- (1.) 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.
(2.) 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 Respondents No. 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.
(3.) 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 dependant 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.;