Allahabad High Court
Momin Ahmad And Ors. vs State Of U.P.Through Secretary And Ors. on 23 January, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 66864 of 2012 Petitioner :- Momin Ahmad And Ors. Respondent :- State Of U.P.Through Secretary And Ors. Counsel for Petitioner :- Siddharth Verma,S. Khare Counsel for Respondent :- C.S.C.,Birendra Pratap Singh Hon'ble Yashwant Varma,J.
Parties are ad idem that this petition would merit disposal on terms similar to those entered and recorded by the Court while disposing of companion Writ-A No. 22772 of 2012. The Court notes that in respect of the same institution and the same selection process, the Court today has disposed of the aforesaid writ petition recording the following reasons:-
" Before this Court it is not disputed that the sixth respondent is a minority institution and consequently appointments made by the Committee of Management in such an institution shall be governed exclusively by the provisions made in Section 16-FF of the U.P. Intermediate Education Act, 19211 read with Chapter II Regulation 17(2) of the Regulations framed thereunder. As is evident from a perusal of Section 16FF of the 1921 Act, the Regional Deputy Director of Education or the Inspector of Schools, as the case may be, is entitled to interfere in a selection process undertaken by a minority institution only where it is found that the person selected does not possess the minimum qualifications prescribed or is otherwise ineligible. It becomes relevant to note that the impugned order does not hold against the petitioner on this score. Insofar as the issue of award of marks in the interview is concerned, suffice it to note that Regulation 17 does not mandate or prescribe that the total marks assigned for the interview be further sub divided or specified under different heads. It clearly envisages marks being cumulatively awarded upon an assessment of the candidate in the interview. In that light, the findings as returned by the District Inspector of Schools on the two aspects noticed above cannot possibly be countenanced.
The Court then notes the third objection which is taken, namely that no prior approval of the Inspector was obtained before initiating the selection process. It becomes pertinent to note that Chapter II which alone would apply to a minority institution nowhere requires the Committee of Management to obtain the prior approval of the Inspector before initiating a selection process. The only requirement which is placed in Chapter II and which may be said to apply is that contained in Regulation 17(2) which prescribes that no new post shall be advertised unless the sanction of the appropriate authority for its creation has been received. As the Inspector himself records in the impugned order, there were 19 posts which had been sanctioned in the Institution and out of which 11 were manned by appointees thus clearly leaving eight substantive vacancies to be filled by the Management. The impugned order does not record that these vacancies that existed had not been sanctioned or created in accordance with law. The issue of prior approval, as alluded to by the Inspector of Schools in the impugned order, had earlier fell for consideration before this Court in C/M Digamber Jain Girls High School Vs. State2 where after noticing the relevant statutory provisions, the Court held thus: -
"Even otherwise the sole provision of prior approval upon which the rival contentions of parties have pivoted was Regulation 17(2) appearing in Chapter-II of the Regulation framed under the Act, 1921. A bare reading of this provision establishes that it applies to a "new post'. The further words used in Regulation 17(2) are "for the creation thereof". It is therefore apparent that the said Regulation can come into play only when a new post is to be advertised and the injunction itself applies only when the sanction for creation thereof is required and received. The said provision does not apply to a vacancy created upon death or retirement of a holder of the said post. This because the post in question already exists and stands sanctioned. Upon retirement or death the said post only falls vacant. Death or retirement do not result in creation of a new post."(emphasis supplied) The Court consequently finds itself unable to sustain the reasoning adopted by the District Inspector of Schools on this score also.
The Court further notes that while passing the impugned order, the District Inspector of Schools has alluded to an interim order of restraint passed by the High Court on a writ petition on 4 June 2005. That order restrained the Committee of Management from making fresh appointments. The Court is apprised that the aforesaid order was passed pending an internecine dispute between two rival factions who claimed the right to manage the sixth respondent. However, as the impugned order itself records, that restraint came to be lifted and vacated on 21 April 2011. Admittedly the process of selection was initiated only thereafter. In that view of the matter, the Court finds itself unable to sustain the order impugned.
While parting, it may only be noted that while the Inspector refers to various complaints received by him raising allegations of the selection process being unfair, he does not hold that upon due enquiry these complaints were found to be of substance. The issue is thus left hanging on mere surmise and conjecture."
The impugned order reveals that identical grounds have been adopted by the District Inspector of Schools to deny granting approval to the selection and appointment of the petitioners here. The reasons so assigned have already been held to be unsustainable by the Court while deciding the above noted writ petition.
Accordingly and for the reasons aforementioned, the instant writ petition is allowed. The impugned order dated 30 November 2012 is hereby quashed. The matter in consequence shall stand remitted to the fourth respondent who shall consider the issue of grant of approval in respect of the selection of the petitioner afresh bearing in mind the observations entered in Writ A No. 22772 of 2012. The exercise of consideration shall be concluded with expedition and a final decision communicated not later than two months from today.
Order Date :- 23.1.2020 LA/-