- (1.) The Tribal Education, Agriculture and Medical Society - petitioner in this writ petition filed under Article 32 of the Constitution (hereinafter referred to as "the petitioner Society") is a Society registered under the Societies Registration Act, 1973. It is mainly comprised of members of the tribal communities in District Surguja in the State of Madhya Pradesh. The aim of the Society is the educational and other development of the tribal society of the said district. It has established and is administering 21 educational institutions which includes 19 primary schools, one middle school and one high school in District Surguja.
(2.) The Madhya Pradesh Legislature has enacted the Madhya Pradesh Ashaskiya Sikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter referred to as 'the Adhiniyam') to make provision for regulating payment of salaries to teachers and other employees of non-government schools receiving grant from the State government and non-government educational institutions for higher education receiving grants from Madhya Pradesh Uchcha Shiksha Anudan Ayog and other matters relating thereto. In Section 6 of the Adhiniyam provision is made with regard to appointments of staff in the institution governed by the Adhiniyam. In sub-clause (i) of clause (a) of Section 6 it has been provided: "(A) on and from the appointed date,- (I) no post of a teacher or other employee shall be created except in such scale of pay as the State government may, from time to time, determine and no teacher or other employee shall be recruited without following the procedure prescribed in this behalf;"
(3.) Section 10 of the Adhiniyam confers on the State government the power to make rules for carrying out the purposes of the Adhiniyam and under clause (c) of Ss. (2 such rules can be made to provide for the procedure to be followed in recruitment of teachers or other employees under sub-clause (i) of clause (a) of Section 6. In exercise of the said power conferred by Section 10 of the Adhiniyam, the State government has framed the Madhya Pradesh Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Bharti) Niyam, 1979 (hereinafter referred to as 'the Rules'). Under Rule 3 of the Rules only Rules 4 and 5 have been made applicable to the institutions established and administered by minorities in pursuance of the provisions of clause (1 of Article 30 of the Constitution of India. It is not disputed that theinstitutions which are established and administered by the petitioner-society are minority institutions. We are, therefore, only concerned with Rules 4 and 5 which read as under: "4.Recruitment to a post of a teacher or other employee of an institution shall be made by one of the following methods, namely: (A) absorption of teachers or other employees of other institutions whose services have been terminated; (B) direct recruitment; (C) promotion; or (D) deputation of persons either from government or Ayog or from any other organisation approved by the government for the purpose: Provided that the method of recruitment under clause (a) shall have priority over other methods of recruitment specified in clauses (b) , (c) and (d) , as the case may be, if suitable retrenched persons who are otherwise qualified for the posts are available. 5. (1 Where the service of a teacher or an employee is terminated by an institution whether as a result of closure of the institution or abolition of post or for any other reason whatsoever, such institution shall send information in respect thereof to the Education Officer and Divisional Superintendent of Education concerned in case of schools and to the Education Officer and Ayog in case of colleges in Form 1. (2 The Education Officer, Divisional Superintendent of Education and the Ayog shall keep a record of the information received under sub-rule (1 in a register to be maintained in Form II. ";