Jharkhand High Court: Anubha Rawat Choudhary J., while setting aside the impugned order, reiterated, “…once the institute is recognized as a minority institution, its minority status would entitle the managing committee of the institution to make appointment of teachers against the vacancies subject to satisfying the condition of eligibility prescribed for such appointments under the relevant provision”

The present appeal was moved challenging the order dated 14-08-2018 passed by the writ court in WP(S) No. 1122 of 2011, whereby a direction was issued to the respondents for considering the case of the writ petitioner for permanent absorption on vacant and sanctioned post of teacher in Sanskrit subject, in the respondent’s school. It is to be noted that the writ court while passing the aforesaid direction has recorded that the case of petitioner fits into the eligibility condition for consideration for permanent absorption in view of the fact that the petitioner has rendered 14 years service on the date of advertisement having possessed the requisite qualification.

Placing reliance on findings of the Supreme Court in determining the validity of Bihar Non-Government Secondary Schools (Taking over of management and control) Act 1981, Court said, “…the right of the managing committee of a recognized minority school to appoint a person of their choice has been held to be a constitutional right under Article 30 of the Constitution of India and the School Service Board is vested with limited power to see that the person proposed to be appointed possesses the requisite qualifications prescribed and that the prescribed method of selection was followed by the management. This power has been held to be regulatory in nature in order to ensure educational excellence in the minority school and at the same time the right of the managing committee of a recognized minority school to appoint a person of their choice as teacher/non-teaching staff has been preserved in the light of Article 30 of the Constitution of India.”  [Reference was drawn to Sindhi Education Society, (2010) 8 SCC 49 and Chandana Das v. State of West Bengal, (2015) 12 SCC 140]

Court further observed that the writ court before issuing directions for absorption, failed to appreciate the fact that the respondent school is a minority institution enjoying protection under Article 29 and 30, and therefore, has a fundamental right to manage its affairs without any undue interference. It was said, “… admittedly in the instant case, the name of the writ petitioner was never recommended by the respondent-minority school either for regularization or for appointment pursuant to advertisement issued in the year 2010 and accordingly, a direction for absorption/regularization of the writ petitioner in the services of the minority school in the vacant sanctioned post would amount to giving a complete go by to the right of the respondent-minority educational institution to get a person appointed on the basis of recommendation to be made by the Managing Committee of the minority school. The learned single judge has ignored the distinction between a Government School and a Minority School receiving aid by way of salary to the teachers appointed against the sanctioned post.”

Setting aside the decision of the writ Court, it was conclusively held that the direction issued for absorption of the writ petitioner, in spite of his name having been rejected by the Managing Committee of the respondent minority school in the selection process would bear serious implications upon the right of the respondent Minority School to appoint teachers of their choice subject to the regulatory provisions contained in the Act of 1981. Further, the impugned direction of the writ court will amount to denial of the right conferred under Article 30 of the Constitution of India upon the respondent minority school to administer the minority institution and amounts to curtailment of the right of the respondent minority school to appoint teachers of their choice through appropriate selection process amongst those who possess the eligibility and qualification prescribed.[State of Jharkhand v. Subhadra Jha, 2021 SCC OnLine Jhar 64, decided on 19-01-2021]

Sakshi Shukla, Editorial Assistant ahs put this story together

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