Allahabad High Court
C/M Of Aljameatul Gausia Arbi College ... vs State Of U.P. Thru. Prin. Secy. Minority ... on 26 February, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Neutral Citation No. - 2024:AHC-LKO:17315 Court No. - 17 Case :- WRIT - A No. - 633 of 2024 Petitioner :- C/M Of Aljameatul Gausia Arbi College Utraula Balrampur Thru. Manager Ayaz Mustafa Khan Respondent :- State Of U.P. Thru. Prin. Secy. Minority Welfare Deptt. Lko. And 4 Others Counsel for Petitioner :- Nagendra Bahadur Singh Counsel for Respondent :- C.S.C.,Afzal Ahmad Siddiqui,Anand Mani Tripathi,Mahendra Bahadur Singh,Rakesh Kumar,Vikas Singh Hon'ble Manish Mathur,J.
1. Heard Mr. Sandeep Dixit learned Senior Advocate assisted by Mr. Nagendra Bahadur Singh, learned counsel for petitioner, learned State Counsel for opposite party nos. 1 & 4, Mr. Afzal Ahmad Siddiqui, learned counsel for opposite party nos. 2 & 3 and Mr. A.M. Tripathi, learned counsel for opposite party no. 5.
2. Petition has been filed challenging order dated 20.05.2023 so far as it relates to petitioner, 09.11.2023 and 01.01.2024. Further prayer for a direction to opposite parties not to interfere in the peaceful functioning of petitioner in administrating in the institution in question has also been sought.
3. Vide impugned order dated 20.05.2023, the Registrar has stayed earlier approval granted to petitioner's scheme of administration, vide order dated 09.11.2023 the order passed by petitioner terminating services of opposite party no. 5 have been held to be without jurisdiction and vide order dated 01.01.2024, the District Minority Welfare Officer has imposed single hand operation in the institution in question since petitioner was not including the name of opposite party no. 5 in the salary bills.
4. It has been submitted that the opposite party no. 5 was initially appointed as Assistant Teacher in the institution in question on probation vide order dated 31.07.2021 for a period of one year which was thereafter extended on 30.07.2022 for a further period of one year. The services and conduct of opposite party no. 5 not having been found satisfactory, his services were thereafter terminated vide order dated 30.07.2023 by petitioner whereafter the impugned orders have been passed.
5. It has been submitted that since opposite party no. 5 was continuing only on probationary basis, his termination would be referable to Rule 11 of the U.P Non Governmental Arabic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 whereunder petitioner was only under an obligation to afford an opportunity of hearing to the probationer, which has been done in the present case whereafter finding his services dissatisfactory, his services have been terminated.
6. It is submitted that Rule 11 does not provide any power or jurisdiction to the Registrar to interfere with an order of termination or discontinuance of a probationary teacher once issued by the management of the institution.
7. It is further submitted that earlier petitioner institution had submitted its scheme of administration which was forwarded vide letter 07.08.2021. The State Government had passed order dated 07.01.2022 stipulating that in cases where scheme of administration is pending approval before the U.P. Madarsa Shiksha Board, all proceedings undertaken by the Management of institutions concerned pertaining to disciplinary proceedings and subsequent dismissals would be without jurisdiction. It is submitted that thereafter the Registrar vide order dated 28.04.2022 approved the scheme of administration of petitioner institution which has thereafter been stayed by means of the impugned order dated 20.05.2023 purportedly in exercise of power under Section 22 (5) of the U.P. Board of Madarsa Education Act, 2004. It is submitted that once approval has been accorded to the scheme of administration of an institution, there is no provision under law whereby such approval can be stayed by the Registrar. It is therefore submitted that the order dated 20.05.2023 has been passed without jurisdiction.
8. Similarly it has been submitted that since the services of opposite party no. 5 had been terminated in terms of Regulation 11 of the Regulation of 2016, the same were beyond purview of being interfered with by the Registrar and therefore the said order also is without jurisdiction.
9. It has been further submitted that even if assuming that the power exercised by the Registrar by means of order dated 09.11.2023 was under Section 16 of the Regulations, a Co-ordinate Bench of this Court in the case of C/M Madarsa Muhammdiya Faiz-E Rasool And Another versus State Of U.P. And 3 Others the said Writ-A No. 13753 of 2020 has already held that the Registrar is not conferred any power either under the statute or regulation to interfere with an order passed by the Management under Regulation 16. Therefore, it has been submitted that the power exercised by petitioner terminating services of opposite party no. 5 whether under Regulation 11 or under Regulation 16 could not have been interfered with by the Registrar.
