N.D.Ojha, J. - (1.) It is admitted to the parties that Majidia Islamia Intermediate College, Allahabad, is an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution. One Syed Mohamad Ali was a permanent lecturer in English in the aforesaid College. He got his service transferred to Gorakhpur and a substantive vacancy occurred on 22nd August, 1974. The Committee of Management of the aforesaid College intended to fill in that vacancy by direct recruitment It appears that on that date writ petition No. 700 of 1974 filed by the petitioner, Shri Aley Ahmad Abdi, was pending in this Court and on an application being made by him an order was passed on 4th October, 1974, to the effect that direct recruitment should not be made pending the writ petition. That writ petition was ultimately dismissed on 11th August, 1975. An observation was, however, made by this Court that while making appointment in the aforesaid vacancy the case of the petitioner shall also be considered after giving him an opportunity. There after the Committee of Management proceeded to make a regular appointment a-'d interview letters were issued for 31st August, 1975 The petitioner instituted Writ Petition No. 9410 of 1975 and on an application made by him an order was made that the result shall not be declared. During the pendency of that writ petition the Governor of Uttar Pradesh promulgated U.P. Ordinance No. 18 of 1975 which came into force on 7th July, 1975. By this Ordinance drastic amendments were made in the U.P. Intermediate Education Act particularly in Sections 16-E and 16 F thereof. The U.P. Secondary Education Laws (Amendment) Act, 1975 (U. P. Act No 26 of 1975). This Act received the assent of the Governor on 14th August, 1975, and was published in the U.P. Gazette Extraordinary dated 18th August, 1975. By Section 14 of the Ordinance as well as the Act, Sections 16-E and 16-F were substituted and indeed in this process a new section dealing with saving as to minority institutions were inserted being Section 16-FF. It reads : "16-FF. Savings as to minority instruction. - (1) Notwithstanding anything in sub-section (4) of Section 16-E and Section 16 F, the Selection Committee for the appointment of a Head of institution or a teacher of an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management : Provided that one of the members of the Selection Committee shall - (a) in the case of appointment of the Head of an Institution, be an Expert selected by the Committee of Management from a panel of Experts prepared by the Director - (b) in the case of appointment of a teacher, be the Head of the Institution concerned. (2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed. (3) No person selected under this section shall be appointed, unless - (a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education, and (b) in the case of a teacher such proposal has been approved by the Inspector. (4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible. (5) Where the Regional Deputy Director of Education or the Inspector. as the case may be, does not approve of a candidate selected under this section, the Committee of Management may, within three weeks from t .e date of receipt of such disapproval, make a representation to the Director in the case if the Head of the Institution, and the Regional Deputy Director of Education in the case of a teacher. (6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub section (5) shall be final."
(2.) In Section 2 of the parent Act, clause (c) was inserted, namely, 'prescribed' means prescribed by regulations, and since prescribed, means prescribed by regulations and no regulations had been framed simultaneously with the commencement of the Act on 18th August, 1975, a difficulty was felt in making appointments in the minority institutions on substantive basis as contemplated by Section 16-FF. To remove this difficulty and other difficulties in giving effect to certain provisions of the Amending Act a notification was issued simultaneously on 18th August, 1975, containing the U.P. Secondary Education (Removal of Difficulties) Order, 1975. Clause 2 of this order will be relevant for dealing with the contentions raised by the counsel for the parties and as such it is expedient to quote it here. It reads : "2. (a) Notwithstanding anything contained in Section 14 of the aforesaid Act, any substantive or leave vacancy or any existing or occurring during the current academic session of the Head of Institution or, a teacher of an Institution may be filled in by the Committee of Management, on ad hoc basis in the manner provided hereunder till such period, not exceeding six months in any case, as a person duly selected in accordance with Section 14 aforesaid is appointed against such vacancy. (b) The vacancy of the Head of Institution shall be filled - (i) in the case of Intermediate College, by the seniormost teacher of the Institution in the lecturers grade - (ii) in the case of High School raised to the level of Intermediate College or a Junior High School raised to the level of High School, during the current academic session by the Headmaster of such High School or Junior High School, as the case may be : Provided the seniormost teacher or the Headmaster, as the case may be, possesses a good record of service and administrative ability. (c) the vacancy of, a teacher in the lecturers grade or L. T. grade or C. T. grade, shall be filled in by the seniormost teacher of the institution in the L. T. grade, C. T. grade and J. T. C./B. T. C, grade respectively. (d) where any vacancy cannot be filled in the manner laid down in the preceding clauses, the same may be filled .a on ad hoc basis for the same maximum period as laid down in clause (a), by appointment of outsiders after selection by a Selection Committee consisting of three members, which may be constituted for the purpose on an ad hoc, basis by the Committee of Management. (e) Any person to be eligible for being appointed under clauses (b), (c), (d) shall possess the minimum qualifications prescribed in appendix A referred to in regulation 1 of Chapter II of the Calendar of the Board of High School and intermediate Education. (f) where on account of difference or dispute or for any other reason there is no Committee of Management in effective control of the affairs of an Institution or has not been recognised as such by the Inspector and no Authorised Controller has been appointed by the State Government in respect of such Institution, the powers of the Committee of Management in the foregoing clauses shall in the case of appointment of the Head of Institution be exercised by the Inspector and in the case of appointment of a teacher be exercised by the Head of the Institution concerned. (g) All appointments made under the foregoing clauses shall as soon as may be reported to the Inspector giving particulars of qualifications and experience in respect of each person and the Inspector shall have the power to disapprove any appointment made in contravention of the foregoing provisions upon which the appointment in question shall cease. The decision of the Inspector in this regard shall be final."
(3.) It is not disputed that the period of six months specified in clause (21 of this order was extended from time to time until new Regulations were framed dealing with the procedure for appointments under Section 16-FF of the Act which came into force on 7th July, 1976. Writ Petition No. 9410 of 1975 was ultimately dismissed on 12th September, 1977. Against that judgment, the petitioner filed Special Leave petition in the Supreme Court. This petition was decided on 17th March, 1978 by the following order "permitted to be withdrawn with liberty to file fresh petition and to challenge to order of 19th September, 1977, and raised all the contentions which have now been raised before us.";