Dilip B. Bhosale, C.J. - (1.) An advertisement published in the newspaper 'Dainik Jagran' dated 25 July 2009, inviting applications for filling up eight posts of LT Grade Assistant Teachers, issued by Swami Lila Shah Adarsh Sindhi Inter College, Charbagh, Shahganj, Agra (for short, 'the institution'), gave rise to the instant writ petition. The writ petition was initially heard by a learned Single Judge (Hon'ble A.P. Sahi, J), who, vide order dated 29 October 2009, after having noted divergent opinions expressed by a learned Single Judge in Committee of Management, Sri Kund Kund Jain Inter College, Muzaffarnagar v. State of U.P. & Ors, [2006 (3) ESC 1528 (All)] , and a Division Bench in N.B. Lal v. District Inspector of Schools & Ors, Writ Petition No 9776 of 1984, decided on 31 August 1984 , on the one hand and the judgment of a learned Single Judge in Management Committee of M.M. Inter College, Chandpur, District Bijnor v. Deputy Director of Education, III Region, Bareilly & Ors, 1984 (1) UPLBEC 271 as also the judgment of the Supreme Court in Kolawana Gram Vikas Kendra v. State of Gujarat & Ors, 2010 (3) AWC 2543 (SC) on the other, proceeded to refer the matter to the Chief Justice for constitution of a larger Bench, framing three questions for consideration. The reference made by a learned Single Judge was accordingly placed before a Division Bench, consisting of Hon'ble Ashok Bhushan, J (as he then was) and Hon'ble A P Sahi, J. The learned Judges in the Division Bench have written separate concurring orders and framed questions, requesting the Chief Justice for constitution of a larger Bench. In the reference order, both the learned Judges have independently expressed their opinion, based on the judgment of the Supreme Court in Kolawana Gram Vikas Kendra (supra). The questions framed by the Division Bench, and which now fall for our consideration, read thus: (1) Whether the law laid down in the case of N.B. Lal v. District Inspector of Schools (supra) that provisions of Chapter II Regulation 5 providing for filling up 50% post by promotion of Assistant Teacher violates the right of minority institution guaranteed under Article 30 of the Constitution. (2) Whether the institution claiming itself to be a minority institution and acknowledged as such by the State Government is entitled to not to consider the claim of promotion of teachers of the primary section of Intermediate Colleges claiming promotion under the Government Order dated 25.11.2005 whereby 25% quota is reserved in their favour, on the ground that it offends Article 30 of the Constitution of India. (3) Whether the provisions relating to promotion in respect of teachers of Intermediate College contained in Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, can be treated to be regulatory in nature, not violative of rights under Article 30 of the Constitution of India.
(2.) The questions framed by the Division Bench centered around the applicability of the provisions of Regulation 5 contained in Chapter II of the Regulations framed under the Intermediate Education Act, 1921 (for short, 'the Act 1921') and whether the said provision violated the rights of a minority institution guaranteed by Article 30 of the Constitution. When the matter was heard by the Division Bench, the learned Judge found themselves unable to accept the view taken by the Division Bench in N B Lal and, accordingly, opined that the same would require reconsideration. It is in this backdrop that the present Full Bench came to be constituted.
(3.) Before we proceed further, it would be relevant and necessary to mention that learned counsel for the parties have jointly requested to correct the terms of reference so far as reference to Regulation 5 and 50% posts mentioned in the first question is concerned and prayed for correcting it as Regulation 7 and 25% posts. Another correction sought was with reference to the date of the Government Order referred to in the second question, which was urged to be read as 25.11.2003 instead of 25.11.2005. Having considered the prayers so made, we modify the first question so as to read therein Regulation 7 instead of Regulation 5 and 25% posts instead of 50% posts and the second question so as to read the date 25.11.2003 instead of 25.11.2005 therein. We must observe that this modification will not change the complexion of the matter nor the opinions expressed by the learned Judges in the reference order nor would it have any effect on consideration of the questions referred to this Full Bench.;