10. Learned counsel appearing on behalf of the opposite party no. 2 has refuted submissions advanced by learned counsel for petitioner with the submission that in terms of Regulation 15 of the Regulations of 2016, it is only the Board which is empowered to approve the scheme of administration of any institution and since in the present case, there is no resolution of the Board approving the scheme of administration of petitioner institution, recourse has rightly been placed upon the Government Order dated 07.01.2022 whereunder it has been specifically provided that till approval of the scheme of administration, no management of any institution shall have any powers to initiate any disciplinary proceedings or pass any dismissal order pertaining to an employee of the institution. It is further submitted that the order dated 28.04.2022 issued by the Registrar purportedly approving scheme of administration of petitioner institution is meaningless since it was only the Board which could have passed such an order and realizing this mistake, the impugned order dated 20.05.2023 has been passed staying the operation of earlier order.
11. Learned counsel appearing on behalf of opposite party no. 5 has also refuted submission advanced by learned counsel for petitioner with the submission that earlier during the first year of probation, petitioner institution had issued a show cause notice on 17.06.2022, which was followed up by another show cause notice and was replied to by the said answering opposite parties on 01.07.2022 whereafter he was granted an extension of a further period of one year on 30.07.2022. It is submitted that during the second year of probation, petitioner was issued a show cause notice dated 13.05.2023 followed up by another notice dated 26.05.2023 whereafter another notice dated 07.06.2023 was issued indicating seven charges levelled against petitioner. It is submitted that thereafter an inquiry committee was constituted which submitted its report on 25.07.2023 whereafter the termination order dated 30.07.2023 has been passed on the basis of the aforesaid inquiry report. It is therefore submitted that the aforesaid facts clearly indicate that termination order has been passed not only looking to the satisfactory service of petitioner of the answering opposite parties but in fact alluded to misconduct as well and therefore it would fall within the conditions indicated in Regulation of 16 and not Regulation 11 of the Regulations of 2016. Learned counsel has placed reliance on the following judgments to indicate that once stigmatic charges are levelled against even a probationer, the notice is required to be specific which it is not in the present case and therefore the termination order dated 30.07.2023 is bad in law. It is further submitted that even otherwise the charges levelled against petitioner clearly indicate that termination order has been passed as a measure of misconduct and not merely as an endeavour to judge his suitability for continuance in service. Learned counsel for opposite party no. 5 has placed reliance on certain judgments rendered by Hon'ble Supreme Court i.e. Gorkha Security Services versus Govt. of NCT of Delhi reported in MANU/SC/0657/2014; 2014(9) SCC 105, State of Odisha & Ors. versus M/s Panda Infraproject Limited passed in Civil Appeal No. 1083 of 1084 of 2022 reported in 2022 LiveLaw (SC) 206, Dr. Vijayakumaran C.P.V. versus Central University of Kerala & Ors. passed in Civil Appeal No. 777 of 2020, Kotak Mahindra Bank Limited versus A. Balakrishnan & Anr. passed in Civil Appeal No. 689 of 2021, Ardhendu Kumar Das versus State of Odisha and Ors. reported in 2022 Live Law (SC) 539.
12. Upon consideration of submission advanced by learned counsel for parties and perusal of material on record, the following questions arise for consideration in this petition:-
I. Whether approval to scheme of Administration of Madarsa can be deemed upon expiry of six months of its receipt by the Board in terms of Regulation 15, Part II of the Regulations of 2016?
II. Whether the Committee of Management of a Madarsa has any jurisdiction to initiate disciplinary proceedings against teaching/non-teaching staff during pendency of approval of scheme of administration?
III. Whether the Registrar has any jurisdiction to approve or disapprove punishment orders by the Committee of Management of a Madarsa inflicted after disciplinary proceedings?
13. Question No. 1. So far as the first question is concerned, Section 20 of the Act 2004 provides for making of regulations by the Board for carrying out the purposes of the Act. Section 21 stipulates that all regulations made shall be only with the previous approval of the State Government and published in the gazette. In pursuance of aforesaid powers, the regulations were framed and notified in 2016.
