Our Last English Chief Justice Orby H. Mootham- ‘When Chief justice Mootham apologized to a litigant’. WHERE ARE THOSE JUDGES?
‘This reminiscences is relate back to the period of about last 50 years from the time of last English Chief Justice Orby H. Mootham, Those were the days’-. Compare it now; Right from the period of the English judges to the present scenario. It has been said that those judges were mature, modest and commanded the respect by their very entry in the courtroom. ‘When Chief justice Mootham apologized to a litigant’. Chief justice Mootham entered the court smilingly, but became tense and pointed out to the Bench Secretary for the impropriety of behavior of a litigant, a gentle man who was sitting in the fifth or sixth row wearing a head-gear. The gentleman has removed his cap. The moment the functioning started, the chief justice regained his usual pleased posture, but the irritation was again visible, when he saw the gentleman recapped his head. However, when the orderly went towards the gentleman he voluntarily removed his cap. This was perhaps by reflexes that he wore the cap once again. The chief justice stopped functioning and asked the court officer to act upon and thereafter the gentleman was asked to leave the courtroom. It was per by chance that one contemporary Advocate went to chief justice’s chamber to make a mention. Justice Gyanendra Kumar was present in Hon’ble Chief justice chamber. The chief justice in a most inimitable style asked, whether he had seen the gentleman, who despite been told not to wear the cap, defied the advice of the bench secretary. The Chief Justice has also said that the gentleman looked a dissent person, but he wandered why he repeatedly wore his cap soon after removing it. Was it by the defiance to authority of the Court?
Justice Gyanendra Kumar, a very pleasant conversationalist, intervened. He said "Chief Justice", your lordship in the English society, people take off a hat to show courtesy, but we in this country wear a cap to show our respect. Thus the gentleman was only trying to repeat his gesture of respect. The chief justice perhaps never knew it otherwise this was not causing irritation to him. The tall person, the chief justice broke into laugher and asked the bench secretary to trace and bring the gentleman in his chamber. Perhaps the gentleman was still out side the chief justice chamber. As soon as he entered, the chief justice expressed regret to him and pleaded his ignorance that the cap is worn to show respect. Soon, the gentleman after being happy from the reprimand made by the chief justice was again called to request him to be in the courtroom soon after the lunch. Justice Gyanendra Kumar was curious as to why the chief justice was insisting to have the gentleman in court. On being inquired the chief justice Mootham observed:- " He has been reprimanded in court by me and therefore he deserves an apology from chief justice in the court itself. Later the chief justice apologized in court itself. This has been never seen or heard by any judge about such gesture even to a lawyer when there is no good ground for reprimand." HOW CAN SUCH A JUDGE, THOUGH HE RETIRED IN 1961 CAN GO OUT OF MEMORY OF THOSE WHO HAVE SEEN HIM WORKING IN COURT AND OUTSIDE”?
There gesture of kindness to the lawyers and courteous dialogues used to blush out of their modesty even if their faces looked red and they were scared in the moment. They entered the courtroom right at 10.00 A.M. never before or a second afterwards. The chief justice was so cordial, warm and affectionate that this was the etiquette of high constitutional functionaries. The unusual dissent conduct with a strange warmth decency of Chief Justice Mootham was continued to remember even after his death to heavenly abode from this world.
"Every Act and every inquiry and similarly every action and pursuit, given by him was thought to aim at some good, and for this reason, the good has rightly been declared, to be that, at which all things aim. But a certain difference is found among ends". For him "For best was he who knows all things himself good, he that hearkens when men counsel right. But he who neither knows, nor lays to heart another wisdom, is a useless night".
"Life is a shylock; always it demands. The fullest usurer’s interests for each pleasure Gifts are not freely scattered by its hand. We made returns for every borrowed treasurer. Each talent, each achievement and every gain me necessitated some penalty to pay. All you bestow on causes or on men of love or hate of malice or devotion somehow and sometime shall be returned again. There is no waste toil, no lost emotion. The motto of the world is to give and take. It gives you favour out of sheer goodwill but unless a speedy recompense you make you will find yourself presented with its bill". "Competition is a struggle for existence because there is always be survival of the fittest".
Justice Raghubar Dayal, an Advocate has written this that he open his submissions by using a phrase from the privy council’s judgement without referring to it. He said that the learned District Judge has carved out an new case for which no place was found in pleading! Justice Raghubar Dayal did not open the file and remarked - if counsel have learned to use this kind of language so early in life, he would land himself in disaster. Advocate immediately apologized. He said that he has escaped his lordship wrath and will have a chance before another judge, but justice Dayal said to him that he might present in the courtroom at 10.00 A.M. as this case will be taken as part heard case. Justice Dayal was tensed and his earlier day’s annoyance was apparent. Advocate said that he was relying Privy Council judgement where the judicial committee has used the same language. He said that he was conscious that he did not know English to well, yet he use such word, which were used by Privy Council. Justice Dayal admitted the appeal, but refuse to exercise discretion for staying the decree for demolition. He has written that his indiscreet use of language cause lost to his client. The house of the client was demolished but Advocate has written that he has repented this incident through out his life as to find out where he was wrong. Justice Raghubar Dayal, who retired in 1960 as the judge of Supreme Court, still had the great respect from Advocate, as he never committed such mistake through out his life.
With regard to Justice and injustice to an individual’s opinion assessments, we must consider the kind of action. It’s means and the justness for considering its effect and solution. Thus the justice is always represent in corresponding sense. An advocate’s world is to convey the idea generated through such experiences with the same precision Ideologically some time antagonistic to his own opinion, but from its very inception of the correct analysis of his perceptions with the desire, aptitude and knowledge in adequate representations. This is a heterogeneous conglomeration of disparate and desperate interests designed mainly hedge against common enemy on both the constituents. .The cultivation of moral foundations is called our cultural heritage.
Yogesh Kumar Saxena
Advocate, High Court
H.I.G.203, Preetam Nagar, Sulem sarai, Allahabad-211001
yogrekha@gmail.com, yogrekha@rediffmail.com, yogrekha@yahoo.co.in
Founder President- World Citizenship Group Foundation, Swami vevekanand world ethical foundation,
Executive Member- World Parliament Experiment conference 2008 at Bonn (Germany),
Vice President- Geeta Asharam International Cheritable Trust, Rishikesh, Pauri Garhwal
Ex Vice President- Advocate’s Association, High Court, Allahabad
Special Counsel/ officer, Ganga Pollution Matter, High Court, Allahabad
Wednesday, July 30, 2008
Kindly implement Section 95 Cr.P.C.read with Section124 -A 153-A or Section 153-B and Section 295-A of I.P.C. to stop the preachings of Jihad
That for the convenient perusal the section 95 of Cr. P. C. and the provisions of section 153-A and 295-A of I.P.C. are reproduced as under :-
“95, Power of declare certain publications forfeited and to issue search-warrants for the same—(1) where-
(a) any newspaper, or book, or
(b) any document,
wherever printed, appears to the State Government to certain any matter the publication of which is punishable under Section 124-A or Section 153-A or section 153-B or section 295-A of the Indian Penal Code ( 45 of 1860), the State Government may, by notification, stating the grounds of the opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same whenever found in India and any Magistrate may by warrant authorize any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.
(2) In this section and in section 96-
(a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867);
(b) “document” includes any painting, drawing or photograph, or other visible representation.
(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of Section 96.”
Section 153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residences, language, etc. and doing acts prejudicial to maintenance of harmony.- (1) wherever-
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities , or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility.
(c) Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing to it be likely that of participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional groups or caste or community, Shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Offence committed in place of worship, etc.- (2) Wherever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”
“295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religious beliefs – wherever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
2. That although according to the Islamic belief, Koran ( Quran ) is regarded as a divine book containing the words revealed by prophet Mohammad. The verses of Quran were in relations to the happening taken place during the particular events and the connotation of it has a different and separate back grounds , than the present scenario based upon the logical perceptions and that of intellectual property rights.
3. That in the society, wherein the Rule of Law is supreme, the perceptions of authenticity is based upon the truthfulment of the statements and the orthodox superstitions with the ideological confrontation be wiped out in collaboration with harmony between other sections of the society.
4. That the Muslims in India have seldom invited their own people for the public discussions of their creed in general. The effects of the preaching made by their prophet and most of them have idolized the verses of Quran at par with their religion. The result of such pressure being exerted by vociferous activities upon rest of citizens in case one may convince to have the introspection of the repercussions of such preaching which ultimately lead its followers and act of terrorism.
5. That such activities have been broadened to include the memberships, support, assistance or furthering the activities of some terrorists’ organizations. The raising of funds intended for the purposes of ‘Terrorist Act’ has always provided an enumerable loss to the life and property of the people worshiping the other religion than Islam. Thus in a secular estate such activities of terror may provide a considerable loss to national assessed by declining in the terrorist participation in promotion of the financial assessed to out nation.
6. That a Hindu Father of this girl seeking the direction from the Central Government to declare such preaching of ‘ZIHAD’ for converting out nation as DARUL-E-ISLAM by the recital of verses of Quran as detrimental to the interest of the nation.
7. That the citizens having following of the other religion of Hinduism, Buddhist and Jainism including Jews, who are regarded to be “infidels” at the hands of “believer” of Quran, have their right to know in respect of their fault being committed by them on account of their non-violent and peaceful a domination of every religion. Thus there is no moral and spiritual import except by a free and fourth right discussion and the interpretation of verses of Quran in its rights prospectives to the followers of the Islam.
8. That a citizen who is properly informed regarding the public opinion can only decide in the long run, as to whether the Quran qualifies or not as a religion scripture.
9. That by the mere reading of a few sayings of Quran – 37 which proclaims “ Preach cruelty, incite violence and disturbs” public peace, while verse –17 saying which “ Promote on ground of religion, feeling of enmity, hatred and ill-will between different religious communities in India”. The 31 saying further proclaim, “ Insult other religious as also the religious belief of other communities.
10. That secular pattern in behaviour of Muslim majority in Bangladesh and Pakistan towards the Hindu minority simply demonstrates the cruelty and feelings of hatred amongst the fellow citizens in keeping with the tenets of Islam.
11. That it is submitted that recent photos of Bangladesh Hindus, who have been systematically uprooted from their ancestral home land, even after India had made great sacrifice for speculating liberation for Bangladesh are mesirable, which is apparent from perusal of photographs of Mass-killing and gang-rapes conducted in Bangladesh. The copies of photographs published having naked bodies of women lying slaughtered and victims of rape, gang-rapes in the family of the Hindus minority at Bangladesh and the treatment given to the personnel of Border Security Forces are seen in the book.
12. That on one hand the Hindus, Buddhist, Jainism stood for non-violence, truthfulness, non-stealing, chastity and non-covetousness, while the preaching of Quran may puzzle them the adherents of another religion of Islam based upon the cruelty, violence and crime. Thus the concept of secularism as adhered by our nation has become antithesis with the acts of terrorism and recital of preaching from Quran.
13. That the similar issues were raised in the matter of writ application no. 297 of 1985 in the constitutional writ jurisdiction at Calcutta, wherein there was recital of the ‘SURAH & AYATEN’,
14. That it was submitted that communal strife and conflicts in its orthodoxy may be seen at Pakistan whose sizable number of Hindu population has been obliterated through murder or through forcible conversion. However, in the judgement passed by then Hon’ble Mr. Justice Vimal Chandra Basak on 17th May, 1985 had observed that making such order as prayed for would amount to abolition of Muslim religion.
15. That the problem is now aggravated by the facts that unlike other communities, Muslim are highly orthodox people and follow the sayings of Quran with fanatical zeal as a result of which even the sizable number of Muslim population can never have been peace on the soil of our nation.
16. That even the Muslim Act founded by Baha’iulah in Iran in 19th Century, whose 1 Millions followers are living in India for spiritual unity, which is uncomphertable with Quranic preaching has been subjected to verse prosecution and the students have been expelled from school and colleges in Iran. In Shia nation and Sunni nation are themselves indulged in violent conflict resulting in numerous death. Thus a modified version of Surah and Ayat in the present context of communal harmony is required to be given to its followers if the majority of the citizens are save themselves for the vast communal passions and religion fanaticism.
17. That the judgement given in Chanda Mal Chopra and another Vs. State of West Bengal was based upon the wrong premises that section 295-A does not penalize any and every act of insult or attempt to insult the religion or religious belief of class of citizen, which are not perpetrated with deliberate and malicious intention of religious feelings of that class. It was observed by the Hon’ble Court that in its opinion it cannot be said that Quran offers any insult to any other religion.
18. That the preamble of our constitution and Article 25 and 26 of our Constitution are providing freedom of conscience.
19. That the preamble proclaimed India to be secular states. However, it has been wrongly interpreted that offending Surah and Ayate of Quran if being forfeited from its publication and the recital may deprive a section of people of their right of thought expression, belief, faith and worship, such action would amount to abolition of Muslim religion. This has been a wrong findings which are totally inconsistent with the offended verses of its Surah and Ayat as reproduced above.
20. That the application of section 153-A is squarely applicable for forfeiture and banning of the offending Surah and Ayat enumerated in the Quran as the same generates disharmony feeling of enmity and hatred and also the ill-will between different religion or community.
21. That it was observed in the aforesaid judgement of Chopra case, while delivering the judgement by Hon’ble Mr. Justice Basak that no untoward incident has been reported till then for carrying on the mutual enmity, hatred between section of the Muslim minority and Hindu Majority incite violence as main aim and object of Quran.
22. That it is most respectable submited that a lot of the terrorist activities have been sur-phased by the followers of the Islam mainly on account of preaching given in Quran, which has lead to the violence of Bombay Blast case of 1993 by Daud Ibrahim and Saleem, Ankaleshwar Temple blast, Killing the parliamentary attack, 11th September Tower Attack in America, series of bomb blast inside the railways compartments in Mumbai, Sankatmochan Mandir blast and complete elimination of members of other communities for territory of Jammu and Kashmir and Godara blast are the evidence to demonstrate that the decision given by Justice Basak has not taken any probability of the happening mentioned above and as such the present situation requires to look into the facts of mass-acre and atrocities committed upon the innocent Hindu citizens. It is submitted that as the last word of prophet written in Quran the Muslims are not ready even to enter in argument or discussion while on the other hand there has been recent judgement of Supreme Court of Malaysia discouraging the bearing of turban by the students, which was adopted on account of being warn by prophet Mohammad
23. That the sources of Islam or Quran and Hadis, called as Sullah, the Quran contains the prophet “rebulation”., while Hadis are al that prophet Mohammad did or said or enjoyed, forbade or did not forbid approved or dis-approved. The Quran is Hadis-mutawatir i.e. the tradition considered authentic and genuine by all Muslims from beginning. The interpretation used by its followers even in changed context of the present days scientific invention and in the light of 2 nuclear bomb invasions in two other centuries is not correct interpretation, which could have been said to be last word of prophet Mohammad as if prophet Mohammad would have been surviving today he would have not promoted Zihad in way of prayer of Allah, nor “ infidel” so called Hindus would have been burned or slaughtered in such a manner as the followers of Islam have started practicing in the name of Quran.
24. That the vary revelation of the word Islam from which the Muslim has been formed, the same drives from “ AS-LAM’ meaning solution to other and peace. Thus the meaning of infidel does not mean the fellow of other religion, but those who does not believe in any God and have indulged in the ruthless killing of animals and other fellow citizens, the true perceptions of the correct proposition of Surah and Ayat may be understood by healthy discussions in the matter. Thus every Hindu citizen has got the right to know the meaning of the infidel and status of Zimmis on which the Zaziya or capitation tax, was realised by the force of arms during period of slavery under the Mughals sub-ordination,
25. That there is another aspect of the matter regarding the creation of quite painting by M.F. Hussain proclaiming himself to he follower of Islam. In the aforesaid paintings which have published and may be seen by any Hindu citizen, there has been naked goddess Durga and goddess Saraswati, Lord Rama without his head and naked Goddess Sita sitting on the thee of Raman and also on the tail of Hanuman. Goddess Durgaji has been shown to the in coupling with the tiger, while goddess Parwati is shown in the union with the Elephant, while Lord Shiva is said to have been watching upon them. Can it be assumed that M.F. Hussain is a cynic or infidel, who is suffering from seizophrenia with the sadistic pleasure by assailing the sentiments of Hindu citizen of our country. The naked photographs of our goddess demonstrated in oil painting by M.F. Hussain are published in book.
26. That on one hand the Hindu is considered to be tolerant for whom the misrepresentation is given to be co-ordis by the Muslims, if the Hindus may start their counter aggressism by preparing the suicidal Bomber upon Zama-Maszid and other mosque, the repercussion may be much serious resulting in the situation of riote Orson and Dona side. Thus in order to provide a curve upon such happening judicial review is required to be done regarding the interpretation of offending Surah and offending Ayate of Quran as the same may not be misunderstood by its followers.
27. That the example of counter aggression has been seen at Iraq wherein Saddam has been executed by the American in his own country. It is submitted that there may be vested interest of other nations who remained opportunist to rule India on the policy of divide and rule amongst its citizens. Thus the ------given by Britishers for interpreting the Surah and Ayate of Quran is neither beneficial for our nation, nor the same is beneficial for Pakistan and Bangladesh to demonstrate their displeasure on the question of revaluation of truth amongst our fellow citizens.
28. That it has been brought to the notice of the Most of citizens that N.D.P.S. is used for providing the illusionary atmosphere of Zannat for preparing suicide bombers. It has been found that the individual under going through brain-drain through such illusionary perception was smiling just before few seconds of the blast. Thus the conclusion is in-escapable that the preaching of Quran to its followers by some time generate themselves the illusionary perceptions of providing the attainment to the heaven if they voluntary sacrifice their life in the name of Zihad as Allah ordered them for killng of infidels. Thus the judicial activism is required to be done for positive interpretation of such recital, otherwise slaughtering and thereby plundering of innocent people may lead to the counter aggression, which is not congenial for the development of a Nation.
29. That in this manner Quran may never be regarded as the holy book, nor the Muslim religion based upon misconception of Zihad and Darul-E-Islam may never be able to get the generation in the mind of Hindus. The slogan of secularism and Sarvadharm Sambhawa, it is submitted that the individual Afzal who attached upon the Parliament has yet not been hanged under the guise of getting the protection as a repercussion of such hanging may not lead to the mob violence, which was seen during the period, when the cartoon of Mohammad was made in the remote country at Denmark.
30. That it is true that Hindus have fought Muslim invaders, who had locally established the Muslim dynasties. However our previous rulers have neglected to study the religious and ideological motives of such invaders and speculation remained unmindful of new phenomenon in their midst. Thus scullery dissertation of disciples of great learning may demonstrate the awareness-------
31. That the problem of Muslim phenatics who are the followers of offending Surah and Ayate of Quran by generating the concept of Zihad and Darul-e-Islam is further magnified from the event of having the parliament attack. It is submitted that on one hand there is psychological fear generated in the mind of people from such attack and Godhara killing, but when in retaliation of act of terrorism, the counter aggressism was adopted by Hindu citizens in State of Gujrat then the entire word including appeasement policy of Government could not muster the courage of depreciating the Godhara killing, but the retrial after the acquittal of innocent citizens was further ordered to have been taken place in different State of Maharastra.
32. That it is threatening of mob violence under the appeasement policy that despite the death sentence awarded to Afzal for his heinous offence of sedition through attack on Parliament, the Government of India could not provide the execution of death sentence. It is submitted that Chief Minister of Jammu Kashmir Sri Ghulam Navi Azad have warned the Central Govt. restraining from execution of Afzal and the entire cabinet decision have yet not the taken courage to hand the culprit of parliamentarian attack under the garb of pendency of mercy petition before his excellency the President of India. Thus the policy enumerated in regard to such pattern-age granted to the invaders indulged in terrorist attack may only be reduced if the Hon’ble Court being sentinel and guardian of majority of population may grant the proclamation and forfeiture of offending Surah and Ayate written in Quran to rightful conclusion through judicial interpretation.
“95, Power of declare certain publications forfeited and to issue search-warrants for the same—(1) where-
(a) any newspaper, or book, or
(b) any document,
wherever printed, appears to the State Government to certain any matter the publication of which is punishable under Section 124-A or Section 153-A or section 153-B or section 295-A of the Indian Penal Code ( 45 of 1860), the State Government may, by notification, stating the grounds of the opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same whenever found in India and any Magistrate may by warrant authorize any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.
(2) In this section and in section 96-
(a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867);
(b) “document” includes any painting, drawing or photograph, or other visible representation.
(3) No order passed or action taken under this section shall be called in question in any Court otherwise than in accordance with the provisions of Section 96.”
Section 153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residences, language, etc. and doing acts prejudicial to maintenance of harmony.- (1) wherever-
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities , or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility.
(c) Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing to it be likely that of participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional groups or caste or community, Shall be punished with imprisonment which may extend to three years, or with fine, or with both.
Offence committed in place of worship, etc.- (2) Wherever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”
“295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religious beliefs – wherever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
2. That although according to the Islamic belief, Koran ( Quran ) is regarded as a divine book containing the words revealed by prophet Mohammad. The verses of Quran were in relations to the happening taken place during the particular events and the connotation of it has a different and separate back grounds , than the present scenario based upon the logical perceptions and that of intellectual property rights.
3. That in the society, wherein the Rule of Law is supreme, the perceptions of authenticity is based upon the truthfulment of the statements and the orthodox superstitions with the ideological confrontation be wiped out in collaboration with harmony between other sections of the society.
4. That the Muslims in India have seldom invited their own people for the public discussions of their creed in general. The effects of the preaching made by their prophet and most of them have idolized the verses of Quran at par with their religion. The result of such pressure being exerted by vociferous activities upon rest of citizens in case one may convince to have the introspection of the repercussions of such preaching which ultimately lead its followers and act of terrorism.
5. That such activities have been broadened to include the memberships, support, assistance or furthering the activities of some terrorists’ organizations. The raising of funds intended for the purposes of ‘Terrorist Act’ has always provided an enumerable loss to the life and property of the people worshiping the other religion than Islam. Thus in a secular estate such activities of terror may provide a considerable loss to national assessed by declining in the terrorist participation in promotion of the financial assessed to out nation.
6. That a Hindu Father of this girl seeking the direction from the Central Government to declare such preaching of ‘ZIHAD’ for converting out nation as DARUL-E-ISLAM by the recital of verses of Quran as detrimental to the interest of the nation.
7. That the citizens having following of the other religion of Hinduism, Buddhist and Jainism including Jews, who are regarded to be “infidels” at the hands of “believer” of Quran, have their right to know in respect of their fault being committed by them on account of their non-violent and peaceful a domination of every religion. Thus there is no moral and spiritual import except by a free and fourth right discussion and the interpretation of verses of Quran in its rights prospectives to the followers of the Islam.
8. That a citizen who is properly informed regarding the public opinion can only decide in the long run, as to whether the Quran qualifies or not as a religion scripture.
9. That by the mere reading of a few sayings of Quran – 37 which proclaims “ Preach cruelty, incite violence and disturbs” public peace, while verse –17 saying which “ Promote on ground of religion, feeling of enmity, hatred and ill-will between different religious communities in India”. The 31 saying further proclaim, “ Insult other religious as also the religious belief of other communities.
10. That secular pattern in behaviour of Muslim majority in Bangladesh and Pakistan towards the Hindu minority simply demonstrates the cruelty and feelings of hatred amongst the fellow citizens in keeping with the tenets of Islam.
11. That it is submitted that recent photos of Bangladesh Hindus, who have been systematically uprooted from their ancestral home land, even after India had made great sacrifice for speculating liberation for Bangladesh are mesirable, which is apparent from perusal of photographs of Mass-killing and gang-rapes conducted in Bangladesh. The copies of photographs published having naked bodies of women lying slaughtered and victims of rape, gang-rapes in the family of the Hindus minority at Bangladesh and the treatment given to the personnel of Border Security Forces are seen in the book.
12. That on one hand the Hindus, Buddhist, Jainism stood for non-violence, truthfulness, non-stealing, chastity and non-covetousness, while the preaching of Quran may puzzle them the adherents of another religion of Islam based upon the cruelty, violence and crime. Thus the concept of secularism as adhered by our nation has become antithesis with the acts of terrorism and recital of preaching from Quran.
13. That the similar issues were raised in the matter of writ application no. 297 of 1985 in the constitutional writ jurisdiction at Calcutta, wherein there was recital of the ‘SURAH & AYATEN’,
14. That it was submitted that communal strife and conflicts in its orthodoxy may be seen at Pakistan whose sizable number of Hindu population has been obliterated through murder or through forcible conversion. However, in the judgement passed by then Hon’ble Mr. Justice Vimal Chandra Basak on 17th May, 1985 had observed that making such order as prayed for would amount to abolition of Muslim religion.
15. That the problem is now aggravated by the facts that unlike other communities, Muslim are highly orthodox people and follow the sayings of Quran with fanatical zeal as a result of which even the sizable number of Muslim population can never have been peace on the soil of our nation.
16. That even the Muslim Act founded by Baha’iulah in Iran in 19th Century, whose 1 Millions followers are living in India for spiritual unity, which is uncomphertable with Quranic preaching has been subjected to verse prosecution and the students have been expelled from school and colleges in Iran. In Shia nation and Sunni nation are themselves indulged in violent conflict resulting in numerous death. Thus a modified version of Surah and Ayat in the present context of communal harmony is required to be given to its followers if the majority of the citizens are save themselves for the vast communal passions and religion fanaticism.
17. That the judgement given in Chanda Mal Chopra and another Vs. State of West Bengal was based upon the wrong premises that section 295-A does not penalize any and every act of insult or attempt to insult the religion or religious belief of class of citizen, which are not perpetrated with deliberate and malicious intention of religious feelings of that class. It was observed by the Hon’ble Court that in its opinion it cannot be said that Quran offers any insult to any other religion.
18. That the preamble of our constitution and Article 25 and 26 of our Constitution are providing freedom of conscience.
19. That the preamble proclaimed India to be secular states. However, it has been wrongly interpreted that offending Surah and Ayate of Quran if being forfeited from its publication and the recital may deprive a section of people of their right of thought expression, belief, faith and worship, such action would amount to abolition of Muslim religion. This has been a wrong findings which are totally inconsistent with the offended verses of its Surah and Ayat as reproduced above.
20. That the application of section 153-A is squarely applicable for forfeiture and banning of the offending Surah and Ayat enumerated in the Quran as the same generates disharmony feeling of enmity and hatred and also the ill-will between different religion or community.
21. That it was observed in the aforesaid judgement of Chopra case, while delivering the judgement by Hon’ble Mr. Justice Basak that no untoward incident has been reported till then for carrying on the mutual enmity, hatred between section of the Muslim minority and Hindu Majority incite violence as main aim and object of Quran.
22. That it is most respectable submited that a lot of the terrorist activities have been sur-phased by the followers of the Islam mainly on account of preaching given in Quran, which has lead to the violence of Bombay Blast case of 1993 by Daud Ibrahim and Saleem, Ankaleshwar Temple blast, Killing the parliamentary attack, 11th September Tower Attack in America, series of bomb blast inside the railways compartments in Mumbai, Sankatmochan Mandir blast and complete elimination of members of other communities for territory of Jammu and Kashmir and Godara blast are the evidence to demonstrate that the decision given by Justice Basak has not taken any probability of the happening mentioned above and as such the present situation requires to look into the facts of mass-acre and atrocities committed upon the innocent Hindu citizens. It is submitted that as the last word of prophet written in Quran the Muslims are not ready even to enter in argument or discussion while on the other hand there has been recent judgement of Supreme Court of Malaysia discouraging the bearing of turban by the students, which was adopted on account of being warn by prophet Mohammad
23. That the sources of Islam or Quran and Hadis, called as Sullah, the Quran contains the prophet “rebulation”., while Hadis are al that prophet Mohammad did or said or enjoyed, forbade or did not forbid approved or dis-approved. The Quran is Hadis-mutawatir i.e. the tradition considered authentic and genuine by all Muslims from beginning. The interpretation used by its followers even in changed context of the present days scientific invention and in the light of 2 nuclear bomb invasions in two other centuries is not correct interpretation, which could have been said to be last word of prophet Mohammad as if prophet Mohammad would have been surviving today he would have not promoted Zihad in way of prayer of Allah, nor “ infidel” so called Hindus would have been burned or slaughtered in such a manner as the followers of Islam have started practicing in the name of Quran.
