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CASE NO.: Appeal (civil)  9595 of 2003

PETITIONER: Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P.

RESPONDENT: Sachiv, U.P. Basic Shiksha Parishad Allahabad, U.P. & Others

DATE OF JUDGMENT: 21/08/2006

BENCH: S. B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

DALVEER BHANDARI, J.

       This appeal is directed against the judgment and order  dated 10.4.2003 passed by the High Court of Judicature at  Allahabad in Civil Writ Petition No. 15255 of 2003.

       Respondent no. 3 Smt. Santosh Upadhyay was working  as an Assistant Teacher in the Kanya Junior High School Bal  Vidya Mandir, Etah.  A letter dated 8.9.2001 in the form of a  show-cause-notice was sent to respondent no. 3 by the  Principal of the school directing her to stop her acts of  indiscipline.  The letter dated 8.9.2001 reads as under: "(Minority Institution) G. Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized from Government for the  Class from Nursery to VIIIth)

From :            Principal

To:         Smt. Santosh Upadhyay, Asstt. Teacher, G. Jr. H.  School, Bal Vidya Mandir, Etah

Dated: 8.9.2001

Subject: Regarding indiscipline etc.

Madam,

       You are not complying with the following  instructions despite number of oral as well as  written orders:-

1.      Refusal to sign on the Order Register and on  other information etc. 2.      Laxity in teaching work. 3.      Non performing the duties of your charge. 4.      Use of indecent language and shouting for  giving reply. 5.      Using caste related words to spoil the

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atmosphere. 6.      Instigating other teachers and provoking them  to neglect their duties. 7.      Non-cooperation in the development of school  and increasing the number of students. 8.      Threats to me (Principal) for dire  consequences, in my office and also giving  threats on my residential telephone through  other unsocial elements.

       I hereby give you this last warning to improve  your attitude and work as a model teacher.  Please  note that earlier also your services had been  terminated because of such type of your attitude  and you had been reinstated in the service after  your apologizing and you had assured that you will  never repeat such mistakes and indiscipline in  future.

       Therefore, being the Principal of School, I  advise you to stop these acts of indiscipline and  work as a model teacher.

Yours faithfully, Sd/- (Smt. Kusum Sharma) Principal G. Jr. High School, Bal Vidya Mandir, Etah

       Copy forwarded to following for information  and necessary action:-

1.      Manager, G. Jr. H. School, Bal Vidya Mandir,  Etah

2.      District Basic Education Officer, Etah

Sd/- (Smt. Kusum Sharma) Principal G. Jr. High School, Bal Vidya Mandir, Etah"

The appellant did not receive any satisfactory reply from  respondent no. 3 and on 24.9.2001 a suspension order was  passed.  The suspension order dated 24.9.2001 reads as  under: "G. Jr. High School Bal Vidya Mandir, Etah (Permanently Recognized from Government for  the Class from Nursery to VIIIth)

From :            Manager

To:         Smt. Santosh Upadhyaya, Asstt.  Teacher, G. Jr. H. School, Bal Vidya  Mandir, Etah

Dated: 24.9.2001 O R D E R         Consequent upon not receiving the  satisfactory reply for the following charges,  Smt. Santosh Upadhyaya, A.T., Girls Junior  High School, Bal Vidya Mandir, Etah is placed

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under suspension with immediate effect.   The  charge-sheet will be issued after the detailed  enquiry, within two week’s period.

1.      Refusal to sign on the Order Register and  on other information etc.

2.      Laxity in teaching work. 3.      Non-performing the duties of your charge. 4.      Use of indecent language and shouting  for giving      reply.

5.      Using caste related words to spoil the  atmosphere.

6.      Instigating other teachers and provoking  them to neglect their duties.

7.      Non-cooperation in the development of  school and increasing the number of  students.

8.      Threats to the Principal for dire  consequences and        also giving threats  on her residential telephone through  other unsocial elements.

       During the period of suspension, you will  be entitled to get Subsistence Allowance  according to the Rule 53 of Financial Hand  Book Part 2 (Part 2 to 4).  During the period of  suspension, you will remain attached with  S.K.S. Girls Junior High School, Etah.

Sd/- (Dev Rishi Jain) G. Jr. High School, Bal Vidya Mandir, Etah

Endst. No. 1-5/2001-2002 Dated: 24.9.2001        

Copy forwarded to following for information  and necessary action:-

1.      Smt. Santosh Upadhyaya, A.T., G. Jr.  High School, Bal Vidya Mandir, Etah. 2.      District Basic Education Officer, Etah \026  for information. 3.      Account Officer, Finance & Accounts  Basic Education, Etah 4.      Smt. Kusum Sharma, Principal, Bal  Vidya Mandir, Etah. 5.      Guard File.

Sd/- (Dev Rishi Jain) G. Jr. H. School, Bal Vidya Mandir, Etah. 24.9.2001"

On 17.10.2001, the Manager, G. J. High School, Bal  Vidya Mandir, Etah received a letter from the District Basic  Education Officer, Etah indicating that for a minority  institution there is no requirement of prior approval for

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imposing penalty on Assistant Teachers from the District  Basic Education Officer.  The letter dated 17.10.2001 reads as  under:

"Office of the District Basic Education Officer,  Etah No. 3381-82                        Dated: 17.10.2001

The Manager, G. J. High School, Bal Vidya Mandir, Etah.