14. Regulation 15 of the regulations provides that the Board shall either approve the scheme of administration within a period of six months of its receipt or shall return it with suggestions pertaining to amendment thereto. There does not appear to be any deeming clause whereby the scheme of administration of a Madarsa can be said to be automatically approved upon expiry of six months. At the same time, some sanctity is required to be attached to the time period of six months stipulated in the regulations and the Board cannot be permitted to act in an arbitrary and whimsical manner ignoring the aforesaid time period so stipulated in the statutory regulations.
15. Regulation 15 of the regulations is as follows:-
"15. ????? ?? ??????? ?? ????? ??????? ???? ?? ??? ?? ????? ???? ?? ?? ??? ?? ???? ?? ?????? ?????? ?? ?? ?? ??? ??????? ?? ???? ???? ???? ?????????? ???? ???????? ?? ??????? ?? ??? ???? ?????"
16. Hon'ble Supreme Court in the case of X versus Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi and another reported in (2023) 9 SCC 433 has held that the wordings indicated in statutory provisions or even in sub-ordinate legislations are required to be implemented in order to give effect to its purpose. The relevant paragraph nos. 31 & 35 are as follows:-
"31. The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise. Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanai Lal Sur v. Paramnidhi Sadhukhan, Gajendragadkar, J. (as the learned Chief Justice then was) opined that "the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself". But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision must be "illumined by the goal, though guided by the word". Aharon Barak opines that in certain circumstances this may indicate giving "an unusual and exceptional meaning" to the language and words used.
"35. The rule of purposive interpretation was first articulated in Heydon case in the following terms: (ER p. 638) "... for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
17. A perusal of the statement of objects and reasons for promulgation of the Act of 2004 has been indicated to the effect that the Arbi Farsi Madarsas were being administered earlier under the Rules of 1987, which having not been made under provisions of any Act, gave arise to various complications in smooth functioning of Madarsas. Therefore, the Act was promulgated with a view to removing the difficulties arisen in running the Madarsas for improving merit therein and making available the best facility of study.
18. It is therefore quite evident that the Act of 2004 and consequently the Regulations framed thereunder have been promulgated and notified for the smooth functioning of the Madarsas since the earlier Rules of 1987 were leading to complications and difficulties.
19. In view of aforesaid, the mischief sought to be controlled by the Act of 2004 is clearly evident with the purpose of establishment of the Board of Madarsa Education under Section 3 of the Act of 2004. Section 22 of the Act of 2004 provides for a scheme of administration for every institution, whether recognized before or after the commencement of the Act and is required to provide for the Constitution of a Committee of Management vested with the authority to manage and conduct affairs of the institution. The said section also provides that the powers, duties and functions of the head of the institution and Committee of Management is required to be specified in the scheme of administration.
20. It is thus evident that the primary purpose of the scheme of administration pertaining to every Madarsa is to effectuate its smooth functioning and delineation of powers of the authorities of a Madarsa. The aforesaid scheme of administration therefore is a necessary requirement for smooth functioning of a Madarsa and it is probably for this purpose that a time limit of six months has been indicated in Regulation 15 of the Regulations of 2016 providing a window to the Board either to approve the scheme of administration or to indicate any amendments required therein.
21. It is also evident that in case the Board does neither of the acts indicated in Regulation 15 pertaining to approval of a scheme of administration, it frustrates the very purpose of the Act and the Regulations framed thereunder. In view of aforesaid, the Board thus is enjoined to adhere to the time limit indicated in Regulation 15 of the Regulations of 2016. From the discussion made hereinabove, it is clear that the Committee of Management of a Madarsa is required to be governed in terms of statutory provisions of the Act of 2004 and the regulations made hereinunder which are binding not only upon the Madarsa and its authorities but upon State authorities as well and the Board of Madarsa.
22. In such circumstances when a statutory duty has been cast upon authorities concerned, it definitely lends a legitimate expectation in favour of the persons concerned that the statutory conditions indicated in the Act and the regulations framed thereunder would be adhered to.