24. That the vary revelation of the word Islam from which the Muslim has been formed, the same drives from “ AS-LAM’ meaning solution to other and peace. Thus the meaning of infidel does not mean the fellow of other religion, but those who does not believe in any God and have indulged in the ruthless killing of animals and other fellow citizens, the true perceptions of the correct proposition of Surah and Ayat may be understood by healthy discussions in the matter. Thus every Hindu citizen has got the right to know the meaning of the infidel and status of Zimmis on which the Zaziya or capitation tax, was realised by the force of arms during period of slavery under the Mughals sub-ordination,
25. That there is another aspect of the matter regarding the creation of quite painting by M.F. Hussain proclaiming himself to he follower of Islam. In the aforesaid paintings which have published and may be seen by any Hindu citizen, there has been naked goddess Durga and goddess Saraswati, Lord Rama without his head and naked Goddess Sita sitting on the thee of Raman and also on the tail of Hanuman. Goddess Durgaji has been shown to the in coupling with the tiger, while goddess Parwati is shown in the union with the Elephant, while Lord Shiva is said to have been watching upon them. Can it be assumed that M.F. Hussain is a cynic or infidel, who is suffering from seizophrenia with the sadistic pleasure by assailing the sentiments of Hindu citizen of our country. The naked photographs of our goddess demonstrated in oil painting by M.F. Hussain are published in book.
26. That on one hand the Hindu is considered to be tolerant for whom the misrepresentation is given to be co-ordis by the Muslims, if the Hindus may start their counter aggressism by preparing the suicidal Bomber upon Zama-Maszid and other mosque, the repercussion may be much serious resulting in the situation of riote Orson and Dona side. Thus in order to provide a curve upon such happening judicial review is required to be done regarding the interpretation of offending Surah and offending Ayate of Quran as the same may not be misunderstood by its followers.
27. That the example of counter aggression has been seen at Iraq wherein Saddam has been executed by the American in his own country. It is submitted that there may be vested interest of other nations who remained opportunist to rule India on the policy of divide and rule amongst its citizens. Thus the ------given by Britishers for interpreting the Surah and Ayate of Quran is neither beneficial for our nation, nor the same is beneficial for Pakistan and Bangladesh to demonstrate their displeasure on the question of revaluation of truth amongst our fellow citizens.
28. That it has been brought to the notice of the Most of citizens that N.D.P.S. is used for providing the illusionary atmosphere of Zannat for preparing suicide bombers. It has been found that the individual under going through brain-drain through such illusionary perception was smiling just before few seconds of the blast. Thus the conclusion is in-escapable that the preaching of Quran to its followers by some time generate themselves the illusionary perceptions of providing the attainment to the heaven if they voluntary sacrifice their life in the name of Zihad as Allah ordered them for killng of infidels. Thus the judicial activism is required to be done for positive interpretation of such recital, otherwise slaughtering and thereby plundering of innocent people may lead to the counter aggression, which is not congenial for the development of a Nation.
29. That in this manner Quran may never be regarded as the holy book, nor the Muslim religion based upon misconception of Zihad and Darul-E-Islam may never be able to get the generation in the mind of Hindus. The slogan of secularism and Sarvadharm Sambhawa, it is submitted that the individual Afzal who attached upon the Parliament has yet not been hanged under the guise of getting the protection as a repercussion of such hanging may not lead to the mob violence, which was seen during the period, when the cartoon of Mohammad was made in the remote country at Denmark.
30. That it is true that Hindus have fought Muslim invaders, who had locally established the Muslim dynasties. However our previous rulers have neglected to study the religious and ideological motives of such invaders and speculation remained unmindful of new phenomenon in their midst. Thus scullery dissertation of disciples of great learning may demonstrate the awareness-------
31. That the problem of Muslim phenatics who are the followers of offending Surah and Ayate of Quran by generating the concept of Zihad and Darul-e-Islam is further magnified from the event of having the parliament attack. It is submitted that on one hand there is psychological fear generated in the mind of people from such attack and Godhara killing, but when in retaliation of act of terrorism, the counter aggressism was adopted by Hindu citizens in State of Gujrat then the entire word including appeasement policy of Government could not muster the courage of depreciating the Godhara killing, but the retrial after the acquittal of innocent citizens was further ordered to have been taken place in different State of Maharastra.
32. That it is threatening of mob violence under the appeasement policy that despite the death sentence awarded to Afzal for his heinous offence of sedition through attack on Parliament, the Government of India could not provide the execution of death sentence. It is submitted that Chief Minister of Jammu Kashmir Sri Ghulam Navi Azad have warned the Central Govt. restraining from execution of Afzal and the entire cabinet decision have yet not the taken courage to hand the culprit of parliamentarian attack under the garb of pendency of mercy petition before his excellency the President of India. Thus the policy enumerated in regard to such pattern-age granted to the invaders indulged in terrorist attack may only be reduced if the Hon’ble Court being sentinel and guardian of majority of population may grant the proclamation and forfeiture of offending Surah and Ayate written in Quran to rightful conclusion through judicial interpretation.
Usurpation of Jurisdiction of other Court By Hon'ble Justice Dr. B.S.Chauhan
Complaint in respect of functioning of Justice Dr. B.S. Chauhan in respect of his functioning as Allahabad High Court Judge, Now elevated as Chief Justice of another High Court
To,
My lord The Chief Justice Of India,
Hon’ble Supreme Court Of India,
New Delhi
Reference:- The Division Bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta has decided the special appeal No. 1369 of 1999 wholly without Jurisdiction , as the jurisdiction to hear and decide the same on 26.10.2006, the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2 Gupta under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. It is submitted that the Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta. There is a complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952 The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata
Subject:- Direction may be issued for deciding the matter pertaining to recall of order and judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 passed wholly without Jurisdiction by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta as the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta, when the Special appeal no. 1369 of 1999 was not even listed in court no. 34 as the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2
The submission of the petitioner Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad in this regards are as under.
That the Petitioner was appointed as Lecturer in English in the institution on 9.8.1968. He was confirmed after completion of probation period on 9.8.1969. He was the member of Rashtriya Swamsevak Sangh and as such he was detained under the maintenance of Internal Security Act from 14.8.1975 to 30.3.1977. He was again detained under National Security Act (N.S.A.) on 1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the respondents paid the petitioner salary. That third time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to take training under the new education policy, he was detained under the provisions of Internal Security Act. That the petitioner was taking the training alongwith the principal of institution and one Khajan Giri and as such he told the Principal to inform the Manager about his arrest, but still the Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not attend the college and was not present in the institution on 21.7.1987.That on 27.7.1987 the petitioner wrote a letter that he was arrested by the Police at the gate of Govt. Inter College, and had been lodged in district Jail Moradabad from 11.7.1987. This letter was sent through district Jail Moradabad and the same was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S. Moradabad on 31.7.1987.That the members of Bhartiya Janta Party shown its resentment against the illegal detention of the petitioner and the news to this effect was published in Amar Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of petitioner on account of unavoidable circumstances of his illegal detention, but still the allegation of absent from leave was leveled against the petitioner.That Sri Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the Vice-President of Committee of Management of Institution passed resolution on 15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal arrest of petitioner. That still the resolution was passed on 4.9.1987 to give a notice to the petitioner as to why he remained absent from 11.7.1987 and sought for his explanation. The notice was sent to the petitioner in jail on 10.9.1987 stating therein that why his services should not be terminated. The explanation of petitioner regarding his absence being beyond his control as had been detained under the National Security Act and the earlier information sent to the manager on 27.7.1987 was not taken into consideration by the management. That the charges were in respect of previous detention for which the petitioner was paid his salary was also leveled as the first charge, while the second charge was falsely concocted, as the petitioner did not give any information regarding his detention, nor gave any leave application. The petitioner explained every thing in his letter dated 21.1.1988 and said that he is district Jail due to illegal detention and as such the absence of petitioner was beyond his control. The sole reason for the detention of the petitioner was that he was the District Secretary of Bhartiya Janta Party. That the petitioner was suspended, but the suspension order was revoked after 60 days. It is submitted that after being released from the preventive detention on 11.7.1988, the petitioner was directed to put his signature in the office of D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume his duties. The petitioner was paid salary by the D.I.O.S. even after the preventive detention. That despite all such facts the matter was referred to the U.P. Secondary Education service Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the Committee of Management, but the one member committee who was not even authorized to conduct the enquiry recommended for termination of services of the petitioner and thereafter the U.P. Secondary Education service Commission, Allahabad on 28.7.1989 granted approval to the proposal for termination.That one member committee of O.N. Shah who remained Assistant Manager of the Committee of Management of the Institution on 17.5.1987 and was the Principal of S.S.K. Inter College could not be appointed as one member committee and his recommendation to dispense with the services to the commission were void-ab- initio and as such the subsequent order of termination dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable to be set aside, which was done by the reasoned judgement passed on 11.8.1999 in writ petition no. 24443 of 1989.
The said judgement was challenged by the Committee of Management in Special Appeal no. 840 of 1999.That after the dismissal of special appeal no. 840 of 1999 when the recall application was filed without serving the copy of said application to the counsel for the petitioner, then the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta after going through the contents of the counter affidavit filed in the said application seeking recall of the order dated 23.11.2003, summoned the file of the special appeal no. 860 of 1999 (filed by Sudhir Kumar dismissed on 2.4.2004), the Special Appeal no. 907 of 1999 (filed by U.P. Secondary Education Service Commission dismissed on 14.9.1999) and also the record of pending present Special appeal no. 1369 of 1999, simply to ascertain the matter in consonance with the requirement as to whether the recall application filed on behalf of the committee of management may be allowed or the same may be dismissed in absence of any rejoinder affidavit to the allegations made in the counter affidavit filed by the petitioner. That the special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2003 by the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of Ambika Prasad Intermediate College, Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others). Thereafter an application for recall of the order dated 23.11.2003 purported to have been passed in the Special Appeal no. 840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of said application to the counsel for the Petitioner. That the Petitioner filed the counter affidavit in reply to the affidavit filed in support of the recall application. It was stated that the judgment can not be recalled by moving an application at belated stage and the copy of the same is not given to the counsel appearing on behalf of answering respondent. That it was further stated that the said application is filed without having any explanation regarding non-filing of application seeking condonation of delay. Thus the same is not maintainable and liable to be rejected. That it was further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English after dispensing the services of the petitioner. However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the judgement dated 11.8.1999. That the special appeal no. 907 of 1999 was filed against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989, but that special appeal was also dismissed as misconceived and also being filed without any locus-standi by the judgment dated 14.9.1999.
That on 26.10.2006 the jurisdiction to here the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the facts stated in the counter affidavit and in the affidavit filed in support of the alleged recall application, the records of three aforesaid special appeal was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only name mentioned in special appeal no. 1369 of 1999. That the Standing counsel was not prepared to argue the matter pertaining to the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel appearing in the said appeal on behalf of petitioner. This fact has been brought to the notice of the deponent by his counsel appearing in Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.That the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of 1999 and also enquired from the counsel for the respondent only about the controversy involved in all such special appeal out of which three special appeals were already dismissed while the special appeal no. 1369 of 1999 filed by State of U.P. was surviving. The counsel informed that the question as to whether a teacher while detained under Preventive detention could have been said to be voluntarily absenting from duty on the basis of which without affording any opportunity, the services of such teacher may be dispensed with in gross violation of the principle of natural justice and the case law relied upon in the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as the controversy involved regarding unavoidable incident relating to the arrest under preventive detention, which is not pertaining to any criminal activity, but simply on account of participating into association under Article 19 (1) ( C) of the Constitution of India. The matter was not argued by the standing counsel, but in the judgment allegedly delivered on 26.10.2006, it has been falsely mentioned that the case was argued by the learned standing counsel appearing for the State Appellant. The counsel for the petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate informed the deponent that it was only Sri V.K. Singh, Advocate appearing in Special appeal No. 840/1999, who placed the controversy involved in his special appeal no. 840 of 1999.That on 1.11.2006, when the matter was shown to be listed in the cause list of court no. 34 regarding the delivery of the order in the recall application filed in special appeal no. 840 of 1999 then counsel for the petitioner was informed that since the special appeal no. 1369 of 1999 filed by the State of U.P. was also liable to be dismissed and as such it has been shown to be decided on 26.10.2006 in the cause list of 1.11.2006. That upto this time i.e. 1.11.2006 there was no existence of the order alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis of which the recall application was decided as no order is required to be passed on this application, but subsequently thereafter when the message of dismissal of special appeal no. 1369 of 1999 was communicated to the petitioner, then counsel for the petitioner came to know about the existence of the order. He applied for the order in anticipation that the special appeal bearing special appeal no. 1369 of 1999, which was earlier filed as (defective) appeal no. 630 of 1999 might have been dismissed as there may not be the inconsistent order in the said appeal after dismissal of three special appeals filed against the same judgement, in which the committee of Management and Secretary U.P. Secondary Commission remained at the array of respondents and were duly represented by their respective counsels. That, although the order passed on 23.11.2004 dismissing the Special Appeal No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall application, as it has been noted that in view of the judgement passed in special appeal No. 1369 of 1999, no order is required to pass on the recall application. Thus it appears that even by this order passed on 26.10.2006, the Hon’ble Division Bench dealing with the recall application in special Appeal No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in deciding the present Special Appeal wholly without jurisdiction purported to have decided on the same day, to which no person could have decided in the open court on 26.10.2006, otherwise their was no occasion for listing of the case on 1.11.2006 in the cause list for appropriate order on the recall application filed in Special Appeal no. 840 of 1999. Thus the judgement passed in special Appeal is bad in the light of the legal fiction that what not be done directly in absence of jurisdiction, the can not be done indirectly by the Hon’ble Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special Appeal No. 1369 of 1999.
That in this manner since the judgement passed in the special appeal no. 1369 of 1999 by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta is the judgment passed in absentia of the counsel of the petitioner/respondent appearing in the said appeal namely Senior Counsel Sri Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989, which was the only name printed as the sole name of the opposite party; and the same special appeal no. 1369 of 1999 was neither listed for hearing under the caption of the jurisdiction, nor there had been any serial number mentioned against the said listing of the special appeal, regarding which, the communication could have been made to the senior counsel Sri Ashok Khare, Advocate appearing on behalf of petitioner by the other counsel appearing in special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004. There was no jurisdiction conferred with the division bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to decide the special appeal of the year of 1999 as the jurisdiction of the same was conferred before court no. 2 under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata as held in Sarguja Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.( paragraph 7)
That it is submitted that there is the complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the matter may not be decided by another coordinated Hon’ble Division Bench, except the Hon’ble Division Bench having the jurisdiction conferred to the different benches as per the circulation of cause list circulated to the Hon’ble benches and members of the Bar.
That the constitution of the benches as per the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief Justice may give from time to time caused to be prepare a cause list for each day on which the court sits containing the list of cases, which may be heard by different benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
That an application for expediting of hearing of case or for listing a case out of term or for removal of case to be tried and determined by the court under Rule 4 or for withdrawal of a case under Article 228 of the Constitution of India shall be laid before Hon’ble Chief Justice (or any other judge of a bench nominated by Chief Justice in respect of any case or class of cases) for orders. Thus for having an out of term hearing of a case, the application is required to be moved before the Hon’ble the Chief Justice.
That in this manner, it is crystal clear that if the case is not listed in the cause list after determination of heading for what purposes aforesaid matter is being listed, the other coordinate Division Bench dealing with other jurisdiction shall not be empowered to decide such case except by getting the nomination of the matter by the order of Hon’ble Chief Justice.
That the other aspect of the matter is pertaining to the determination of the reason for which a particular case is being listed in the cause list circulated to the bench and the members of Bar, the case may not be decided by any other coordinated Division Bench without it being posted for hearing.
That the Allahabad High Court Rules, 1952 have been promulgated in exercise of the power conferred under Article 225 of the Constitution of India and all other powers enabling it on that behalf. Thus the strict observation and compliance of mandatory provisions is required to be observed by the Hon’ble Court in consonance with requirement of Principle of equity, fairness and in such circumstances if the practice and procedure prescribed in this regard is not followed then the deviations from the rules of court may violate Article 14 of the Constitution of India.
That in the light of the aforesaid legal propositions advanced by the deponent / writ petitioner, it is submitted that the present special appeal without being listed in the daily cause list either under the separate serial number in the cause list, nor it remain listed with the appropriate heading ‘For Hearing’, but the same has been decided without giving notice to the counsel appearing for respondent.
That under the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole prerogative of the Hon’ble Chief Justice to decide the particular subject matter conferred on particular bench for particular period. If the decision of the subject matter by some other bench is taken up without being listed at the serial number under the heading of the hearing or without the case being Part-heard or tide-up, if the decision is given by the other bench without nominating by the Hon’ble Chief Justice the judgement will be without jurisdiction and nullity.
That, it is in the interest of justice that the order dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside and the Hon’ble Chief Justice refer the matter to Hon’ble Three Judges, as justice may be done with the rights of the applicant/petitioner.
Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad
To,
My lord The Chief Justice Of India,
Hon’ble Supreme Court Of India,
New Delhi
Reference:- The Division Bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta has decided the special appeal No. 1369 of 1999 wholly without Jurisdiction , as the jurisdiction to hear and decide the same on 26.10.2006, the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2 Gupta under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. It is submitted that the Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta. There is a complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952 The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata
Subject:- Direction may be issued for deciding the matter pertaining to recall of order and judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 passed wholly without Jurisdiction by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta as the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in dismissed special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta, when the Special appeal no. 1369 of 1999 was not even listed in court no. 34 as the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2
The submission of the petitioner Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad in this regards are as under.
That the Petitioner was appointed as Lecturer in English in the institution on 9.8.1968. He was confirmed after completion of probation period on 9.8.1969. He was the member of Rashtriya Swamsevak Sangh and as such he was detained under the maintenance of Internal Security Act from 14.8.1975 to 30.3.1977. He was again detained under National Security Act (N.S.A.) on 1.11.1980 upto 10.12.1980 and despite the aforesaid preventive detention; the respondents paid the petitioner salary. That third time when on 11.7.1987 the petitioner went to Govt. Inter College, Moradabad to take training under the new education policy, he was detained under the provisions of Internal Security Act. That the petitioner was taking the training alongwith the principal of institution and one Khajan Giri and as such he told the Principal to inform the Manager about his arrest, but still the Manager wrote a letter on 24.7.1987 stating therein that the petitioner did not attend the college and was not present in the institution on 21.7.1987.That on 27.7.1987 the petitioner wrote a letter that he was arrested by the Police at the gate of Govt. Inter College, and had been lodged in district Jail Moradabad from 11.7.1987. This letter was sent through district Jail Moradabad and the same was communicated to the Manager, who sent the aforesaid letter to the D.I.O.S. Moradabad on 31.7.1987.That the members of Bhartiya Janta Party shown its resentment against the illegal detention of the petitioner and the news to this effect was published in Amar Ujala on 16.7.1987. Thus the management knew the fact regarding the absence of petitioner on account of unavoidable circumstances of his illegal detention, but still the allegation of absent from leave was leveled against the petitioner.That Sri Kameshwar Nath Mishra, Senior Lawyer of District Court Moradabad and the Vice-President of Committee of Management of Institution passed resolution on 15.7.1987 seeking bye cot of all the courts Moradabad on account of illegal arrest of petitioner. That still the resolution was passed on 4.9.1987 to give a notice to the petitioner as to why he remained absent from 11.7.1987 and sought for his explanation. The notice was sent to the petitioner in jail on 10.9.1987 stating therein that why his services should not be terminated. The explanation of petitioner regarding his absence being beyond his control as had been detained under the National Security Act and the earlier information sent to the manager on 27.7.1987 was not taken into consideration by the management. That the charges were in respect of previous detention for which the petitioner was paid his salary was also leveled as the first charge, while the second charge was falsely concocted, as the petitioner did not give any information regarding his detention, nor gave any leave application. The petitioner explained every thing in his letter dated 21.1.1988 and said that he is district Jail due to illegal detention and as such the absence of petitioner was beyond his control. The sole reason for the detention of the petitioner was that he was the District Secretary of Bhartiya Janta Party. That the petitioner was suspended, but the suspension order was revoked after 60 days. It is submitted that after being released from the preventive detention on 11.7.1988, the petitioner was directed to put his signature in the office of D.I.O.S. Moradabad, as the Management did not allow the petitioner to resume his duties. The petitioner was paid salary by the D.I.O.S. even after the preventive detention. That despite all such facts the matter was referred to the U.P. Secondary Education service Commission, Allahabad to whom petitioner sent a letter on 24.2.1989 seeking setting aside the proposal of the Committee of Management, but the one member committee who was not even authorized to conduct the enquiry recommended for termination of services of the petitioner and thereafter the U.P. Secondary Education service Commission, Allahabad on 28.7.1989 granted approval to the proposal for termination.That one member committee of O.N. Shah who remained Assistant Manager of the Committee of Management of the Institution on 17.5.1987 and was the Principal of S.S.K. Inter College could not be appointed as one member committee and his recommendation to dispense with the services to the commission were void-ab- initio and as such the subsequent order of termination dated 1.9.1989 on the baseless, misconceived and frivolous charges was liable to be set aside, which was done by the reasoned judgement passed on 11.8.1999 in writ petition no. 24443 of 1989.
The said judgement was challenged by the Committee of Management in Special Appeal no. 840 of 1999.That after the dismissal of special appeal no. 840 of 1999 when the recall application was filed without serving the copy of said application to the counsel for the petitioner, then the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta after going through the contents of the counter affidavit filed in the said application seeking recall of the order dated 23.11.2003, summoned the file of the special appeal no. 860 of 1999 (filed by Sudhir Kumar dismissed on 2.4.2004), the Special Appeal no. 907 of 1999 (filed by U.P. Secondary Education Service Commission dismissed on 14.9.1999) and also the record of pending present Special appeal no. 1369 of 1999, simply to ascertain the matter in consonance with the requirement as to whether the recall application filed on behalf of the committee of management may be allowed or the same may be dismissed in absence of any rejoinder affidavit to the allegations made in the counter affidavit filed by the petitioner. That the special appeal no. 840 of 1999 was dismissed as not pressed on 23.11.2003 by the Division Bench presided over by the Hon’ble Dr. B.S. Chauhan and Hon’ble Dilip Gupta, JJ. The aforesaid appeal was filed by the Committee of Management of Ambika Prasad Intermediate College, Moradabad challenging the judgement and order dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai J in writ petition no. 24443 of 1989 (Prem Shankar Sharma Vs. State of U.P. and others). Thereafter an application for recall of the order dated 23.11.2003 purported to have been passed in the Special Appeal no. 840 of 1999 without annexing the judgement dated 23.11.2004 dismissing the aforesaid Special Appeal no. 840 of 1999 was filed without serving the copy of said application to the counsel for the Petitioner. That the Petitioner filed the counter affidavit in reply to the affidavit filed in support of the recall application. It was stated that the judgment can not be recalled by moving an application at belated stage and the copy of the same is not given to the counsel appearing on behalf of answering respondent. That it was further stated that the said application is filed without having any explanation regarding non-filing of application seeking condonation of delay. Thus the same is not maintainable and liable to be rejected. That it was further stated that the Special Appeal no. 860 of 1999 filed by Sudhir Kumar against the same judgement dated 11.8.1999 passed by Hon’ble Mr. Justice V.M. Sahai, J has been dismissed on 2.4.2004. This person Sudhir Kumar was inducted as the Lecturer in English after dispensing the services of the petitioner. However, when the writ petition no. 24443 of 1989 was allowed on 11.8.1999, then the services of Sudhir Kumar were terminated and as such he filed the Special appeal no. 860 of 1999, which was also dismissed and thereby reaffirming the judgement dated 11.8.1999. That the special appeal no. 907 of 1999 was filed against the same judgement passed on 11.8.1999 by Hon’ble Mr. Justice V.M. Sahai in writ petition no. 24443 of 1989, but that special appeal was also dismissed as misconceived and also being filed without any locus-standi by the judgment dated 14.9.1999.
That on 26.10.2006 the jurisdiction to here the listed special appeals for the year of 1999 for hearing including the bunch cases was conferred by the authority of Hon’ble Chief Justice to the division bench presided over by their lordships Hon’ble Mr. Justice R.K. Agrawal and Hon’ble Mr. Justice Vikram Nath in Court no.2. It is submitted that the present Special appeal no. 1369 of 1999 was not even listed in court no. 34, but since the record of the said special appeal no. 1369 of 1999 was summoned in furtherance of recall application filed in special appeal no 840 of 1999 by the bench presided over by Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Justice Dilip Gupta and as such only to ascertain the facts stated in the counter affidavit and in the affidavit filed in support of the alleged recall application, the records of three aforesaid special appeal was summoned, wherein the name of the counsel appearing on behalf of petitioner/respondent namely Sri Ashok Khare, Advocate was the only name mentioned in special appeal no. 1369 of 1999. That the Standing counsel was not prepared to argue the matter pertaining to the special appeal no. 1369 of 1999 filed by the State of U.P. in absence of the same not being listed in court no. 34 and in absence of Sri Ashok Khare, senior Counsel appearing in the said appeal on behalf of petitioner. This fact has been brought to the notice of the deponent by his counsel appearing in Special appeal no. 840 of 1999, which was dismissed on 23.11.2004.That the division bench presided over by Hon’ble Justice Dr. B.S. Chauhan enquired about the matter from Sri V.K. Singh Advocate appearing in special appeal no. 840 of 1999 and also enquired from the counsel for the respondent only about the controversy involved in all such special appeal out of which three special appeals were already dismissed while the special appeal no. 1369 of 1999 filed by State of U.P. was surviving. The counsel informed that the question as to whether a teacher while detained under Preventive detention could have been said to be voluntarily absenting from duty on the basis of which without affording any opportunity, the services of such teacher may be dispensed with in gross violation of the principle of natural justice and the case law relied upon in the judgement dated 11.8.1999 (state of Madhya Pradesh Vs. Rama Shankar Raghuvanshui A.I.R. 1983 S.C. 374), (M.H. Devendrappa Vs. Karnataka State in Small Industries Development Corporation. A.I.R. 1988 S.C. 1064), Sarnam Singh Vs. Smt Pushpa Devi 1986 (1) U.P.L.B.E.C. page 348 and Anukool Chandra Pradhan Vs. Union of India A.I.R. 1997 S.C. 2814, State of Orissa Vs. Dr. Miss. Bina Pani Dei and others 1967 (2) S.C.R. 625 (Para-9), Mohinder Singh Gill VS. Chief Election Commissioner 1978 (2) S.C.R. 272 (Para-9), State of West Bengal Vs. Anwar Ali Sarkar 1952 S.C.R. 284 followed in D.K. Yadav Vs. M/S J.M.A. Industry J.T. 1993 (3) S.C. 617 as well as the provisions of Regulation 35, 36, 37, 38, 39, 40, 44 and 45 read with section 16 (G) (3-A) as provided under Chapter III of the U.P. Intermediate Education Act, 1921 and rule 6 of rules framed under Act no. 5 of 1982 referred in the judgement dated 11.8.1999 were indicated as the controversy involved regarding unavoidable incident relating to the arrest under preventive detention, which is not pertaining to any criminal activity, but simply on account of participating into association under Article 19 (1) ( C) of the Constitution of India. The matter was not argued by the standing counsel, but in the judgment allegedly delivered on 26.10.2006, it has been falsely mentioned that the case was argued by the learned standing counsel appearing for the State Appellant. The counsel for the petitioner in Special Appeal No. 840/1999 Sri Yogesh Kumar saxena, Advocate informed the deponent that it was only Sri V.K. Singh, Advocate appearing in Special appeal No. 840/1999, who placed the controversy involved in his special appeal no. 840 of 1999.That on 1.11.2006, when the matter was shown to be listed in the cause list of court no. 34 regarding the delivery of the order in the recall application filed in special appeal no. 840 of 1999 then counsel for the petitioner was informed that since the special appeal no. 1369 of 1999 filed by the State of U.P. was also liable to be dismissed and as such it has been shown to be decided on 26.10.2006 in the cause list of 1.11.2006. That upto this time i.e. 1.11.2006 there was no existence of the order alleged to have been passed on 26.10.2006 in the special appeal no. 1369 of 1999 on the basis of which the recall application was decided as no order is required to be passed on this application, but subsequently thereafter when the message of dismissal of special appeal no. 1369 of 1999 was communicated to the petitioner, then counsel for the petitioner came to know about the existence of the order. He applied for the order in anticipation that the special appeal bearing special appeal no. 1369 of 1999, which was earlier filed as (defective) appeal no. 630 of 1999 might have been dismissed as there may not be the inconsistent order in the said appeal after dismissal of three special appeals filed against the same judgement, in which the committee of Management and Secretary U.P. Secondary Commission remained at the array of respondents and were duly represented by their respective counsels. That, although the order passed on 23.11.2004 dismissing the Special Appeal No. 840 of 1999 has been affirmed by the order dated 26. 10. 2006 passed on Recall application, as it has been noted that in view of the judgement passed in special appeal No. 1369 of 1999, no order is required to pass on the recall application. Thus it appears that even by this order passed on 26.10.2006, the Hon’ble Division Bench dealing with the recall application in special Appeal No. 840 of 1999 did not find any merit in the said appeal. The Hon’ble division bench Presided by Hon’ble Dr. justice B. S. Chauhan adopted a unique manner in deciding the present Special Appeal wholly without jurisdiction purported to have decided on the same day, to which no person could have decided in the open court on 26.10.2006, otherwise their was no occasion for listing of the case on 1.11.2006 in the cause list for appropriate order on the recall application filed in Special Appeal no. 840 of 1999. Thus the judgement passed in special Appeal is bad in the light of the legal fiction that what not be done directly in absence of jurisdiction, the can not be done indirectly by the Hon’ble Division Bench presided over by Hon’ble Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta in passing the judgement on 26.10.2006 passed in special Appeal No. 1369 of 1999.
