letter to the Principal/Manager of the institution mentioning therein that the management was directed on telephone to send the papers for approval/financial concurrence only after allowing the joining to the petitioner and Rajiv Henry but the same was not done and as such the management was directed to ensure the joining of the petitioners within one week from the date of the receipt of the letter dated 10.5.2002. This letter dated 10.5.2002 is Annexure-5 in the first writ petition. In response to this letter, the Manager of the Institution issued appointment orders to the petitioners. The copies of the appointment letters have been filed in both the writ petitions. Both the petitioners submitted the joining reports. On 15.5.2002, the Manager informed the District Inspector of Schools that the petitioners have been allowed to join. It was also informed by the Manager that for advertising the post there was no necessity of prior approval of the District Inspector of Schools as the post had fallen vacant due to retirement of teachers and the posts were not newly created posts. On 12.6.2002, the District Inspector of Schools issued a letter which was received by the Manager on 6.7.2002 in which he has mentioned that vide letters dated 23.1.2002 and 10.5.2002 a report was asked from the management regarding the appointments made on the posts which have fallen vacant due to retirement of C. B. Upadhyaya and V. P. Dutt but the same was not replied and since the posts were not advertised within three months from the date of occurrence of the vacancy as such the same is deemed to be surrendered under Regulation 20 of Chapter II of the Regulations framed under the Act and it cannot be filled up without fresh creation of posts. It is alleged that the District Inspector of Schools has wrongly applied the provisions of Chapter XX (2) of the Act because these regulations are not applicable in the minority institution rather the selection procedure has been prescribed under Regulation 17 of Chapter II of the Regulations framed thereunder wherein there is no such time limit prescribed for advertising the vacancy. It is alleged that there are number of vacancies on the posts of Assistant Teacher and Lecturers which are lying vacant for the several years and the same have not been filled up till date and those posts are advertised by the U. P. Secondary Education Service Selection Board after expiry of several years and as such the posts in question cannot be held to have been surrendered due to non-advertisement within three months. It is also alleged that the District Inspector of Schools has not passed any order of terminating the services of the petitioners but the opposite party No. 4 vide order dated 24.9.2002 terminated the services of the petitioners in compliance of the orders passed by the District Inspector of Schools without giving an opportunity of hearing or show cause notice to the petitioners. It is also alleged that the impugned order gives a reference of the order dated 12.6.2002 issued by the District Inspector of Schools but the reasons for terminating the services of the petitioners has been shown that the services of the petitioners are not required to the institution. No approval of the District Inspector of Schools has been obtained prior to termination of the services.

(3.) IN these two writ petitions, the contention to be decided is as to whether the James Harvey Memorial Higher Secondary School, Nawabganj, district Gonda is a minority institution. The petitioners alleged that in the advertisement Annexure-RA-1 it was informed by the Manager himself that this institution is a Christians Minority Boys School. The plea taken by the Manager and the District INspector of Schools are contrary to this advertisement. The Manager has made an attempt to explain that this was wrongly published but this plea cannot be accepted. Article 30 of the Constitution of INdia provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The expression 'minority' has not been defined either in the INtermediate Education Act or in the Constitution. However, the courts have held that it refers to a community which is numerically less than fifty cent of the population of a State as a whole when a law in consideration of which the question of minority right is to be determined. This view was taken in Kerala Education Bill, AIR 1958 SC 956.