23. With regard to the principles of legitimate expectation, Hon'ble Supreme Court in the case of State of Jharkhand and others versus Brahmputra Metallics Limited, Ranchi and another reported in (2023) 10 SCC 634 has held as follows:-
"46. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three-Judge Bench in Food Corpn. of India v. Kamdhenu Cattle Feed Industries45, speaking through J.S. Verma, J., held thus: (SCC p. 76, paras 7-8) "7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent." (emphasis supplied)
47. More recently, in Noida Entrepreneurs Assn. v. Noida, a two-Judge Bench of this Court, speaking through B.S. Chauhan, J., elaborated on this relationship in the following terms: (SCC pp. 524-25, paras 39 & 41) "39. State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a 'democratic form of Government demands equality and absence of arbitrariness and discrimination'. The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.
41. Power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case. 'Public authorities cannot play fast and loose with the powers vested in them.' A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. An authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other." (emphasis supplied) As such, we can see that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non-arbitrariness enshrined under Article 14 finds concrete expression."
24. Upon applicability of the aforesaid principle of statutory interpretation read with Regulation 15 of the Regulations of 2016, it is evident that the Board of Madarsa has been provided a window of only six months from the date of receipt of the draft scheme of administration either to approve the same or to return it with suggestions.
25. In the case of All Kerala Parents' Association of Hearing impaired and another versus State of Kerala and others reported in (2018) 2 SCC 410 has held as follows:-
"5. It is well settled that when the language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out the meaning of the statute inasmuch as the language used by the legislature is the indication of the legislative intent."
26. It is also settled law that provisions of statute are either mandatory or directory in nature but the language alone employed in the statutory provision is not the sole determinative of such a factor and has to be considered in the light of effect of such a statutory provision and the consequences which would follow in case it is held not to be mandatory.
27. In three judge bench decision of Hon'ble Supreme Court in the case of State of Mysore and others versus versus V.K. Kangan and others reported in (1976) 2 SCC 895 the proposition has been enunciated as follows:-
"10. In determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other. We see no reason why the rule should receive a permissible interpretation instead of a pre-emptory construction. As we said, the rule was enacted for the purpose of enabling the Deputy Commissioner (Land Acquisition Collector) to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make the proper decision. In Lonappan v. Sub-Collector of Palghat the Kerala High Court took the view that the requirement of the rule regarding the giving of notice to the department concerned was mandatory. The view of the Madras High Court in K. V. Krishria Iyer v. State of Madras is also much the same."
28. Hon'ble Supreme Court in the case of Amardeep Singh versus Harveen Kaur reported in (2017) 8 SCC 746 has held as follows:-
"18. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The court has to have the regard to the context, the subject-matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn., 2004), has been cited with approval in Kailash v. Nanhku reported in (2005) 4 SCC 480 as follows: (SCC pp. 496-97, para 34) "34. ... 'The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject- matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oftquoted passage Lord Campbell said: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered." ' " (p. 338) " 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory." (pp. 339-40)"
29. In the case of Devinder Singh and others versus State of Punjab and others reported in (2008) 1 SCC 728, Hon'ble Supreme Court has interpreted statutory clauses in terms of being mandatory or directory in nature. The relevant paragraph no. 55 is as follows:-
"55. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A provision of a statute is either mandatory or directory. Even if a provision is directory, the same should be substantially complied with. It cannot be ignored in its entirety only because the provision is held to be directory and not an imperative one."
30. In view of aforesaid, the time window of six months provided to the Board of Madarsa for approving the draft scheme of administration has to be strictly adhered to. Attaching any other meaning or providing extension of the time limit of six months to the Board of Madarsa would eviscerate the specific statutory provision by undesirable lapses on the part of Board.
31. The only conclusion which can be drawn therefore is that the time window of six months provided to the Board of Madarsa has to be construed strictly as a mandatory condition failing which it would impair the smooth functioning of the institutions concerned and would defeat the very purpose for which the Act of 2004 was promulgated. In such circumstances, there is no other option but to hold that in case the Board of Madarsa does not return the draft scheme of administration with its suggestions for amendment within the stipulated time limit of six months, approval of the draft scheme of administration would be deemed.
32. This is all the more evident since under Regulation 15 of the Regulations of 2016, no power has been given to the Board of Madarsa to disapprove of a draft scheme of administration. The silences of the statutory provision cannot be a ground to provide the Board of Madarsa untrammeled power to Act arbitrarily by withholding approval to the draft scheme of administration for all times to come.