That in this manner since the judgement passed in the special appeal no. 1369 of 1999 by the bench presided over the Hon’ble Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta is the judgment passed in absentia of the counsel of the petitioner/respondent appearing in the said appeal namely Senior Counsel Sri Ashok Khare, Advocate for the petitioner in writ petition no. 24443 of 1989, which was the only name printed as the sole name of the opposite party; and the same special appeal no. 1369 of 1999 was neither listed for hearing under the caption of the jurisdiction, nor there had been any serial number mentioned against the said listing of the special appeal, regarding which, the communication could have been made to the senior counsel Sri Ashok Khare, Advocate appearing on behalf of petitioner by the other counsel appearing in special appeal no. 840 of 1999 at the time of its dismissal on 23.11.2004. There was no jurisdiction conferred with the division bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan and Hon’ble Mr. Justice Dilip Gupta to decide the special appeal of the year of 1999 as the jurisdiction of the same was conferred before court no. 2 under the prerogative and the authority of the Hon’ble chief justice in consonance with the requirement of Chapter V Rule 1 of Allahabad High Court Rules. The judgement dated 26.10.2006 passed in Special Appeal 1369 of 1999 is contradiction to the order passed in special appeal No. 860 of 1999(Dismissed on 2.4.2004), special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004). All the Appellants filed their appeals against the same judgement, and the appellants of special appeal No. 907of 1999 (Dismissed on 14.9.1999 and special appeal No. 840 of 1999 (Dismissed on 23.11.2004)were also impleaded as respondents in present special appeal no. 1369 of 1999 and thus the judgement passed ex-parte in special appeal no. 1369 of 1999 on 26.10.2006 is passed against the principle of natural justice causing prejudice and barred by constructive Res- judicata as held in Sarguja Transport Service versus State Transport appellate Tribunal (1987)1 S. C. C. 5.( paragraph 7)
That it is submitted that there is the complete procedure prescribed for having the jurisdiction being conferred by Hon’ble the Chief Justice for deciding the special appeal and without any nomination being conferred to the particular Hon’ble Division Bench by the specific order of Hon’ble Chief Justice, the matter may not be decided by another coordinated Hon’ble Division Bench, except the Hon’ble Division Bench having the jurisdiction conferred to the different benches as per the circulation of cause list circulated to the Hon’ble benches and members of the Bar.
That the constitution of the benches as per the jurisdiction conferred and allotted to them by the order of Hon’ble Chief Justice or in accordance with his lordship’s direction under Rule 1 of Chapter V of Allahabad High Court Rules, 1952. The Registrar shall subject to such direction as Hon’ble Chief Justice may give from time to time caused to be prepare a cause list for each day on which the court sits containing the list of cases, which may be heard by different benches of court under Rule 6 of Chapter VI of High Court Rules, 1952.
That an application for expediting of hearing of case or for listing a case out of term or for removal of case to be tried and determined by the court under Rule 4 or for withdrawal of a case under Article 228 of the Constitution of India shall be laid before Hon’ble Chief Justice (or any other judge of a bench nominated by Chief Justice in respect of any case or class of cases) for orders. Thus for having an out of term hearing of a case, the application is required to be moved before the Hon’ble the Chief Justice.
That in this manner, it is crystal clear that if the case is not listed in the cause list after determination of heading for what purposes aforesaid matter is being listed, the other coordinate Division Bench dealing with other jurisdiction shall not be empowered to decide such case except by getting the nomination of the matter by the order of Hon’ble Chief Justice.
That the other aspect of the matter is pertaining to the determination of the reason for which a particular case is being listed in the cause list circulated to the bench and the members of Bar, the case may not be decided by any other coordinated Division Bench without it being posted for hearing.
That the Allahabad High Court Rules, 1952 have been promulgated in exercise of the power conferred under Article 225 of the Constitution of India and all other powers enabling it on that behalf. Thus the strict observation and compliance of mandatory provisions is required to be observed by the Hon’ble Court in consonance with requirement of Principle of equity, fairness and in such circumstances if the practice and procedure prescribed in this regard is not followed then the deviations from the rules of court may violate Article 14 of the Constitution of India.
That in the light of the aforesaid legal propositions advanced by the deponent / writ petitioner, it is submitted that the present special appeal without being listed in the daily cause list either under the separate serial number in the cause list, nor it remain listed with the appropriate heading ‘For Hearing’, but the same has been decided without giving notice to the counsel appearing for respondent.
That under the provisions of Chapter V Rule 1 of High Court Rules, 1952, the sole prerogative of the Hon’ble Chief Justice to decide the particular subject matter conferred on particular bench for particular period. If the decision of the subject matter by some other bench is taken up without being listed at the serial number under the heading of the hearing or without the case being Part-heard or tide-up, if the decision is given by the other bench without nominating by the Hon’ble Chief Justice the judgement will be without jurisdiction and nullity.
That, it is in the interest of justice that the order dated 26.10.2006 passed in Special Appeal no. 1369 of 1999 may be set aside and the Hon’ble Chief Justice refer the matter to Hon’ble Three Judges, as justice may be done with the rights of the applicant/petitioner.
Prem Shankar Sharma, aged about 64 years, son of Sri Ram Bhajan Lal Sharma, , Lecture in English (Retired) in Ambika Prasad Intermediate College, Near Police station, Moradabad resident of Mohalla- Shuklan (Near Chaurasi Ghante of Mandir) Moradabad, District Moradabad
Suo Motto Cognizance in Matter pertaining to Conflicting Views In Judgements having far reaching consequences-Whether Judicial Activivism
To,
The Hon’ble The Chief Justice Of India,
Hon’ble the Supreme Court Of India
NEW DELHI
Request for taking Suo Motto Cognizance in the matter eroding the basic structure of Constitution and taken away rights of Down Trodden unemployed B.T.C. successful Training general candidates by converting it to the proficiency of Urdu Language as per dictum of Justice Sacchar Commission
Relevant Dates in chronological order
14.1.2004 Govt. order was issued to fill up the sufficiency in the
recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks.
22.1.2004 An advertisement was issued by Director, State Council for
Education Research and Training. U.P.
22.2.2004. Advertisement has been issued by the Director, State Council for
Educational Research and Training, U.P. Lucknow, which Was published in the newspaper Amar Ujala. The matter was reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.
16.02.2005 By the Government orders General subjects have now been
converted to 3,000 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is illegal and inoperative and a fraud and a colourable exercise of jurisdiction
09.03.2005 Office of the Hon’ble Prime Minister constituted a seven member High Level Committee chaired by Justice (Retd.) Rajindar Sachar to prepare a report on the Social Economic and Educational status of the Muslim Community of India. In this manner there was even no whisper to get the report of Sacchar Commission be placed under Article 350- A of the Constitution of India when the Impugned Govt. Order dated 16.02.2005 was issued seeking conversion of posts of General candidates by converting them for teaching the subjects with Urdu medium.
03.10.2005 In response to the Committee’s advertisements, two letters dated 20.09.2005 and 03.10.2005 to the Chairperson
05.10.2005 Dr. S. Zafar Mahmood, Joint Secretary to Govt. of India and Officer on Special Duty in Sachar Committee vide his letter dated October 5, 2005.
18.3.2006 By Second Government orders General subjects have now been
converted to 5,000 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is also illegal and inoperative and a fraud and a colourable exercise of jurisdiction
15. 9.2006 . By Third Government orders General subjects have now been
converted to finally 13,189 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993 This U.P. Govt. order is illegal and inoperative and a fraud and a colourable exercise of jurisdiction. the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006”
17.11.2006 The Committee headed by Justice Sacchar submitted biased and arbitrary report with a predetermined mindset by denying the Appellants an opportunity to present their viewpoint and deliberately shutting out certain important facts which resulted in gross violation of fundamental right guaranteed under 14, 19 and 21 of the Constitution of India.
!4. 09.2007 Judgement was passed by Hon’ble Mr. Arun Tandon in Writ
petition No. 44085 of 2006
05.10.2007 Learned single Judge dated 14.9.2007 was challenged in the
by the State Govt. in Special Appeal No. 1330 of 2007.
28.11.2007 The Special Appeal No. 1330 of 2007 filed by State of U.P. has
been allowed by setting aside Judgement was passed by
Hon’ble Mr. Arun Tandon in Writ petition No. 44085 of 2006.
09.01.2008 Copy of the Impugned judgement applied on 01.12.2007( just
after three days of the pronouncement of judgement) is received
by the counsel for appellant .
04.04. 2008 Hence this present Appeal is being filed within time under article 136 of Constitution of India for upholding the truth which is bound to adversely affect the multicultural and age old pluralistic ethos of India.
FACTS OF THE CASE-
The propriety, jurisdiction and competence of the order passed on 30-12-2006 allegedly in furtherance of the directions issued in writ petition no. 38103 of 2006 filed as the Appellants no. 1 is president of unregistered society and filed his application in the said petition in his personal capacity. Since the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 have been declared to be illegal and inoperative and such order has been found be a fraud and a colourable exercise of jurisdiction as evident by the judgement dated 14.9.2007 passed in writ petition no. 44085 of 2006 (Km. Sunbul Naqvi Vs. State of U.P.) alongwith other connected writ petitions and as such since the post required to be filled up by conducting the special B.T.C. Course, 2004 general subject to the Special B.T.C. Urdu trainees, 2006 and as such the impleadment application was filed in the representative capacity by the Appellants in writ petition no. 38103 of 2006 as well as other affected person.
That it is respectfully submitted in order to appreciate the submission advanced by appellants that the Board of Basic Education U.P. Allahabad runs and manages a large number of Junior Basic schools and Senior Basic Schools in the State of Uttar Pradesh. The recruitment on the post of Assistant Teachers in such institutions is governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981. The Board of Basic Education is constituted as a body corporate under Basic Education Act, 1972.
That Rule 8 of 1981 aforesaid Rules prescribes the qualification as that of candidates possessing Basic Teachers certificate, Hindustan Teachers certificates, Junior teachers certificate or any other course recognized by State Govt. as equivalent thereto and there is neither the written examination or interview and as such candidates possessing teachers training certificate are fully suited for appointment and based upon verification of their testimonial by the selection committee.
That the Govt. order was issued on 14.1.2004 in order to fill up the sufficiency in the recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks. The in pursuance of aforesaid Govt. order dated 14.1.2004 an advertisement dated 22.1.2004 was issued by Director, State Council for Education Research and training.
That against the restriction contained in the Government order and the advertisement of considering only upon Bachelor of Education and L.T. Training and specification of 35 years as the upper age limit a large number of writ petitions were filed before this Hon’ble Court. During the pendency of the said writ petition the matter was reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.
That in view of the aforesaid decision another advertisement has been issued by the Director, State Council for Educational Research and Training, U.P. Lucknow, which has been published in the newspaper Amar Ujala dated 22.2.2004.
That all the members of Appellants society being fully qualified and eligible in terms of the aforesaid advertisement also applied. Each of the members of Appellant had applied under their respective category.
That the aggregate percentage of the members of Appellant’s society was worked out in accordance with the stipulations contained in the government order making themselves selected in the said selection.
That the right of similarly placed individuals whose posts of general subjects have now been converted to posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level and as such since the out come of the present special appeal may directly effects the rights of 13189 candidates eligible for appointment as Assistant Teacher.
That applicant is an unregistered society fighting against the conversion of 13,189 vacancies required to be fill up from the candidates having eligibility for selection in Special B.T.C. Course- 2004 (Third merit list), which have been converted for accommodating the Urdu language teacher with proficiency in Urdu, for which the decision was taken allegedly by the State Govt. (Cabinet Decision) dated 9th February, 2005 and the process for starting such Special B.T.C. training course Urdu was initiated by an office note put up Secretary Basic Education ( as mentioned in the judgement passed in writ petition no. 14085 of 2006 decided on 14.9.2007) and the said judgment, reported in 2007 (3) UPLBEC 2301, is the subject matter of challenge in the present Special Appeal.
That on 27.5.2004 the first merit list was published comprising of 41,450 candidates. Thereafter counseling was conducted and in the said counseling a total number of 31,450 candidates alone participated with 10,000 of the candidates included in the merit list not having responded for counseling.
That in August, 2004 a second merit list was published comprising of 6700 candidates. Subsequently about 4000 more candidates were declared selected under the category of scheduled caste and other backward class.
That in view of the aforesaid details the total number of candidates declared successful came to 42,150, however, as a result of verification during the course of the counseling as also on the basis of subsequent enquiry 9150 candidates stood deleted from the select list on account of their educational certificates being forged or being of institutions, which were not duly recognized thereby leaving a total number 33000 candidates alone.
That out of the aforesaid 33000 candidates 29000 candidates has already been imparted training and have granted appointment as Assistant Teachers in the month of January, 2006. Presently training for about 4000 candidates is till underway.
That the facts and figures detailed above clearly demonstrate that almost 13,189 vacancies still continue to exist, which were covered by the government order and the advertisement issued by the respondents.
That it has consistently been given out that a further merit list would be published from amongst the Appellants, who had originally applied for filling up the remaining vacant posts.
That the training imparted to the second batch has finished and the candidate successfully completed training is in the process of getting appointed.
That, however, there remains complete inaction on the part of the respondents in publishing the list of candidates selected for the remaining vacancies covered by the government orders dated 12.2.2004 and 20.2.2004.
That the inaction of the respondents is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution of India. There does not exist any justification for withholding the merit list for the remaining vacant posts even though such posts stood covered by the advertisement in question.
That it is settled legal position that the number of vacancies covered by the advertisement should be filled up on the basis of the merit list of the selection alone. There was hardly any justification for not filling up the advertised vacancy of a particular selection and keeping the same vacant.
That the aforesaid inaction of the respondents is contrary to the repeated representations effected that the remaining vacancies were to be filled up on the basis of the same merit list.
That in case the remaining vacancies are permitted to be re-advertised and fresh Appellants invited then the result would be that the vast majority of the candidates who were within the permissible age limit in pursuance to the January 2004 advertisement would be over age and would stand excluded from consideration.
That in the alleged compliance of the aforesaid judgement the Director State Council for Educational Research and training U.P. Lucknow passed an order on 30-12-2006 rejecting the representation of the applicant no. 1 to 7 filed on 9-11-2006 by the aforesaid order.
That in the aforesaid order the correct position as is being revealed regarding circumventing the rights of the Appellants in the judgement dated 14.9.2007 has not been disclosed and Director State Council for Educational Research and Training, U.P. appears to have the enforced silence regarding the conversion of the post of General Subjects as that of the 10000 posts of Urdu Teachers by the Govt. Order dated 15-9-2006. This fact came to the notice of Appellant first time when the Appellant’s Society office bearer filed their application seeking impleadment in the Special Appeal No. 1330 of 2007, Which was filed against the judgement dated 14-9-2007 (2007(3) UPLBEC 2301) when the contents of the aforesaid judgment came to the notice of the Appellants. The impleadment application was allowed of 8 applicants, Which were including the Appellant’s Society and the name of its office bearer.
That in the order dated 30-12-2006, which came to the notice of the Appellants when the said order was annexed in the counter affidavit. However, as soon as it came to the notice of the Appellants in the month of October, 2007 after reading the aforesaid judgment dated 14-9-2007 impugned in the present Special Appeal, the Appellants wanted to challenge the order dated 30-12-2006 passed by Director State Council for Educational Research and Training, U.P. then it was advised to the Appellants that filing of the fresh writ petition is not permissible till the matter pertaining to the foundation based upon the judgement dated 14-9-2007 impugned in the present special appeal raised for assailing the order dated 30-12-2006 afresh by filing another writ petition. Thus filing of the present impleadment application in the present special appeal is sought by seeking the permission from the Hon’ble Division Bench.
That the order dated 31-12-2006 passed by Director State Council for Educational Research and Training, U.P. is clearly based upon the incorrect facts regarding the decision dated 23-5-2006 passed in writ petition no. 1674 (M/S) of 2006 Shravan Kumar Dwivedi and others VS. Director State Council for Educational Research and Training, U.P. and others conversion of 13,189 general subject vacancies for imparting the training to B.T.C.-2001 course by formulating two selections lists of such candidates and as such the third list could not be issued.
That the order of Director State Council for Educational Research and Training, U.P. is again a misrepresentation regarding certain orders passed on 9-12-2005 in Special appeal no. 630 of 2005 seeking qualification of Shiksha Shastri provided from Sampurnanand Sanskrit University for whom the aforesaid facility regarding completion of training in Special B.T.C. Course- 2004 (General Subjects) has been granted.
That the other grounds pertaining to judgement dated 23.3.2005 in writ petition no. 23197 of 2005 and the judgement dated 10-3-2005 passed in writ petition no. 989 (M/S) of 2005 Lal Mani Maurya and others Vs. State Of U.P. and others are again the misrepresentation for circumventing the rights of the eligible candidates for conducting the training of Special B.T.C. Course (General Subjects) –2004 and in none of the orders the number of individual candidates required to be accommodated in the existing vacancy of 13189 remaining posts has not been given.
That on the other hand many of the prospective members of Appellant’s society have crossed their upper age limit and as such they have been debarred from seeking the appointment on the other posts. Thus the conversion of 13189 posts required to be filled up from General Subjects being converted to the individuals for imparting the teaching of other subject in the medium of Urdu is contrary to the provisions of Article 14 to 18 as well as Article 21 of the Constitution of India.
That an enquiry was given under the Rights of Information Act that 6343 candidates required to be filled up from women O.B.C. Science and Arts categories as well as from Scheduled caste Science category and Scheduled tribes Science and Art category are not available for the aforesaid recruitment and as such all these posts were required to be filled up from general category candidates and thus the order of Director State Council for Educational Research and Training, U.P. passed on 30-12-2006 is based upon misconceived statement and thereby misleading to the Appellants as well as to the Hon’ble Court through her inconsistent stand as disclosed in the judgement dated 14.9.2007 impugned in the present special appeal.
That about 32045 candidates have been shown selected in the different Districts of the Uttar Pradesh, out of which the appointment of 1274 candidates were found for being considered in the aforesaid selection on the basis of forge documents in the entire Uttar Pradesh. The news item published in the different newspapers disclosing illegal appointments obtaining from amongst 32045 posts may clearly establish that there remain the vacancies to be offered to the Appellants in the remaining posts lying vacant for imparting the Special B.T.C.Course-2004 even from the existing appointments.
That in this manner the filing of present appeal regarding national curriculum framework-2000 and 2005 (based upon Sachhar Commission) by the N.C.E.R.T. through Regional Director National Council for Teachers Education, Northern Region, Jaipur, emphasizing provisions of facilities for instruction in Urdu in order to accommodate linguistic minority groups is the foundation created for another partition as the demand for partition of our mother land was based on linguistic minority groups in the pre-independence years, which is incompatible with the preamble and basic structure of Constitution of India.
That the other aspect of the matter raised regarding the common judgement in all such writ petitions passed by Hon’ble Single Judge on 14-9-2007 shall be suitably replied during the course of arguments as the question pertaining to the route of the matter of taking no concurrence from National Council for Teachers Education Act and the ministry of finance has not been taken (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala J.T. 2006 (4) S.C. Page 201) for conversion of these 10000 posts for imparting education in Urdu language and providing stipend of Rs.2500/- per month to such Urdu trainees is violative of Article 246 and 256 of the Constitution of India.
That even the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may not authorize the State Govt. for conversion of the post of general subjects to Urdu medium trainer.
That for the kind perusal of this Hon’ble Court the Article-351 is being quoted below: -
“ Directive for development of the Hindi Language; - It shall be the duty of the Union to promote the spread of the Hindi Language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.”
That for the kind perusal of this Hon’ble court article 394-A is being quoted below: -
“394-A. Authoritative text in the Hindi Language; - (1) The President shall cause to be published under his authority, -
a. the translation of this Constitution in the Hindi language, signed by the members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and
b. the translation in the Hindi language of every amendment of this Constitution made in the English language.
(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.
(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.”
That the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” .
That the challenge of these Govt. orders and provisions are mainly on the grounds of Article 14, 15 and also on the grounds of being contrary to the secular status of our country assuring the fraternity and the unity and integrity in the preamble and in the basic structure of our constitution. No such reservation to the alleged linguistic minority groups could have been given by getting the conversion of the posts required to be filled up by the candidates belonging to the general subjects category even under Article 26, Article 28, Article 29 and Article 30 of the Constitution of India.
That the other ground of the challenge is based upon that despite no extension of intake regarding permission for conducting B.T.C. Course with Urdu and to teach the subject in the medium of Urdu from Class- 6 to 10 and thereby conducting the two years Urdu B.T.C. course was ever accorded in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993, but the aforesaid conversion of the recruitment required to be filled up by the candidates belonging to general subjects to the group of alleged linguistic minority affecting the rights of the Appellants have been done by the State Govt. The same being contrary to the ratio laid down in 2006 J.T. (4) S.C. 201 (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala) as well as on the ground of the competency of no legislative power under Article 246 and 254 of the Constitution of India.
That the letter dated 18-5-2005 providing the special training in Urdu language through translated slab us of Hindi Medium in Urdu is contrary to the provisions of Article 343, Article 344, Article 351 and 394-A (3) as the provision of Article 350-A as amended shall always be subject matter of the scrutiny made by these articles and as such the right of the Appellants for moving present impleadment application is made out and the Appellants may be permitted to place their submissions and their arguments may be considered by the Hon’ble Court before passing any judgement in present special appeal.
That the object and the purpose shown by the Secretary of Basic Education department in its affidavit dated 22.11.2006 is certainly may not provide any justification for issuance of Govt. Orders dated 16.2.2005, 18.3.2006 and 15.9.2006. For the convenient perusal of the national curriculum framework issued in 2000 and 2005 in the context of National Education Policy, 1986 and report on Indian Education Commission- 1964-1966 may be taken into consideration; -
(a) Report of the Indian Education Commission 1964-66 known as Kothari report which was submitted by Dr. D.S. Kothari in relations to Education system and the said committee made a recommendation that:
(Chapter VIII, Para 8.35)
“ At the lower primary stage only language should be studies compulsorily the mother tongue or the regional language, at the option of the pupil. In the case of the vast majority of pupils, the language of study at this stage will be the regional language, which will also be their mother tongue. Some children belonging to the linguistic minorities may also opt for instruction in the regional language, because of its great advantages, but this cannot be forced on them, and they have the right under the Constitution to have facilities provided for their primary education through their mother tongue. The State Governments should, therefore, provide primary schools teaching through the mother tongue for the children of linguistic minorities if they desire to have such an education, subject to the unusual condition approve by the Education Ministers ‘Conference (1994) that the minimum number of such children should be 10 in a class or 40 in a school.”
(b) National Education Policy, 1986 Program of Action. (Chapter XX Para2.)
“ The emphasis in the policy is on the adoption of modern Indian languages as the media of instruction at the University stage. However, the need to provide education through the mother tongue, which may be different from the modern Indian language included in the VIII Schedule, is recognised, on academic grounds. The constitution of India recognizes in respect of linguistic minorities, the desirability of providing instruction through the mother tongue for first five years of education (Article 350-A). Every efforts is, therefore, required to implement this obligation, although a number of difficulties are likely to be encounter, administrative and financial feasibility of providing instructional facilities through a verity of mother tongue, difficulty to use some tribal languages as media of education etc.
(c) National Curriculum Framework 2000 by N.C.E.R.T. (Para 2.11)
“The mother tongue in the most vial factor for the children’s intellectual, emotional and spiritual growth. The mother tongue is the “mother tongue” not because it is the mother’s tongue but because like the mother, it is central factor behind the nurturance of the children’s mental and emotional make up. Their perceptions, comprehension, responses creative expressions, thinking and analysis, all are maximally developed, therefore, through the medium of the mother tongue. The medium of instruction ideally, therefore, ought to be the mother tongue at all the stages of school education.
In the regional language of state language, it must continue as the medium of instruction ideally at all the level of schooling or at least up to the end of elementary stage. However, in the case of those students whose mother tongue is different from the state language or regional language, the regional language may be adopted as a education only from the IIIrd Stancard onward. IN the earlier years the student’s mother tongue ought to be used in such a manner that a anooth transition from the student’s operations in the mother tongue to those in the original language naturally takes place at the earliest.”
(d) National Curriculum Framework 2000 by N.C.E.R.T. (Chapter III 3.11)
“ Today, we know for certain that by bilingualism or multi-lingualism confers definite, cognitive, advantages. The three- languages formula in an attempt to address the challenges and opportunities of the linguistic situation in India. It is a strategy that should ready serve as a launching pad for learning more languages. It needs to be followed both in letter and spirit. Its primary aim is to promote multilingualism and national harmony. The following guidelines may help us achieve this aim.
· Language teaching needs to be multilingual not only in terms of the number of languages offered in children but also in terms of evolving strategies that would use the multilingual classroom as a resource.
· Home language (s) of children as defined above n 3.1 should be the medium of learning in schools.
· If a school does not have provisions for teaching in the child’s home language (s) at the higher levels, primary school education must still be covered through the home language (s). It is imperative that we honor the child’s home language (s). According to Article 350-A of our Constitution. “It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue of the primary stage of education to children belonging to linguistic minority groups.”
That the Appellants are also placing the Govt. order dated 11.8.1997 providing the equivalent qualification to the trained B.T.C., Hindustani teachers Certificate, Junior teacher certificate and teachers certificate being set aside. Such equivalent qualification may not be the certificate of Moallim—e-Urdu, which has been de-recognized by the State Govt. and as such no such amendment could have been done subsequently by repealing the effect of the previous stand taken in the different Govt. orders including the guidelines given in Education Curriculum 1964-66.
That the decision taken by the State Govt. for issuance of aforesaid Govt. orders is not in consonance with the provisions of Uttar Pradesh Authentication (Order and other instruments) Rules, 1975.
That without teaching the Urdu language in class 1 to 5 on the pretext of that no specified subject Urdu is provided in the primary schools and as such after taking the alleged permission from N.C.T.E. for having proficiency in Urdu in primary schools, there could have not been any conversion of such approval for teaching other subjects in Urdu language as medium of proficiency of Urdu in secondary education from class 6 to 10, for which Special B.T.C. Course general subjects were organized, but the conversion of the vacancy to the aforesaid course is certainly a fraud on power by the State Govt.
That the Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356 has also considered report of the Advisory Committee on minority placed in the Constituent Assembly. A part of Paragraph 160 is being reproduced below: -
“160. A citizen of India stands in a similar position The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces."
That one of the Hon'ble Judge in Eleven Judges' Bench of the Apex Court in Paragraphs 169, 170 and 184 observed as follows:-
"169. Dr. B.R. Ambedkar while intervening in debate in regard to amendment to draft Art.23 which related to the rights of religious and linguistic minorities stated that "the term 'minority' was used therein not in the technical sense of the word minority as we have been accustomed to use it for purposes of certain political safeguards, such as representation in the legislature, representation in the services and so on." According to him, the word minority is used not merely to indicate, the minority in technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar cited following example, which runs as under:-
"For instance, for the purposes of this Art. 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities. Similarly, if a certain number of Maharastrians went from Maharashtra and settled in Bengal, although they may not be minorities in technical true sense, they would be cultural and linguistic minorities in Bengal.
