The Madarsa Act, 2004 violates the secular principles of the Constitution and the right to quality education, rendering it unconstitutional.

JUDGMENT :

(A) REFERENCE ORDER AND INTRODUCTORY FACTS

1. A Single Judge Bench hearing Writ A No. 29324 of 2019 (Mohammed Javed versus State of U.P. and others), passed the following order on 23.10.2019: -

“1. Heard learned counsel for petitioner.

2. Sri Alok Sharma, learned Additional Chief Standing Counsel has accepted notices on behalf of opposite party no.1 and 3, Sri Afzal Siddiqui, learned counsel has accepted notices on behalf of opposite party no.2.

3. Issue notice to opposite party no.4 returnable at an early date.

4. Petitioner has filed present writ petition claiming that he was appointed as part-time assistant teacher in the year 2011 for the primary Section of respondent no.4 Madrasa Nisarul Uloom Shahzadpur, Akbarpur Post Office, District Ambedkar Nagar on a fix salary of Rs.4,000/- per month, subject to 8% annual increment. He prays that no regular appointment should be made by respondent no.1 to 3 i.e. the State Government, the Madarsa Shiksha Parishad and District Minority Welfare Officer and his service should be regularized. Further prayer is that he should be paid salary as is being paid to the regular teachers.

5. Petitioner places reliance upon the provisions of U.P. Board of Madarsa Education Act, 2004 (Madarsa Act, 2004) and the regulations framed thereunder. At the time of hearing, perusal of the Madarsa Act, 2004, Section 2(h) defines:-

“Section 2(h):-Madarsa-Education” means education in Arbic Urdu, Parsian, Islamic- studies, Tibb Logic, Philosophy and includes such other branches of learning as may be specified by the Board from time to time.”

6. For the purposes of Madarsa education, a Board is constituted under Section 3 of the Madarsa Act, 2004 which reads :-

“Section 3(3) The Board shall consist of the following members, namely:

(a) a renowned Muslim educationist in the field of traditional Madarsa-Education, nominated by the State Government who shall be the Chairperson of the Board;

(b) the Director, who shall be the Vice-Chairperson of the Board;

(c) the Principal, Government Oriental College, Rampur;

(d) one Sunni-Muslim Legislator to be elected by both houses of the State Legislature;

(e) one Shia-Muslim Legislator to be elected by both houses of the State Legislature;

(f) one representative of National Council for Educational Research and Training;

(g) two head of institution established and administered by Sunni-Muslim nominated by the State Government;

(h) one head of institution established and administered by Shia-Muslim nominated by the State Government;

(i) two teachers of institutions established and administered by Sunni-Muslim nominated by the State Government;

(j) one teacher of an institution established and administered by Shia-Muslim nominated by the State Government;

(k) one Science or Tibb teacher of an institution nominated by the State Government;

(l) the Account and Finance Officer in the Directorate of minority Welfare, Uttar Pradesh;

(m) the Inspector;

(n) an officer not below the rank of Deputy Director nominated by the State Government, who shall be the member Registrar;

7. From perusal of the same, following questions arise for consideration:-

(i) Since the Madarsa Board is constituted for education in ‘Arbic, Urdu, Parsian, Islamic-studies, Tibb Logic, Philosophy and includes such other branches of learning as may be specified by the Board from time to time’, how come persons of a particular religion are provided to be member of the same? It does not talks about exponence in the aforesaid fields, for the purposes of which the Board