       As per Govt. Order No. 1091/15.6.95  dated 14th July, 1995 in the matters of penalty  to the Assistant Teachers and Principals of  Recognized Junior High School, there is no  requirement of prior approval from the District  Basic Education Officer, therefore, in view of  these provisions, the order No. B.S.  /Sus./3196/2001-2002 dated 10.10.2001  issued by the undersigned regarding re- instatement of Smt. Santosh Upadhyaya,  Assistant Teacher (Under Suspension) is  hereby cancelled, and it is decided that no  interference will be made in the enquiry  proceedings till the final disposal by Manager.   This School has been recognized as Minority  Institution and as per departmental rules, I  have no right to interfere in its matters and as  per Govt. orders, the decision taken by the  Manager shall be acceptable to all. Sd/- (Tilak Singh Rajput) District Basic Education Officer, Etah.

Endst. No.       /2001-2002 even date

1.      Copy to \026 Smt. Santosh Upadhyaya,  Assistant Teacher (Under Suspension), G.  J. High School, Bal Vidya Mandir, Etah \026  for information. Sd/- (Tilak Singh Rajput) District Basic Education Officer, Etah."

        The appellant institution, namely Kanya Junior High  School Bal Vidya Mandir, was established and administered  by the Jain community which has been recognized as a  minority community.  In this School education is imparted up  from Nursery to standard VIII.  An enquiry was conducted and  after receiving the enquiry report from the Enquiry Officer,  meeting of the Managing Committee was called on 9.11.2001  which was attended by all the members of the Managing  Committee.  The enquiry report and reply to the show cause  notice were considered.  The charges levelled against  respondent no. 3 were unanimously proved.  In the interest of  the institution and its good reputation, respondent no. 3 was  removed from the service of the school.  The order of  termination dated 10.11.2001 reads as under:

       "From:          Manager,                 G. J. High School,         Bal Vidya Mandir, Etah. To:     Smt. Santosh Upadhyaya,

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       Assistant Teacher (Under  Suspension)         G. J. High School, Bal Vidya  Mandir, Etah.

No. 18-20/2001-2002        Dated:  10.11.2001

Subject: Order of Termination from service.

Madam,

After the submission of the Enquiry  Report by the Enquiry Officer regarding  suspension of Smt. Santosh Upadhyaya,  meeting of Managing Committee was called on  9.11.2001 and formal resolution was passed  as per rules and all the members of Managing  Committee and Principal attended this  meeting.  The Enquiry Report and explanation  (Show Cause Notice) were considered carefully  and thereafter it has been decided  unanimously that the charges levelled against  Smt. Santosh Upadhayaya, on the basis of  statements and evidence, have been found  fully proved.  These cannot be considered as  wrong in any manner.  It would be in the  interest of school and its reputation that Smt.  Upadhyaya be removed from the services of  this School.  Therefore, notice of termination  from service may be sent to her and competent  officer may also be informed on this subject.

1.      After receiving the report of District Basic  Education Officer regarding your in- disciplinary activities in the School, your  one annual increment had been stopped.   This annual increment had been stopped  w.e.f. 1st January, 2001 and the above  said Basic Education Officer had been  transferred from this District in June,  2001.  During this period of 6 months,  you never made any application regarding  stopping of this annual increment,  reasons of which are best known to you.   It shows that you were very well aware  that the annual increment has been  stopped on your non-complying with the  department rules and you had no  sufficient evidence against these charges,  therefore, above said charges are found  proved against you.

2.      A charge sheet had been issued to you by  the undersigned, vide letter No. 7-3- 2001/2002 dt. 1.10.2001 regarding your  working style against the interests of  school, but you did not submit any  evidence with your reply to the said  charge sheet.  It is thus clear that you  have admitted the charge Nos. 6, 7, 8, 9  because you have not submitted any  evidence regarding these charges.

3.      The Enquiry Officer, vide his letter dated  10.10.2001 had issued to you the

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evidence related to the charge, but  instead of producing any evidence or  document in this regard, you only made  allegations against the Principal, other  teachers and the management.  In the  show cause notice vide letter dated  26.9.2001, you had been charged with  the charge of character assassination of  undersigned Manager, for which you have  neither submitted any evidence nor your  explanation.

As far as the question of your orders of  reinstatement issued by the District Basic  Education Officer vide his letter dated  10.10.2001 is concerned, the same has been  considered ex-parte and beyond his  jurisdiction, therefore, the same have been  cancelled vide his letter No. 3381-82 dated  17.10.2001.

In his second decision, it has been  admitted by the District Basic Education  Officer that this School is of ’Minority  Community’ and he should have not interfered  in its matter.  As far as your statement, that it  is not a Minority Community’s school, is  concerned, it is not within your competency,  you have worked as a Teacher and it is not  within your competency to challenge the rules,  regulations and government orders related to  this School.  It is a matter of gross in- discipline on your part.  The allegations made  by you regarding fees etc. are baseless and  beyond the facts.  It has been found fully  proved that you have misappropriated the  funds of students fee and used the same for  personal interests.  

In this manner, you have failed to submit  any evidence and documents with regard to  charges levelled against you in the show cause  notice on the basis of that your matter should  have been reviewed.

In the absence of same, the reply to show  cause notice received from you within the  stipulated time, is not satisfactory and in these  circumstances, there is no justification to keep  you in service of this School.  Consequent  upon your failing to submit an appropriate  evidence and document before the  undersigned, despite the sufficient  opportunities to explain, your services are  terminated with immediate effect.

Yours faithfully, Sd/- (Dev Rishi Jain) Manager G. Jr. High School, Bal Vidya Mandir,

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Etah.