That the Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term as I have explained just now. That is the reason why we dropped the word minority because we felt that the word might be interpreted in the narrow sense of the term when the intention of this House, when it passed Art. 18, was to use the word "minority” in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless." (See Constituent Assembly Debates Official Report reprinted by Lok Sabha Secretariat).
“170. The draft article and the Constituent assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory. 184. In view of what has been stated above, my conclusion on the question who are minorities either religious or linguistic within the meaning of Article 30 is as follows:
“The person or persons establishing an educational institution who belong to either religious or linguistic group who are less than fifty per cent, of total population of the State in which educational institution is established would be linguistic or religious minorities."
54. That Paragraph 246 of the judgment of the Apex Court is also very relevant, the same is being quoted below:-
"246. It has been settled by a catena of decisions of this Court (In RE: The Kerala Education Bill, 1957 (1959 SCR 995), Rev. Sidhajbhai Sabhjai & Ors. v. State of Bombay & Anr..(1963 (3) SCR 837), The Ahmedabad St. Xavier's College Society & Anr. (1975 (1) SCR 173) and St. Stephen's College v. University of Delhi (1992 (1) SCC 558), that Article 30 of the Constitution conferred special rights on the minorities (linguistic or religious).
That the word 'minority' is not defined in the Constitution but literally it means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or group called 'majority'. In that sense, there may be political minority, religious minority, linguistic minority, etc." Paragraph 143 of the judgment of Apex Court is also very relevant in the context of the matter before the Court, the same is being quoted below:-
"143. This means that the right under Art. 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant."
That the Apex Court in T.M.A. Pai Foundation case (supra) has recoded a finding in Paragraph-158
“ That India consists of six main ethnic groups, 52 major Tribes, six major religions, 6400 castes and sub-castes, 18 major languages and 1600 minor languages and dialects. The Apex Court further found that Muslims are neither unprivileged nor weaker section of the Indian society, but the protection of minority was introduced only to instill in them a sense of security and confidence. On consideration of Constituent Assembly debates, it transpires that at the time of partition on the basis of two nations theory India was partitioned on the ground that Hindus and Muslims constitute two nations, most of the Muslims were expected to go to Pakistan and only few nationalist Muslims were expected to remain in India who were insecure or lacking confidence at the time of partition. The questions arise to be considered Whether sense of insecurity and lack of confidence prevailing at the time of partition still continuing in 2007 and Muslim community are still continuing as minority and how minority will be calculated in comparison to which religious group?” 57. That in order to consider these questions, the Court has gone through the relevant part of proceeding of Constituent Assembly.
That the Constituent Assembly Debates (Proceedings commenced on 9.12.1946 and continued till 24.1.1950 (Vol. 1, published by Lok Sabha Secretariat, New Delhi, 1989)) make it clear that Constituent Assembly appointed an Advisory Committee on minority, which submitted a report on minority rights before the Constituent Assembly. Constituent Assembly deliberated the issue and fixed certain percentage of population for consideration of any community as religious minority community. From perusal of the report, it transpires that the Advisory Committee on Minority divided minorities according to their strength and population and prepared a Schedule in three parts, the same is being reproduced below:- "...We have divided the minorities according to their strength or according to their population. In the Schedule the three parts are set out and dealt with separately because they require separate consideration proportion to their strength...." 59. That the Court is considering of only such religious minorities mentioned in the Schedule of Advisory Committee on Minority, notified in notification dated 23.10.1993 issued by Government of India under Section 2(c) of National Minority Commission Act, 1992. From perusal of the Constituent Assembly Debates dated 27th August, 1947, it is clear that the Schedule of religious minority communities was prepared.
"This Schedule is based on the strength of the communities in order that the relevant provisions in the subsequent section may fit in and therefore this is merely a formal matter. There is no controversy about it."
That the report of the Advisory Committee on minority containing Schedule was adopted on 27.8.1947. Some members of the Constituent Assembly belonging to Muslim religion were demanding some special rights including proportionate representation of Muslims. Deliberations made in Constituent Assembly by some members on the rights of minorities are relevant in the present context, same are being reproduced as follows:-
Speech of Dr. P.S. Deshmukh
".........I believe I voice the feeling of a large section of this House when I say that the representatives of these minorities have taken a long and nationalistic view of the whole matter and provided they do not do anything to spoil the good effect. I would like to assure them on behalf of us all that they will never have any occasion to repent what they have conceded. It should always be remembered that we are, speaking the bare truth, a highly charitable and liberal-minded people. Some of our Muslim friends, mostly as a result of the British policy, painted us as tyrants and majority-made oppressors. I have never found any justification for such an accusation, but an unjust and untrue charge was repeated ad nauseous and somehow sustained throughout the last so many years. It is upon those false foundations that Pakistan was demanded and conceded. Very few showed patience to analyze the facts. Rather than tyrannize the minorities, the fact was that in most places the minorities’ privileges far in excess of what may be called just or fair. In my own curious Province, Muslims still enjoy a position, which is even today denied to over 60 per cent of the peasants and workers by our own Hindu rulers. This is not an occasion on which I would like to go further into the matter than this. I am content that no minority is going to try any more to deprive others of what legitimately belongs to them. For many years past, it was the majority that has been tyrannized. Unfortunately, the so-called majority is dumb and deaf and although many of us try always to speak in their name, I have no hesitation in stating that we have completely failed in translating our words into action. May I ask, Sir, what place has been given to millions of Jats, millions of Ahirs, Gujars, Kurmis, Kunbs, the Adibasis and millions of others. Have we not been a little too engrossed in our own exploits and have given inadequate though to the thousands of these poor people who have sacrificed their lives to give us the present freedom. What place have we assigned to them except to visualize that they will as heretofore blindly, meekly and religiously vote for any one we will choose for them. From this point of view, the situation is gloomy even today...."
That Mr. H.J. Khandekar, one of the members of the Constituent Assembly while replying the same on 28th August, 1947 made following speech:-
".....Speaking plainly it means that he desires separate electorates in a different form. I may explain to you the effects of separate electorates in this country. It was because of Lord Mortley Minto that Muslims got separate electorates and the result was that our country was divided into two. The same separate electorates are being brought before us in the form of percentage. If this is accepted either for Harijans or for our Muslim brothers, then it would mean the fulfilment of what my friend Mr. Jinnah has always said "Muslims of India and Muslims of Pakistan"-which means the preparation for Pakistan within India. Much suffering has been caused already. India has been divided into two. Brother Muslims have got what they wanted and was for their benefit. Having got that, they should be good enough not to try to create Pakistan within India and should not bring an amendment of this sort in this House......"
That Mr. Naziruddin Ahmad and other speakers also wanted some reservation for muslim community in the Constitution of India, which was refused by the Constituent Assembly and Honourable Sardar Vallabhbhai J. Patel, President of Advisory Committee while replying for such demands of members of the minorities made following speech in the Constituent Assembly, relevant part of which is being quoted below:-
"....I thought that our friends of the Muslim League will see the reasonableness of our attitude and allow themselves to accommodate themselves to the changed conditions after the separation of the country. But I now find them adopting the same methods, which were adopted when the separate electorates were first introduced in this country, and in spite of ample sweetness in the language used there is a full dose of poison in the method adopted. (Hear, Hear). Therefore, I regret to say that if I lose the affection of the younger brother, I am prepared to lose it because the method he wants to adopt would bring about his death. I would rather lose his affection and keep him alive. If this amendment is lost, we will lose the affection of the younger brother, but I prefer the younger brother to live so that he may see the wisdom of the attitude of the elder brother and he may still learn to have affection for the elder brother. Now, this formula has a history behind it and those who are in the Congress will be able to remember that history. In Congress history this is known as the Mohammad Ali Formula. Since the introduction of separate electorates in this land there were two parties amongst the Muslims. One was the Nationalist Muslims or the Congress Muslims and the other the Muslim League members, or the representatives of the Muslim League. There was considerable tension on this question and at one time there was a practical majority against this joint electorate. But a stage was reached when, as was pointed out by the Mover of this amendment in Allahabad a settlement was reached. Did we stand by that settlement? No. We now have got the division of the country. In order to prevent the separation this formula was evolved by the nationalist Muslims, as a sort of half-way house, until the nation becomes one; we wished to drop it afterwards. But now the separation of the country is complete and you say, let us introduce it again and have another separation. I do not understand this method of affection. Therefore, although I would not have like to say anything on this motion, I think it is better that we know our minds perfectly each other, so that we can understand where we stand. If the process that was adopted, which resulted in the separation of the country, is to be repeated, then I say: Those who want that kind of thing have a place in Pakistan, not here (Applause). Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough. (Hear, Hear.) Now, if you think that reservation necessarily means this clause as you have suggested, I am prepared to withdraw the reservation for your own benefit. If you agree to that, I am prepared, and I am sure no one in this House will be against the withdrawal of the reservation if that is a satisfaction to you. You cannot have it both ways. Therefore, my friends you must change your attitude, adapt yourself to the changed conditions. And don't pretend to say "Oh, our affection is very great for you". We have seen your affection. Why talk of it? Let us forget the affection. Let us face the realities. Ask yourself whether you really want to stand here and cooperate with us or you want again to play disruptive tactics. Therefore, when I appeal to you, I appeal to you to have a change in your heart, not a change in the tongue, because that won't pay here. Therefore, I still appeal to you: "Friends, reconsider your attitude and withdraw your amendment". Why go on saying, "Oh, Muslims were not heard; Muslim amendment was not carried". If that is going to pay you, you are much mistaken, and I know how it cost me to protect the Muslim minorities here under the present condition and in the present atmosphere. Therefore, I suggest that you don't forget that the days in which the agitation of the type you carried on is closed and we begin a new chapter. Therefore, I once more appeal t you to forget the past. Forget what has happened. You have got what you wanted. You have got a separate State and remember, you are the people who were responsible for it, and not those who remain in Pakistan. You led the agitation. You got it. What is it that you want now? I don't understand. In the majority Hindu provinces you, the minorities, you led the agitation. You got the partition and now again you tell me and ask me to say for the purpose of securing the affection of the younger brother that I must agree to the same, thing again to divide the country again in the divided part. For God's sake, understand that we have also got some sense. Let us understand the thing clearly. Therefore when I say we must forget the past, I say it sincerely. There will be no injustice done to you. There will be generosity towards you, but there must be reciprocity. If it is absent, then you take it from me that no soft words can conceal what is behind your words. Therefore, I plainly once more appeal to you strongly that let us forget and let us be one nation....." 63. That the amendment proposed by the Muslim members were refused by the Constituent Assembly on the reservation and separate electorate. The matter was again considered by the Constituent Assembly while considering Article 17, i.e., "Conversion from one religion to another brought about by coercion or undue influence shall not be recognized".
That the Speech of Shri R.V. Dhulekar, member of the Constituent
Assembly is very relevant in the context of controversy involved in the
present case, the same is being reproduced below:-
"Mr. President, my opinion is that clause 17 should be retained as it stands. In the present environment, all sorts of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide the country. There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country. Those who have caused the division of our land desire that India may be further divided. Therefore in view of the present circumstances, I think that this clause should be retained. It is necessary that full attention should be paid to this. While on tour, I see every day refugees moving about with their children and I find them at railway stations, shops, hotels, bakeries and at numerous other places. The men of these bakeries abduct these women and children. There should be legislation to stop this. I would request you that an early move should be made to stop all this and millions of people would be saved. I submit that we cannot now tolerate things of this nature. We are being attacked and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that "we constitute a separate nation". These separatist tendencies should be crushed. Therefore, I request that section 17 may be retained in the same form as is recommended by the Advisory Committee."
That in Constituent Assembly debate dated 27th August, 1947 Sri B.
Pocker Sahib Bahadur, a Representative of Muslim from Madras made
following statement:-
".....At present the Muslims are strong and well-organised. Now, if they are made to feel that their voice cannot even be heard in the Legislature, they will become desperate. I would request you not to create that contingency...." (Page 214 of the Constituent Assembly Debates). Aforesaid statement of a Muslim representative was made in the Constituent Assembly debates after partition of the country has taken place. Participating in the debate of the Constituent Assembly, Sri M. Ananthasayanam Ayyangar, a representative of Madras in his speech before the Constituent Assembly stated as follows:- "....In my part of the world, the Madras Presidency, though the Muslims are in a minority, they also joined in this move for separating the country. Have you a responsible for it? Have you a paralled to this carriage that is going on in the Punjab whoever may be responsible for it."
That replying the debates, the President of the Advisory Committee on Minority has made a speech, relevant part of which is being reproduced below:-
"My friends the Mover of this amendment says the Muslim community today is a strong-knit community. Very good, I am glad to hear that, and therefore I say you have no business to ask for any props (Cheers). Because there are other minorities who are not well-organised, and deserve special consideration and some safeguards, we want to be generous to them”.
. That this was the situation at the time immediately after partition coupled with the finding recorded by the Apex Court that Muslim minorities were never regarded as weaker and unprivileged section of the society, but only for a sense of security and confidence minorities were given special treatment.
That in Paragraph 246 of the Eleven Judges' Bench judgment of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka case reported in AIR 2003 SC 356, word minority was defined and it means 'a non-dominant' group.
“It is a relative term and is referred to represent the smaller of two numbers. Considering the controversy of Muslim minority in its entirety, this Court feels it appropriate to consider whether the Muslims in India or in State of Uttar Pradesh are non-dominant group which is the intention of the Constitution of India as held by the Apex Court in Eleven Judges' Bench Judgment in T.M.A. Pai Foundation case (supra) followed by the judgments of the Apex Court reported in 2005 (3) ESC 373, (2003) SCC (6) 697, Islamic Academy of Education and another v. State of Karnataka and others”.
That the Apex Court while considering the case of Jain community claiming as minority has laid down certain principles relating to minority and made observations that such demands may lead to multi-nationalism.
That in this regard Paragraphs 10, 14, 20, 21, 22, 23, 25, 32, 33, 34, 36 of Three Judges' Judgment of the Apex Court in Bal Patil and another v. Union of India and others reported in AIR 2005, SC, 3172 are very relevant, same are being reproduced below:-
"10. The expression 'minority' has been used in Article 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith and worship'. Group of Articles 25 to 30-guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving communities who happen to be in majority and like to gain political power in a democratic form of Government based on election.
“14. On considering the general functions of the Commission enumerated under section 9 which are only illustrative and not exhaustive, the Commission cannot be said to have transgressed its authority in entertaining representation, demands and counter-demands of members of Jain community for the status of 'minority'. Keeping in view the provisions of the Act, the recommendation made by the Commission in favour of the Jains is in the nature of advice and can have no binding effect. The power under Section 2(c) of the Act vests in the Central Government, which alone, on its own assessment, has to accept or reject the claim of status of minority by a community.
“20. The history of the struggle for Independence of India bears ample testimony of the fact that the concept of 'minorities' and the demands for special care and protection of their religious and cultural rights arose after bitter experience of religious conflicts which intermittently arose in about 150 years of British Rule. The demand of partition gained momentum at the time the Britishers decided to leave by handing over self-rule to Indians. The Britishers always treated Hindus and Muslims as two different groups of citizens requiring different treatment. To those groups were added Anglo-Indians and Christians as a result of large-scale inter-marriages and conversions of several sections of communities in India to Christianity. Prior to passing of the Independence Act of India to hand over self-rule to Indians, Britishers in the course of gradually conceding some democratic right to Indians, contemplated formation of separate constituencies on reservations of certain seats in Legislature in proportion to the population of Hindus and Muslims. That attempt was strongly resisted by both prominent Hindu and Muslim national leaders who had jointly and actively participated in the struggle for independence of India.
“21. The attempt of the Britishers to form separate electorates and make reservations of seats on the basis of population of Hindus and Muslims, however, ultimately led to revival of demand for reservation of constituencies and seats in the first elected Government to be formed in free India. Resistance to such demands by Hindu and some Muslim leaders ultimately led to partition of India and formation of separate Muslim State presently known as Pakistan.
“22. Many other revelations concerning competing claims for reservation of seats on religious basis can be gathered from the personal diary of prominent national leaders late Abdul Kalam Azad. The diary was made public, in accordance with his last wish only after 25 years of independence. The publication of Azad's diary made it necessary for constitutional expert H.M. Seervai to re-write his chapter under caption 'Partition of India - Legend and Reality' in his book on 'Constitutional Law of India'. Many apprehensions and fears were expressed and disturbed the minds of the Muslims. They thought in democracy to be set up in India, the Hindus being in majority would always dominate and retain political power on the basis of their voting strength. There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights. Abdul Kalam Azad acted as mediator in negotiations between the national leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali on the other. Nehru and Patel insisted that in the new Constitution, there would be one united India belonging to people of various religious faiths and cultures with all having full freedom of their social, cultural religious and other constitutional rights. They advocated one single citizenship to every Indian regardless of his language or religion. The opposing group of Muslim leaders, in the interest of members of their community, insisted on providing to them participation in democratic processes proportionate to their ratio of population and thus counter-balance the likely domination of Hindu majority. They also insisted that separate electorate constituencies based on their population be formed and seats be reserved for them in different parts of India. Late Abdul Kalam Azad tried his utmost to find a midway and thus break the stalemate between the two opposing groups but Nehru and Patel remained resolute and rejected the proposal of Jinnah and Liaqat Ali. The tragic result was that provinces with the highest Muslim population in the erstwhile States of Sindh, Punjab and Baluchistan had to be ceded to form a separate theocratic nation - Pakistan. See the following paragraph 1,314 at pg. 153 of 'Constitutional Law of India' by H.M. Seerval, Fourth Edition, Vol. I:- "1,314. Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it. Further, Azad had played a leading part in providing a framework for the Constitution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united. However, Gandhi accepted partition instead, Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition."
“23. It is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them special guarantee and protection of their religious, cultural and educational rights. Such protection was found necessary to maintain unity and integrity of free India because even after partition of India, communities like Muslims and Christians in greater numbers living in different parts of India opted to continue to live in India as children of its soil.
“25. Parsis constituted a numerically smaller minority. They had migrated from their native State Iran and settled on shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilating themselves into the Indian population.
“32. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of Constitution and later in the course of its working, History tells us that there were certain religious communities in India who were required to be given full assurance of protection of their religious and cultural rights. India is a country of people with the largest number of religions and languages living together and forming a Nation. Such diversity of religions, culture and way of life is not to be found in any part of the world. John Stuart Mill described India as "a world placed at closed quarters". India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain integrity of the country. It was not in contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. the only birth in India. We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.
“33. The constitution ideal, which can be gathered from the group of articles in the Constitution under Chapters of Fundamental Rights and Fundamental Duties, is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.
“34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels. Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes. If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensure. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multi-nationalism in various sections of people of Bharat.
“36. These concluding observations were required after the eleven-Judges' Bench in TMA Pai Foundation case (supra) held that claims of minorities on both linguistic and religious basis would be each State as unit. The country has already been reorganized in the year 1956 under the States Reorganization Act on the basis of language. Differential treatments to linguistic minorities based on language within the State is understandable but if if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based multi-nationalism. Our concept of secularism, to put it in a nutshell, is that 'State' will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship."
In view of the judgment of the Apex Court in Bal Patil case (supra) after considering T.M.A. Pai Foundation case, it is clear that intention to provide minority status was to remove sense of insecurity and lack of confidence in the mind of Muslim and other religious communities at the time of partition of India and further the Apex Court cautioned the country not to create a theocratic State based on multi-nationalism and refused to recognise Jain as a minority.
That Considering the matter in its entirety, criterion for minority, i.e., population and strength and also judgments of the Apex Court referred above that the intention was to provide protection to a non-dominant group, this Court is of the view that at present Muslim religious community in U.P. is not a religious minority as there is no sense of insecurity or lack of confidence prevailing amongst them in present scenario. According to the finding of the Apex Court in T.M.A. Pai Foundation case (supra) that Muslim minority is not weaker or unprivileged section of the society.
That the Appellants may be permitted to place the note on minority children in Parashiva Primary School as per the Government India instructions and the letter issued by the Govt. Of India Ministry of Human Resources Department to State Project Direction U.P. Education for all projects. The aforesaid correspondence is filed herewith in order to demonstrate that the same is inconsistence to the constitutional committee debate as there is the difference between Parliamentary discussions and that of the aforesaid debate, on the basis of which, Constitution of India was adopted by the Govt. of India prior to its becoming the Republic Day on 26th January, 1950.
That the Appellants most respectfully submits that by the bare reading of Article 343, Article 344, Article 351 and Article 394-A and Schedule VIII of the Constitution of India as well as preamble of our constitution, an attempt is made in the society as a multi-religious and multi-linguistic – caste ridden Indian, the competence of the court to try the question of the public importance, which arose to the public at large as the affected party, it has been held in case of Guruvayoor Devasvour Managing committee and another Vs. C.K. Ranjan (2003) 7 S.C.C. 546, Shivaji Rao Nilangekar Patil Vs. Dr. Mahest Madhav Gasavi as referred in this judgement and Rakesh Lanka and another Vs. Rishi Dixit (2005) 5 S.C.C. 298 and Prahlad Singh Vs. Col. Sukhdeo Singh 1987 (1) S.C.C. page 727 General Manager Kisan Sahakari Chini Mills Sultanpur Vs. Shatrughan Nishad A.I.R. 2003 S.C. 4531, the said question may be decided in order to protect the Rule of Law in the Society, otherwise it may erode the vary foundation on the basis of which our democratic institution has been founded with the power given to the constitutional court for judicial review of the administrative/ quasi judicial action. The case of U.P. Gram Panchayat Adhikari Sangh Vs. Daya Ram Saroj 2007 (2) S.C.C. 138, is not applicable for setting aside the judgement passed on 14.9.2007.
That it is, therefore, most respectfully prayed that the present appeal may be allowed and they may be permitted to place their submissions for the protection of their rights as the conversion of the trainees of general subjects to the Urdu subject trainees having the proficiency in the said language in special B.T.C. training course-2004 granted to such individuals on the basis of Govt. Order dated 16.2.2005, 18-3-2006 and 15.9.2006 and the advertisement thereof is an action without jurisdiction and the same is ultra-vires a fraud and colourable exercise of power of the State Govt., which has rightly been dealt with in the judgement dated 14.9.2007 challenged in the present special appeal.
The following questions of the law arises for consideration by this
Hon'ble Court:
A) Whether the ratio of the judgement of Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356, having considered report of the Advisory Committee on minority placed in the Constituent Assembly may be overruled by the Impugned Judgement?.
B) Whether the learned Single Judge was not competence to try the question of the public importance in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 ?.
C) Whether the learned Single Judge was not justified in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 on the basis of Article 343, Article 344 Article 351 and Article 394-A readwith Schedule VIII of the Constitution of India?.
D) Whether the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 are not illegal and inoperative and a fraud with a colourable exercise of jurisdiction without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993?.
E) Whether the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may authorize the State Govt. for conversion of the 13189 posts of general subjects to Urdu medium trainer?.
F) Whether the amendment of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” is not violative of Article 246 and Article 254 in absence of Sanction of Central Govt.?.
G) Whether the basic Structure of our Constitution including the preamble of our constitution may be subjected to be reviewed by Article 350- A for implementing the proposed recommendations of Sachhar Commission prior to it’s implementation in State of U.P.?.
H) Whether the Hon’ble Court shall not provide endeavored to avoid Indian multi-religious and multi-linguistic – caste ridden Conflicts in Our Society, which was done by the Judgement of Learned Single Judge dated 14.09.2007 in Writ petition No. 44085 of 2006?.
