- (1.) I. M. Quddusi, J. Heard learned Counsel for the petitioner and learned Standing Counsel.
(2.) THE Industrial Muslim Girls Inter College, Saharanpur is a minority institu tion, hence provisions of Article 30 of the Constitution are applicable in respect of the institution in question. The principal of the aforesaid In stitution (namely) Smt. Sayeed Sultana was placed under suspension by the Resolution dated 28-6-98 of the Commit tee of Management and a First Informa tion Report was lodged against her for the alleged irregularities committed by her, which was approved by the D. I. O. S. vide his letter dated 2-11-1998 as contained in Annexure 4 to the writ petition. There after a direction was issue 1 to the Management of the Institution by the D. I. O. S. to the effect that the Joint Direc tor of Education, Saharanpur Region has directed that charge of the Principal should be given to the senior most teacher. This direction was issued by the Regional Joint Director of Education, Saharanpur on 18- 11-98 and was communicated by the D. I. O. S. on 19-11-98. There after, the D. I. O. S. vide order dated 15- 1-99 ordered for single operation of the account of the Institution under Section 5 (1) of the U. P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 on the ground that the irregularities are committed by the Management Committee of the Institu tion in not taking work of the Principal from the senior most teacher of the In stitution but taking work from the teacher whose name figures at serial No. 4 of the seniority list. Regulation (2) of Chapter II of Intermediate Education Act provides as under: 2 (1): The post of the Head of Institution shall except as provided in clause (2) be filled by direct recruitment after reference to the Selec tion Committee constituted under sub-section (1) of Section 16- F or, as the case may be, under sub-Section 16-FF: Provided that in the case of any institution not being an institution referred to in Section 16-FF a temporary vacancy caused by the grant of leave to an incumbent for a period not ex ceeding six months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of the Head of Institution shall be filled by the promotion of the senior most qualified teacher, if any in the highest grade in the institution. " Provisions of Section 16-FF is also reproduced as under; 16-FF. Savings as to minority institu tions.- (1): Not with standing 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 on institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution shall consist of five members (in cluding its Chairman) nominated by the Com mittee 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 penal of experts prepared by the Director; (b) In the case of appointment of a teacher, be the Head of the institution con cerned. "
(3.) A perusal of Regulation (2) of Chapter II of the aforesaid Act provides that the senior most qualified teacher is meant for the institution other than the minority institutions, hence the condition of appointing or promoting senior most qualified teacher of the institution does not apply to a minority institution. Moreover, Clause (3) of Regulation (2) provides that where the temporary vacan cy in the post of head of institution is for a period not exceeding thirty days, the senior most teacher in the highest grade may be allowed to work as acting head of institution, but he shall not be entitled to pay in a scale higher than the scale of pay in which he is drawing salary as such teacher. But in the instant case, the vacancy is for more than thirty days, hence this clause would not be applicable in the case of petitioner's institution. Learned Counsel for the petitioner has placed reliance on Sukhda Shiksha Mandir, Girls Intermediate College v. D. I. O. S. , 1982 UPLBEC 522 in which it has been held that held that an order under Section 5 (1) of the Act can only be made where difficulty arises in payment of salary of the teachers and employees due to any default of the management.;