Copy to: - For information \026

1.      District Basic Education Officer, Etah 2.      Finance and Accounts Officer \026 Basic  Education, Etah

Sd/- (Dev Rishi Jain) Manager G. Jr. High School, Bal Vidya Mandir,  Etah."

Respondent no. 3 challenged the order of termination  dated 10.11.2001 before the High Court of Judicature at  Allahabad by filing a writ petition, which was decided by the  learned Single Judge on 7.12.2001.

A preliminary objection was raised on behalf of the  appellant that in view of the provisions of Rule 16 of the Uttar  Pradesh Recognized Basic Schools (Junior High Schools)  (Recruitment and Conditions of Services of Teacher) Rules,  1978, the provisions of Rule 16 are applicable to the teachers  and Headmaster of the institution run by Basic Shiksha  Parishad and according to 1978 Rules order of termination,  dismissal or removal is an appealable order.

The learned Single Judge accepted the preliminary  objection regarding availability of alternate remedy and  declined to interfere with the termination order dated  10.11.2001 and dismissed the Writ Petition.

Respondent no. 3, aggrieved by the order of the learned  Single Judge, preferred a Special Appeal before a Division  Bench of the High Court of Judicature at Allahabad.  It was  incorporated in the said order of the Division Bench that  respondent no. 3’s services were terminated after holding an  enquiry by the Managing Committee by an order dated  10.11.2001.  The grievance of respondent no. 3 was that the  order passed by the Managing Committee was without taking  approval from the District Basic Education Officer, therefore,  the order of termination dated 10.11.2001 is a nullity and that  the learned Single Judge had committed a serious error in  dismissing the writ petition.

The learned counsel appearing for the appellant  institution specifically submitted before the Single Judge that  the appellant is a minority institution being run by the Jain  Community and has been recognized as such.  Therefore,  there was no requirement for obtaining prior approval of the  District Basic Education Officer before terminating the  services of respondent no. 3.   The counsel appearing for the  appellant had drawn the attention of the learned Single Judge  about the order which was passed way back as on 25.8.1976  by the concerned authorities that the appellant institution was  a minority institution.  The order dated 25.8.1976 reads as  follows:

"Office of the District Inspector of School, Etah

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Order No. B.S.P./11264/76-77   Dt. 25.8.1976

O R D E R

       On the basis of recommendations dated  27.7.1976, District Basic Education Officer  Girls Junior High School, Bal Vidya Mandir,  Etah is declared a Minority Institution under  Regulation 11 for the Recognized Basic School  (Recruitment and Conditions of Service of  Teacher’s and other Conditions) Rule, 1975,  notified on 20.5.1975 because this Institution  is being established and managed by minority  category mentioned under Article 30(1) of the  Constitution. Sd/- (Ram Prakash Singh) District Inspector of School, Etah

No. B.E.P.//11264/76-77 even date  

       Copy forwarded to following for  information & necessary action please:-  

1.      District Basic Education Officer, Etah \026  With reference to his office letter No. CA- 4404/12/B.R.D. Minority/76-77 dated.  27.7.76.

2.      Manager Girls Junior High School, Bal  Vidya Mandir, Etah.

3.      Dy. Director of Education, Region-II,  Agra.

4.      Regional Inspector of Girls School Region- II, Agra.

5.      Director of Education, U.P. Peerpur  House, Tilak Marg, Lucknow. Sd/- (Ram Prakash Singh) District Inspector of School, Etah"

Rule 11 of the Uttar Pradesh Recognized Basic School  (Recruitment and Conditions of Service of Teachers and Other  Conditions) Rules, 1975 reads as under: "11. Dismissal and Removal of Teachers.\027  No order dismissing, removing or terminating the  services of a teacher or other employee of a  recognized school shall be passed save with the  prior approval in writing of the Basic Shiksha  Adhikari:

Provided that in case of recognized schools  established and administered by minority referred  to in clause (1) of Article 30 of the Constitution,  such an order shall not require the approval of the  Basic Shiksha Adhikari but shall be reported to  him."    

       It may be pertinent to mention that a letter dated

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7.3.2003 sent by the District Inspector of School, Etah to the  Basic Eduction Officer, Etah regarding verification of the Girls  Junior High School Bal Vidya Mandir, Etah Minority  Institution is as under:

"From,                 District Inspector of School, Etah.

To,                 To Basic Education Officer, Etah.

Letter No.             /2002-03     Dated 7.3.2003

Sub:    In regard to verification of Girls  Junior High School Bal Vidya  Mandir, Etah Minority Institution.

Sir,

In the above matter kindly peruse your  office letter B.S. 7493/2002-03 dated  24.2.2003.

In the regard by this office 2.9.2002, the  position is made clear, where as the then  District Inspector of School, Etah in  accordance with the then Rules was competent  authority to declare the aforementioned School  as Minority Institution or not?   It is informed  in this regard, as per para 3 under heading  "Minority Institution" of Madhyan 10, photo  copy of the same is enclosed the then District  Inspector of School was Competent Authority  to decide the Minority Institution.

Please be aware accordingly and take  necessary action.

Sd/- 7.3.2003 (K. N. Kanaujiya) District Inspector of School, Etah.

Enclosed: As above."

According to the appellant institution, it is clearly  mentioned that the District Basic Education Officer was  competent to decide regarding minority status of the  institution.  The Division Bench of the Allahabad High Court  in Special Appeal 1207/2001, after hearing the parties,  observed as under: "The institution has been accorded the status of a  minority institution thus no prior approval of the  District Basic Education Officer for terminating the  services of a teacher in a minority institution is  required to be taken in view of the proviso to Rule  15 of the 1978 Rules."

