Hon’ble Yatindra Singh, J.—These writ petitions involve with the constitutionality of the U.P. Higher Education Services Commission Act, 1980 (the Commission Act).

THE FACTS

2. The UP Higher Education Services Commission, Allahabad (the Commission) published the advertisements No. 38 and 39 on 24.4.2005 for selection of the principals and lecturers for under graduate and post graduate colleges (referred to as the Colleges). The petitioners are the committees of management of different colleges and have challenged the process of selection on the ground that the Commission Act is ultra vires the Constitution.

3. We have heard Sri Shailendra, Sri Rajesh Kumar Singh, Sri Arvind Singh, Sri R.P. Srivastava and Sri KC Shukla Counsel for the petitioners, Ms. Subhas Rathi, Standing Counsel and Sri H.N. Singh for the Commission.

DECISION: THE COMMISSION ACT IS INTRA-VIRES

The right to establish Educational Institution

4. The question regarding right to establish educational institutions has been decided in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (the TMA Pai case). In this case eleven questions were referred to the larger bench. The larger bench chose not to answer four of them and the remaining seven were reformulated into five questions by the Chief Justice (paragraph 235 of the TMA Pai case). The eleventh question referred to larger bench is as follows :

"Q. 11. What is the meaning of the expressions “education” and “educational institutions” in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?’

Out of the five questions reformulated by the Chief Justice of India the first question formulated is as follows :

’1. Is there a fundamental right to set up educational institutions and if so, under which provision?’

5. While answering the question No. 11 and the reformulated question No. 1, the Supreme Court explained that right to establish and maintain the educational institution falls under Article 19(1)(g) and Article 26 (a) of the Constitution. Apart from these two articles some rights are also conferred under Articles 29 and 30 of the Constitution but the petitioners here are claiming rights to establish and maintain educational institution under Article 19(1)(g) and Article 26(a) of the Constitution.

6. Article 19(1)(g) is subject to Article 19(6) and Article 26(a) is subject to public order and morality. In substance, the rights conferred under these articles are not absolute but subject to reasonable restrictions. The question is, whether the Commission Act, by selecting the teachers and principals, imposes unreasonable restrictions on the rights conferred under these articles or not. The Counsel for the petitioners submit that :

(i) The University Grant Commission (UGC) had already laid down minimum standard for appointment of teachers and uniformity in the standard of teaching has already been achieved, it is unreasonable on the part of State to make appointments in the colleges.

(ii) The U.P. State Universities Act, 1973 (the State University Act) was applicable to appointment for undergraduate and post graduate colleges. This Act provided sufficient safeguard for appointments of teachers. This procedure coupled with the minimum qualification set up by the UGC ensures uniformity and by not permitting the management to appoint the teachers is unreasonable restriction.

Restrictions are reasonable

7. In the TMA Pai case, reformulated question No. 3 is as follows :

’3. In case of private institutions (unaided and aided), can there be Government regulations and, if so, to what extent?’

The Chief Justice answered this question in paragraph 71 to 73 of the TMA Pai case. There is no disagreement among the judges on this point.

8. The West Bengal Higher Education Commission Act (the WB Commission Act) is similar to the Commission Act and the appointments there are also made on the recommendations of the West Bengal Higher Educa