TaxTMI 
TaxTMI 
2006 (8) TMI 702
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Institution) G. Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized from Government for the Class from Nursery to VIIIth) From: Principal To: Smt. Santosh Upadhyay, Asstt. Teacher, G. Jr. H. School, Bal Vidya Mandir, Etah Dated: 8.9.2001 Subject: Regarding indiscipline etc. Madam, You are not complying with the following instructions despite number of oral as well as written orders: 1. Refusal to sign on the Order Register and on other information etc. 2. Laxity in teaching work. 3. Non performing the duties of your charge. 4. Use of indecent language and shouting for giving reply. 5. Using caste related words to spoil the atmosphere. 6. Instigating other teachers and provoking them to neglect their duties. 7. Non-cooperation in the development of school and increasing the number of students. 8. Threats to me (Principal) for dire consequences, in my office and also giving threats on my residential telephone through other unsocial elements. I hereby give you this last warning to improve your attitude a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the period of suspension, you will remain attached with S.K.S. Girls Junior High School, Etah. Sd/- (Dev Rishi Jain) G. Jr. High School, Bal Vidya Mandir, Etah Endst. No. 1-5/2001-2002 Dated: 24.9.2001 Copy forwarded to following for information and necessary action: 1. Smt. Santosh Upadhyaya, A.T., G. Jr. High School, Bal Vidya Mandir, Etah. 2. District Basic Education Officer, Etah - for information. 3. Account Officer, Finance & Accounts Basic Education, Etah 4. Smt. Kusum Sharma, Principal, Bal Vidya Mandir, Etah. 5. Guard File. Sd/- (Dev Rishi Jain) G. Jr. H. School, Bal Vidya Mandir, Etah. 24.9.2001 On 17.10.2001, the Manager, G. J. High School, Bal Vidya Mandir, Etah received a letter from the District Basic Education Officer, Etah indicating that for a minority institution there is no requirement of prior approval for imposing penalty on Assistant Teachers from the District Basic Education Officer. The letter dated 17.10.2001 reads as under: Office of the District Basic Education Officer, Etah No. 3381-82 Dated: 17.10.2001 The Manager, G. J. High School, Bal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing suspension of Smt. Santosh Upadhyaya, meeting of Managing Committee was called on 9.11.2001 and formal resolution was passed as per rules and all the members of Managing Committee and Principal attended this meeting. The Enquiry Report and explanation (Show Cause Notice) were considered carefully and thereafter it has been decided unanimously that the charges leveled against Smt. Santosh Upadhayaya, on the basis of statements and evidence, have been found fully proved. These cannot be considered as wrong in any manner. It would be in the interest of school and its reputation that Smt. Upadhyaya be removed from the services of this School. Therefore, notice of termination from service may be sent to her and competent officer may also be informed on this subject. 1. After receiving the report of District Basic Education Officer regarding your in- disciplinary activities in the School, your one annual increment had been stopped. This annual increment had been stopped w.e.f. 1st January, 2001 and the above said Basic Education Officer had been transferred from this District in June, 2001. During this period of 6 months, you never made any application regarding stopping of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been reviewed. In the absence of same, the reply to show cause notice received from you within the stipulated time, is not satisfactory and in these circumstances, there is no justification to keep you in service of this School. Consequent upon your failing to submit an appropriate evidence and document before the undersigned, despite the sufficient opportunities to explain, your services are terminated with immediate effect. Yours faithfully, Sd/- (Dev Rishi Jain) Manager G. Jr. High School, Bal Vidya Mandir, Etah. Copy to: - For information - 1. District Basic Education Officer, Etah 2. Finance and Accounts Officer - Basic Education, Etah Sd/- (Dev Rishi Jain) Manager G. Jr. High School, Bal Vidya Mandir, Etah. Respondent no. 3 challenged the order of termination dated 10.11.2001 before the High Court of Judicature at Allahabad by filing a writ petition, which was decided by the learned Single Judge on 7.12.2001. 4. A preliminary objection was raised on behalf of the appellant that in view of the provisions of Rule 16 of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Sd/- (Ram Prakash Singh) District Inspector of School, Etah No. B.E.P.//11264/76-77 even date Copy forwarded to following for information & necessary action please: 1. District Basic Education Officer, Etah - With reference to his office letter No. CA- 4404/12/B.R.D. Minority/76-77 dated. 27.7.76. 2. Manager Girls Junior High School, Bal Vidya Mandir, Etah. 3. Dy. Director of Education, Region-II, Agra. 4. Regional Inspector of Girls School Region- II, Agra. 5. Director of Education, U.P. Peerpur House, Tilak Marg, Lucknow. Sd/- (Ram Prakash Singh) District Inspector of School, Etah Rule 11 of the Uttar Pradesh Recognized Basic School (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 reads as under: 11. Dismissal and Removal of Teachers.