       The appeal filed by respondent no. 3 was dismissed by an  order dated 13.11.2002.    

In subsequent proceedings in Writ Petition No. 1525 of  2003, the learned Single Judge of the Allahabad High Court on  10.4.03, while altogether ignoring the said judgment of the

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Division Bench of the same Court in the Special Appeal No.  1207 of 2001, (by which he was bound), had observed in the  judgment that in a Special Appeal the Court had not  considered the question regarding the minority status of the  institution.  This observation of the learned Single Judge is  wholly untenable.     

The approach adopted by the learned Single Judge in this  case is against the settled principle of law.  Law is consistent  and clear that the Single Judge of the High Court is bound by  the decision of the Division Bench.                      In support of the view taken by the Division Bench  adequate material exists. We deem it proper to recapitulate  references to the decided cases and other relevant material.                      The Government of Madhya Pradesh, by a notification  dated 29.5.2001, declared the Jain community in the State of  Madhya Pradesh as a minority community.

       The Founding Fathers of the Constitution had  unequivocally recognized the Jains as a minority community  as is evident from the proceedings of the Constituent  Assembly.  While keeping in view that the Jains are a minority  community, a representative of the Jain community was taken  in the Minority Advisory Committee of the Constituent  Assembly.

       On 3rd September, 1949, while addressing a public  meeting at Allahabad, the first Prime Minister of India, Shri  Jawahar Lal Nehru said. We quote a few lines from the said  speech \026  "No doubt India has a vast majority of Hindus, but  they could not forget the fact that there were also  minorities \026 Muslims, Parsis, Christians, Sikhs and  Jains. If India was understood as a Hindu Rashtra,  it meant that the minorities were not cent percent  citizens of this country."   

The said speech was reported in the English daily newspaper  ’The Statesman’ dated 5.9.1949.   

       On 31st January, 1950, the PPS to the then Prime  Minister of India sent a letter to the Jain Deputation on behalf  of the then Prime Minister, which reads as under:         "With reference to the deputation of certain  representatives of the Jains, who met the Prime  Minister on the 25th January, 1950, I am desired to  say that there is no cause whatever for the Jains to  have any apprehensions regarding the future of  their religion and community.  Your deputation  drew attention to Article 25, explanation II of the  Constitution.  This explanation only lays down a  rule of construction for the limited purpose of the  provision in the article and as you will notice, it  mentions not only of Jains but also Buddhists and  the Sikhs.  It is clear therefore, there is no reason  for thinking that Jains are considered as Hindus. It  is true that Jains in some ways closely linked to  Hindus and have many customs in common, but  there can be no doubt that they are a distinct  religious community and constitution does not in  any way affect this well recognized position.

                                       Yours faithfully,

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                                               Sd.                                             A. V. Pai                                 Principal Private Secretary                                      to the Prime Minister"

       Dr. S. Radhakrishnan, the former President of India, in  his celebrated book "Indian Philosophy Vol I" mentioned as  under:         "The Bhagawat Purana endorses the view that  Rishbhadeva was the founder of Jainism.  There is  evidence to show that so far back as the first  century B.C. there were people who were  worshipping Rishabhadeva, the first Tirthankara.   There is no doubt that Jainism prevailed even  before Vardhamana Mahaveera or Parsvanatha.   The Yajurveda mentions the names of three  Tirthankaras-Rishab, Ajitnath & Aristanemi."

       A well known German Oriental scholar, Dr. Hermann  Jacob mentioned before the 3rd International Congress for the  History of Religions as under:         "In conclusion let me assert my conviction that  Jainism is an original system, quite distinct and  independent from all others and that therefore it is  of great importance for the study of philosophical  thought and religious life in ancient India."  (This  was mentioned in Vol. 2, p. 66 Oxford.)

       Pt. Jawahar Lal Nehru, in his celebrated book "Discovery  of India", mentioned as under:         "Buddhism and Jainism were certainly not  Hinduism or even the Vedic Dharma.  Yet they  arose in India and were integral parts of Indian life,  culture and philosophy.  A Buddhist or Jain, in  India, is a hundred per cent product of Indian  thought and culture, yet neither is a Hindu by faith.    It is, therefore, entirely misleading to refer to Indian  culture as Hindu culture."                  As Dr. Jyoti Prasad Jain, an eminent Jain scholar  mentioned in his treatise "Jainism__The Oldest Living  Religion":         "In fact, there is whatsoever no tangible  evidence to show that Jainism branched off from  the Vedic religion or from any of its later  development, at such and such time, nor there is  any marked similarity between the fundamental  doctrines and essential features of the two systems,  which might favour that possibility.  Jainism with  its perfectly non-violent-creed, animistic belief,  subtle and peculiar karma theory, its rejection of a  creator and the creation theory, and the like, is not  only quite an original system but is also absolutely  independent of all other systems. In its origin, it is  not only non-Aryan and pre-Aryan, in the sense  that these terms are now generally understood, but  it is also primitive and absolutely indigenous."

                A well known book on Jainism written by Madam M. R.  Guseva, [Candidate of Historical Sciences at the Institute of  Ethnography of the Academy of Sciences, USSR and  Jawaharlal Nehru Prize Winner (1973)], revealed the historical

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and ethnographic roots of Jainism, tracing the development of  the Jain community since ancient times evaluating the Jain  contribution to Indian literature and art.  In particular the  book makes a point that Jainism has such substantially  distinguishing features that they do not afford any possibility  of regarding Jainism as an offshoot of Brahmanism.

