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2011 Supreme(All) 1098
[2011(5) ADJ 162]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON, J.
Smt. USHA KIRAN TYAGI .....Petitioner
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Civil Misc. Writ Petition No. 15312 of 2011, decided on 13th April, 2011)
Counsel :
R.P. Dubey for the Petitioner; S.C. Hasnain, C.S.C. for the Respondents.
Headnote:Appointment—Selection—Principal—Minority institution—Question of—Contempt—P.I.L.—Continuance of benefit of minority status on recommendation of Committee,dated 2.6.2004 constituted under Chairmanship of Principal Secretary—Validity of—Under G.O. dated 9.6.2004 minority status has been conferred upon School—Effect of—Claiming a right under Article 30 of Constitution, two factors have to be established, i.e., that institution has been established by minority community, and said institution is being run and managed by same minority community—Committee constituted under G.O. dated 7.1.2003 had not considered issue of grant of minority status to institution—Resolution dated 2.6.2004 has been passed in meeting of a different committee—Therefore, allegations made in counter-affidavit are false—Resolution dated 2.6.2004 refers to G.O. dated 6.10.1994, dated 22.2.1995 and G.O. dated 13.6.1997, which for reasons best known to Secretary, have not been brought on record—State and its officers must act according to law—Repeatedly two orders passed by Court giving opportunity to Secretary to act in compliance with law but he has chosen not to do so—Instant writ petition, is not in nature of P.I.L.—Issue whether institution in operation is a minority school, or not,to be adjudged by Court as per D.B. judgment dated 24.8.2006—Competence of Single Judge to initiate suo motu contempt has been recognised by Supreme Court in the case of D.K. Gupta—Therefore, certain charges have been framed against Secretary—And was issued show-cause notice—Court further held that no further action shall be taken for appointment of Principal till next date of hearing. [Paras 17, 18, 20, 21, 22, 28, 32, 33, 34 and 35]
Hon’ble Arun Tandon, J.—Heard Sri R.P. Dubey, Advocate for the petitioner, Shri S.G. Hasnain, Additional Advocate General, who is present on behalf of the Secretary, Secondary Education, U.P. Government, Lucknow and the Standing Counsel for the State.
2. Petitioner before this Court challenges the selections which have been made on the post of Principal (on regular basis) in Shree Diagember Jain Kanya Higher Secondary School, Deoband, District Saharanpur (hereinafter referred to as a ‘school’). According to the petitioner, (who is also one of the candidates) there are serious infirmities in the selection. By means of an amendment application which was served on the Standing Counsel on 25.3.2011, and which has been allowed, the petitioner further contends that the institution is not a minority institution and it is only because of the Government Order dated 9.6.2004 that the said institution is being treated as a minority institution and is claiming privileges in the matter of appointment as Principal on substantive basis. He clarifies that under the Government Order dated 9.6.2004 minority status has been conferred upon the school, which in turn is based on the recommendation of the Committee dated 2.6.2004 constituted under the Chairmanship of the Principal Secretary.
3. He submits that the same recommendations of the Committee dated 2.6.2004 and consequential Government Order dated 9.6.2004 conferring minority status on one of the institutions was subject-matter of consideration in the case of Committee of Management, Inter College Dharaon District Chandauli v. State of U.P. and others, 2006(8) ADJ 109. The Single Judge in paragraph 22 held that the order dated 9.6.2004 had wrongly been passed on the basis of the recommendation of the Committee constituted under the Chairmanship of Principal Secretary, State Government dated 2.6.2004. The order of the Single Judge was subjected to challenge by way of Special Appeal No. 903 of 2006. The appeal was dismissed on 24.8.2006 and the Division Bench after expressing its agreement with the reasoning given in the order of the Hon’ble Single Judge dated 13.6.2006, further proceeded to hold that it was not within the competence of the State Government to confer any minority status on the schools. The State Government had hopelessly misconstrued the Constitution. The Division Bench went on to hold that the order of the State Government shows a complete misunderstanding of Article 30 of the Constitution of India. (the detail order of the Court shall be re- produced hereinafter). He submits that despite the said Division Bench judgment of the Court, the State authorities have not acted inconfirmity thereto and have permitted the schools covered by the same resolution dated 2.6.2004 to draw the benefits of minority status conferred thereon. The petitioner has questioned/challenged the action of the Government to treat the school as minority institution.
4. This Court while entertaining the present writ petition took note of the law declared by the Division Bench in Special Appeal No. 903 of 2006 and found that the continuance of the benefit of the minority status on the recommendation of the Committee dated 2.6.2004 on the school was clearly in teeth of the judgment of this Court and, therefore, passed following order on 25.3.2011.
“Connect with Civil Misc. Writ Petition No. 15276 of 2011.
Let the Secretary, Secondary Education, U.P. Government at Lucknow file his personal affidavit categorically stating as to under which legal authority, the State Government has issued the order declaring the institution in question as a minority institution.
He may also explain as to why, despite the Division Bench judgment of this Court passed in Special Appeal No. 903 of 2006, wherein the order of the State Government conferring minority status on another institution dated 9th June, 2004 was held to be wholly illegal, to the extent that the Division Bench recorded that “the matter is so hopelessly ill