- No order dismissing, removing or terminating the services of a teacher or other employee of a recognized school shall be passed save with the prior approval in writing of the Basic Shiksha Adhikari: Provided that in case of recognized schools established and administered by minority referred to in Clause (1) of Ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....observed in the judgment that in a Special Appeal the Court had not considered the question regarding the minority status of the institution. This observation of the learned Single Judge is wholly untenable. The approach adopted by the learned Single Judge in this case is against the settled principle of law. Law is consistent and clear that the Single Judge of the High Court is bound by the decision of the Division Bench. In support of the view taken by the Division Bench adequate material exists. We deem it proper to recapitulate references to the decided cases and other relevant material. 10. The Government of Madhya Pradesh, by a notification dated 29.5.2001, declared the Jain community in the State of Madhya Pradesh as a minority community. The Founding Fathers of the Constitution had unequivocally recognized the Jains as a minority community as is evident from the proceedings of the Constituent Assembly. While keeping in view that the Jains are a minority community, a representative of the Jain community was taken in the Minority Advisory Committee of the Constituent Assembly. 10.1 On 3rd September, 1949, while addressing a public meeting at Allahabad, the first Prime M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sm is an original system, quite distinct and independent from all others and that therefore it is of great importance for the study of philosophical thought and religious life in ancient India. (This was mentioned in Vol. 2, p. 66 Oxford.) 10.5 Pt. Jawahar Lal Nehru, in his celebrated book "Discovery of India", mentioned as under: Buddhism and Jainism were certainly not Hinduism or even the Vedic Dharma. Yet they arose in India and were integral parts of Indian life, culture and philosophy. A Buddhist or Jain, in India, is a hundred per cent product of Indian thought and culture, yet neither is a Hindu by faith. It is, therefore, entirely misleading to refer to Indian culture as Hindu culture. 10.6 As Dr. Jyoti Prasad Jain, an eminent Jain scholar mentioned in his treatise "Jainism-The Oldest Living Religion": In fact, there is whatsoever no tangible evidence to show that Jainism branched off from the Vedic religion or from any of its later development, at such and such time, nor there is any marked similarity between the fundamental doctrines and essential features of the two systems, which might favour that possibility. Jainism with its perfectly non-viole....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een included in category III (b). After considering the representations received from the various Associations of Jain Community and also the clarifications sought for by some of the Dy. Commissioners and Tahsildars in this regards, it is directed that the candidates belonging to Jain (Digambara) Community become eligible for reservation under Category III (b) only after production of reliable documents by them. The concerned candidate should prove, either through documentary evidence or through witness that he, his father or their ancestors belong to Jain (Digambara) Community. In cases where the Jain (Digambara) has not been clearly mentioned in the documents, the officer authorized to issue such certificates or the inquiring officer should hold local enquiry and only if he is satisfied as to the correctness of the claims of the candidates during course of such enquiry, that he should issue certificates. He should, however, draw up a clear and detailed proceedings of his enquiry before issue of the Certificate. Disciplinary action will be taken against the Officers who issue Caste certificates/Inquiry Certificates in violation of rules of reservations. Sd/- (B.S. Rukmini) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ian polity since times of great antiquity and was opposed to ritualistic cult of Vedic philosophy. According to him, Jainism is existing in India since at least 700 B.C. 16. According to the learned Single Judge, minority status could be granted only by the U. P. Basic Shiksha Parishad and since it was not granted to the appellant institution by the said Parishad, the appellant institution could not terminate the services of respondent no. 3 without prior permission from the District Basic Education Officer. The appellant aggrieved by this order preferred this appeal before this Court. This Court, on 11.7.2003, while issuing notice directed that the status quo as on that date shall be maintained until further order. On 5.12.2003 this Court, while granting leave, directed the parties to continue to maintain the status quo. 17. In this appeal the appellant raised a substantial question of law. The appellant raised the plea that in view of the judgment of the Division Bench whether it was open to the learned Single Judge of the High Court to take a contrary view by its judgment dated 10.4.2003. The Division Bench observed as under: Having heard the learned Counsel for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticle 14 of the Constitution. It is also mentioned in the appeal that the learned Single Judge committed a serious error of law in relying on the Circular dated 20.4.1971 which could not be made applicable to the schools governed by the provisions of the U.P. Basic Education Act 1972. 