       One of the hotly debated issues in the United Nations  was the question of defining what constitutes a ’minority’?   Besides considering many proposed definitions, the UN had  two authoritative definitions before it.  The PCIJ (in an  advisory opinion of July 31, 1930) had defined a community in  the Graeco-Bulgarian Communities case as: "By tradition, the ’community’ is a group of persons  living in a given country of locality, having a race,  religion, language and traditions of their own and  united by this identity of race, religion, language  and traditions, in a settlement of solidarity, with a  view to preserving their traditions, maintaining their  form of worship, ensuring the instruction and  upbringing of their children in accordance with the  spirit and traditions of their race and rendering  mutual assistance to each other."

       The Government of Karnataka by a circular dated  12.6.1996 considered Jains belonging to backward classes.   The circular reads as under:

"GOVERNMENT OF KARNATAKA No. SWD 84 BCA 96 Karnataka Government Secretariat-2  Multistoreyed Building Bangalore, dated 12-06-1996

CIRCULAR

Sub:- Regarding the issue of certificate of  Backward classes to the candidates  belonging to Jain Digambaras.

       In the list of Backward Class Communities  published in Government Order No. SWD 150 BCA  94 dated 17-9-94, the Jain (Digambara) Community  has been included in category III (b).  After  considering the representations received from the  various Associations of Jain Community and also  the clarifications sought for by some of the Dy.  Commissioners and Tahsildars in this regards, it is  directed that the candidates belonging to Jain  (Digambara) Community become eligible for  reservation under Category III (b) only after  production of reliable documents by them.   The  concerned candidate should prove, either through  documentary evidence or through witness that he,  his father or their ancestors belong to Jain  (Digambara) Community.   In cases where the Jain  (Digambara) has not been clearly mentioned in the  documents, the officer authorized to issue such  certificates or the inquiring officer should hold local  enquiry and only if he is satisfied as to the  correctness of the claims of the candidates during  course of such enquiry, that he should issue  certificates.  He should, however, draw up a clear  and detailed proceedings of his enquiry before issue

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of the Certificate.  Disciplinary action will be taken  against the Officers who issue Caste  certificates/Inquiry Certificates in violation of rules  of reservations.

Sd/- (B. S. Rukmini) Under Secretary to Govt.  Social Welfare Department"

                In Re: Kerala Education Bill, 1957 reported in AIR  1958 SC 956, the Apex Court accepted the literal meaning of  word "minority" to mean numerically less than 50%.

       The Encyclopedia of World Religions by G. T. Bettany  mentioned the Jain religion as independent of the other  religions.  According to the said Encyclopedia, Jainism is co- equal with, if not slightly older than, Buddhism, and took its  rise in the same development of Brahman asceticism and  reaction from Brahmanical tyranny.

       Encyclopedia Britannica defines the Jain religion in the  following words:         "Jainism" a religion and philosophy in India,  founded in about the 6th century BC by Vardhmana  Mahavira-the 24th of the Jinas (Conquerors), or  great religious figures on whose example the religion  is centered \026 in protest against the orthodox Vedic  (early Hindu ritualistic cult of the period.  Jainism,  which does not espouse belief in a creator god, has  as its ethical core the doctrine of ahimsa, or non  injury to all living creatures, and as its religious  ideal the perfection of man’s nature, to be achieved  predominantly through the monastic and ascetic  life."

       Dr. Radhakrishnan, who edited the 6th Volume of The  Cultural Heritage of India, mentioned as under: "The Jains claim a great antiquity for their religion.    Their earliest prophet was Rishabhdeva. Who is  mentioned even in the Vishnu and Bhagawat  Puranas as belonging to a very remote past.  In the  earliest Brahmanic literature are found traces of the  existence of a religious Order, which ranged itself  strongly against the authority of the Vedas and the  institution of animal sacrifice.  According to the  Jain tradition, at the time of the Mahabharata war,  this Order was led by Neminatha, who is said to  have belonged to the same Yadava family as Krisna  and who is recognized as the twenty-second  Tirthankara.  The Order gathered particular  strength during the eighth century B.C. under  Parsvanatha the twenty-third Tirthankaran, who  was born at Varanasi. This order we may call the  sramana sangha (as distinct from the Vedic Order),  which later became divided into the Jain and the  Buddhist Orders under Mahaveera and the Buddha,  respectively."  

       According to Dr. Raj Bali Pandey’s book "Hindu Dharam  Kosh" Jainism is described as a distinct religious order

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existing in Indian polity since times of great antiquity and was  opposed to ritualistic cult of Vedic philosophy.  According to  him, Jainism is existing in India since at least 700 B.C.   According to the learned Single Judge, minority status  could be granted only by the U. P. Basic Shiksha Parishad and  since it was not granted to the appellant institution by the  said Parishad, the appellant institution could not terminate  the services of respondent no. 3 without prior permission from  the District Basic Education Officer.  The appellant aggrieved  by this order preferred this appeal before this Court.

This Court, on 11.7.2003, while issuing notice directed  that the status quo as on that date shall be maintained until  further order.  On 5.12.2003 this Court, while granting leave,  directed the parties to continue to maintain the status quo.   

