SC Issues Notice To UP Govt In Plea Challenging Amendment To Law Of Appointment Of Teachers To Minority Educational Institutions [Read Order]

While the Court granted special leave to appeal against an Allahabad High Court Order which had upheld the validity of UP Government's action, the interim prayer for stay was refused.

The Bench comprising of Justices Ashok Bhushan, R Subhash Reddy and MR Shah sought a response from the UP government within 8 weeks and asked the petitioner, the Management Committee of National Inter College in Bulandshahar, to serve a copy of the SLP to the State.

The petitioner Committee claimed that the Government Order interferes with its right of management guaranteed under Article 30 of the Constitution and the amendment must, therefore, be declared ultra vires. It was also contended that the High Court Order dismissing the original writ petition was based on erroneous grounds and the wrong interpretation of certain precedents on which reliance was placed. Thus, as interim relief, the Committee also sought directions to the Government to not make appointments according to the current State law as amended by the Government Orders in question. However, the Apex Court to grant interim relief.

"Applications for permission to file special leave petitions are allowed…

Issue notice, returnable in eight weeks.

The prayer for interim relief to stay the judgment dated 22.04.2020 is rejected. Learned counsel for the petitioners is permitted to serve a copy of the petition(s) to the standing counsel for the State", Ordered the Apex Court.

On 12.03.2018, the UP Government issued an Order stating that the Governor had approved an amendment to Regulation-17, Chapter-II of Regulations framed under the U.P. Intermediate Education Act, 1921 (the Act). The amended Regulation now provided that the selection of teaching staff would be monitored by a private recruitment agency, through the Joint Director of Education (JDE) or the District Inspector of Schools (DIOS), which would recommend 5 names for each vacancy to the college management, who would then conduct an interview and accordingly make the appointment.

Subsequently, the Government passed further Orders amending Regulation 17(D). It was specified that all application forms were to go through the JDE or DIOS depending on whether the selection was for the post of Headmaster of the institution or for a teacher respectively. It was further provided that the agency would conduct a written test, or a screening test, constituting 90 marks of the evaluation while the interview process would be worth 10 percent of the selection process.

Challenging this amendment, the petitioners contend that vesting power of appointment in hands of an 'unidentified' or 'undefined' Private Recruitment Agency to conduct 90% of the recruitment process while granting the management committee liberty to be involved with regard to only 10% of the assessment encroaches upon the right to management available to minority institutions under Art. 30 of the Constitution.

"The minority institutions by way of this amendment have been deprived of their fundamental right to select and appoint teachers of its choice. The state government, by vesting the power of selection in the hands of an unidentified private agency, has not only violated the rights of the minority institutions guaranteed under Article 30, but has arbitrarily empowered a private agency the authority to conduct the screening test/ written test having a decisive weightage of 90% marks", argues the petitioner Committee.

It is further claimed that the process prescribed is vague and does nothing to help improve the quality of education available to students.

"This arrangement of delegating a major decisive part of the recruitment process to an undefined private agency, it is submitted, not only takes away the entire right of establishment and management under Art. 30 of the Constitution but the vagueness in the entire process defeats the purported purpose of improvement in education or of improving the quality of education in the interest of students due to the sheer lack of any procedure or modalities guiding such undefined private recruitment agency.

The Government Order has therefore affected their right of establishment and administration of Minority Institutions, therefore amendment of Regulation 17 to this extent is ultra vires of Article 30 and 29 of the Constitution as well as Section 16-FF of the Act 1921."

-reads the petition

Thus, it is claimed that the High Court failed to consider that it was taking away the petitioner's right under Article 30 and also ignored an 11-Judge Bench judgment of the Supreme Court in the case of T.M.A. Pai Foundation. As per this judgment, adds the Management Committee, the law was clearly laid down with regard to day-to-day management of such an institution. As per the ruling, it is the management, and not some external controlling agency, which is in charge of activities like the appointment of staff, teaching and nonteaching, as well as administrative control over them.

The High Court, on the other hand, wrongly gave weightage to the judgment in Sk. Md. Rafique v. Managing Committee, submits the petitioner. To substantiate this claim, it is emphasized that in Rafique's case the power of selecting teachers was vested with the Madrasah Service Commission- a well-qualified, state appointed commission comprising of a chairman and four members. On the other hand, continues the petitioner, in distinction to that case, the amended Regulations in the present matter have put power of appointment in the hands of an unidentified private agency without providing any procedure to guide the same.

Thus, it is argued that in dismissing the writ petition, the High Court failed to appreciate that the right to select and appoint teaching and non-teaching staff is the most important facet of the right to administer a minority educational institution and any overreaching 'trammels' imposed would be constitutionally barred.

Buttressing their point, it is urged that "the power given to the private agency is un-canalised and unguided in as much as the state has failed to bring out detailed guidelines governing the conduct of such private agency. It is of no dispute that the state is empowered to make regulations for the effective functioning of the minority institution, but on the other hand it cannot be ignored that the state cannot vest such gigantic powers in the hands of an unidentified private agency; there has to be balance between the two objectives - that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations that embraced and reconciled the two objectives could be considered to be reasonable. However, the present amendment fails to strike a balance between the above said objectives."

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