33. . In the present case, it is evident that the scheme of administration of the Madarsa concerned had been forwarded to the Board on 07.08.2021 which was received on 08.08.2021 whereafter it is still pending consideration despite passing of more than two and half years.
34. In the aforesaid circumstance and particularly since there is no disapproval indicated by the Board of Madarsa with regard to draft scheme of administration of the petitioner institution, the approval to draft scheme of administration is deemed to have been accorded.
35. Question No. 2. The said question pertains to whether the Committee of Management has any jurisdiction to initiate disciplinary proceedings during the pendency of approval of the scheme of administration.
36. The aforesaid question can clearly be divided into two parts pertaining to Regulations 11 and 16 of the Regulations of 2016. While Regulation 11 of Part III of the Regulations of 2016 pertain to probation and confirmation, Regulation 16 of the aforesaid part pertains to disciplinary proceedings against the Headmaster, teaching and non-teaching staff of a Madarsa. Aforesaid two regulations are as follows:-
"11. ????????? ??? ?????????- ????? ????????? ?????????? ?? ?? ???? ?? ????????? ?? ??? ??????, ???? ??? ?? ???? ?? ??? ???? ???????? ???? ???? ??????? ????? ?????? ?????? ?? ???? ??? ??? ????????? ???? ??? ????????? ???????? ?? ????? ??? ??????? ?????????? ???? ???? ??, ?? ??????? ????? ?????? ???? ????? ????? ???? ??? ?????????? ??????? ???? ?? ??????? ?????????? ???? ?????? ?? ?? ???? ??? ??? ????????? ???? ??? ??? ????? ????????? ???? ?????? ?? ???? ???? ???? ?? ?? ????????? ??? ????? ???? ?? ????????? ???????? ???? ?? ?? ?????? ???? ??? ???? ???????
16. ????????? ????????? (????, ???? ??? ???????) - ?????? ?? ????????????, ?????? ??? ??????????? ??????????? ?? ??????? ??? ????????? ?????????, ??????? ??? ???? ??? ????? ????? ?? ???????????? ???? ????? ?? ??? ???? ?????? ????? ??? ??????? ?? ?????? ?? ????????? ????? ?????? ????? ?????? ???????? ???? ??? ??????? ????? ?? ???????? ?? ???????"
37. Regulation 11 indicates that a person can be engaged in service for a period of one year on probation which is extendable to a further period of one year. In case the work and conduct of the probationer is found to be dis-satisfactory, his services can be dispensed with after issuing a show cause notice to him and providing opportunity to rebut the same. The provision also indicates automatic confirmation of a probationer upon satisfactory completion of the probation period.
38. The aforesaid regulation is clearly an independent provision pertaining to services of a person engaged on probation by a Madarsa. Quite evidently, the said provision is independent of the scheme of administration applicable upon a Madarsa.
39. In stark contrast, Regulation 16 which pertains to disciplinary proceedings is completely dependent on the approved scheme of administration and the conditions of service which would be indicated therein.
40. In such circumstances the only result of such an examination is that the Committee of Management of a Madarsa is fully competent to take action with regard to dispensing with services of a probationer upon expiry of the probation term but subject to fulfillment of conditions indicated in Regulation 11 whereas action against substantively appointed teaching and non-teaching staff of a Madarsa is completely dependent upon the approved scheme of administration.
41. It is thus evident that while provisions regarding probation have been clearly delineated in the Regulations of 2016, those regarding disciplinary proceedings against substantive employees of the Madarsa have been indicated to be subservient to the scheme of administration. Therefore, the provisions of Regulation 11 being a part of sub-ordinate legislation would definitely have precedence over the scheme of administration.
42. The aspect of precedence of delegated legislation has been enunciated by Hon'ble Supreme Court in the case of St Johns Teachers Training Institute versus Regional Director, National Council for Teacher Education and another reported in (2003) 3 SCC 321 in the following terms:-
"10. A Regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and Regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi.)"
43. In the considered opinion of this Court, it would be appropriate to hold that the Committee of Management of a Madarsa is fully empowered to take action as prescribed under Regulation 11 of Part III of the Regulations of 2016 regarding a probationer irrespective of pendency of approval to the proposed scheme of administration but cannot initiate any disciplinary action against substantively appointed teaching and non-teaching staff of a Madarsa pending approval of the scheme of administration.