In this appeal the appellant raised a substantial question  of law.  The appellant raised the plea that in view of the  judgment of the Division Bench whether it was open to the  learned Single Judge of the High Court to take a contrary view  by its judgment dated 10.4.2003.  The Division Bench  observed as under: "Having heard the learned counsel for the parties we  find that it is not in dispute that the appellant writ  petitioner was working as a teacher in recognized  basic school.  The institution has been accorded the  status of minority institution thus no prior approval  of the District Basic Education Officer for  terminating the services of the teacher in a minority  institution is required to be taken in view of the  provision Rule 15 of the 1978 Rule."

In view of the said clear findings of the Division Bench of the  same High Court, the learned Single Judge of the same High  Court could not take a contrary view.  The learned Single  Judge was bound by the judgment of the Division Bench of the  said High Court.  

       It is not in dispute that the institution established and  administered by the Jain Community which is recognized as  minority by the State Government from the date of its  establishment continuously for 25 years, whether the said  benefit could be nullified by the learned Single Judge who had  ignored the specific finding of the Division Bench.  The  appellant also raised a question that respondent no. 3, who  herself was working as a teacher after obtaining the benefit of  the minority institution, could be permitted to take a plea that  it is not a minority institution and such an act of respondent  no. 3 would be against the principles of Estoppel and  Acquiescence.  It is also mentioned in the appeal that  respondent no. 3 was appointed as a teacher in the appellant  institution in 1982 on the basis that the institution was a  minority institution and that her appointment was not  approved by the District Basic Education Officer since it was  not required for the minority institution.  The appellant also  submitted that respondent no. 3 could not be permitted to  contend that approval of the Basic Education Officer is  required for her services to be terminated.  The appellant also  incorporated that whether the appellant institution and other  institutions duly recognized as minority institutions by the  same authority namely the District Inspector of School, Etah  by letter dated 25.8.1976 and debarring the status of the  appellant institution as not minority institution on the ground

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that the District Inspector of School is not a competent  authority to grant recognition whereas to allow to other  institutions to continue as minority institutions recognized by  the same authority would not be discriminatory under Article  14 of the Constitution.  It is also mentioned in the appeal that  the learned Single Judge committed a serious error of law in  relying on the Circular dated 20.4.1971 which could not be  made applicable to the schools governed by the provisions of  the U.P. Basic Education Act 1972.                    The appellant submitted that on the relevant date a  Recognition Committee was constituted for the convenience of  the local people for recognition of Junior High Schools, of  which the Director of Inspector of School (for short D.I.O.S.)  was appointed as Chairman.  The appellant institution applied  for recognition as minority institution with the Basic  Education Officer.  Since it also related to the recognition of  institution, the Basic Education Officer forwarded the  application to D.I.O.S.   The D.I.O.S. recognized the institution  as minority institution. Now, that status cannot be taken away  by the learned Single Judge of the High Court, who chose to  ignore the findings of the Division Bench of the same High  Court.    

       In reply to the appeal, a separate counter affidavit was  filed on behalf of respondent nos. 1 and 2 by one Dr. R. K.  Dubey, Zilla Basic Siksha Adhikari, Etah, in which a  preliminary objection has been taken that this appeal is not    maintainable because under Chapter VIII Rule 5 read with  Chapter IX Rule 10 of the Allahabad High Court Rules, the  writ petitioner had to exhaust the remedy of a Special Appeal  before the Division Bench and without exhausting the remedy  of Special Appeal, this appeal before this Court cannot be  entertained.   It was also submitted in the counter affidavit  that a management claiming to be a minority institution, had  to apply for the grant of such status.   Respondent nos. 1 & 2  had denied that any application had been filed to treat the  appellant as a minority institution.  In the counter affidavit it  is mentioned that the U.P. Basic Education Act, 1972 and the  Rules made thereunder specifically provided for making an  application for according the status of minority institution.  It  is only after the competent authority is satisfied that an  institution fulfils the tests for according the status of minority  institution that an order in that behalf is passed.   It is also  mentioned in the reply affidavit that the issue of minority  institution had to be decided by the U.P. Basic Shiksha  Parishad and not by the Directorate of Inspector of Schools.    It is also incorporated in the counter affidavit that the  Directorate of Inspector of Schools was not an authority  constituted under the U.P. Basic Education Act, 1972, but  was an authority under the U.P. Intermediate Education Act  and was not competent to recognize a Junior High School or  the Basic school as a minority institution.  Such status could  be accorded by the Board of Basic Education.    

       A separate counter affidavit has also been filed by  respondent no. 3, in which it is mentioned that originally the  institution was registered on 7.3.1969 and the registration  was renewed on 6.10.2001 and thereafter the management of  the school had been changed.  Now the institution is run by a  Jain family.  Respondent no. 3 also submitted that the  minority status could only be granted by the U.P. Basic  Shiksha Parishad.  It was also submitted that the observations  made by the Division Bench cannot be said to be binding on  the Court.

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       The appellant, in the rejoinder affidavit to the counter  affidavit of respondent nos. 1 and 2, has mentioned that the  Jain community is a minority community for the purpose of  Article 30(1) of the Constitution and the minority status was  granted to the appellant as far back as on 25.8.1976 which  could not be withdrawn in a collateral proceeding in such a  manner.  It is mentioned that Dr. S. N. Malhotra was the  Director of Education, U.P. as well as the Chairman, Basic  Education Board, U.P. during the relevant year 1976.  He had  issued a letter dated 30.5.1976 to the District Inspector of  School/Regional Inspector of Girls School for authorizing them  to pass the order on the application of various institutions  submitted for granting them the status of minority institution.   