Reserved Civil Misc. Writ Petition No. 44085 of 2006 Km. Sumbul Naqvi .....Petitioner Vs. State of U.P. and others ..... Respondents Along with connected Writ Petition Nos. 23362/05, 41406/05, 63306/06, 63336/06, 63245/06, 56175/06, 64115/06, 64174/06, 64853/06, 64860/06, 65029/06, 65091/06, 55762/06, 66003/06, 66132/06, 66895/06, 67549/06, 67143/06, 67253/06, 67725/06, 67822/06, 45381/06, 65285/06, 68529/06, 68792/06, 68912/06, 68916/06, 68849/06, 69070/06, 70245/06, 51409/06, 58479/06, 47044/06, 60007/06, 60389/06, 60296/06, 60520-06, 61459-06, 61770/06, 70783/06, 70338/06, 70117/06, 8571/07, 340/07, 14799/07, 760/07, 785/07, 1072/07, 7732/07, 5681/07, 6866/07, 3712/07, 5588/07, 2444/07, 5076/07, 3039/07, 3206/07, 1866/07, 1851/07, 24382/07, 9829/07, 14025/07, 14228/07, 23837/07, 23809/07, 22788/07, 21792/07, 14592/07, 8320/07. HON. ARUN TANDON, J. The State of U.P. took a decision on 16.2.2005 to conduct two years Special B.T.C. Training Course (Urdu) for appointment of Assistant Teachers Urdu, against 3000 posts, said to be lying vacant in various institutions situate throughout the State established by the Basic Shiksha Parishad U.P., Allahabad. In pursuance to the decision so taken an advertisement was published by various District Authorities inviting applications from the prospective candidates for being enrolled for admission to Special B.T.C. Training Course. The qualifications prescribed for being admitted to the said course, were prescribed as graduate, with Urdu as one of the subjects in Intermediate and High School Examinations or a graduate degree from recognized University established by law in India with High School and Intermediate without Urdu but having passed the said examinations in Urdu as additional subject or any other examination in Urdu declared equivalent thereto. The relevant condition of the advertisement reads as follows: "1- 'kSf{kd ;ksX;rk% fo'o foky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo0@egkfoky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V nksuksa ijh{kk,a mnwZ fo"k; ds lkFk mRrh.kZ dh gksa vkosnu djus ds ik= gksaxs A fo'ofoky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo@egkfoky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V ijh{kk fcuk mnwZ fo"k; ds mRrh.kZ dh gks vkSj mlds lkFk jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kk cksMZ@laLFkk ls gkbZ Ldwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ dh gks vFkok gkbZLdwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ u gksus ij] gkbZLdwy ,oa baVjehfM,V dh ijh{kk ds lkFk mnwZ izoh.krk laca/kh ek/;fed f'k{kk ifj"kn] m0iz0 vFkok m0iz0 jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls lacaf/kr ijh{kk (gkbZLdwy Lrj ij vnhc rFkk baVjehfM,V Lrj ij vnhc&,&ekfgj ijh{kk] tkfe;ka mnwZ vyhx< eaf="ifj" i=" vkeaf="r" nk="o`fRr" eaf="ifj">s ;g dgus dk funsZ'k gqvk gS fd m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr foky;ksa esa mnwZ fo"k; esa izoh.krk j[kus okys lgk;d v/;kidksa dh deh dks n`f"Vxr j[krs gq, csfld f'k{kk ifj"kn ds vUrxZr lgk;d v/;kid ds cMh la[;k esa fjDr inksa esa ls 5000 inksa dks O;kofrZr djrs gq, Jh jkT;iky }kjk lE;d fopkjksijkUr mDr inksa gsrq Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dks nks o"khZ; ch-Vh-lh- mnwZ ds fo'ks"k ijh{k.k ds vk;kstu dh Lohd`fr iznku dh tkrh gS A rnuqlkj tuinokj fjfDr;ksa@inksa dk fooj.k@lwph layXu gS A 2- mijksDrkuqlkj vH;fFkZ;ksa ds p;u gsrq fuEukuqlkj izfdz;k viuk;h tk;sxh & The Court may record that for conversion of the post from general subject teachers to Urdu teachers and further for payment of stipend at the rate of Rs. 2,500/- to the candidates enrolled for Special B.T.C. Training Course, against these converted posts necessarily required the approval of the Finance Department in view of Rules 3 and 7 of the Rules of Business, 1975, which was not done nor the note was placed before the Cabinet for its approval. Thereafter, another note was put up by the Secretary Basic Education, whereby additional 5,000 (Five thousand) posts of Assistant Teachers general subjects were sought to be converted to that of Assistant Teacher with proficiency in Urdu. The note is said to have been approved by the Minister alone. After approval of the Minister the Government Order dated 05.09.2006 had been issued which is more or less identical to the Government Order dated 18.03.2006, quoted above. In respect of this Government Order dated 05.09.2006 the approval of the finance department was not obtained nor it was placed before the Cabinet. Therefore, there had been substantial violation of the provisions of Business Rules of 1975. However, according to the Advocate General the procedural defects in that regard stand cured in view of the cabinet decision dated 15.01.2007, whereby all the decisions qua conversion of posts, as well as payment of stipend etc to special B.T.C. Urdu trainees had been ratified. The Court may, therefore, not deal with the issue any further. It is accepted that a decision was taken by the State Government to convert 10,000 (Ten thousand) posts of Assistant Teachers (general subjects) to that of Assistant Teachers, having proficiency in Urdu, for appointment in Basic institutions run and managed by the Basic Education Board. The Court has now to examine as to whether the decision arrived at by the State Government, for conversion to such large number of posts of Assistant Teachers (general subjects) i. e. 10,000 in number to that of Assistant Teacher with proficiency in Urdu, is legal, fair, just and based on valid material facts or is arbitrary, without any basis and contrary to statutory Rules. The issue with regard to medium of instruction qua teaching in basic schools established by the Basic Shiksha Parishad U.P., Allahabad may be examined with reference to U.P. Basic Education Act, 1972 and rules and regulations framed there under. Section 3 of the Act provides for the constitution of the Board. Section 4 lays down the functions of the Board. Sub-section 2 of Section 4, relevant for our purposes, reads as follows: "4. Function of the Board. (1)............... (2). Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power- (a) to prescribe the courses of instruction and books for basic education and teachers' training therefor; (b) ........... (c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board. (cc) ............ (d) to exercise supervision and control over basic schools, District Institute of Education and Training, basic training certificate units and the State Institute of Education. (e) ............. (f) ............ (g) ............ (g-1) ............ (g-2) ............ (h) ............ Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act." Section 5 lays down that the conduct of business of the Board shall be in accordance with the regulations to be framed by the Board with the approval of the State Government. Section 6 of the Act confers a power upon the Board to make appointment of officers, teachers and other employees as it may be deem fit, with the previous approval of the State Government. Section 13 of the Act confers a power upon the State Government to issue directions to the Board for carrying out its decisions as may be issued from time to time for the efficient administration of the Act. Section 19 of the Act confers a power upon the State Government to make rules for carrying out the purposes of the Act. Sub-sections 2(a) and 2 (c) of Section 19, relevant for our purpose, read as follows: "19(2)(a). the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6. (c). the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board." In exercise of powers under Section 19 of the Act the State Government has framed Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Rule 2(j) of the 1981 Rules defines "Nursery School" as schools where students are taught in classes lower than class I. Rule 2(h) defines "Junior Basic School" to mean institutions where instructions from classes I to V are imparted, while Rule 2(i) defines Senior Basic Schools to mean institutions where education from Classes VI to VIII is imparted. Thus under the said rules institutions established by the Board have been divided into three categories (a) Nursery Schools (imparting education in classes lower than I), (b) Junior Basic Schools (imparting education from classes I to V) and (c) Senior Basic Schools (imparting education from classes VI to VIII). Sources of recruitment of teachers for appointment in the said three category of institutions have been provided for under Rule 5 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Mistresses of Nursery Schools, Assistant Masters and Assistant Mistresses of Junior Basic Schools are required to be appointed by direct recruitment in accordance with Rules 14 and 15. Assistant Masters in Senior Basic Schools and Assistant Mistresses of Senior Basic Schools are required to be appointed by way of promotion in accordance with Rule 18. Rule 5 of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 reads as follows: "5. Sources of recruitment. - The mode of recruitment to the various categories of posts mentioned below shall be as follows: (a) (i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15; (ii) Assistant Masters and Assistant By direct recruitment as Mistresses of Junior Basic Schools provided in Rule 14 and 15; (b)(i) Headmistresses of Nursery By promotion as provided in Schools Rule 18 (ii) Head Masters and Head Mistresses By promotion as provided in of Junior Basic Schools Rule 18 (iii) Assistant Masters of Senior Basic By promotion as provided in Schools Rule 18; (iv) Assistant Mistresses of Senior By promotion as provided in Basic Schools Rule 18; (v) Head Masters of Senior Basic By promotion as provided in Schools Rule 18; (vi) Head Mistresses of Senior Basic By promotion as provided in Schools Rule 18; Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15." It is thus apparent that under the aforesaid rules appointment on the post of Assistant Mistresses in Nursery Schools (classes lower than 1) and Assistant Masters and Assistant Mistresses of Junior Basic Schools (classes I to V) run and managed by the Basic Shiksha Parishad U.P., Allahabad are required to be appointed by direct recruitment only. On all other posts, including that of Assistant Masters of Senior Basic Schools and Assistant Mistresses of Senior Basic Schools (classes VI to VIII), appointment is to be made by way of promotion under Rule 18. Only in case qualified teachers for promotion are not available, direct recruitment can be resorted to. In view of the aforesaid rules, it is apparently clear that direct recruitment is to be resorted to only in respect of appointment of Assistant Teachers in Nursery Schools i. e. where education below to class I is imparted and for appointment of Assistant Teachers in Junior Basic Schools i. e. where education up to classes I to V is imparted. From the affidavit filed by Sri Banwari Lal Gautam as well as from the order of the Director, State Council of Educational Research and Training, U.P. Lucknow dated 10.10.2006 as well as from the syllabus pertaining to Junior Basic Schools/Primary Schools filed as Annexure C.A.-2 to the affidavit of Sri Banwari Lal Gautam, it is established that Urdu is not being taught even as a language in the Nursery Schools nor in the Junior Basic Schools. Therefore there can be no direct recruitment of Urdu Language Teachers for Primary School/Junior Basic School. Urdu is being taught as a language subject only in Senior Basic Schools i. e. where education is being imparted from classes VI to VIII. Appointment on the posts of Assistant Master and Assistant Mistress in Senior Basic Schools is required to be made by way of promotion under Rule 18 of the 1981 Rules. However, proviso to Rule 5 clarifies that if suitable candidates are not available for promotion as Assistant Master of Senior Basic Schools or Assistant Mistress of Senior Basic Schools, appointment may be made by direct recruitment in the manner laid down in Rule 15. Rule 8 lays down the essential qualification prescribed for appointment on the post referred to in Rule 5 of 1981 Rules. For our purpose sub-rule (4) of Rule 8 is relevant, which reads as follows: "Rule 8(4). The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clauses (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows: (i) Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto with Urdu as one of the subjects. Note- A candidate who does not possess the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's Degree in Urdu. (ii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recongised by the Government as equivalent thereto." From the rules, it is apparently clear that the vacancies on the post of Assistant Masters/Assistant Mistresses of Senior Basic Schools has to be made by way of promotion at the first instance in accordance with Rule 18 and it is only when that suitable candidates are not found available for such promotion that direct recruitment under Rule 15 can be resorted to. For ready reference Rules 15 and 18 read as follows: "15. Notification of vacancies and preparation of list of eligible candidates for certain posts of Assistant Masters/Mistresses of Senior Basic Schools.-(1) In respect of an appointment by direct recruitment to the post of Assistant Master or Assistant Mistress of Senior Basic Schools under the proviso to Rule 5(b) the appointing authority shall notify every vacancy to the Employment Exchange and also in at least one newspaper having adequate circulation in the locality. (2) The appointing authority shall scrutinise the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange in pursuance of the vacancy notified under sub-rule (1) and shall thereafter, prepare a list of such persons as appear to possess the prescribed educational qualifications and be eligible for appointment. The order in which name of eligible persons shall appear in the list shall be as prescribed under sub-rule (4) of Rule 14. (3) The list prepared under sub-rule (2) shall be forwarded by the appointing authority of the Selection Committee constituted under Rule 16. 18. Procedure for recruitment by promotion.- (1) Recruitment by promotion to the posts referred to in clause (b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16. (2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection Committee along with their character rolls and such other records pertaining to them as may be considered proper. (3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in sub-rule (2). (4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub-rule (2) and forward the same to the appointing authority." With regard to teachers to be appointed for teaching language subject i. e. Hindi and Urdu, Rule 17 provides that the candidates, included in the list prepared under Rule 14(6) or Rule 15 will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified. Rule 17 (1) and (2) relevant for all purposes reads as follows: "17. Procedure for direct recruitment to a post for teaching a language.- (1) The Selection Committee shall require the candidates mentioned in the lists referred to in sub-rule (6) of Rule 14 sub-rule (2) of Rule 15, as the case may be, to appear at a written examination which shall be of one hundred marks. (2) In the written examination under sub-rule (1), the candidates will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified for appointment." From the scheme of the Rules of 1981, it is apparently clear that appointment as Language Teacher (Urdu in the facts of the present case) in Senior Basic Schools is required to be made at the first instance by way of promotion under Rule 18. In case requisite number of teachers are not found available for such promotion, direct recruitment with reference to Rule 15 read with Rule 17 can be resorted to. The Rules of 1981 do not contemplate appointment of any teacher at any level of the school for teaching other subjects through the medium of Urdu. This Court may record that neither the Advocate General nor the counsel for the Basic Education Board could refer to any decision of the Board to impart education in the institutions established by it through the medium of Urdu. This Court may further record that in all the Basic Institutions established by the Board education is being imparted in the other subjects through the medium of Hindi only. Despite specific query being made to the respondents, no evidence could be produced before this Court, which could establish that education is being imparted in any institution established by the Board under Basic Education Act through the medium of Urdu nor any examination paper of any class could be produced by the State for establishing teaching of other subjects through the medium of Urdu Language. From the syllabus enclosed as Annexure-CA-1 and CA-2 to the affidavit of Sri Banwari Lal Gautam, it is established beyond doubt that Urdu is only being taught as a language subject in Senior Basic Schools i. e. Classes VI to VIII. It may be recorded that Urdu is not even being taught as a language in Classes I to V or at the Nursery level to the students nor it is included in the syllabus. In this legal and factual background, the note put up before the State Government by the Secretary, Secondary Education, if examined, would establish that the Secretary of the Department in his note dated 9th February, 2005, has not stated anywhere that requisite number of persons for teaching Urdu language in Senior Basic Schools (which is required to be filled by way of promotion) are not available. On the contrary without referring to the statutory rules applicable for appointment of Assistant Teachers in Senior Basic Schools for Urdu language subject, it was suggested that there is shortage of 3,000 teachers for imparting education in the subject of Urdu as a result whereof it is necessary that special two years B.T.C. programe be initiated and for the said purpose relaxation in the prescribed qualification of graduation with Urdu as per Rule 4 of 1981 rules was suggested. Thus the sole purpose of the aforesaid note put up by the Secretary was that the essential qualification of graduation with Urdu be relaxed and in its place graduate candidates, having Urdu as one of the subjects in High School and Intermediate Examination or equivalent thereto may be permitted to undergo the Special B.T.C. Training for appointment as teachers in Basic Schools (which as already noticed above would mean Senior Basic School only) for imparting education in the language of Urdu. The aforesaid note specifically refers to the teachers to be appointed for imparting education in the language of Urdu, which is one of the language subject in Senior Basic Schools only. It is with reference to the note so put up by the Secretary of the Basic Education, the Finance Department of the State has granted its concurrence in the background that teachers may be appointed for teaching the language of Urdu and for the said purpose Special B.T.C. (Urdu) Training Course be started and the candidates selected be paid stipend during the period of training. This Court may record that unless and until an exercise was under taken by the authority concerned to fill up the vacancies existing on the posts of Assistant Masters and Assistant Mistresses (Urdu) by way of promotion, the process of direct recruitment or any recruitment for admission to Special B.T.C. Course could not have been started, inasmuch as direct recruitment can be resorted to only if the requisite number of vacancies can not be filled by way of promotion under Rule 18. It may also be recorded that absolutely no material was placed before the Court as to in which institutions teachers, for imparting education in Urdu language, were not available, where the students have opted for Urdu as a language subject but such education could not be imparted for want of Urdu language teacher. The position becomes worst on examination of the Government Orders dated 18th March, 2006 and dated 15th September, 2006. The Government Order, which has been reproduced herein above, clearly demonstrate that the Secretary of the Department has tried to mislead the authorities concerned by falsely suggesting that there was requirements of 10,000 (5000 +5000) additional Urdu Teachers for appointment in Basic Schools established by the Basic Shiksha Parishad U.P., Allahabad. It is admitted on record that Urdu is not being taught as a language in Nursery Schools and in Junior Basic Schools . There can be no requirements of Urdu Teachers in these two categories of institutions. The only category of institutions where Urdu is being taught as language are the Senior Basic Schools. There is nothing on record to establish that there was a requirement of any additional 10,000 teachers for imparting education of Urdu language to the students of these institutions even the number of such Senior Basic Schools has not been disclosed. Therefore, the Secretary of the Basic Education, while putting up note dated 18.03.2006 and dated 15.09.2006 has misled the authorities and has given only half information while seeking conversion of 10,000 (Ten Thousand) posts from other subjects to that of Urdu teachers. The Secretary was aware that the requirement projected by him of 10,000 additional teachers, as per note date 18.03.2006 and dated 15.09.2006, was based on incorrect facts, he has therefore made an attempt to justify the wrong information supplied by him, by suggesting that a decision has been taken to impart education in other subjects through the medium of Urdu, and for this stand the Secretary, the Director, State Council of Educational Research and Training, U.P. Lucknow by means of her supplementary affidavit, sworn on 22nd November, 2006, in paragraph 4 stated before this Court that Assistant Teachers with proficiency in Urdu are the persons who will teach other subjects through Urdu medium to students of Classes I to VIII, who belong to linguistic minority and their mother tongue is Urdu. This Court is sorry to record that the statement so made is false and misleading, the reasons for the same may be summarized as follows: (a) At no point of time the Basic Education Department has taken any decision with reference to Section 4 of the Basic Education Act for instructions in Basic Schools (Nursery) (Classes I to V) and (VI to VIII) through the medium of Urdu language. (b) Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 contemplate appointment of language teachers for teaching Urdu as a subject only and not of teachers for teaching other subjects through the medium of Urdu. (c) From the syllabus, as brought on record before this Court in respect of the Nursery Schools and Junior Basic Schools, it is established that the Urdu is not even being taught as a language at that level. This Court fail to understand that when Urdu is not even being taught as a language, how could other subjects be taught through the medium of Urdu. (d) So far as the Senior Basic Schools (where education from classes VI to VIII is being imparted) are concerned, Urdu language is only one of the subjects and for appointment of Urdu Language Teacher separate qualifications as per Rule 8(4) read with Rule 17, have been provided for. Reference may also be had to the provisions of The Uttar Pradesh Board of Madarsa Education Act, 2004, which provides a complete code including the constitution of the Board for regulating the power to regulate the courses of instructions text books etc. from classes Tahtania to the degree of Fazil, as well as to prescribe the books for instruction of course for Arbi, Urdu and Farsi up to High School and Intermediate classes in accordance with the course determined by the Board of High School and Intermediate. Further the recognized Arbi Tatha Farsi Madarsas are regulated under the provisions of the Uttar Pradesh Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987. These provisions take care of institutions where teaching is required through the medium of Urdu language. The Court may now take note of the amendments, which have been made vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006. It is recorded that absolutely no amendment has been made in Rule 5 of the 1981 Rules, which lays down the sources of recruitment and therefore the mode and manner of appointment of Urdu Language Teacher in Senior Basic Schools continues to be same even after amendment. The State respondents, without having regard to the provisions of the aforesaid rules, have hurriedly made amendments in Rule 8 by adding Clause 5 (vide Amendment Rules of 2006), which reads as follows: "8(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause(a) of rule-5 for teaching in Urdu medium shall be as follows: (i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government. (ii) Training Qualification of two years B.T.C. Urdu special training course." From a bare reading of the aforesaid clause it is apparently clear that it applies only in respect of Assistant Masters/Assistant Mistresses to be appointed by direct recruitment in Junior Basic Schools (covered by Rule 5 (a)(ii) of the 1981 Rules. As already noticed above, Urdu is not being taught as a subject in Nursery Schools or in Junior Basic Schools i. e. Classes I to V, how can education in other subjects be imparted through the medium of Urdu in such Junior Basic Schools. It appears that there has been complete non-application of mind to the Rules of 1981 while notifying the amended Rules of 2006. The amendments have been suggested with the sole purpose of justifying the academic qualifications mentioned in the advertisement. The Basic Education Board has not taken any decision till date to provide Urdu as the medium of instructions in respect of subjects to be taught in Nursery/Junior Basic Schools nor any syllabi in that respect has been prepared or is available on records. As a matter of fact teaching through the medium of Urdu is not even contemplated by Basic Education Board in the institutions established by it till date. Therefore, it is established that in no institution established by the Board other subjects are being taught through the medium of Urdu. Therefore, the conversion of 10,000 (Ten Thousand) posts of other subjects to those of Assistant Teachers with proficiency in Urdu, as has been directed under the order of the State Government, is based on incorrect facts to the extent of being arbitrary and uncalled for. This Court, therefore, holds that there is no requirement of 10,000 additional teachers for imparting education through the medium of Urdu in Basic Schools established by the Board. The stand taken by the Secretary of the Basic Education is patently false and misleading. The Advocate General justifies the decision of the conversion of the posts on the plea that in accordance to national policy of educating children in their mother tongue it is necessary to have teachers with proficiency in Urdu to teach other subjects in the Urdu language i. e. mother tongue of large number of students studying in various Basic Schools of the Board. However, laudable the object of the policy decision of the State may be for conversion of the 10,000 posts to that of teachers with proficiency in Urdu, such policy decision has to be in conformity with the statutory rules, which regulate the appointment of teachers in Basic Schools and not in derogation thereof. The Hon'ble Supreme Court in its recent judgment in the case of State of Orrisa & Ors. vs. Prasana Kumar Sahoo; 2007 AIR SCW 4604, in paragraph 14 has held as follows: "14. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules for less the constitutional provisions." This Court may now examine the most important aspect of the matter i.e. as to whether the Special B.T.C. Course (Urdu), as advertised, could in fact be started by the State authorities in District Institute of Education and Training established in all the districts of the State. It is admitted to the parties that under Section 14/15 of the National Council for Teacher Education Act, 1993 no institution can offer a course of training in teachers education until it has been granted such recognition by the National Council for Teacher Education. Section 16 of the Act categorically provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day granted affiliation, or hold examination for a course of teachers training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15. This Court, therefore, required the Advocate General as well as Secretary of the Basic Education to explain as to whether the Special B.T.C. Training Course (Urdu) has been granted recognition/approval under Sections 14/15 of the National Council for Teacher Education Act by the Regional Committee or not. Reply to the query made by the Court has been answered by way of affidavit filed by the Secretary of the Department and in paragraphs 3, 4, 5 and 6 it has been stated as follows: "3. That the Hon'ble Court by order dated 20.2.2007 directed the State Government for furnishing the following information: (a) Copy of the Course approved by the National Council for Teacher Education Act (for short N.C.T.C.) for Special Basic Training Course of two years. The contents of the course may also be disclosed. (b) Copy of the letter forwarded by the Secretary to the National Council for Teacher Education order dated 16.2.2005. (c) The academic qualification possessed by the teachers of present working in various District Institute of Education Training in the all districts of State of U.P. with specific reference of knowledge of Urdu possessed by such teachers." 4. That so far as the Ist query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is necessary to clarify here that there is no course of Special BTC Training for two years. In fact the Special BTC Training Course of 6 months training was introduced by the State Government for the first time in the year 1998 and secondly in the year 2004. The duration of Regular BTC Training Course is of two years and similarly the duration of Special BTC Urdu Training Course is also of two years. So far as approval of course for Special BTC two years Training is concerned, it is necessary to submit here that the contents of BTC Training Course (Regular) and Special BTC two years Urdu training Course is the same. The contents of Two years Special Urdu BTC Training Course is just a Urdu transcript of that of Regular BTC Training Course. Photocopies of both course and a copy of comparative status of the both the contents are being annexed as Annexure No. S.A.-1 & 2 to this affidavit. 5. That so far as the IInd query made by this Hon'ble Court by order dated 20.2.2007 relating to letter of Secretary, Basic Education to the NCTE is concerned, a copy of the letter dated 16.2.2005 sent by the Secretary, Basic Education U.P. to the NCTE as well as letter issued by NCTE dated 25.5.2006 are being annexure as Annexure No. S.A.-3 & 3-A to this affidavit. 6. That so far as the IIIrd query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is submitted that the District Institutes of Education and Training in the State of U.P. have been established with the object to organize pre-service (BTC) and in-service course for elementary school teachers, and they have sufficiently, qualified staff to conduct these course. The purpose of training is to develop the pedagogical skills among the trainees. The efficiency of the DIET staff is regularly streamlined through various orientations and factually development courses. The BTC Urdu Special Training Course is same as the BTC Course being conducted since long as such training pedagogy for the two courses are the same. That is why the National Council for Teacher Education has identified the BTC Urdu Course as a part of the BTC Regular Course. The DIETs in the State of U.P. have the competent staff to provide the training of the BTC Urdu Training Course. However as per direction issued by this Hon'ble Court dated 20.2.2007 infuriation were sought from all the DIETS with respect to the teachers having knowledge of Urdu. A detail chart was prepared after information received from the different DIETs in relation to the teachers having knowledge of Urdu. A copy of the said chart is being annexed as Annexure No. S.A.-4 to this affidavit. Counsel for private respondents has only adopted arguments made on behalf of the State respondent, no submission in addition there to have been made. The Advocate General, with reference to the affidavit filed by the Secretary, Basic Education U.P., Lucknow dated 11.01.2007 (relevant portion whereof has been quoted above), stated that B.T.C. Training Course (Regular) which is to be offered by the District Institute of Education and Training, and Special B.T.C. Two Years Urdu Training Course now to be introduced are one and the same. The only change pointed out is that Urdu transcript of the Regular B.T.C. Training Course is to be used as the contents of two years Special B.T.C. Training Course Urdu, Therefore no separate approval under Sections 14/15 of the National Council for Teacher Education Act is required. Reliance has also been placed on the letter of the Secretary dated 16th February, 2006 addressed to the National Council for Teacher Education and reply received in that regard dated 25.05.2006. Under order of this Court dated 12.03.2007 Sri K.S. Kushwaha Standing Counsel was directed to produce the entire records pertaining to the correspondence in respect of the Special B.T.C. Course (Urdu) entered into between the Basic Education Department of the State of U.P. and National Council for Teacher Education, Northern Region, Jaipur. The records have been produced before this Court and have been examined. The records present a very disturbing picture. Despite opportunity none of the respondents made any attempt to explain the correspondence which exists on record. The Court may record that the Highest Constitutional Authority representing the State namely Advocate General as well as the Secretary of Basic Education have referred to only half facts in their oral submissions as well as in their affidavit respectively. In view of the Paragraph 4 to 6 of the affidavit of the Secretary, quoted above, an argument was vehemently made before the Court that National Council for Teacher Education has informed that no recognition in respect of Special B.T.C. Course (Urdu) is required. The original records, disclose facts, which are in complete divergence to the stand so taken, as is clear from the following: (a) The Secretary Basic Education forwarded a letter to the Regional Director, National Council for Teacher Education, Northern Region, Jaipur dated 16th February, 2005 stating therein that the State Government has taken a decision to admit 3000 (Three Thousand) students for B.T.C. Urdu Two Years Special Training. Such training was earlier available in District Institute of Education and Training at Varanasi, Meerut, Lucknow and Agra, which have since been closed since 1997-98. Because of this a difficulty has arisen qua appointment of Urdu Teachers in Basic institutions. Therefore it was requested that approval be granted to the B.T.C. Urdu Two Years Special Training Course. This letter does not refer to any particular institution or course through which such training was to be imparted. It is worthwhile to reproduce the letter, which reads as follows: "izs"kd ts0,l0 nhid lfpo] mRrj izns'k 'kklu A lsok esa] {ks=h; funs'kd] mRrj {ks=h; lfefr jk"Vz~h; v/;kid f'k{kk ifj"kn t;iqj A f'k{kk vuqHkkx&5 y[kum% fnukad 16 Qjojh] 2005 fo"k;% ch0Vh0lh0 (mnwZ) ds f}&o"khZ; fo'ks"k izf'k{k.k gsrq vuqefr iznku djus ds laca/k esa A egksn;] mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed foky;ksa esa lgk;d v/;kidksa ds in cMh la[;k esa fjDr gksus ,oa orZeku esa mnwZ fo"k; dh izoh.krk j[kus okys lgk;d v/;kidksa dh U;urkdks n`f"Vxr j[krs gq, jkT; ljdkj }kjk 3000 Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dh ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k ijh{k.k gsrq p;fur fd;s tkus dk fu.kZ; fy;k x;k gS A ;gka ;g mYys[kuh; gS fd okjk.klh] esjB] y[kum ,oa vkxjk ds jktdh; nh{kk foky;ksa esa mnwZ ch0Vh0lh0 ds izf'k{k.k gsrq O;oLFkk Fkh] tks dkykUrj esa 1997&98 esa lekIr gks x;h ftlds QyLo:i mnwZ f'k{kdksa ds in Hkjs tkus esa dfBukbZ gks x;h gS A vr% mDr dk laKku ysrs gq, jkT; ljdkj }kjk mDr fu.kZ; fy;k x;k gS A mDr fu.kZ; ds vuqlkj jkT; 'kSf'kd vuqla/kku ,oa izf'k{k.k ifj"kn }kjk izns'k ds fofHkUu lekpkj i=ksa esa O;kid izpkj izlkj ds ek/;e ls Lukrd mRrh.kZ ,sls vH;fFkZ;ksa ls vkosnu i= ekaxs tk;saxs ftUgksaus gkbZLdwy ,oa b.Vj Lrj ij mnwZ fo"k; ds ijh{kk mRrh.kZ dh gks A mnwZ izoh.krk ds laca/k esa ,sls vH;fFkZ;ksa ls Hkh vkosnu i= izkIr fd;s tk;saxs ftUgksaus ek/;fed f'k{kk ifj"kn vFkok jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls mRrh.kZ dh gks A miyC/k fjfDr;ksa ds lkis{k 50 izfr'kr efgykvksa ,oa 50 izfr'kr iq:"kksa dk p;u] vH;fFkZ;ksa ds gkbZLdwy] b.VjehfM,V ,oa Lukrd izkIrkad izfr'kr ds ;ksx ds vk/kkj ij vkj{k.k laca/kh O;oLFkkvksa dk vuqikyu lqfuf'pr djrs gq, jkT; Lrjh; Js"Brk lwph ds vk/kkj ij fd;k tk;sxk A vH;fFkZ;ksa }kjk nks o"khZ; izf'k{k.k dk;Zdze iw.kZ gksus ds mijkUr budh ijh{kk vk;ksftr dh tk,xh rFkk ijh{kk esa lQy gksus okys vH;fFkZ;ksa dks izns'k ds csfld f'k{kk ifj"knh; izkFkfed foky;ksa esa lgk;d v/;kid ds :i esa fu;qDr fd;k tk;sxk A vr% bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k mDr fu.kZ; dks laKku esa j[krs gq, ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k izf'k{k.k dh vuqefr iznku djus dk d"V djsa] ftlls fd csfld f'k{kk ifj"kn }kjk lapkfyr mnwZ f'k{k.k gsrq leqfprls ;g voxr djkus dh vis{kk dh x;h gS fd mRrj {ks=h; lfefrA,u0lh0Vh0bZ0A dh xr fnukad 20&21 ebZ] 2005 dks lEiUu gqbZ 91oha cSBd esa iz'uxr ekeys esa lE;d fopkjksijkUr ;g ik;k x;k fd mDr izf'k{k.k dk;Zdze gsrq ,u0lh0Vh0bZ0 ls vuqeU;rk dh vko';drk ugha gS A {ks=h; funs'kd jk"V~zh; v/;kid f'k{kk ifj"kn] t;iqj ds rn~fo"k;d i= fnukad 25&5&2005 dh izkIr ,rn~}kjk layXu dj vko';d dk;Zokgh gsrq izsf"kr gS A d`i;k mDr ls voxr gksuk pkgsa A llnHkko] layXud&mijksDrkuqlkj A Hkonh;] lqJh vpyk [kUuk Avks0,u0 feJA funs'kd] jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn] m0iz0 fu'kkrxat] y[kum A From the correspondence, noticed herein above by this Court in detail, it is apparently clear that the Secretary Basic Education has misled the National Council for Teacher Education or else he is trying to mislead the Hon'ble High Court. From the stand taken by Secretary before the National Council for Teacher Education, as reflected from his letter referred to above, it was apparent that Special B.T.C. Urdu two years training course was to be through the medium of Hindi as per the course approved for District Educational and Training Institutes by National Council for Teacher Education and that the teachers so trained would be appointed to teach other subjects along with Urdu language which is an optional subject. It is with reference to this letter of the Secretary only that the National Council for Teacher Education had refused to entertain the application dated 18th May, 2005 of the State, after recording that no additional intake is being asked for and that Urdu and Sanskrit are already included in the course recognized by the National Council for Teacher Education. At no point of time the National Council for Teacher Education was informed that special B.T.C. Course Urdu was to prepare teacher for teaching other subjects through the medium of Urdu or that the teachers to be appointed after completing the said training would be required to teach other subjects through the medium of Urdu. The distinction between a teacher trained to teach other subjects along with the subject of Urdu Language viz-a-viz the teacher trained to teach subjects through Urdu medium needs no elucidation. Two belongs to two different class and therefore their training for being qualified/trained as teacher in their respective category has necessarily to be distinct and based of different curriculum and through institutions duly recognized for the purpose under Section 14/15 of the National Council for Teacher Education Act. From the letter of the Secretary of the State it is further apparent that it was only in respect of 3000 posts of Urdu (Language) Teachers that permission for two years Special B.T.C. Training Course Urdu was sought for, which was necessarily in respect of teachers who would impart education in the subject of Urdu language, which was an optional subject only. At no point of time any approval was applied for by the State in respect of training of teachers for imparting education in other subjects through the medium of Urdu nor any course in respect of such training was ever forwarded to the National Council for Teacher Education for approval. The National Council for Teacher Education vide its letter dated 12.05.2005 made a specific query from the Secretary Basic Education of the State as to whether two years Special B.T.C. Training Course Urdu was intended for appointment of teachers to teach other subjects through the medium of Urdu or for appointment of teachers for imparting education in Urdu Language. The reply given by the Secretary to this query is categorical namely that the Special Training Course asked for is for training of teachers for imparting education in other subjects along with the optional subject of Urdu language. The supremacy of the National Council for Teacher Education Act over any other Act of the State or its policy decisions is well established. Reference in that regard may be had to the judgment of the Hon'ble Supreme Court in the case of State of Maharastra vs. Sant Dhyaneshwar Shikshan Shastra Mahavidyalaya, reported in JT 2006 (4) SC 201. At no point of time the State or its authorities informed the National Council for Teacher Education that two years Special B.T.C. Training Course was intended for training teachers for imparting education in other subjects through the medium of Urdu. This Court may record that deliberately the Secretary had not referred to the letter of the National Council for Teacher Education dated 12th May, 2005 as well as reply submitted by him on 18th May, 2005 in any of his affidavits before this Court nor these documents were referred to at any time when the matter was being heard by this Court. It was obligatory upon the Secretary to furnish full and complete facts, as are available on record, to the Court. He is not expected to conceal facts and documents, having material bearing on the controversy, from the Court only with any intention to protect the actions taken by the officers of the State. In view of the aforesaid, this Court record its following conclusion: (a) The District Institutes of Education and Training /State has no recognition/approval from National Council for Teacher Education under Section 14/15 of the National Council for Teacher Education Act for the Special B.T.C. Training Course Urdu and therefore they cannot conduct any teachers training in respect of this course under law. (b) That there is no requirement of Urdu Teachers beyond the sanctioned strength of teachers to be appointed as Language Teachers for the subject of Urdu in Senior Basic Schools. (c) Urdu is not one of the language subject included in the syllabi of Nursery Schools and Junior Basic Schools and no teachers, for imparting education in Urdu, is required in such institutions. (d) The Basic Education Board has not taken any decision to impart education in the institutions established by it through the medium of Urdu and therefore there cannot be a requirement of teachers for the purpose of teaching other subjects through the medium of Urdu in any of the institutions established by the Basic Shiksha Parishad U.P., Allahabad. (e) Appointment on the posts of Assistant Teachers in Senior Basic Schools (Classes VI to VIII) for teaching Urdu language has to be made at the first instance by way of promotion in accordance with Rule 18 of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, and if there after any post still remains vacant, the State can resort to direct recruitment. (f) Amendment made to Rule 18 (5) of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, in so far as it pertains to appointment of Assistant Teachers in Basic Schools for teaching other subjects through the medium of Urdu is of no legal consequence, inasmuch as no teacher for the purpose is required in Nursery Schools or Junior Basic Schools established by the Basic Shiksha Parishad U.P., Allahabad as is apparent from the syllabi enclosed along with counter affidavit filed on behalf of the State respondent. The qualifications for appointment of teaches for imparting education in the subject of Urdu Language for Senior Basic Schools even after amendment continues to be the same. In view of the aforesaid, the Government Orders dated 16.02.2005, dated 18.03.2006 and dated 15.09.2006 are declared to be illegal and inoperative. Accordingly, the advertisements published in pursuance there of are also quashed. The State Government has not been granted permission to start Special B.T.C. Training Course Urdu by the National Council for Teacher Education till date in accordance Sections 14/15 of the National Council for Teacher Education Act and therefore no training in Special B.T.C. Training Course Urdu can be imparted by the District Institute of Education and Training for preparing teachers for imparting education in other subjects through the medium of Urdu. Admission granted in respect of the said course are illegal and the District Institute of Education and Training cannot be permitted to provide any further training to the students so admitted nor any examinations can be held for the course. Since this Court has come to a conclusion that the entire exercise undertaken by the State in respect of the advertisement of Special B.T.C. Training Course Urdu is illegal and contrary to the statutory rules, no petitioner can be granted any relief for admission to the said course. It is not necessary for the Court to enter into the merits of the other contention raised on behalf of the petitioners, in so far as they pertain to the qualifications fixed for admission to the Special B.T.C. Training Course Urdu, nor the Court is required to adjudicate upon the merit of the claims set up by the petitioners for appointment as Assistant Teachers (Urdu) on the basis of the qualifications claimed by them, inasmuch as appointment as Language Teachers in the subject of Urdu in Senior Basic Schools is required at the first instance to be made by promotion under Rule 18 and if some vacancies still remain vacant, that process of direct recruitment can be resorted to and at that stage petitioners would be at liberty to apply and plead a case for their selection. All the writ petitions are disposed of accordingly. Dt/-14.09.2007 Pkb/
The Hon’ble The Chief Justice Of India,
Hon’ble the Supreme Court Of India
NEW DELHI
Request for taking Suo Motto Cognizance in the matter eroding the basic structure of Constitution and taken away rights of Down Trodden unemployed B.T.C. successful Training general candidates by converting it to the proficiency of Urdu Language as per dictum of Justice Sacchar Commission
Relevant Dates in chronological order
14.1.2004 Govt. order was issued to fill up the sufficiency in the
recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks.
