- (1.) Petitioner before this Court is working as L.T. grade teacher in Maulana Azad Intermediate College, Anjansheed, Azamgarh. By means of the present writ petition she has prayed' for quashing the order dated 5.9.2009 where under the Joint Director of Education has rejected the proposal submitted by the Committee of Management of the Institution for promotion of the petitioner, on the ground that in the institution, there are 6 sanctioned posts of Lecturers and having regard to Regulation 5 (2) of Chapter II of the Regulations framed under the Intermediate Education Act only 50% posts are required to be filled up by promotion. Since three persons by way of promotion are already working on the post of Lecturers, no further promotion can be provided. She has also challenged the advertisement dated 27.3.2010 published by the institution for making direct recruitment on the post.
(2.) Sri I. R. Singh, learned Counsel for the petitioner has submitted that there is no dispute that against six sanctioned posts of Lecturer three persons are already working which is 50% of the total sanctioned strength of Lecturer cadre. It is further not in dispute that under Regulation 5 (2) of Chapter II of the Regulations framed under the Intermediate Education Act, 50% of the posts alone are required to be filled by promotion. He, however, contends that Regulation 5 of Chapter II violates Article 30 of the Constitution of India inasmuch as minority institutions, have a right to administer the minority institutions which within its ambit includes the right to make appointment on the posts in the manner the management decides. Only restrictions regarding the qualifications may be prescribed under the Regulations. He submits that State has no authority to restrict the right of appointment by promotion to 50% of the total cadre strength in respect of minority institutions. For the purpose reliance has been placed upon a judgment of Hon'ble Supreme Court in the case of N. Ahmad v. Manager, Emjay High School and Ors., 1998 6 SCC 674, specifically paragraphs 15, 20 and 21 are quoted hereinbelow: 15. A Constitution Bench of seven Judges of this Court in Kerala Education Bill, 1957, Re has examined the constitutional validity of the Bill which was the precursor to the Act when the President of India had sought the advice of the Supreme Court under Article 143 of the Constitution. One of the propositions laid down by the said Constitution Bench in the said decision is this : the right guaranteed under Article 30(1) is a right that is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. But the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instructions, discipline, health, sanitation, morality, public order and the like, as such regulations are. not restrictions on the substance of the right guaranteed by the Constitution. 16. The aforesaid proposition was approved by another Constitution Bench of this Court in Sidhrajbhai Sabbai v. State of Gujarat and also by a nine-Judge Bench of this Court in Ahmedabad St. Xavier's College Society v. State of Gujarat. 20. The importance of the key role which a Headmaster plays in the school cannot be better delineated than that. The nine-Judge Bench in the Ahmedabad St. Xavier's College Society has highlighted the importance of the role of the Principal of a College. In support of majority view in that decision. K. K. Mathew, J., has observed thus : (SCC pp. 815-16, para 182) 182. It is upon the Principal and Teachers of a College that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the Principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. 21. H. R. Khanna. J., has adopted a still broader view that even selection of teachers is of great importance in the right to manage a school. Learned Judge has stated thus : (SCC p. 789, para 103) The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). I have heard learned Counsel for the petitioner and examined the record.
(3.) The scope of Regulation 5 has been examined by a Division Bench of this Court in the case of Jai Bhagwan Singh v. District Inspector of Schools, Gautambuddh Nagar, 2006 3 UPLBEC 2391:, and it has been explained that under Rule 5 only 50% of the total cadre strength can be filled by promotion, the remaining 50% posts are required to be filled by way of direct recruitment.;