19. The appellant submitted that on the relevant date a Recognition Committee was constituted for the convenience of the local people for recognition of Junior High Schools, of which the Director of Inspector of School (for short D.I.O.S.) was appointed as Chairman. The appellant institution applied for recognition as minority institution with the Basic Education Officer. Since it also related to the recognition of institution, the Basic Education Officer forwarded the application to D.I.O.S. The D.I.O.S. recognized the institution as minority institution. Now, that status cannot be taken away by the learned Single Judge of the High Court, who chose to ignore the findings of the Division Bench of the same High Court. 20. In reply to the appeal, a separate counter affidavit was filed on behalf of respondent nos. 1 and 2 by one Dr. R. K. Dubey, Zilla Basic Siksha Adhikari, Etah, in which a prelimi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the appellant as far back as on 25.8.1976 which could not be withdrawn in a collateral proceeding in such a manner. It is mentioned that Dr. S. N. Malhotra was the Director of Education, U.P. as well as the Chairman, Basic Education Board, U.P. during the relevant year 1976. He had issued a letter dated 30.5.1976 to the District Inspector of School/Regional Inspector of Girls School for authorizing them to pass the order on the application of various institutions submitted for granting them the status of minority institution. 23. We have heard the learned Counsel for the parties at length. This appeal arose from the judgment of the learned Single Judge of the Allahabad High Court dated 10.4.2003 in C.M.W.P. No. 15255 of 2003. A preliminary objection was taken by respondent nos. 1 & 2 in the counter affidavit that under Chapter VIII Rule 5 read with Chapter IX Rule 10 of the Allahabad High Court Rules a special appeal lies against the order of the Single Judge before a Division Bench. Chapter VIII Rule 5 and Chapter IX Rule 10 of the Allahabad High Court Rules read as under: Chapter VIII Rule 5. Special appeal.- An appeal shall lie to the Court from a judgment (not b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich form the bedrock of Hinduism and denies the efficacy of the various ceremonies which Hindus consider essential. 24.5. Again in 1939 in Hirachand Gangji v. Rowji Sojpal reported in AIR1939Bom377, it was observed that "Jainism prevailed in this country long before Brahmanism came into existence and held that field, and it is wrong to think that the Jains were originally Hindus and were subsequently converted into Jainism." 24.6 A Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Justice Gajendragadkar in respect of Bombay Harijan Temple Entry Act, 1947 (C.A. 91 of 1951) held that Jains have an independent religious entity and are different from Hindus. 24.7 In Aldo Maria Patroni and Anr. v. E.C. Kesavan and Ors. reported in AIR1965Ker75, a Full Bench of the Kerala High Court opined that the word 'minority' has not been defined in the Constitution and in absence of any special definition, it must be held that any community, religious or linguistic, which is less than fifty per cent of the population of the State is entitled to the fundamental right guaranteed by Article 30 of the Constitution. 24.8 In Commissioner of Wealth Tax, We....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. 25. Jain religion indisputably is not a part of Hindu religion. The question as to whether the Jains are part of the Hindu religion is open to debate. Jains have a right to establish and administer their own institution. But, only because an institution is managed by a person belonging to a particular religion, the same would not ipso facto make the institution run and administered by a minority community. A minority is determinable by reference to the demography of a State. Whether an institution is established and administered by a minority community or not may have to be determined by the appropriate authority in terms of the provisions of the statute governing the field. Furthermore, minority institutions are not immune from the operations of the measures necessary to regulate their functions. To what extent such regulations would operate, however, again is a matter which would be governed by the statute. Minority communities do not have any higher rights than the majority. They have merely been conferred additional protection. This h....