       We have heard the learned counsel for the parties at  length.  This appeal arose from the judgment of the learned  Single Judge of the Allahabad High Court dated 10.4.2003  in  C.M.W.P. No. 15255 of 2003. A preliminary objection was  taken by respondent nos. 1 & 2 in the counter affidavit that  under Chapter VIII Rule 5 read with Chapter IX Rule 10 of the  Allahabad High Court Rules a special appeal lies against the  order of the Single Judge before a Division Bench. Chapter VIII  Rule 5 and Chapter IX Rule 10 of the Allahabad High Court  Rules read as under:

"Chapter VIII Rule 5. Special appeal.- An appeal  shall lie to the Court from a judgment (not being a  judgment passed in the exercise of appellate  jurisdiction in respect of a decree or order made by  a Court subject to the Superintendence of the Court  and not being an order made in the exercise of  revisional jurisdiction or in the exercise of its power  of Superintendence or in the exercise of criminal  jurisdiction or in the exercise of jurisdiction  conferred by Article 226 or Article 227 of the  Constitution in respect of any judgment, order or  award (a) of a tribunal Court or statutory arbitrator  made or purported to be made in the exercise or  purported exercise of jurisdiction under any Uttar  Pradesh Act or under any Central Act, with respect  to any of the matters enumerated in the State List  or the Concurrent List in the Seventh Schedule to  the Constitution, or (b) of the Government or any  Officer or authority, made or purported to be made  in the exercise or purported exercise of appellate or  revisional jurisdiction under any such Act of one  judge."   

        In this appeal it is not necessary for us to decide as to  whether a special appeal lay before the Division Bench of the  High Court against the impugned order of the Single Judge.

       We deem it appropriate to refer to some of the decided  cases.

       In The Commissioner Hindu Religious Endowments,  Madras v. Sri Lakshmindra Thirtha Swamiar of Sri  Shirur Mutt reported in AIR 1954 SC 282 this Court observed  that there are well known religions in India like Buddhism and  Jainism which do not believe in God, in any Intelligent First  Cause.  The Court recognized that Jainism and Buddhism are

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equally two distinct religions professed in India in contrast  with Vedic religion.

       In well known Kerala Education Bill’s case, 1957   reported in AIR 1958 SC 956,  this Court held that to claim  the minority rights, the Community must be numerically a  minority by reference to the entire population of the State or  country where the law is applicable.  In that way also, the Jain  Community is eligible for the claim.    

       As per 1991 Census report, the population of the Jain  community of both sects was approximately 35 lakhs as  against the total Indian population of more than 90 crores.

       As early as 1927 Madras High Court in Gateppa v.  Eramma and others reported in AIR 1927 Madras 228  held  that "Jainism as a distinct religion was flourishing several  centuries before Christ".  Jainism rejects the authority of the  Vedas which form the bedrock of Hinduism and denies the  efficacy of the various ceremonies which Hindus consider  essential.   

       Again in 1939 in Hirachand Gangji v. Rowji Sojpal  reported in AIR 1939 Bombay 377, it was observed that  "Jainism prevailed in this country long before Brahmanism  came into existence and held that field, and it is wrong to  think that the Jains were originally Hindus and were  subsequently converted into Jainism."

       A Division Bench of the Bombay High Court consisting of  Chief Justice Chagla and Justice Gajendragadkar in respect of  Bombay Harijan Temple Entry Act, 1947 (C.A. 91 of 1951) held  that Jains have an independent religious entity and are  different from Hindus.  

       In Aldo Maria Patroni & Another v. E.C. Kesavan &  Others reported in AIR 1965 Kerala 75, a Full Bench of the  Kerala High Court opined that the word ’minority’ has not  been defined in the Constitution and in absence of any special  definition, it must be held that any community, religious or  linguistic, which is less than fifty per cent of the population of  the State is entitled to the fundamental right guaranteed by  Article 30 of the Constitution.

       In Commissioner of Wealth Tax, West Bengal v. Smt.  Champa Kumari Singhi & Others reported in AIR 1968  Calcutta 74, a Division Bench of the Calcutta High Court  observed that "Jains rejected the authority of the Vedas which  forms the bedrock of Hinduism and denied the efficacy of  various ceremonies which the Hindus consider essential.  It  will require too much of boldness to hold that the Jains,  dissenters from Hinduism, are Hindus, even though they  disown the authority of the Vedas".   

       In Arya Samaj Education Trust, Delhi & Others v.  The Director of Education, Delhi Administration, Delhi &  Others reported in AIR 1976 Delhi 207, it was held as follows:         "Not only the Constitution but also the Hindu  Code and the Census Reports have recognized Jains  to belong to a separate religion."

        In the said judgment, the Court referred to the observations of  various scholars in this behalf. The Court quoted Heinrich

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Zimmer in "Philosophies of India" wherein he stated that  "Jainism denies the authority of the Vedas and the orthodox  traditions of Hinduism.  Therefore, it is reckoned as a  heterodox Indian religion".   The Court also quoted J. N.  Farquhar in "Modern Religious Movements in India" wherein  he stated that "Jainism has been a rival of Hinduism from the  beginning". In the said judgment, in conclusion, the Court  held that "for the purpose of Article 30(1), the Jains are a  minority based on religion in the Union Territory of Delhi".   

       In D.A.V. College, Jullundur v. State of Punjab AIR  1971 SC 1737, the Hindus in Punjab were held to be  constituting religious minority community within the State of  Punjab because of the population ratio within the State.