22.1.2004 An advertisement was issued by Director, State Council for
Education Research and Training. U.P.
22.2.2004. Advertisement has been issued by the Director, State Council for
Educational Research and Training, U.P. Lucknow, which Was published in the newspaper Amar Ujala. The matter was reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.
16.02.2005 By the Government orders General subjects have now been
converted to 3,000 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is illegal and inoperative and a fraud and a colourable exercise of jurisdiction
09.03.2005 Office of the Hon’ble Prime Minister constituted a seven member High Level Committee chaired by Justice (Retd.) Rajindar Sachar to prepare a report on the Social Economic and Educational status of the Muslim Community of India. In this manner there was even no whisper to get the report of Sacchar Commission be placed under Article 350- A of the Constitution of India when the Impugned Govt. Order dated 16.02.2005 was issued seeking conversion of posts of General candidates by converting them for teaching the subjects with Urdu medium.
03.10.2005 In response to the Committee’s advertisements, two letters dated 20.09.2005 and 03.10.2005 to the Chairperson
05.10.2005 Dr. S. Zafar Mahmood, Joint Secretary to Govt. of India and Officer on Special Duty in Sachar Committee vide his letter dated October 5, 2005.
18.3.2006 By Second Government orders General subjects have now been
converted to 5,000 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993. This U.P. Govt. order is also illegal and inoperative and a fraud and a colourable exercise of jurisdiction
15. 9.2006 . By Third Government orders General subjects have now been
converted to finally 13,189 posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level without obtaining the permission without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993 This U.P. Govt. order is illegal and inoperative and a fraud and a colourable exercise of jurisdiction. the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006”
17.11.2006 The Committee headed by Justice Sacchar submitted biased and arbitrary report with a predetermined mindset by denying the Appellants an opportunity to present their viewpoint and deliberately shutting out certain important facts which resulted in gross violation of fundamental right guaranteed under 14, 19 and 21 of the Constitution of India.
!4. 09.2007 Judgement was passed by Hon’ble Mr. Arun Tandon in Writ
petition No. 44085 of 2006
05.10.2007 Learned single Judge dated 14.9.2007 was challenged in the
by the State Govt. in Special Appeal No. 1330 of 2007.
28.11.2007 The Special Appeal No. 1330 of 2007 filed by State of U.P. has
been allowed by setting aside Judgement was passed by
Hon’ble Mr. Arun Tandon in Writ petition No. 44085 of 2006.
09.01.2008 Copy of the Impugned judgement applied on 01.12.2007( just
after three days of the pronouncement of judgement) is received
by the counsel for appellant .
04.04. 2008 Hence this present Appeal is being filed within time under article 136 of Constitution of India for upholding the truth which is bound to adversely affect the multicultural and age old pluralistic ethos of India.
FACTS OF THE CASE-
The propriety, jurisdiction and competence of the order passed on 30-12-2006 allegedly in furtherance of the directions issued in writ petition no. 38103 of 2006 filed as the Appellants no. 1 is president of unregistered society and filed his application in the said petition in his personal capacity. Since the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 have been declared to be illegal and inoperative and such order has been found be a fraud and a colourable exercise of jurisdiction as evident by the judgement dated 14.9.2007 passed in writ petition no. 44085 of 2006 (Km. Sunbul Naqvi Vs. State of U.P.) alongwith other connected writ petitions and as such since the post required to be filled up by conducting the special B.T.C. Course, 2004 general subject to the Special B.T.C. Urdu trainees, 2006 and as such the impleadment application was filed in the representative capacity by the Appellants in writ petition no. 38103 of 2006 as well as other affected person.
That it is respectfully submitted in order to appreciate the submission advanced by appellants that the Board of Basic Education U.P. Allahabad runs and manages a large number of Junior Basic schools and Senior Basic Schools in the State of Uttar Pradesh. The recruitment on the post of Assistant Teachers in such institutions is governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981. The Board of Basic Education is constituted as a body corporate under Basic Education Act, 1972.
That Rule 8 of 1981 aforesaid Rules prescribes the qualification as that of candidates possessing Basic Teachers certificate, Hindustan Teachers certificates, Junior teachers certificate or any other course recognized by State Govt. as equivalent thereto and there is neither the written examination or interview and as such candidates possessing teachers training certificate are fully suited for appointment and based upon verification of their testimonial by the selection committee.
That the Govt. order was issued on 14.1.2004 in order to fill up the sufficiency in the recruitment process of the teachers in junior High schools and by the aforesaid Govt. Order selection for admission to the Special B.T.C. training course of 46189 candidates was offered to the qualified candidates on the basis of quality point marks. The in pursuance of aforesaid Govt. order dated 14.1.2004 an advertisement dated 22.1.2004 was issued by Director, State Council for Education Research and training.
That against the restriction contained in the Government order and the advertisement of considering only upon Bachelor of Education and L.T. Training and specification of 35 years as the upper age limit a large number of writ petitions were filed before this Hon’ble Court. During the pendency of the said writ petition the matter was reconsidered by the State Government and in pursuance thereof a decision has been taken permitting candidates possession Bachelor of physical Education, Certificate of physical Education and Diploma in physical Education also for consideration. Simultaneously the upper age limit has been extended to 40 years as on 1.7.2000.
That in view of the aforesaid decision another advertisement has been issued by the Director, State Council for Educational Research and Training, U.P. Lucknow, which has been published in the newspaper Amar Ujala dated 22.2.2004.
That all the members of Appellants society being fully qualified and eligible in terms of the aforesaid advertisement also applied. Each of the members of Appellant had applied under their respective category.
That the aggregate percentage of the members of Appellant’s society was worked out in accordance with the stipulations contained in the government order making themselves selected in the said selection.
That the right of similarly placed individuals whose posts of general subjects have now been converted to posts of Urdu teacher having proficiency in Urdu in High School and Intermediate level and as such since the out come of the present special appeal may directly effects the rights of 13189 candidates eligible for appointment as Assistant Teacher.
That applicant is an unregistered society fighting against the conversion of 13,189 vacancies required to be fill up from the candidates having eligibility for selection in Special B.T.C. Course- 2004 (Third merit list), which have been converted for accommodating the Urdu language teacher with proficiency in Urdu, for which the decision was taken allegedly by the State Govt. (Cabinet Decision) dated 9th February, 2005 and the process for starting such Special B.T.C. training course Urdu was initiated by an office note put up Secretary Basic Education ( as mentioned in the judgement passed in writ petition no. 14085 of 2006 decided on 14.9.2007) and the said judgment, reported in 2007 (3) UPLBEC 2301, is the subject matter of challenge in the present Special Appeal.
That on 27.5.2004 the first merit list was published comprising of 41,450 candidates. Thereafter counseling was conducted and in the said counseling a total number of 31,450 candidates alone participated with 10,000 of the candidates included in the merit list not having responded for counseling.
That in August, 2004 a second merit list was published comprising of 6700 candidates. Subsequently about 4000 more candidates were declared selected under the category of scheduled caste and other backward class.
That in view of the aforesaid details the total number of candidates declared successful came to 42,150, however, as a result of verification during the course of the counseling as also on the basis of subsequent enquiry 9150 candidates stood deleted from the select list on account of their educational certificates being forged or being of institutions, which were not duly recognized thereby leaving a total number 33000 candidates alone.
That out of the aforesaid 33000 candidates 29000 candidates has already been imparted training and have granted appointment as Assistant Teachers in the month of January, 2006. Presently training for about 4000 candidates is till underway.
That the facts and figures detailed above clearly demonstrate that almost 13,189 vacancies still continue to exist, which were covered by the government order and the advertisement issued by the respondents.
That it has consistently been given out that a further merit list would be published from amongst the Appellants, who had originally applied for filling up the remaining vacant posts.
That the training imparted to the second batch has finished and the candidate successfully completed training is in the process of getting appointed.
That, however, there remains complete inaction on the part of the respondents in publishing the list of candidates selected for the remaining vacancies covered by the government orders dated 12.2.2004 and 20.2.2004.
That the inaction of the respondents is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution of India. There does not exist any justification for withholding the merit list for the remaining vacant posts even though such posts stood covered by the advertisement in question.
That it is settled legal position that the number of vacancies covered by the advertisement should be filled up on the basis of the merit list of the selection alone. There was hardly any justification for not filling up the advertised vacancy of a particular selection and keeping the same vacant.
That the aforesaid inaction of the respondents is contrary to the repeated representations effected that the remaining vacancies were to be filled up on the basis of the same merit list.
That in case the remaining vacancies are permitted to be re-advertised and fresh Appellants invited then the result would be that the vast majority of the candidates who were within the permissible age limit in pursuance to the January 2004 advertisement would be over age and would stand excluded from consideration.
That in the alleged compliance of the aforesaid judgement the Director State Council for Educational Research and training U.P. Lucknow passed an order on 30-12-2006 rejecting the representation of the applicant no. 1 to 7 filed on 9-11-2006 by the aforesaid order.
That in the aforesaid order the correct position as is being revealed regarding circumventing the rights of the Appellants in the judgement dated 14.9.2007 has not been disclosed and Director State Council for Educational Research and Training, U.P. appears to have the enforced silence regarding the conversion of the post of General Subjects as that of the 10000 posts of Urdu Teachers by the Govt. Order dated 15-9-2006. This fact came to the notice of Appellant first time when the Appellant’s Society office bearer filed their application seeking impleadment in the Special Appeal No. 1330 of 2007, Which was filed against the judgement dated 14-9-2007 (2007(3) UPLBEC 2301) when the contents of the aforesaid judgment came to the notice of the Appellants. The impleadment application was allowed of 8 applicants, Which were including the Appellant’s Society and the name of its office bearer.
That in the order dated 30-12-2006, which came to the notice of the Appellants when the said order was annexed in the counter affidavit. However, as soon as it came to the notice of the Appellants in the month of October, 2007 after reading the aforesaid judgment dated 14-9-2007 impugned in the present Special Appeal, the Appellants wanted to challenge the order dated 30-12-2006 passed by Director State Council for Educational Research and Training, U.P. then it was advised to the Appellants that filing of the fresh writ petition is not permissible till the matter pertaining to the foundation based upon the judgement dated 14-9-2007 impugned in the present special appeal raised for assailing the order dated 30-12-2006 afresh by filing another writ petition. Thus filing of the present impleadment application in the present special appeal is sought by seeking the permission from the Hon’ble Division Bench.
That the order dated 31-12-2006 passed by Director State Council for Educational Research and Training, U.P. is clearly based upon the incorrect facts regarding the decision dated 23-5-2006 passed in writ petition no. 1674 (M/S) of 2006 Shravan Kumar Dwivedi and others VS. Director State Council for Educational Research and Training, U.P. and others conversion of 13,189 general subject vacancies for imparting the training to B.T.C.-2001 course by formulating two selections lists of such candidates and as such the third list could not be issued.
That the order of Director State Council for Educational Research and Training, U.P. is again a misrepresentation regarding certain orders passed on 9-12-2005 in Special appeal no. 630 of 2005 seeking qualification of Shiksha Shastri provided from Sampurnanand Sanskrit University for whom the aforesaid facility regarding completion of training in Special B.T.C. Course- 2004 (General Subjects) has been granted.
That the other grounds pertaining to judgement dated 23.3.2005 in writ petition no. 23197 of 2005 and the judgement dated 10-3-2005 passed in writ petition no. 989 (M/S) of 2005 Lal Mani Maurya and others Vs. State Of U.P. and others are again the misrepresentation for circumventing the rights of the eligible candidates for conducting the training of Special B.T.C. Course (General Subjects) –2004 and in none of the orders the number of individual candidates required to be accommodated in the existing vacancy of 13189 remaining posts has not been given.
That on the other hand many of the prospective members of Appellant’s society have crossed their upper age limit and as such they have been debarred from seeking the appointment on the other posts. Thus the conversion of 13189 posts required to be filled up from General Subjects being converted to the individuals for imparting the teaching of other subject in the medium of Urdu is contrary to the provisions of Article 14 to 18 as well as Article 21 of the Constitution of India.
That an enquiry was given under the Rights of Information Act that 6343 candidates required to be filled up from women O.B.C. Science and Arts categories as well as from Scheduled caste Science category and Scheduled tribes Science and Art category are not available for the aforesaid recruitment and as such all these posts were required to be filled up from general category candidates and thus the order of Director State Council for Educational Research and Training, U.P. passed on 30-12-2006 is based upon misconceived statement and thereby misleading to the Appellants as well as to the Hon’ble Court through her inconsistent stand as disclosed in the judgement dated 14.9.2007 impugned in the present special appeal.
That about 32045 candidates have been shown selected in the different Districts of the Uttar Pradesh, out of which the appointment of 1274 candidates were found for being considered in the aforesaid selection on the basis of forge documents in the entire Uttar Pradesh. The news item published in the different newspapers disclosing illegal appointments obtaining from amongst 32045 posts may clearly establish that there remain the vacancies to be offered to the Appellants in the remaining posts lying vacant for imparting the Special B.T.C.Course-2004 even from the existing appointments.
That in this manner the filing of present appeal regarding national curriculum framework-2000 and 2005 (based upon Sachhar Commission) by the N.C.E.R.T. through Regional Director National Council for Teachers Education, Northern Region, Jaipur, emphasizing provisions of facilities for instruction in Urdu in order to accommodate linguistic minority groups is the foundation created for another partition as the demand for partition of our mother land was based on linguistic minority groups in the pre-independence years, which is incompatible with the preamble and basic structure of Constitution of India.
That the other aspect of the matter raised regarding the common judgement in all such writ petitions passed by Hon’ble Single Judge on 14-9-2007 shall be suitably replied during the course of arguments as the question pertaining to the route of the matter of taking no concurrence from National Council for Teachers Education Act and the ministry of finance has not been taken (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala J.T. 2006 (4) S.C. Page 201) for conversion of these 10000 posts for imparting education in Urdu language and providing stipend of Rs.2500/- per month to such Urdu trainees is violative of Article 246 and 256 of the Constitution of India.
That even the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may not authorize the State Govt. for conversion of the post of general subjects to Urdu medium trainer.
That for the kind perusal of this Hon’ble Court the Article-351 is being quoted below: -
“ Directive for development of the Hindi Language; - It shall be the duty of the Union to promote the spread of the Hindi Language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.”
That for the kind perusal of this Hon’ble court article 394-A is being quoted below: -
“394-A. Authoritative text in the Hindi Language; - (1) The President shall cause to be published under his authority, -
a. the translation of this Constitution in the Hindi language, signed by the members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and
b. the translation in the Hindi language of every amendment of this Constitution made in the English language.
(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.
(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.”
That the Appellants may be allowed to challenge the propriety, competency and the jurisdiction of the Govt. orders dated 16.2.2005, 18-3-2006 and 15-9-2006 including the advertisement published thereof as well as they may also be permitted to challenge the validity of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” .
That the challenge of these Govt. orders and provisions are mainly on the grounds of Article 14, 15 and also on the grounds of being contrary to the secular status of our country assuring the fraternity and the unity and integrity in the preamble and in the basic structure of our constitution. No such reservation to the alleged linguistic minority groups could have been given by getting the conversion of the posts required to be filled up by the candidates belonging to the general subjects category even under Article 26, Article 28, Article 29 and Article 30 of the Constitution of India.
That the other ground of the challenge is based upon that despite no extension of intake regarding permission for conducting B.T.C. Course with Urdu and to teach the subject in the medium of Urdu from Class- 6 to 10 and thereby conducting the two years Urdu B.T.C. course was ever accorded in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993, but the aforesaid conversion of the recruitment required to be filled up by the candidates belonging to general subjects to the group of alleged linguistic minority affecting the rights of the Appellants have been done by the State Govt. The same being contrary to the ratio laid down in 2006 J.T. (4) S.C. 201 (State of Maharashta Vs. Sant Dhyaneshwar Shikshan Santha Mahavidyala) as well as on the ground of the competency of no legislative power under Article 246 and 254 of the Constitution of India.
That the letter dated 18-5-2005 providing the special training in Urdu language through translated slab us of Hindi Medium in Urdu is contrary to the provisions of Article 343, Article 344, Article 351 and 394-A (3) as the provision of Article 350-A as amended shall always be subject matter of the scrutiny made by these articles and as such the right of the Appellants for moving present impleadment application is made out and the Appellants may be permitted to place their submissions and their arguments may be considered by the Hon’ble Court before passing any judgement in present special appeal.
That the object and the purpose shown by the Secretary of Basic Education department in its affidavit dated 22.11.2006 is certainly may not provide any justification for issuance of Govt. Orders dated 16.2.2005, 18.3.2006 and 15.9.2006. For the convenient perusal of the national curriculum framework issued in 2000 and 2005 in the context of National Education Policy, 1986 and report on Indian Education Commission- 1964-1966 may be taken into consideration; -
(a) Report of the Indian Education Commission 1964-66 known as Kothari report which was submitted by Dr. D.S. Kothari in relations to Education system and the said committee made a recommendation that:
(Chapter VIII, Para 8.35)
“ At the lower primary stage only language should be studies compulsorily the mother tongue or the regional language, at the option of the pupil. In the case of the vast majority of pupils, the language of study at this stage will be the regional language, which will also be their mother tongue. Some children belonging to the linguistic minorities may also opt for instruction in the regional language, because of its great advantages, but this cannot be forced on them, and they have the right under the Constitution to have facilities provided for their primary education through their mother tongue. The State Governments should, therefore, provide primary schools teaching through the mother tongue for the children of linguistic minorities if they desire to have such an education, subject to the unusual condition approve by the Education Ministers ‘Conference (1994) that the minimum number of such children should be 10 in a class or 40 in a school.”
(b) National Education Policy, 1986 Program of Action. (Chapter XX Para2.)
“ The emphasis in the policy is on the adoption of modern Indian languages as the media of instruction at the University stage. However, the need to provide education through the mother tongue, which may be different from the modern Indian language included in the VIII Schedule, is recognised, on academic grounds. The constitution of India recognizes in respect of linguistic minorities, the desirability of providing instruction through the mother tongue for first five years of education (Article 350-A). Every efforts is, therefore, required to implement this obligation, although a number of difficulties are likely to be encounter, administrative and financial feasibility of providing instructional facilities through a verity of mother tongue, difficulty to use some tribal languages as media of education etc.
(c) National Curriculum Framework 2000 by N.C.E.R.T. (Para 2.11)
“The mother tongue in the most vial factor for the children’s intellectual, emotional and spiritual growth. The mother tongue is the “mother tongue” not because it is the mother’s tongue but because like the mother, it is central factor behind the nurturance of the children’s mental and emotional make up. Their perceptions, comprehension, responses creative expressions, thinking and analysis, all are maximally developed, therefore, through the medium of the mother tongue. The medium of instruction ideally, therefore, ought to be the mother tongue at all the stages of school education.
In the regional language of state language, it must continue as the medium of instruction ideally at all the level of schooling or at least up to the end of elementary stage. However, in the case of those students whose mother tongue is different from the state language or regional language, the regional language may be adopted as a education only from the IIIrd Stancard onward. IN the earlier years the student’s mother tongue ought to be used in such a manner that a anooth transition from the student’s operations in the mother tongue to those in the original language naturally takes place at the earliest.”
(d) National Curriculum Framework 2000 by N.C.E.R.T. (Chapter III 3.11)
“ Today, we know for certain that by bilingualism or multi-lingualism confers definite, cognitive, advantages. The three- languages formula in an attempt to address the challenges and opportunities of the linguistic situation in India. It is a strategy that should ready serve as a launching pad for learning more languages. It needs to be followed both in letter and spirit. Its primary aim is to promote multilingualism and national harmony. The following guidelines may help us achieve this aim.
· Language teaching needs to be multilingual not only in terms of the number of languages offered in children but also in terms of evolving strategies that would use the multilingual classroom as a resource.
· Home language (s) of children as defined above n 3.1 should be the medium of learning in schools.
· If a school does not have provisions for teaching in the child’s home language (s) at the higher levels, primary school education must still be covered through the home language (s). It is imperative that we honor the child’s home language (s). According to Article 350-A of our Constitution. “It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother tongue of the primary stage of education to children belonging to linguistic minority groups.”
That the Appellants are also placing the Govt. order dated 11.8.1997 providing the equivalent qualification to the trained B.T.C., Hindustani teachers Certificate, Junior teacher certificate and teachers certificate being set aside. Such equivalent qualification may not be the certificate of Moallim—e-Urdu, which has been de-recognized by the State Govt. and as such no such amendment could have been done subsequently by repealing the effect of the previous stand taken in the different Govt. orders including the guidelines given in Education Curriculum 1964-66.
That the decision taken by the State Govt. for issuance of aforesaid Govt. orders is not in consonance with the provisions of Uttar Pradesh Authentication (Order and other instruments) Rules, 1975.
That without teaching the Urdu language in class 1 to 5 on the pretext of that no specified subject Urdu is provided in the primary schools and as such after taking the alleged permission from N.C.T.E. for having proficiency in Urdu in primary schools, there could have not been any conversion of such approval for teaching other subjects in Urdu language as medium of proficiency of Urdu in secondary education from class 6 to 10, for which Special B.T.C. Course general subjects were organized, but the conversion of the vacancy to the aforesaid course is certainly a fraud on power by the State Govt.
That the Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356 has also considered report of the Advisory Committee on minority placed in the Constituent Assembly. A part of Paragraph 160 is being reproduced below: -
“160. A citizen of India stands in a similar position The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces."