44. The aforesaid fact is also evident from the Government order dated 07.01.2022 which also prohibits initiation of any disciplinary proceedings against substantively appointed teaching and non-teaching staff of a Madarsa in terms of Regulation 16 of Part III of the Regulations.
45. Question No. 3. The answer to question whether Registrar has any jurisdiction to approve or disapprove punishment order by the Committee of Management of Madarsa either in terms of Regulation 11 or Regulation 16 of Part III of the Regulations is required to be considered in terms of the aforesaid regulations themselves.
46. It has been submitted by learned counsel for opposite parties that the Registrar exercises power of superintendence in terms of Section 16 of the Act of 2004 and therefore he is empowered to approve or disapprove of action taken by the Committee of Management of a Madarsa pertaining either to Regulation 11 or 16 of the Regulations. Section 16 of the Act of 2004 is as follows:-
"16. (1) The Registrar of the Board shall be the Chief Executive Officer of the Board and shall, subject to the superintendence, control and directions of the Board, be responsible for the execution of its decisions. He shall exercise such other powers and perform such other duties as may be prescribed by regulations, and in particulars :-
(a) be responsible to prepare and present the annual estimates and statement of accounts;
(b) be responsible to ensure that all moneys are spent for the purpose for which they are granted or allotted;
(c) be responsible for keeping the minutes of the meeting of the Board;
(d) shall exercise such powers as are necessary for the conduct of the examinations; and
(e) shall exercise such other powers as may be prescribed by the regulations."
47. A perusal of the aforesaid provision clearly indicates that the powers of Registrar is limited for the exercise of powers and performing duties which may be prescribed by regulations which are indicated in Clauses (a) (b) (c) (d) & (e). The provision does not indicate any power to approve or disapprove of disciplinary action taken by the Committee of Management of a Madarsa. The only exception is Clause 16 (1) (e) with regard to exercise of power as prescribed by the regulations.
48. However, a perusal of both the regulations whether pertaining to services of probationer employee or substantively appointed employee of a Madarsa reveal that there is no provision under the statutory regulations whereby Registrar has been conferred any power to approve or disapprove of action taken by the Committee of Management of a Madarsa under the aforesaid regulations.
49. Hon'ble Supreme Court in the case of Adani Gas Limited versus Union of India and others reported in (2022) 5 SCC 210 has clearly held that the rule or regulation making authority cannot travel beyond the scope of the enabling parent Act. The relevant paragraph nos. 106 & 114 are as follows:-
"106. In State of U.P. v. Renusagar Power Co.61 this Court held that: (SCC pp. 100-01, para 79) "79. If the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute."
114. It is a well-established principle that the rule or regulation-making authority cannot travel beyond the scope of the enabling parent Act. (State of Karnataka v. H. Ganesh Kamath; St. Johns Teachers Training Institute v. NCTE; Tata Power Co. Ltd. v. Reliance Energy Ltd.). In the decision in Indramani Pyarelal Gupta v. W.R. Natu this Court observed that the proper test applicable would be to consider whether the rule or subordinate legislation is "incompatible" with the purpose for which the body was created or the particular power is contra-indicated by a specific provision: (W.R. Natu case70, AIR p. 281, para 14) "14.... the proper rule of interpretation would be that unless the nature of the power is such as to be incompatible with the purpose for which the body is created, or unless the particular power is contra-indicated by any specific provision of the enactment bringing the body into existence, any power which would further the provisions of the Act could be legally conferred on it.""
50. A Co-ordinate Bench of this Court in the case of C/M Madarsa Muhammdiya Faiz-E Rasool And Another versus State Of U.P. And 3 Others, Writ-A No. 13753 of 2020 after perusal of Regulations 2016 has also held that neither the statute nor the regulations provide for conferring any power on the Registrar either disapproving or approving of any suspension or termination of any teaching/non teaching staff.
51. Considering the wordings of Regulations 11 and 16 of Part III of Regulations of 2016, this Court is in respectful agreement with the aforesaid judgment and order and therefore holds that the Registrar does not have any power whatsoever under the aforesaid Regulations 11 and 16 of Part III of the Regulations of 2016 either to approve or disapprove action taken by Committee of Management against its employees with a probationary or substantively appointed.
