Court No. - 18
Case :- WRIT - A No. - 8971 of 2018 Petitioner :- C/M Christian Inter College And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind K. Pandey,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Arvind Kumar Pandey, learned counsel for the petitioners and learned Standing Counsel.
The petitioner-Committee of Management along with its Manager is before this Court assailing the Government Order dated 12.03.2018 issued by State Government introducing amendment in Regulation 17 of Chapter II of U.P. Intermediate Education Act, 1921 (in short "the Act of 1921") as well as consequential order dated 13.03.2018 passed by Joint Director of Education, Kanpur Region, Kanpur and for a direction to the respondents not to interfere in the selection on the post of Principal, which is started from 25.01.2018.
This much is reflected from the record in question that the present matter relates to institution known as 'Christian Inter College, Farrukhaqbad" (in short "the institution in question"), which is a minority institution run by Dioceason Education Board (Diocese of Agra), a society registered under the Society Registration Act, 1860. The institution in question is recognized and aided institution, imparting education upto Intermediate level, and is governed under the provisions of Act of 1921, its Regulation thereunder and U.P. High School and Intermediate Colleges (Payment of Salary of Teachers and Other Employees) Act, 1971 (in short "the Act of 1971"). It is averred that the vacancy on the post of Principal is going to occur on 31.3.2018 due to retirement of present Principal Mr. A.S. Wilkinson. Hence the Committee of Management decided to fill up the post of Principal in the institution. Consequently an advertisement was issued for appointment on the post of Principal in two newspapers namely 'Dainik Aaj' (Hindi) and 'Pioneer' (English) on 25.01.2018. It is claimed that the petitioner-committee of management sent intimation in this regard to the District Inspector of Schools, Farrukhabad (in short "DIOS, Farrukhabad") on 27.01.2018. In response to the said advertisement 19 applications were received and the management sent letter dated 21.02.2018 to the Joint Director of Education to provide departmental expert as the interview was scheduled on 20.03.2018. In response to the said letter, the Joint Director of Education by its order dated 12.03.2018 provided the list of three subject expert from the panel approved by the Director of Education. However, meanwhile the Joint Director of Education by order impugned dated 13.03.2018 had stayed the panel sent by him on the basis of impugned Government Order dated 12.03.2018 by which selection and appointment in minority institution has been amended in Regulation 17 of the Act of 1921.
In this backdrop, Shri Ashok Khare, learned Senior Counsel appearing for the petitioners submits that the impugned Government Order is in teeth of provisions contained under Section 16-FF of the Act of 1921. Before the impugned amendments, a candidate applying for the post of Head of institution or teacher in a minority institution was required to send a normal fee and it was not mandatory. Now by the impugned Government Order, for the post of Head of institution, Rs.1000/- has been fixed as a fee for interview and such fee has to be transmitted to the District Inspector of Schools of the district concerned. While under un-amended Regulation 17 all applications were to be sent to the management of the minority institution. As per the un-amended provisions the DIOS had no role in the selection process. The role of DIOS starts after the selection is made and the papers are sent to him for approval. Now by the impugned Government Order details of applications are required to be sent to the DIOS of the district concerned, which is an attempt to interfere with the rights of the minorities given under Art.30 of the Constitution of India and also Section 16FF of the Act of 1921.
It is further contended that impugned Government Order dated 12.03.2018 provides that for the post of Head of institution/ Lecturer there shall be a written examination/ screening test of 90 marks and interview for 10 marks while for Assistant Teacher there shall be a written examination of 100 marks and there will be no interview. The amendments introduced in the impugned Government Order, if allowed to stand, will override the statutory provisions contained in Section 16-FF of the Act of 1921. It is settled law that Rules or Regulations cannot override the Act, hence on this ground the impugned Government Order cannot sustain and is liable to be struck down. In support of his submissions, he has placed reliance on N. Ammad v. Manager, Emjay High School, 1998 LawSuit (SC) 881 and Secretary, Malankara Syrian Catholic College v. T. Jose, 2006 LawSuit (SC) 1085.