That one of the Hon'ble Judge in Eleven Judges' Bench of the Apex Court in Paragraphs 169, 170 and 184 observed as follows:-
"169. Dr. B.R. Ambedkar while intervening in debate in regard to amendment to draft Art.23 which related to the rights of religious and linguistic minorities stated that "the term 'minority' was used therein not in the technical sense of the word minority as we have been accustomed to use it for purposes of certain political safeguards, such as representation in the legislature, representation in the services and so on." According to him, the word minority is used not merely to indicate, the minority in technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar cited following example, which runs as under:-
"For instance, for the purposes of this Art. 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities. Similarly, if a certain number of Maharastrians went from Maharashtra and settled in Bengal, although they may not be minorities in technical true sense, they would be cultural and linguistic minorities in Bengal.
That the Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term as I have explained just now. That is the reason why we dropped the word minority because we felt that the word might be interpreted in the narrow sense of the term when the intention of this House, when it passed Art. 18, was to use the word "minority” in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless." (See Constituent Assembly Debates Official Report reprinted by Lok Sabha Secretariat).
“170. The draft article and the Constituent assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory. 184. In view of what has been stated above, my conclusion on the question who are minorities either religious or linguistic within the meaning of Article 30 is as follows:
“The person or persons establishing an educational institution who belong to either religious or linguistic group who are less than fifty per cent, of total population of the State in which educational institution is established would be linguistic or religious minorities."
54. That Paragraph 246 of the judgment of the Apex Court is also very relevant, the same is being quoted below:-
"246. It has been settled by a catena of decisions of this Court (In RE: The Kerala Education Bill, 1957 (1959 SCR 995), Rev. Sidhajbhai Sabhjai & Ors. v. State of Bombay & Anr..(1963 (3) SCR 837), The Ahmedabad St. Xavier's College Society & Anr. (1975 (1) SCR 173) and St. Stephen's College v. University of Delhi (1992 (1) SCC 558), that Article 30 of the Constitution conferred special rights on the minorities (linguistic or religious).
That the word 'minority' is not defined in the Constitution but literally it means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or group called 'majority'. In that sense, there may be political minority, religious minority, linguistic minority, etc." Paragraph 143 of the judgment of Apex Court is also very relevant in the context of the matter before the Court, the same is being quoted below:-
"143. This means that the right under Art. 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant."
That the Apex Court in T.M.A. Pai Foundation case (supra) has recoded a finding in Paragraph-158
“ That India consists of six main ethnic groups, 52 major Tribes, six major religions, 6400 castes and sub-castes, 18 major languages and 1600 minor languages and dialects. The Apex Court further found that Muslims are neither unprivileged nor weaker section of the Indian society, but the protection of minority was introduced only to instill in them a sense of security and confidence. On consideration of Constituent Assembly debates, it transpires that at the time of partition on the basis of two nations theory India was partitioned on the ground that Hindus and Muslims constitute two nations, most of the Muslims were expected to go to Pakistan and only few nationalist Muslims were expected to remain in India who were insecure or lacking confidence at the time of partition. The questions arise to be considered Whether sense of insecurity and lack of confidence prevailing at the time of partition still continuing in 2007 and Muslim community are still continuing as minority and how minority will be calculated in comparison to which religious group?” 57. That in order to consider these questions, the Court has gone through the relevant part of proceeding of Constituent Assembly.
That the Constituent Assembly Debates (Proceedings commenced on 9.12.1946 and continued till 24.1.1950 (Vol. 1, published by Lok Sabha Secretariat, New Delhi, 1989)) make it clear that Constituent Assembly appointed an Advisory Committee on minority, which submitted a report on minority rights before the Constituent Assembly. Constituent Assembly deliberated the issue and fixed certain percentage of population for consideration of any community as religious minority community. From perusal of the report, it transpires that the Advisory Committee on Minority divided minorities according to their strength and population and prepared a Schedule in three parts, the same is being reproduced below:- "...We have divided the minorities according to their strength or according to their population. In the Schedule the three parts are set out and dealt with separately because they require separate consideration proportion to their strength...." 59. That the Court is considering of only such religious minorities mentioned in the Schedule of Advisory Committee on Minority, notified in notification dated 23.10.1993 issued by Government of India under Section 2(c) of National Minority Commission Act, 1992. From perusal of the Constituent Assembly Debates dated 27th August, 1947, it is clear that the Schedule of religious minority communities was prepared.
"This Schedule is based on the strength of the communities in order that the relevant provisions in the subsequent section may fit in and therefore this is merely a formal matter. There is no controversy about it."
That the report of the Advisory Committee on minority containing Schedule was adopted on 27.8.1947. Some members of the Constituent Assembly belonging to Muslim religion were demanding some special rights including proportionate representation of Muslims. Deliberations made in Constituent Assembly by some members on the rights of minorities are relevant in the present context, same are being reproduced as follows:-
Speech of Dr. P.S. Deshmukh
".........I believe I voice the feeling of a large section of this House when I say that the representatives of these minorities have taken a long and nationalistic view of the whole matter and provided they do not do anything to spoil the good effect. I would like to assure them on behalf of us all that they will never have any occasion to repent what they have conceded. It should always be remembered that we are, speaking the bare truth, a highly charitable and liberal-minded people. Some of our Muslim friends, mostly as a result of the British policy, painted us as tyrants and majority-made oppressors. I have never found any justification for such an accusation, but an unjust and untrue charge was repeated ad nauseous and somehow sustained throughout the last so many years. It is upon those false foundations that Pakistan was demanded and conceded. Very few showed patience to analyze the facts. Rather than tyrannize the minorities, the fact was that in most places the minorities’ privileges far in excess of what may be called just or fair. In my own curious Province, Muslims still enjoy a position, which is even today denied to over 60 per cent of the peasants and workers by our own Hindu rulers. This is not an occasion on which I would like to go further into the matter than this. I am content that no minority is going to try any more to deprive others of what legitimately belongs to them. For many years past, it was the majority that has been tyrannized. Unfortunately, the so-called majority is dumb and deaf and although many of us try always to speak in their name, I have no hesitation in stating that we have completely failed in translating our words into action. May I ask, Sir, what place has been given to millions of Jats, millions of Ahirs, Gujars, Kurmis, Kunbs, the Adibasis and millions of others. Have we not been a little too engrossed in our own exploits and have given inadequate though to the thousands of these poor people who have sacrificed their lives to give us the present freedom. What place have we assigned to them except to visualize that they will as heretofore blindly, meekly and religiously vote for any one we will choose for them. From this point of view, the situation is gloomy even today...."
That Mr. H.J. Khandekar, one of the members of the Constituent Assembly while replying the same on 28th August, 1947 made following speech:-
".....Speaking plainly it means that he desires separate electorates in a different form. I may explain to you the effects of separate electorates in this country. It was because of Lord Mortley Minto that Muslims got separate electorates and the result was that our country was divided into two. The same separate electorates are being brought before us in the form of percentage. If this is accepted either for Harijans or for our Muslim brothers, then it would mean the fulfilment of what my friend Mr. Jinnah has always said "Muslims of India and Muslims of Pakistan"-which means the preparation for Pakistan within India. Much suffering has been caused already. India has been divided into two. Brother Muslims have got what they wanted and was for their benefit. Having got that, they should be good enough not to try to create Pakistan within India and should not bring an amendment of this sort in this House......"
That Mr. Naziruddin Ahmad and other speakers also wanted some reservation for muslim community in the Constitution of India, which was refused by the Constituent Assembly and Honourable Sardar Vallabhbhai J. Patel, President of Advisory Committee while replying for such demands of members of the minorities made following speech in the Constituent Assembly, relevant part of which is being quoted below:-
"....I thought that our friends of the Muslim League will see the reasonableness of our attitude and allow themselves to accommodate themselves to the changed conditions after the separation of the country. But I now find them adopting the same methods, which were adopted when the separate electorates were first introduced in this country, and in spite of ample sweetness in the language used there is a full dose of poison in the method adopted. (Hear, Hear). Therefore, I regret to say that if I lose the affection of the younger brother, I am prepared to lose it because the method he wants to adopt would bring about his death. I would rather lose his affection and keep him alive. If this amendment is lost, we will lose the affection of the younger brother, but I prefer the younger brother to live so that he may see the wisdom of the attitude of the elder brother and he may still learn to have affection for the elder brother. Now, this formula has a history behind it and those who are in the Congress will be able to remember that history. In Congress history this is known as the Mohammad Ali Formula. Since the introduction of separate electorates in this land there were two parties amongst the Muslims. One was the Nationalist Muslims or the Congress Muslims and the other the Muslim League members, or the representatives of the Muslim League. There was considerable tension on this question and at one time there was a practical majority against this joint electorate. But a stage was reached when, as was pointed out by the Mover of this amendment in Allahabad a settlement was reached. Did we stand by that settlement? No. We now have got the division of the country. In order to prevent the separation this formula was evolved by the nationalist Muslims, as a sort of half-way house, until the nation becomes one; we wished to drop it afterwards. But now the separation of the country is complete and you say, let us introduce it again and have another separation. I do not understand this method of affection. Therefore, although I would not have like to say anything on this motion, I think it is better that we know our minds perfectly each other, so that we can understand where we stand. If the process that was adopted, which resulted in the separation of the country, is to be repeated, then I say: Those who want that kind of thing have a place in Pakistan, not here (Applause). Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the seeds of disruption will have no place, no quarter, here, and I must say that plainly enough. (Hear, Hear.) Now, if you think that reservation necessarily means this clause as you have suggested, I am prepared to withdraw the reservation for your own benefit. If you agree to that, I am prepared, and I am sure no one in this House will be against the withdrawal of the reservation if that is a satisfaction to you. You cannot have it both ways. Therefore, my friends you must change your attitude, adapt yourself to the changed conditions. And don't pretend to say "Oh, our affection is very great for you". We have seen your affection. Why talk of it? Let us forget the affection. Let us face the realities. Ask yourself whether you really want to stand here and cooperate with us or you want again to play disruptive tactics. Therefore, when I appeal to you, I appeal to you to have a change in your heart, not a change in the tongue, because that won't pay here. Therefore, I still appeal to you: "Friends, reconsider your attitude and withdraw your amendment". Why go on saying, "Oh, Muslims were not heard; Muslim amendment was not carried". If that is going to pay you, you are much mistaken, and I know how it cost me to protect the Muslim minorities here under the present condition and in the present atmosphere. Therefore, I suggest that you don't forget that the days in which the agitation of the type you carried on is closed and we begin a new chapter. Therefore, I once more appeal t you to forget the past. Forget what has happened. You have got what you wanted. You have got a separate State and remember, you are the people who were responsible for it, and not those who remain in Pakistan. You led the agitation. You got it. What is it that you want now? I don't understand. In the majority Hindu provinces you, the minorities, you led the agitation. You got the partition and now again you tell me and ask me to say for the purpose of securing the affection of the younger brother that I must agree to the same, thing again to divide the country again in the divided part. For God's sake, understand that we have also got some sense. Let us understand the thing clearly. Therefore when I say we must forget the past, I say it sincerely. There will be no injustice done to you. There will be generosity towards you, but there must be reciprocity. If it is absent, then you take it from me that no soft words can conceal what is behind your words. Therefore, I plainly once more appeal to you strongly that let us forget and let us be one nation....." 63. That the amendment proposed by the Muslim members were refused by the Constituent Assembly on the reservation and separate electorate. The matter was again considered by the Constituent Assembly while considering Article 17, i.e., "Conversion from one religion to another brought about by coercion or undue influence shall not be recognized".
That the Speech of Shri R.V. Dhulekar, member of the Constituent
Assembly is very relevant in the context of controversy involved in the
present case, the same is being reproduced below:-
"Mr. President, my opinion is that clause 17 should be retained as it stands. In the present environment, all sorts of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide the country. There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country. Those who have caused the division of our land desire that India may be further divided. Therefore in view of the present circumstances, I think that this clause should be retained. It is necessary that full attention should be paid to this. While on tour, I see every day refugees moving about with their children and I find them at railway stations, shops, hotels, bakeries and at numerous other places. The men of these bakeries abduct these women and children. There should be legislation to stop this. I would request you that an early move should be made to stop all this and millions of people would be saved. I submit that we cannot now tolerate things of this nature. We are being attacked and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that "we constitute a separate nation". These separatist tendencies should be crushed. Therefore, I request that section 17 may be retained in the same form as is recommended by the Advisory Committee."
That in Constituent Assembly debate dated 27th August, 1947 Sri B.
Pocker Sahib Bahadur, a Representative of Muslim from Madras made
following statement:-
".....At present the Muslims are strong and well-organised. Now, if they are made to feel that their voice cannot even be heard in the Legislature, they will become desperate. I would request you not to create that contingency...." (Page 214 of the Constituent Assembly Debates). Aforesaid statement of a Muslim representative was made in the Constituent Assembly debates after partition of the country has taken place. Participating in the debate of the Constituent Assembly, Sri M. Ananthasayanam Ayyangar, a representative of Madras in his speech before the Constituent Assembly stated as follows:- "....In my part of the world, the Madras Presidency, though the Muslims are in a minority, they also joined in this move for separating the country. Have you a responsible for it? Have you a paralled to this carriage that is going on in the Punjab whoever may be responsible for it."
That replying the debates, the President of the Advisory Committee on Minority has made a speech, relevant part of which is being reproduced below:-
"My friends the Mover of this amendment says the Muslim community today is a strong-knit community. Very good, I am glad to hear that, and therefore I say you have no business to ask for any props (Cheers). Because there are other minorities who are not well-organised, and deserve special consideration and some safeguards, we want to be generous to them”.
. That this was the situation at the time immediately after partition coupled with the finding recorded by the Apex Court that Muslim minorities were never regarded as weaker and unprivileged section of the society, but only for a sense of security and confidence minorities were given special treatment.
That in Paragraph 246 of the Eleven Judges' Bench judgment of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka case reported in AIR 2003 SC 356, word minority was defined and it means 'a non-dominant' group.
“It is a relative term and is referred to represent the smaller of two numbers. Considering the controversy of Muslim minority in its entirety, this Court feels it appropriate to consider whether the Muslims in India or in State of Uttar Pradesh are non-dominant group which is the intention of the Constitution of India as held by the Apex Court in Eleven Judges' Bench Judgment in T.M.A. Pai Foundation case (supra) followed by the judgments of the Apex Court reported in 2005 (3) ESC 373, (2003) SCC (6) 697, Islamic Academy of Education and another v. State of Karnataka and others”.
That the Apex Court while considering the case of Jain community claiming as minority has laid down certain principles relating to minority and made observations that such demands may lead to multi-nationalism.
That in this regard Paragraphs 10, 14, 20, 21, 22, 23, 25, 32, 33, 34, 36 of Three Judges' Judgment of the Apex Court in Bal Patil and another v. Union of India and others reported in AIR 2005, SC, 3172 are very relevant, same are being reproduced below:-
"10. The expression 'minority' has been used in Article 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith and worship'. Group of Articles 25 to 30-guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving communities who happen to be in majority and like to gain political power in a democratic form of Government based on election.
“14. On considering the general functions of the Commission enumerated under section 9 which are only illustrative and not exhaustive, the Commission cannot be said to have transgressed its authority in entertaining representation, demands and counter-demands of members of Jain community for the status of 'minority'. Keeping in view the provisions of the Act, the recommendation made by the Commission in favour of the Jains is in the nature of advice and can have no binding effect. The power under Section 2(c) of the Act vests in the Central Government, which alone, on its own assessment, has to accept or reject the claim of status of minority by a community.
“20. The history of the struggle for Independence of India bears ample testimony of the fact that the concept of 'minorities' and the demands for special care and protection of their religious and cultural rights arose after bitter experience of religious conflicts which intermittently arose in about 150 years of British Rule. The demand of partition gained momentum at the time the Britishers decided to leave by handing over self-rule to Indians. The Britishers always treated Hindus and Muslims as two different groups of citizens requiring different treatment. To those groups were added Anglo-Indians and Christians as a result of large-scale inter-marriages and conversions of several sections of communities in India to Christianity. Prior to passing of the Independence Act of India to hand over self-rule to Indians, Britishers in the course of gradually conceding some democratic right to Indians, contemplated formation of separate constituencies on reservations of certain seats in Legislature in proportion to the population of Hindus and Muslims. That attempt was strongly resisted by both prominent Hindu and Muslim national leaders who had jointly and actively participated in the struggle for independence of India.
“21. The attempt of the Britishers to form separate electorates and make reservations of seats on the basis of population of Hindus and Muslims, however, ultimately led to revival of demand for reservation of constituencies and seats in the first elected Government to be formed in free India. Resistance to such demands by Hindu and some Muslim leaders ultimately led to partition of India and formation of separate Muslim State presently known as Pakistan.
“22. Many other revelations concerning competing claims for reservation of seats on religious basis can be gathered from the personal diary of prominent national leaders late Abdul Kalam Azad. The diary was made public, in accordance with his last wish only after 25 years of independence. The publication of Azad's diary made it necessary for constitutional expert H.M. Seervai to re-write his chapter under caption 'Partition of India - Legend and Reality' in his book on 'Constitutional Law of India'. Many apprehensions and fears were expressed and disturbed the minds of the Muslims. They thought in democracy to be set up in India, the Hindus being in majority would always dominate and retain political power on the basis of their voting strength. There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights. Abdul Kalam Azad acted as mediator in negotiations between the national leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali on the other. Nehru and Patel insisted that in the new Constitution, there would be one united India belonging to people of various religious faiths and cultures with all having full freedom of their social, cultural religious and other constitutional rights. They advocated one single citizenship to every Indian regardless of his language or religion. The opposing group of Muslim leaders, in the interest of members of their community, insisted on providing to them participation in democratic processes proportionate to their ratio of population and thus counter-balance the likely domination of Hindu majority. They also insisted that separate electorate constituencies based on their population be formed and seats be reserved for them in different parts of India. Late Abdul Kalam Azad tried his utmost to find a midway and thus break the stalemate between the two opposing groups but Nehru and Patel remained resolute and rejected the proposal of Jinnah and Liaqat Ali. The tragic result was that provinces with the highest Muslim population in the erstwhile States of Sindh, Punjab and Baluchistan had to be ceded to form a separate theocratic nation - Pakistan. See the following paragraph 1,314 at pg. 153 of 'Constitutional Law of India' by H.M. Seerval, Fourth Edition, Vol. I:- "1,314. Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it. Further, Azad had played a leading part in providing a framework for the Constitution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united. However, Gandhi accepted partition instead, Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition."
“23. It is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them special guarantee and protection of their religious, cultural and educational rights. Such protection was found necessary to maintain unity and integrity of free India because even after partition of India, communities like Muslims and Christians in greater numbers living in different parts of India opted to continue to live in India as children of its soil.
“25. Parsis constituted a numerically smaller minority. They had migrated from their native State Iran and settled on shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilating themselves into the Indian population.
“32. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of Constitution and later in the course of its working, History tells us that there were certain religious communities in India who were required to be given full assurance of protection of their religious and cultural rights. India is a country of people with the largest number of religions and languages living together and forming a Nation. Such diversity of religions, culture and way of life is not to be found in any part of the world. John Stuart Mill described India as "a world placed at closed quarters". India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain integrity of the country. It was not in contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. the only birth in India. We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.
“33. The constitution ideal, which can be gathered from the group of articles in the Constitution under Chapters of Fundamental Rights and Fundamental Duties, is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.
“34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels. Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes. If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensure. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multi-nationalism in various sections of people of Bharat.
“36. These concluding observations were required after the eleven-Judges' Bench in TMA Pai Foundation case (supra) held that claims of minorities on both linguistic and religious basis would be each State as unit. The country has already been reorganized in the year 1956 under the States Reorganization Act on the basis of language. Differential treatments to linguistic minorities based on language within the State is understandable but if if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based multi-nationalism. Our concept of secularism, to put it in a nutshell, is that 'State' will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship."
In view of the judgment of the Apex Court in Bal Patil case (supra) after considering T.M.A. Pai Foundation case, it is clear that intention to provide minority status was to remove sense of insecurity and lack of confidence in the mind of Muslim and other religious communities at the time of partition of India and further the Apex Court cautioned the country not to create a theocratic State based on multi-nationalism and refused to recognise Jain as a minority.
That Considering the matter in its entirety, criterion for minority, i.e., population and strength and also judgments of the Apex Court referred above that the intention was to provide protection to a non-dominant group, this Court is of the view that at present Muslim religious community in U.P. is not a religious minority as there is no sense of insecurity or lack of confidence prevailing amongst them in present scenario. According to the finding of the Apex Court in T.M.A. Pai Foundation case (supra) that Muslim minority is not weaker or unprivileged section of the society.
That the Appellants may be permitted to place the note on minority children in Parashiva Primary School as per the Government India instructions and the letter issued by the Govt. Of India Ministry of Human Resources Department to State Project Direction U.P. Education for all projects. The aforesaid correspondence is filed herewith in order to demonstrate that the same is inconsistence to the constitutional committee debate as there is the difference between Parliamentary discussions and that of the aforesaid debate, on the basis of which, Constitution of India was adopted by the Govt. of India prior to its becoming the Republic Day on 26th January, 1950.
That the Appellants most respectfully submits that by the bare reading of Article 343, Article 344, Article 351 and Article 394-A and Schedule VIII of the Constitution of India as well as preamble of our constitution, an attempt is made in the society as a multi-religious and multi-linguistic – caste ridden Indian, the competence of the court to try the question of the public importance, which arose to the public at large as the affected party, it has been held in case of Guruvayoor Devasvour Managing committee and another Vs. C.K. Ranjan (2003) 7 S.C.C. 546, Shivaji Rao Nilangekar Patil Vs. Dr. Mahest Madhav Gasavi as referred in this judgement and Rakesh Lanka and another Vs. Rishi Dixit (2005) 5 S.C.C. 298 and Prahlad Singh Vs. Col. Sukhdeo Singh 1987 (1) S.C.C. page 727 General Manager Kisan Sahakari Chini Mills Sultanpur Vs. Shatrughan Nishad A.I.R. 2003 S.C. 4531, the said question may be decided in order to protect the Rule of Law in the Society, otherwise it may erode the vary foundation on the basis of which our democratic institution has been founded with the power given to the constitutional court for judicial review of the administrative/ quasi judicial action. The case of U.P. Gram Panchayat Adhikari Sangh Vs. Daya Ram Saroj 2007 (2) S.C.C. 138, is not applicable for setting aside the judgement passed on 14.9.2007.
That it is, therefore, most respectfully prayed that the present appeal may be allowed and they may be permitted to place their submissions for the protection of their rights as the conversion of the trainees of general subjects to the Urdu subject trainees having the proficiency in the said language in special B.T.C. training course-2004 granted to such individuals on the basis of Govt. Order dated 16.2.2005, 18-3-2006 and 15.9.2006 and the advertisement thereof is an action without jurisdiction and the same is ultra-vires a fraud and colourable exercise of power of the State Govt., which has rightly been dealt with in the judgement dated 14.9.2007 challenged in the present special appeal.
The following questions of the law arises for consideration by this
Hon'ble Court:
A) Whether the ratio of the judgement of Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka, AIR 2003 SC 356, having considered report of the Advisory Committee on minority placed in the Constituent Assembly may be overruled by the Impugned Judgement?.
B) Whether the learned Single Judge was not competence to try the question of the public importance in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 ?.
C) Whether the learned Single Judge was not justified in passing the judgement dated 14.9.2007 in Writ Petition no. 44085 of 2006 on the basis of Article 343, Article 344 Article 351 and Article 394-A readwith Schedule VIII of the Constitution of India?.
D) Whether the Government orders dated 16.2.2005, 18.3.2006 and order dated 15. 9.2006 are not illegal and inoperative and a fraud with a colourable exercise of jurisdiction without having the Concurrence from National Council for Teachers Education, Northern Region, Jaipur in conformity with requirement of section 15 of the National Council Teacher’s Education Act, 1993?.
E) Whether the amendments made to Rule 8 (5) vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006 as no amendment is recorded in Rule 5 of aforesaid Rules for Urdu language Teacher, which place down the source of recruitment, may authorize the State Govt. for conversion of the 13189 posts of general subjects to Urdu medium trainer?.
F) Whether the amendment of clause 9 (a) of Rule 5 read-with Rule 8 – Clause (4) as referred to in clause (a) and sub clause (iii) and (iv) of clause (b) of Rule 5 of “ The U.P. Basic Education (Teachers) Service Rules (Eleventh Amendment) 2006” is not violative of Article 246 and Article 254 in absence of Sanction of Central Govt.?.
G) Whether the basic Structure of our Constitution including the preamble of our constitution may be subjected to be reviewed by Article 350- A for implementing the proposed recommendations of Sachhar Commission prior to it’s implementation in State of U.P.?.
H) Whether the Hon’ble Court shall not provide endeavored to avoid Indian multi-religious and multi-linguistic – caste ridden Conflicts in Our Society, which was done by the Judgement of Learned Single Judge dated 14.09.2007 in Writ petition No. 44085 of 2006?.