       In A.M. Jain College v. Government of Tamil Nadu  (1993) 1 MLJ 140, the Court observed that it is also an  admitted fact that the Jain community in Madras, Tamil Nadu  is a religious and linguistic minority.

       In St. Stephen’s College v. University of Delhi (1992) 1  

SCC 558, this Court in para 54 at page 596 observed as  under:  "The minorities whether based on religion or  language have the right to establish and administer  educational institutions of their choice. The  administration of educational institutions of their  choice under Article 30(1) means ’management of  the affairs of the institution’.  This management  must be free from control so that the founder or  their nominees can mould the institution as they  think fit, and in accordance with their ideas of how  the interests of the community in general and the  institution in particular will be best served."

       Jain religion indisputably is not a part of Hindu religion.   The question as to whether the Jains are part of the Hindu  religion is open to debate.  Jains have a right to establish and  administer their own institution.  But, only because an  institution is managed by a person belonging to a particular  religion, the same would not ipso facto make the institution  run and administered by a minority community.  A minority is  determinable by reference to the demography of a State.   Whether an institution is established and administered by a  minority community or not may have to be determined by the  appropriate authority in terms of the provisions of the statute  governing the field.  Furthermore, minority institutions are not  immune from the operations of the measures necessary to  regulate their functions.  To what extent such regulations  would operate, however, again is a matter which would be  governed by the statute.

       Minority communities do not have any higher rights than  the majority. They have merely been conferred additional  protection.  This has been laid down by a Eleven Judge Bench  of this Court. [See: P.A. Inamdar & Others v. State of  Maharashtra & Others, (2005) 6 SCC 537].

       The Court in the said judgment also dealt with the object  of Article 30(1) of the Constitution.  The Court in para 97 of  the judgment observed the relevant para which reads as  under: "The object underlying Article 30(1) is to see the

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desire of minorities being fulfilled that their children  should be brought up properly and efficiently and  acquire eligibility for higher university education  and go out in the world fully equipped with such  intellectual attainments as will make them fit for  entering public services, educational institutions  imparting higher instructions including general  secular education.  Thus, the twin objects sought to  be achieved by Article 30(1) in the interest of  minorities are: (i) to enable such minority to  conserve its religion and language, and (ii) to give a  thorough, good, general education to children  belonging to such minority.  So long as the  institution retains its minority character by  achieving and continuing to achieve the abovesaid  two objectives, the institution would remain a  minority institution."

       It is interesting to note that the question as to whether  the Jains should be treated to be a minority under Section 2  (c) of the National Commission for Minorities Act, 1992 came  up for consideration before a Three-Judge Bench of this Court  in Bal Patil & Another v. Union of India & Others (2005) 6  SCC 690 wherein this Court noticed that the framers of the  Constitution engrafted group of Articles 25 to 30 in the  Constitution of India against the background of partition of  the country so as to allay the apprehensions and fears in the  minds of Muslims and other religious communities by  providing to them a special guarantee and protection of their  religious, cultural and educational rights.  It was held: "27.    The so-called minority communities like Sikhs  and Jains were not treated as national minorities at  the time of framing the Constitution.  Sikhs and  Jains, in fact, have throughout been treated as part  of the wider Hindu community which has different  sects, sub-sects, faiths, modes of worship and  religious philosophies. In various codified  customary laws like the Hindu Marriage Act, Hindu  Succession Act, Hindu Adoption and Maintenance  Act and other laws of the pre- and post-Constitution  periods, definition of "Hindu" included all sects and  sub-sects of Hindu religions including Sikhs and  Jains."

Noticing certain concept of Hinduism vis-‘-vis Jainism, it was  opined: "31.    Thus, "Hinduism" can be called a general  religion and common faith of India whereas  "Jainism" is a special religion formed on the basis of  quintessence of Hindu religion. Jainism places  greater emphasis on non-violence ("Ahimsa") and  compassion ("karuna").  Their only difference from  Hindus is that Jains do not believe in any creator  like God but worship only the perfect human being  whom they called Tirathankar.  Lord Mahavir was  one in the generation of Thirthankars.  The  Tirathankars are embodiments of perfect human  beings who have achieved human excellence at  mental and physical levels.  In a philosophical  sense, Jainism is a reformist movement amongst  Hindus like Brahamsamajis, Aryasamajis and  Lingayats.  The three main principles of Jainism are  Ahimsa, Anekantvad and Aparigrah.  [See (1)  Encyclopaedia of Religion and Ethics, Vol.7 p.465;  (2) History of Jains by A.K. Roy pp.5 to 23 and

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Vinoba Sahitya, Vol.7 pp.271 to 284.]"

       In the instant case, the State at one point of time  accepted the school in question as having been established  and administered by the Jain community which is a minority  community in the State of Uttar Pradesh.  It was recognised as  such by reason of a Division Bench judgment of the High  Court of Judicature at Allahabad. There was, thus, no reason  for the authorities of the Respondents to take steps in relation  to the self-same institution in a different manner.         Indisputably, under the statute governing the field, prior  approval of the District Basic Education Officer was not  necessary before terminating the services of a teacher.  As the  appellant’s institution was recognised as a minority  institution, in our opinion, the High Court was not correct in  interfering in the manner it did.         Consequently, the impugned judgment of the Learned  Single Judge is set aside.         This appeal is accordingly allowed.  In the facts and  circumstances of this case we direct the parties to bear their  own costs.