He further makes submissions that under the constitutional scheme the minority institutions run under the Act of 1921 has got every right to select and appoint Principal/ Head of the institution and such right cannot be taken away by executive orders. The freedom to choose the person to be appointed as Principal has always been recognized as a vital fact of the right to administer the educational institution. Such right of the minority cannot be diluted or altered, Ref. TMA Pai case, (2002) 8 SCC 481. Such right has been conferred by Art.29 and 30 of the Constitution of India. Much emphasis has been placed that once the selection process has commenced on 25.01.2018, in midst of selection process the authority could not restrain the management for making appointment on the post of Principal on the basis of said Government Order with retrospective effect. He submits that it is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in statute or in Rules showing intention to affect existing rights, rule must be held to be prospective. In support of his submissions, he has placed reliance on P. Mahendran v. State of Karnataka, 1989 LawSuit (SC) 586 and A.A. Calton v. Director of Education, 1983 LawSuit (SC) 98.
Per contra, Shri B.B. Pandey, learned Addl. Chief Standing Counsel has vehemently opposed the writ petition and submits that once institution in question is on grant-in-aid list, in such situation, the State has every right to provide minimum qualification for the post in question and to fix a benchmark for appointment on the post of Principal/Head of the institution/Asstt. Teacher. The amendment has been made with the concurrence of His Excellency the Governor of U.P. and no interference is required in the matter.
Heard rival submissions and perused the record.
As per the memorandum of association appended as Anneuxre No.1 to the writ petition, the object of the society is to manage, control and endow the society to establish educational institution and other welfare activities to serve the Church, the Christian religious Minority Community primarily and the society at large as a non-profit organization. The object is to start, establish, administer, control, supervise and set up on behalf of the Church of North India or its successors, educational and technical Institutions such as schools, colleges, hostels and libraries for students and training institutions for teachers and students; maintain or assist to endow Chapels, prayer houses for Christians to worship, provide residential accommodation for teachers and servants and hostels for students and such other places as may be considered desirable by the society as promoting the objects of the society. The object is also to exercise any power which may be entrusted the society to appoint managers, principals, headmaster, headmistresses, treasurers, auditors, inspectors, examiners or any other officials or office bearers of any of its affiliates such as schools, colleges, hostels, boarding houses, libraries, teacher training centres or any other institution, society or organisation according to the rules and regulations of the society or its affiliates.
Admittedly, the Government of India, National Commission for Minority Educational Institutions as per the provisions contained under the Educational Institutions Act, 2004 had declared the institution in question as minority educational institutions covered under Art.30 of the Constitution of India on 9th August, 2010. The DIOS, Farrukhabad had also declared the institution in question as minority institution as per the provisions contained under Section 16FF of the Act of 1921 on 01.07.1976.
As per the averment mentioned in the writ petition, it is apparent that the vacancy of Principal is likely to occur on 31st March, 2018 on account of retirement of regular Principal. Admittedly the advertisement for the post in question had been made in two daily newspapers 'Dainik Aaj' (Hindi) and 'Pioneer' (English) on 25.1.2018 appended as Anneuxre No.3 to the writ petition. Consequently, the management has also proceeded to inform in this regard to the DIOS, Farrukhabad on 27.01.2018 and also sent a letter dated 21.02.2018 to the Joint Director of Education informing the date of interview and demanding list of departmental expert. Thereafter, the Joint Director of Education by its order dated 12.03.2018 provided the list of three subject expert from the panel approved by the Director of Education.
In the aforesaid facts and circumstances, this Court is of the considered opinion that the process of selection in question had commenced much prior to the issuance of the Government Order, whereby the amendment has been proposed. The Court finds substance in the contention of learned counsel for the petitioner that once the process has commenced, then the proposed amendment cannot be with retrospective effect, the same cannot be given effect to on the selection in question. It is well settled that every statute or statutory rules is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in statute or in Rules showing intention to affect existing rights, rule must be held to be prospective.
In view of above, the order dated 13.03.2018 cannot sustain and is accordingly set aside. The matter is remitted back to the Regional Joint Director of Education, Kanpur Region to look into the grievance of the petitioner and pass appropriate order strictly in accordance with law and in view of the observations made herein above within six weeks from the date of production of certified copy of this order. It is made clear that the Court has not expressed any opinion regarding the validity of the Government Order dated 12.03.2018.
The writ petition is allowed accordingly.
Order Date :- 29.3.2018 SP/