Reserved Civil Misc. Writ Petition No. 44085 of 2006 Km. Sumbul Naqvi .....Petitioner Vs. State of U.P. and others ..... Respondents Along with connected Writ Petition Nos. 23362/05, 41406/05, 63306/06, 63336/06, 63245/06, 56175/06, 64115/06, 64174/06, 64853/06, 64860/06, 65029/06, 65091/06, 55762/06, 66003/06, 66132/06, 66895/06, 67549/06, 67143/06, 67253/06, 67725/06, 67822/06, 45381/06, 65285/06, 68529/06, 68792/06, 68912/06, 68916/06, 68849/06, 69070/06, 70245/06, 51409/06, 58479/06, 47044/06, 60007/06, 60389/06, 60296/06, 60520-06, 61459-06, 61770/06, 70783/06, 70338/06, 70117/06, 8571/07, 340/07, 14799/07, 760/07, 785/07, 1072/07, 7732/07, 5681/07, 6866/07, 3712/07, 5588/07, 2444/07, 5076/07, 3039/07, 3206/07, 1866/07, 1851/07, 24382/07, 9829/07, 14025/07, 14228/07, 23837/07, 23809/07, 22788/07, 21792/07, 14592/07, 8320/07. HON. ARUN TANDON, J. The State of U.P. took a decision on 16.2.2005 to conduct two years Special B.T.C. Training Course (Urdu) for appointment of Assistant Teachers Urdu, against 3000 posts, said to be lying vacant in various institutions situate throughout the State established by the Basic Shiksha Parishad U.P., Allahabad. In pursuance to the decision so taken an advertisement was published by various District Authorities inviting applications from the prospective candidates for being enrolled for admission to Special B.T.C. Training Course. The qualifications prescribed for being admitted to the said course, were prescribed as graduate, with Urdu as one of the subjects in Intermediate and High School Examinations or a graduate degree from recognized University established by law in India with High School and Intermediate without Urdu but having passed the said examinations in Urdu as additional subject or any other examination in Urdu declared equivalent thereto. The relevant condition of the advertisement reads as follows: "1- 'kSf{kd ;ksX;rk% fo'o foky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo0@egkfoky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V nksuksa ijh{kk,a mnwZ fo"k; ds lkFk mRrh.kZ dh gksa vkosnu djus ds ik= gksaxs A fo'ofoky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo@egkfoky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V ijh{kk fcuk mnwZ fo"k; ds mRrh.kZ dh gks vkSj mlds lkFk jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kk cksMZ@laLFkk ls gkbZ Ldwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ dh gks vFkok gkbZLdwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ u gksus ij] gkbZLdwy ,oa baVjehfM,V dh ijh{kk ds lkFk mnwZ izoh.krk laca/kh ek/;fed f'k{kk ifj"kn] m0iz0 vFkok m0iz0 jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls lacaf/kr ijh{kk (gkbZLdwy Lrj ij vnhc rFkk baVjehfM,V Lrj ij vnhc&,&ekfgj ijh{kk] tkfe;ka mnwZ vyhx< eaf="ifj" i=" vkeaf="r" nk="o`fRr" eaf="ifj">s ;g dgus dk funsZ'k gqvk gS fd m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr foky;ksa esa mnwZ fo"k; esa izoh.krk j[kus okys lgk;d v/;kidksa dh deh dks n`f"Vxr j[krs gq, csfld f'k{kk ifj"kn ds vUrxZr lgk;d v/;kid ds cMh la[;k esa fjDr inksa esa ls 5000 inksa dks O;kofrZr djrs gq, Jh jkT;iky }kjk lE;d fopkjksijkUr mDr inksa gsrq Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dks nks o"khZ; ch-Vh-lh- mnwZ ds fo'ks"k ijh{k.k ds vk;kstu dh Lohd`fr iznku dh tkrh gS A rnuqlkj tuinokj fjfDr;ksa@inksa dk fooj.k@lwph layXu gS A 2- mijksDrkuqlkj vH;fFkZ;ksa ds p;u gsrq fuEukuqlkj izfdz;k viuk;h tk;sxh & The Court may record that for conversion of the post from general subject teachers to Urdu teachers and further for payment of stipend at the rate of Rs. 2,500/- to the candidates enrolled for Special B.T.C. Training Course, against these converted posts necessarily required the approval of the Finance Department in view of Rules 3 and 7 of the Rules of Business, 1975, which was not done nor the note was placed before the Cabinet for its approval. Thereafter, another note was put up by the Secretary Basic Education, whereby additional 5,000 (Five thousand) posts of Assistant Teachers general subjects were sought to be converted to that of Assistant Teacher with proficiency in Urdu. The note is said to have been approved by the Minister alone. After approval of the Minister the Government Order dated 05.09.2006 had been issued which is more or less identical to the Government Order dated 18.03.2006, quoted above. In respect of this Government Order dated 05.09.2006 the approval of the finance department was not obtained nor it was placed before the Cabinet. Therefore, there had been substantial violation of the provisions of Business Rules of 1975. However, according to the Advocate General the procedural defects in that regard stand cured in view of the cabinet decision dated 15.01.2007, whereby all the decisions qua conversion of posts, as well as payment of stipend etc to special B.T.C. Urdu trainees had been ratified. The Court may, therefore, not deal with the issue any further. It is accepted that a decision was taken by the State Government to convert 10,000 (Ten thousand) posts of Assistant Teachers (general subjects) to that of Assistant Teachers, having proficiency in Urdu, for appointment in Basic institutions run and managed by the Basic Education Board. The Court has now to examine as to whether the decision arrived at by the State Government, for conversion to such large number of posts of Assistant Teachers (general subjects) i. e. 10,000 in number to that of Assistant Teacher with proficiency in Urdu, is legal, fair, just and based on valid material facts or is arbitrary, without any basis and contrary to statutory Rules. The issue with regard to medium of instruction qua teaching in basic schools established by the Basic Shiksha Parishad U.P., Allahabad may be examined with reference to U.P. Basic Education Act, 1972 and rules and regulations framed there under. Section 3 of the Act provides for the constitution of the Board. Section 4 lays down the functions of the Board. Sub-section 2 of Section 4, relevant for our purposes, reads as follows: "4. Function of the Board. (1)............... (2). Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power- (a) to prescribe the courses of instruction and books for basic education and teachers' training therefor; (b) ........... (c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board. (cc) ............ (d) to exercise supervision and control over basic schools, District Institute of Education and Training, basic training certificate units and the State Institute of Education. (e) ............. (f) ............ (g) ............ (g-1) ............ (g-2) ............ (h) ............ Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act." Section 5 lays down that the conduct of business of the Board shall be in accordance with the regulations to be framed by the Board with the approval of the State Government. Section 6 of the Act confers a power upon the Board to make appointment of officers, teachers and other employees as it may be deem fit, with the previous approval of the State Government. Section 13 of the Act confers a power upon the State Government to issue directions to the Board for carrying out its decisions as may be issued from time to time for the efficient administration of the Act. Section 19 of the Act confers a power upon the State Government to make rules for carrying out the purposes of the Act. Sub-sections 2(a) and 2 (c) of Section 19, relevant for our purpose, read as follows: "19(2)(a). the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6. (c). the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board." In exercise of powers under Section 19 of the Act the State Government has framed Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Rule 2(j) of the 1981 Rules defines "Nursery School" as schools where students are taught in classes lower than class I. Rule 2(h) defines "Junior Basic School" to mean institutions where instructions from classes I to V are imparted, while Rule 2(i) defines Senior Basic Schools to mean institutions where education from Classes VI to VIII is imparted. Thus under the said rules institutions established by the Board have been divided into three categories (a) Nursery Schools (imparting education in classes lower than I), (b) Junior Basic Schools (imparting education from classes I to V) and (c) Senior Basic Schools (imparting education from classes VI to VIII). Sources of recruitment of teachers for appointment in the said three category of institutions have been provided for under Rule 5 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Mistresses of Nursery Schools, Assistant Masters and Assistant Mistresses of Junior Basic Schools are required to be appointed by direct recruitment in accordance with Rules 14 and 15. Assistant Masters in Senior Basic Schools and Assistant Mistresses of Senior Basic Schools are required to be appointed by way of promotion in accordance with Rule 18. Rule 5 of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 reads as follows: "5. Sources of recruitment. - The mode of recruitment to the various categories of posts mentioned below shall be as follows: (a) (i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15; (ii) Assistant Masters and Assistant By direct recruitment as Mistresses of Junior Basic Schools provided in Rule 14 and 15; (b)(i) Headmistresses of Nursery By promotion as provided in Schools Rule 18 (ii) Head Masters and Head Mistresses By promotion as provided in of Junior Basic Schools Rule 18 (iii) Assistant Masters of Senior Basic By promotion as provided in Schools Rule 18; (iv) Assistant Mistresses of Senior By promotion as provided in Basic Schools Rule 18; (v) Head Masters of Senior Basic By promotion as provided in Schools Rule 18; (vi) Head Mistresses of Senior Basic By promotion as provided in Schools Rule 18; Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15." It is thus apparent that under the aforesaid rules appointment on the post of Assistant Mistresses in Nursery Schools (classes lower than 1) and Assistant Masters and Assistant Mistresses of Junior Basic Schools (classes I to V) run and managed by the Basic Shiksha Parishad U.P., Allahabad are required to be appointed by direct recruitment only. On all other posts, including that of Assistant Masters of Senior Basic Schools and Assistant Mistresses of Senior Basic Schools (classes VI to VIII), appointment is to be made by way of promotion under Rule 18. Only in case qualified teachers for promotion are not available, direct recruitment can be resorted to. In view of the aforesaid rules, it is apparently clear that direct recruitment is to be resorted to only in respect of appointment of Assistant Teachers in Nursery Schools i. e. where education below to class I is imparted and for appointment of Assistant Teachers in Junior Basic Schools i. e. where education up to classes I to V is imparted. From the affidavit filed by Sri Banwari Lal Gautam as well as from the order of the Director, State Council of Educational Research and Training, U.P. Lucknow dated 10.10.2006 as well as from the syllabus pertaining to Junior Basic Schools/Primary Schools filed as Annexure C.A.-2 to the affidavit of Sri Banwari Lal Gautam, it is established that Urdu is not being taught even as a language in the Nursery Schools nor in the Junior Basic Schools. Therefore there can be no direct recruitment of Urdu Language Teachers for Primary School/Junior Basic School. Urdu is being taught as a language subject only in Senior Basic Schools i. e. where education is being imparted from classes VI to VIII. Appointment on the posts of Assistant Master and Assistant Mistress in Senior Basic Schools is required to be made by way of promotion under Rule 18 of the 1981 Rules. However, proviso to Rule 5 clarifies that if suitable candidates are not available for promotion as Assistant Master of Senior Basic Schools or Assistant Mistress of Senior Basic Schools, appointment may be made by direct recruitment in the manner laid down in Rule 15. Rule 8 lays down the essential qualification prescribed for appointment on the post referred to in Rule 5 of 1981 Rules. For our purpose sub-rule (4) of Rule 8 is relevant, which reads as follows: "Rule 8(4). The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clauses (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows: (i) Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto with Urdu as one of the subjects. Note- A candidate who does not possess the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's Degree in Urdu. (ii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recongised by the Government as equivalent thereto." From the rules, it is apparently clear that the vacancies on the post of Assistant Masters/Assistant Mistresses of Senior Basic Schools has to be made by way of promotion at the first instance in accordance with Rule 18 and it is only when that suitable candidates are not found available for such promotion that direct recruitment under Rule 15 can be resorted to. For ready reference Rules 15 and 18 read as follows: "15. Notification of vacancies and preparation of list of eligible candidates for certain posts of Assistant Masters/Mistresses of Senior Basic Schools.-(1) In respect of an appointment by direct recruitment to the post of Assistant Master or Assistant Mistress of Senior Basic Schools under the proviso to Rule 5(b) the appointing authority shall notify every vacancy to the Employment Exchange and also in at least one newspaper having adequate circulation in the locality. (2) The appointing authority shall scrutinise the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange in pursuance of the vacancy notified under sub-rule (1) and shall thereafter, prepare a list of such persons as appear to possess the prescribed educational qualifications and be eligible for appointment. The order in which name of eligible persons shall appear in the list shall be as prescribed under sub-rule (4) of Rule 14. (3) The list prepared under sub-rule (2) shall be forwarded by the appointing authority of the Selection Committee constituted under Rule 16. 18. Procedure for recruitment by promotion.- (1) Recruitment by promotion to the posts referred to in clause (b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16. (2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection Committee along with their character rolls and such other records pertaining to them as may be considered proper. (3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in sub-rule (2). (4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub-rule (2) and forward the same to the appointing authority." With regard to teachers to be appointed for teaching language subject i. e. Hindi and Urdu, Rule 17 provides that the candidates, included in the list prepared under Rule 14(6) or Rule 15 will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified. Rule 17 (1) and (2) relevant for all purposes reads as follows: "17. Procedure for direct recruitment to a post for teaching a language.- (1) The Selection Committee shall require the candidates mentioned in the lists referred to in sub-rule (6) of Rule 14 sub-rule (2) of Rule 15, as the case may be, to appear at a written examination which shall be of one hundred marks. (2) In the written examination under sub-rule (1), the candidates will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified for appointment." From the scheme of the Rules of 1981, it is apparently clear that appointment as Language Teacher (Urdu in the facts of the present case) in Senior Basic Schools is required to be made at the first instance by way of promotion under Rule 18. In case requisite number of teachers are not found available for such promotion, direct recruitment with reference to Rule 15 read with Rule 17 can be resorted to. The Rules of 1981 do not contemplate appointment of any teacher at any level of the school for teaching other subjects through the medium of Urdu. This Court may record that neither the Advocate General nor the counsel for the Basic Education Board could refer to any decision of the Board to impart education in the institutions established by it through the medium of Urdu. This Court may further record that in all the Basic Institutions established by the Board education is being imparted in the other subjects through the medium of Hindi only. Despite specific query being made to the respondents, no evidence could be produced before this Court, which could establish that education is being imparted in any institution established by the Board under Basic Education Act through the medium of Urdu nor any examination paper of any class could be produced by the State for establishing teaching of other subjects through the medium of Urdu Language. From the syllabus enclosed as Annexure-CA-1 and CA-2 to the affidavit of Sri Banwari Lal Gautam, it is established beyond doubt that Urdu is only being taught as a language subject in Senior Basic Schools i. e. Classes VI to VIII. It may be recorded that Urdu is not even being taught as a language in Classes I to V or at the Nursery level to the students nor it is included in the syllabus. In this legal and factual background, the note put up before the State Government by the Secretary, Secondary Education, if examined, would establish that the Secretary of the Department in his note dated 9th February, 2005, has not stated anywhere that requisite number of persons for teaching Urdu language in Senior Basic Schools (which is required to be filled by way of promotion) are not available. On the contrary without referring to the statutory rules applicable for appointment of Assistant Teachers in Senior Basic Schools for Urdu language subject, it was suggested that there is shortage of 3,000 teachers for imparting education in the subject of Urdu as a result whereof it is necessary that special two years B.T.C. programe be initiated and for the said purpose relaxation in the prescribed qualification of graduation with Urdu as per Rule 4 of 1981 rules was suggested. Thus the sole purpose of the aforesaid note put up by the Secretary was that the essential qualification of graduation with Urdu be relaxed and in its place graduate candidates, having Urdu as one of the subjects in High School and Intermediate Examination or equivalent thereto may be permitted to undergo the Special B.T.C. Training for appointment as teachers in Basic Schools (which as already noticed above would mean Senior Basic School only) for imparting education in the language of Urdu. The aforesaid note specifically refers to the teachers to be appointed for imparting education in the language of Urdu, which is one of the language subject in Senior Basic Schools only. It is with reference to the note so put up by the Secretary of the Basic Education, the Finance Department of the State has granted its concurrence in the background that teachers may be appointed for teaching the language of Urdu and for the said purpose Special B.T.C. (Urdu) Training Course be started and the candidates selected be paid stipend during the period of training. This Court may record that unless and until an exercise was under taken by the authority concerned to fill up the vacancies existing on the posts of Assistant Masters and Assistant Mistresses (Urdu) by way of promotion, the process of direct recruitment or any recruitment for admission to Special B.T.C. Course could not have been started, inasmuch as direct recruitment can be resorted to only if the requisite number of vacancies can not be filled by way of promotion under Rule 18. It may also be recorded that absolutely no material was placed before the Court as to in which institutions teachers, for imparting education in Urdu language, were not available, where the students have opted for Urdu as a language subject but such education could not be imparted for want of Urdu language teacher. The position becomes worst on examination of the Government Orders dated 18th March, 2006 and dated 15th September, 2006. The Government Order, which has been reproduced herein above, clearly demonstrate that the Secretary of the Department has tried to mislead the authorities concerned by falsely suggesting that there was requirements of 10,000 (5000 +5000) additional Urdu Teachers for appointment in Basic Schools established by the Basic Shiksha Parishad U.P., Allahabad. It is admitted on record that Urdu is not being taught as a language in Nursery Schools and in Junior Basic Schools . There can be no requirements of Urdu Teachers in these two categories of institutions. The only category of institutions where Urdu is being taught as language are the Senior Basic Schools. There is nothing on record to establish that there was a requirement of any additional 10,000 teachers for imparting education of Urdu language to the students of these institutions even the number of such Senior Basic Schools has not been disclosed. Therefore, the Secretary of the Basic Education, while putting up note dated 18.03.2006 and dated 15.09.2006 has misled the authorities and has given only half information while seeking conversion of 10,000 (Ten Thousand) posts from other subjects to that of Urdu teachers. The Secretary was aware that the requirement projected by him of 10,000 additional teachers, as per note date 18.03.2006 and dated 15.09.2006, was based on incorrect facts, he has therefore made an attempt to justify the wrong information supplied by him, by suggesting that a decision has been taken to impart education in other subjects through the medium of Urdu, and for this stand the Secretary, the Director, State Council of Educational Research and Training, U.P. Lucknow by means of her supplementary affidavit, sworn on 22nd November, 2006, in paragraph 4 stated before this Court that Assistant Teachers with proficiency in Urdu are the persons who will teach other subjects through Urdu medium to students of Classes I to VIII, who belong to linguistic minority and their mother tongue is Urdu. This Court is sorry to record that the statement so made is false and misleading, the reasons for the same may be summarized as follows: (a) At no point of time the Basic Education Department has taken any decision with reference to Section 4 of the Basic Education Act for instructions in Basic Schools (Nursery) (Classes I to V) and (VI to VIII) through the medium of Urdu language. (b) Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 contemplate appointment of language teachers for teaching Urdu as a subject only and not of teachers for teaching other subjects through the medium of Urdu. (c) From the syllabus, as brought on record before this Court in respect of the Nursery Schools and Junior Basic Schools, it is established that the Urdu is not even being taught as a language at that level. This Court fail to understand that when Urdu is not even being taught as a language, how could other subjects be taught through the medium of Urdu. (d) So far as the Senior Basic Schools (where education from classes VI to VIII is being imparted) are concerned, Urdu language is only one of the subjects and for appointment of Urdu Language Teacher separate qualifications as per Rule 8(4) read with Rule 17, have been provided for. Reference may also be had to the provisions of The Uttar Pradesh Board of Madarsa Education Act, 2004, which provides a complete code including the constitution of the Board for regulating the power to regulate the courses of instructions text books etc. from classes Tahtania to the degree of Fazil, as well as to prescribe the books for instruction of course for Arbi, Urdu and Farsi up to High School and Intermediate classes in accordance with the course determined by the Board of High School and Intermediate. Further the recognized Arbi Tatha Farsi Madarsas are regulated under the provisions of the Uttar Pradesh Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987. These provisions take care of institutions where teaching is required through the medium of Urdu language. The Court may now take note of the amendments, which have been made vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006. It is recorded that absolutely no amendment has been made in Rule 5 of the 1981 Rules, which lays down the sources of recruitment and therefore the mode and manner of appointment of Urdu Language Teacher in Senior Basic Schools continues to be same even after amendment. The State respondents, without having regard to the provisions of the aforesaid rules, have hurriedly made amendments in Rule 8 by adding Clause 5 (vide Amendment Rules of 2006), which reads as follows: "8(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause(a) of rule-5 for teaching in Urdu medium shall be as follows: (i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government. (ii) Training Qualification of two years B.T.C. Urdu special training course." From a bare reading of the aforesaid clause it is apparently clear that it applies only in respect of Assistant Masters/Assistant Mistresses to be appointed by direct recruitment in Junior Basic Schools (covered by Rule 5 (a)(ii) of the 1981 Rules. As already noticed above, Urdu is not being taught as a subject in Nursery Schools or in Junior Basic Schools i. e. Classes I to V, how can education in other subjects be imparted through the medium of Urdu in such Junior Basic Schools. It appears that there has been complete non-application of mind to the Rules of 1981 while notifying the amended Rules of 2006. The amendments have been suggested with the sole purpose of justifying the academic qualifications mentioned in the advertisement. The Basic Education Board has not taken any decision till date to provide Urdu as the medium of instructions in respect of subjects to be taught in Nursery/Junior Basic Schools nor any syllabi in that respect has been prepared or is available on records. As a matter of fact teaching through the medium of Urdu is not even contemplated by Basic Education Board in the institutions established by it till date. Therefore, it is established that in no institution established by the Board other subjects are being taught through the medium of Urdu. Therefore, the conversion of 10,000 (Ten Thousand) posts of other subjects to those of Assistant Teachers with proficiency in Urdu, as has been directed under the order of the State Government, is based on incorrect facts to the extent of being arbitrary and uncalled for. This Court, therefore, holds that there is no requirement of 10,000 additional teachers for imparting education through the medium of Urdu in Basic Schools established by the Board. The stand taken by the Secretary of the Basic Education is patently false and misleading. The Advocate General justifies the decision of the conversion of the posts on the plea that in accordance to national policy of educating children in their mother tongue it is necessary to have teachers with proficiency in Urdu to teach other subjects in the Urdu language i. e. mother tongue of large number of students studying in various Basic Schools of the Board. However, laudable the object of the policy decision of the State may be for conversion of the 10,000 posts to that of teachers with proficiency in Urdu, such policy decision has to be in conformity with the statutory rules, which regulate the appointment of teachers in Basic Schools and not in derogation thereof. The Hon'ble Supreme Court in its recent judgment in the case of State of Orrisa & Ors. vs. Prasana Kumar Sahoo; 2007 AIR SCW 4604, in paragraph 14 has held as follows: "14. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules for less the constitutional provisions." This Court may now examine the most important aspect of the matter i.e. as to whether the Special B.T.C. Course (Urdu), as advertised, could in fact be started by the State authorities in District Institute of Education and Training established in all the districts of the State. It is admitted to the parties that under Section 14/15 of the National Council for Teacher Education Act, 1993 no institution can offer a course of training in teachers education until it has been granted such recognition by the National Council for Teacher Education. Section 16 of the Act categorically provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day granted affiliation, or hold examination for a course of teachers training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15. This Court, therefore, required the Advocate General as well as Secretary of the Basic Education to explain as to whether the Special B.T.C. Training Course (Urdu) has been granted recognition/approval under Sections 14/15 of the National Council for Teacher Education Act by the Regional Committee or not. Reply to the query made by the Court has been answered by way of affidavit filed by the Secretary of the Department and in paragraphs 3, 4, 5 and 6 it has been stated as follows: "3. That the Hon'ble Court by order dated 20.2.2007 directed the State Government for furnishing the following information: (a) Copy of the Course approved by the National Council for Teacher Education Act (for short N.C.T.C.) for Special Basic Training Course of two years. The contents of the course may also be disclosed. (b) Copy of the letter forwarded by the Secretary to the National Council for Teacher Education order dated 16.2.2005. (c) The academic qualification possessed by the teachers of present working in various District Institute of Education Training in the all districts of State of U.P. with specific reference of knowledge of Urdu possessed by such teachers." 4. That so far as the Ist query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is necessary to clarify here that there is no course of Special BTC Training for two years. In fact the Special BTC Training Course of 6 months training was introduced by the State Government for the first time in the year 1998 and secondly in the year 2004. The duration of Regular BTC Training Course is of two years and similarly the duration of Special BTC Urdu Training Course is also of two years. So far as approval of course for Special BTC two years Training is concerned, it is necessary to submit here that the contents of BTC Training Course (Regular) and Special BTC two years Urdu training Course is the same. The contents of Two years Special Urdu BTC Training Course is just a Urdu transcript of that of Regular BTC Training Course. Photocopies of both course and a copy of comparative status of the both the contents are being annexed as Annexure No. S.A.-1 & 2 to this affidavit. 5. That so far as the IInd query made by this Hon'ble Court by order dated 20.2.2007 relating to letter of Secretary, Basic Education to the NCTE is concerned, a copy of the letter dated 16.2.2005 sent by the Secretary, Basic Education U.P. to the NCTE as well as letter issued by NCTE dated 25.5.2006 are being annexure as Annexure No. S.A.-3 & 3-A to this affidavit. 6. That so far as the IIIrd query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is submitted that the District Institutes of Education and Training in the State of U.P. have been established with the object to organize pre-service (BTC) and in-service course for elementary school teachers, and they have sufficiently, qualified staff to conduct these course. The purpose of training is to develop the pedagogical skills among the trainees. The efficiency of the DIET staff is regularly streamlined through various orientations and factually development courses. The BTC Urdu Special Training Course is same as the BTC Course being conducted since long as such training pedagogy for the two courses are the same. That is why the National Council for Teacher Education has identified the BTC Urdu Course as a part of the BTC Regular Course. The DIETs in the State of U.P. have the competent staff to provide the training of the BTC Urdu Training Course. However as per direction issued by this Hon'ble Court dated 20.2.2007 infuriation were sought from all the DIETS with respect to the teachers having knowledge of Urdu. A detail chart was prepared after information received from the different DIETs in relation to the teachers having knowledge of Urdu. A copy of the said chart is being annexed as Annexure No. S.A.-4 to this affidavit. Counsel for private respondents has only adopted arguments made on behalf of the State respondent, no submission in addition there to have been made. The Advocate General, with reference to the affidavit filed by the Secretary, Basic Education U.P., Lucknow dated 11.01.2007 (relevant portion whereof has been quoted above), stated that B.T.C. Training Course (Regular) which is to be offered by the District Institute of Education and Training, and Special B.T.C. Two Years Urdu Training Course now to be introduced are one and the same. The only change pointed out is that Urdu transcript of the Regular B.T.C. Training Course is to be used as the contents of two years Special B.T.C. Training Course Urdu, Therefore no separate approval under Sections 14/15 of the National Council for Teacher Education Act is required. Reliance has also been placed on the letter of the Secretary dated 16th February, 2006 addressed to the National Council for Teacher Education and reply received in that regard dated 25.05.2006. Under order of this Court dated 12.03.2007 Sri K.S. Kushwaha Standing Counsel was directed to produce the entire records pertaining to the correspondence in respect of the Special B.T.C. Course (Urdu) entered into between the Basic Education Department of the State of U.P. and National Council for Teacher Education, Northern Region, Jaipur. The records have been produced before this Court and have been examined. The records present a very disturbing picture. Despite opportunity none of the respondents made any attempt to explain the correspondence which exists on record. The Court may record that the Highest Constitutional Authority representing the State namely Advocate General as well as the Secretary of Basic Education have referred to only half facts in their oral submissions as well as in their affidavit respectively. In view of the Paragraph 4 to 6 of the affidavit of the Secretary, quoted above, an argument was vehemently made before the Court that National Council for Teacher Education has informed that no recognition in respect of Special B.T.C. Course (Urdu) is required. The original records, disclose facts, which are in complete divergence to the stand so taken, as is clear from the following: (a) The Secretary Basic Education forwarded a letter to the Regional Director, National Council for Teacher Education, Northern Region, Jaipur dated 16th February, 2005 stating therein that the State Government has taken a decision to admit 3000 (Three Thousand) students for B.T.C. Urdu Two Years Special Training. Such training was earlier available in District Institute of Education and Training at Varanasi, Meerut, Lucknow and Agra, which have since been closed since 1997-98. Because of this a difficulty has arisen qua appointment of Urdu Teachers in Basic institutions. Therefore it was requested that approval be granted to the B.T.C. Urdu Two Years Special Training Course. This letter does not refer to any particular institution or course through which such training was to be imparted. It is worthwhile to reproduce the letter, which reads as follows: "izs"kd ts0,l0 nhid lfpo] mRrj izns'k 'kklu A lsok esa] {ks=h; funs'kd] mRrj {ks=h; lfefr jk"Vz~h; v/;kid f'k{kk ifj"kn t;iqj A f'k{kk vuqHkkx&5 y[kum% fnukad 16 Qjojh] 2005 fo"k;% ch0Vh0lh0 (mnwZ) ds f}&o"khZ; fo'ks"k izf'k{k.k gsrq vuqefr iznku djus ds laca/k esa A egksn;] mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed foky;ksa esa lgk;d v/;kidksa ds in cMh la[;k esa fjDr gksus ,oa orZeku esa mnwZ fo"k; dh izoh.krk j[kus okys lgk;d v/;kidksa dh U;urkdks n`f"Vxr j[krs gq, jkT; ljdkj }kjk 3000 Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dh ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k ijh{k.k gsrq p;fur fd;s tkus dk fu.kZ; fy;k x;k gS A ;gka ;g mYys[kuh; gS fd okjk.klh] esjB] y[kum ,oa vkxjk ds jktdh; nh{kk foky;ksa esa mnwZ ch0Vh0lh0 ds izf'k{k.k gsrq O;oLFkk Fkh] tks dkykUrj esa 1997&98 esa lekIr gks x;h ftlds QyLo:i mnwZ f'k{kdksa ds in Hkjs tkus esa dfBukbZ gks x;h gS A vr% mDr dk laKku ysrs gq, jkT; ljdkj }kjk mDr fu.kZ; fy;k x;k gS A mDr fu.kZ; ds vuqlkj jkT; 'kSf'kd vuqla/kku ,oa izf'k{k.k ifj"kn }kjk izns'k ds fofHkUu lekpkj i=ksa esa O;kid izpkj izlkj ds ek/;e ls Lukrd mRrh.kZ ,sls vH;fFkZ;ksa ls vkosnu i= ekaxs tk;saxs ftUgksaus gkbZLdwy ,oa b.Vj Lrj ij mnwZ fo"k; ds ijh{kk mRrh.kZ dh gks A mnwZ izoh.krk ds laca/k esa ,sls vH;fFkZ;ksa ls Hkh vkosnu i= izkIr fd;s tk;saxs ftUgksaus ek/;fed f'k{kk ifj"kn vFkok jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls mRrh.kZ dh gks A miyC/k fjfDr;ksa ds lkis{k 50 izfr'kr efgykvksa ,oa 50 izfr'kr iq:"kksa dk p;u] vH;fFkZ;ksa ds gkbZLdwy] b.VjehfM,V ,oa Lukrd izkIrkad izfr'kr ds ;ksx ds vk/kkj ij vkj{k.k laca/kh O;oLFkkvksa dk vuqikyu lqfuf'pr djrs gq, jkT; Lrjh; Js"Brk lwph ds vk/kkj ij fd;k tk;sxk A vH;fFkZ;ksa }kjk nks o"khZ; izf'k{k.k dk;Zdze iw.kZ gksus ds mijkUr budh ijh{kk vk;ksftr dh tk,xh rFkk ijh{kk esa lQy gksus okys vH;fFkZ;ksa dks izns'k ds csfld f'k{kk ifj"knh; izkFkfed foky;ksa esa lgk;d v/;kid ds :i esa fu;qDr fd;k tk;sxk A vr% bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k mDr fu.kZ; dks laKku esa j[krs gq, ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k izf'k{k.k dh vuqefr iznku djus dk d"V djsa] ftlls fd csfld f'k{kk ifj"kn }kjk lapkfyr mnwZ f'k{k.k gsrq leqfpr
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