52. However, a rider to the aforesaid observation is required in the sense that since regulation 16 empowering the Committee of Management to initiate disciplinary action against substantively appointed employees is dependent on the approved scheme of administration, the aforesaid powers of the Registrar would be subject to any such provision in case it is indicated in the scheme of administration. However, the Registrar even otherwise would not derive any power to approve or disapprove of action taken by the Committee of Management of a Madarsa under Regulation 11 of Part III of the Regulations of 2016.
53. In view of what has been held hereinabove, it is evident that the opposite parties have sought to take benefit of their own wrong. On one hand the Board has kept the proposed scheme of administration sent by petitioner in limbo for the past two and half years but on the other hand it seeks to derive benefit from the same by striking down action taken by the Committee of Management against the probationary employee on the pretext that the scheme of administration has not been approved. Such a situation cannot be permitted and would in fact amount to an arbitrary action on the part of opposite parties which would therefore be violative of Article 14 of the Constitution of India.
54. Learned counsel for opposite party no. 5 has strenuously submitted that since the services of the answering opposite parties, even though on probation, were dispensed with on stigmatic grounds and after following procedure for inquiry, the same would be covered under provisions of Regulation 16 and not Regulation 11 of Part III of the Regulations.
55. However, upon careful examination of not only the show cause notices but also the termination order, it is evident that petitioner has followed the provisions of Regulation 11 which clearly provides that prior to dispensing with the services of a probationary employee on grounds of dissatisfactory work or conduct, a show cause notice and opportunity to rebut the allegations is required to be given, has been followed.
56. Even if it is assumed that services of opposite party no. 5 have been dispensed with on stigmatic grounds, only an opportunity of hearing is required which by any stretch of imagination cannot be said to be in terms of Regulation 16 of the Regulations which clearly is applicable only in case of substantively appointed teaching and non-teaching staff whereas the opposite party no. 5 being only on probation, is covered by the provisions of Regulation 11 of Part III of the Regulations.
57. Learned counsel for opposite party no. 5 has placed reliance on a number of judgments to buttress his submissions. However, a perusal of the aforesaid judgments clearly indicates that they are inapplicable in the present facts and circumstances primarily for the reason that the judgments pertain only to the procedure required to be followed in case of a probationary employee in case his services are dispensed with on stigmatic grounds.
58. At the cost of repetition, it is relevant to state that even if the aforesaid propositions of law are implemented, the nature of petitioner's engagement as a probationary employee and not a substantively appointed employee cannot be countenanced.
59. Learned counsel for opposite party no. 5 has also adverted to judgment and order dated 05.08.2022 passed by this Court in Writ-A No. 10967 of 2022, Arshad Javed Khan versus State of U.P and others. However, a perusal of aforesaid judgment also makes it evident that the same pertained to a substantively appointed teaching staff of a Madarsa and action against him had been taken in terms of Regulation 16 of the Regulations and not under Regulation 11.
60. It is also a relevant fact that the aspect of whether procedure indicated under Regulation 11 of Part III of the Regulations was followed or not is not an aspect to be considered in this petition since the termination order dated 30.07.2023 is not under challenge at the behest of opposite party no. 5.
61. In view of what has been held hereinabove, it is evident that the Registrar had absolutely no jurisdiction whatsoever to interfere with the order dated 30.07.2023 passed by petitioner institution terminating services of opposite party no. 5.
62. It is also evident that the order dated 01.01.2024 imposing single hand operation has been issued by the Registrar only on account of the fact that name of opposite party no. 5 was not being included by the management in salary bills.
63. In view of what has been held hereinabove, the impugned orders dated 09.11.2023 and 01.01.2024 are hereby quashed by issuance of a writ in the nature of certiorari.
64. In view of Regulation 15 of Part II of the Regulations of 2016, there is no occasion for this Court to interfere with the impugned order dated 20.05.2023. However, in view of specific provisions of Regulation 15 of the regulations of 2016 it is held that the draft scheme of administration submitted by the institution in question received by the Board on 08.08.2021 shall hereby stand approved.
65. An application for impleadment was filed on behalf of one Mohd. Mazhar Khan indicating himself to be an Assistant Teacher in the Institution. He is neither a necessary nor a proper party. The application is therefore rejected.
66. Resultantly, the petition succeeds and is allowed. Parties to bear their own cost.
Order Date :- 26.2.2024 Satish