Allahabad High Court
State Of U.P. Thru Director Inspector Of ... vs Manager Committee Of Mangement Islamia ... on 21 March, 2022
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 2 Case :- SPECIAL APPEAL DEFECTIVE No. - 185 of 2020 Appellant : State Of U.P. Thru Director Inspector Of School Lakhimpur Kheri Respondent : Manager Committee Of Management Islamia Inter College And Ors. Counsel for Appellant : C.S.C. Counsel for Respondent : Dwijendra Mishra, Mohammad Danish, Mohd. Mansoor With Case : SPECIAL APPEAL No. - 340 of 2019 Appellant : C/M Islamia Inter College Lakhimpur Kheri Through Its Manager Respondent : District Inspector Of Schools Lakhimpur Kheri And Ors. Counsel for Appellant : Dwijendra Mishra Counsel for Respondent :- C.S.C.,Madhumita Bose, Mohammad Danish, Mohd. Mansoor, Hon'ble Devendra Kumar Upadhyaya, J.
Hon'ble Subhash Vidyarthi, J.
(Per Hon'ble Subhash Vidyarthi, J.)
1. Since both the aforesaid appeals have been filed challenging the order dated 28.05.2019 passed by the Hon'ble Single Judge allowing Writ Petition No.4972 (S/S) of 2009 (Mueez Ahmad and another vs. State of U.P. and another), they have been heard together and are being decided by a common judgment and order, which is being passed in Special Appeal Defective No. 185 of 2020, treating it as the leading case.
2. Briefly stated, facts of the case are that Islamia Inter College, Lakhimpur Kheri is a minority educational institution. On 14.01.2009, the Appellant - Committee Of Management Islamia Inter College, Lakhimpur Kheri, had issued an advertisement inviting applications for making appointments on the post of Assistant Teacher in four subjects i.e. Mathematics, General, Hindi and Art. The respondent no.2 - Mueez Ahmad was a graduate in History and Political Science and the respondent no.3 - Mohd. Suhaib Hasan is a graduate with Mathematics as a subject and they were eligible for applying for the posts advertised. Both of them applied in response to the aforesaid advertisement. Several candidates participated in the interview held on 28.07.2009 including the respondents no. 2 and 3 and afterwards the Appellant published a merit list of the candidates, in which the respondent no. 2 was shown at serial no. 1 amongst the candidates for the post of Assistant Teacher (General) and the respondent no. 3 was shown at serial no. 1 amongst the candidates for the post of Assistant Teacher (Maths).
3. The list of selected candidates was sent to the District Inspector of Schools (hereinafter referred to as "D.I.O.S.") for his approval under Section 16-FF of the Intermediate Education Act, 1921 (hereinafter referred to as "the Act of 1921").
4. On 07.08.2009, the D.I.O.S. wrote a letter to the Appellant returning the files relating to selection proceedings directing the Appellant to conduct the interviews afresh in supervision of an Observer appointed by the D.I.O.S.
5. The respondents no. 2 and 3 filed Writ Petition No.4972 (S/S) of 2009 challenging the aforesaid order dated 07.08.2009 passed by the D.I.O.S. mainly on the ground that there is no provision in the Act of 1921 or any other law to hold the selection/interview under supervision of any Observer and that the D.I.O.S. had no power to pass an order for holding interviews afresh in supervision of an Observer appointed by him.
6. The D.I.O.S., Lakhimpur Kheri filed a counter affidavit in reply to the Writ Petition, stating that the Institution in question, namely, Islamia Inter College, Lakhimpur Kheri is a minority institution and is recognized and aided up to the level of High School and recognized and unaided at the Intermediate level. Salary of the teaching staff of the institution up to the level of High School is paid from the State exchequer. Four posts of Assistant Teachers in LT grade were lying vacant in the institution. The Manager of the institution sought permission to issue an advertisement to fill up the vacancies and the D.I.O.S. granted the permission vide order dated 12.01.2009. Thereafter the Committee of Management held interviews on 28.07.2009, selected three candidates and sent the requisite papers to the D.I.O.S. for approval of their appointment vide letter dated 29.07.2009. Thereafter, various complaints were received in the office of the D.I.O.S. alleging various irregularities and illegalities in the selection process and certain newspapers published reports to this effect. Keeping in view the seriousness of the complaints, the file was returned to the institution for holding interviews afresh in supervision of an Observer appointed by the D.I.O.S.
7. A counter affidavit was filed on behalf of the private respondents no.4 and 5 stating that the selection process adopted by the Committee of Management was not in accordance with the provisions of the regulations framed under the Act of 1921 and in the event of any illegality committed during the selection, the D.I.O.S. has a power to withhold the approval to the said illegal selections.
8. By means of the judgment and order dated 28.05.2019, Hon'ble Single Judge of this Court has allowed the Writ Petition holding that the process of selection and grant of approval would be governed by Section 16-FF of the Act of 1921 and there is no provision in the Act for returning the select list with a direction to hold interviews afresh in supervision of an Observer appointed by the D.I.O.S. The order dated 07.08.2009 has been passed without holding an enquiry into the complaints of the alleged bungling and without giving an opportunity of hearing, in an ex parte and arbitrary manner, without recording any reason with regard to any bungling alleged to have taken place. Therefore, the order dated 07.08.2009 was found to be unsustainable.
9. The Hon'ble Single Judge also took note of the fact that vide order dated 19.02.2010, the Director had approved selection of Sri. Moddassir Khan who was selected along with the respondents no. 2 and 3 in the selections held in the year 2009. The order dated 19.02.2010 indicates that the Director accorded approval to the entire select list and not merely to the appointment of Sri. Moddassir Khan. The selections having taken place in a combined manner, the doctrine of severability would be inapplicable in such a case and it can be said that the entire selections held in the year 2009 had been approved by the Director. The Hon'ble Single Judge rejected the contention of the Committee of Management that the selections were not held in accordance with Regulation-20 and Section 16-FF (3) (b) of the Act of 1921.
10. On the aforesaid reasoning, the Hon'ble Single Judge allowed the Writ Petition and quashed the order dated 07.08.2009 passed by the D.I.O.S. directing to hold interviews afresh in supervision of an Observer appointed by him and the opposite parties were directed to consider the petitioners (the respondent nos. 2 and 3 in the Special Appeal) as regularly selected Assistant Teachers for the subject of Mathematics and General in the institution in question, with consequential service benefits. The Committee of Management of the Institution has challenged the aforesaid order through Special Appeal No. 340 of 2019 and the State of U.P. has also challenged the aforesaid order by filing Special Appeal No. 185 of 2020.
11. We have heard the submissions of Sri Dwijendra Mishra, the learned counsel for the Appellant in Special Appeal No. 340 of 2019, Sri Anil Kumar Singh Vishen, the learned Standing Counsel appearing for the Appellant-State of U.P. in Special Appeal No. 185 of 2020 and Sri. Mohd. Mansoor, Advocate appearing for the private respondents.
12. The undisputed facts which appear from the records, are that on 19.11.2008, the Committee of Management of the Institution had sent a letter to the D.I.O.S. seeking permission for issuing an advertisement for making selectionsfor appointments on four vacant posts of Assistant Teachers in the institution. By means of a letter dated 12.01.2009, the D.I.O.S. Lakhimpur Kheri called for a report regarding existence of the vacancies from the Assistant Accounts Officer and after examining the report submitted by him, the D.I.O.S. granted permission for issuing an advertisement for making appointments to the aforesaid four posts of Assistant Teachers.
13. In furtherance of the aforesaid permission granted by the D.I.O.S., the Committee of Management held interviews of candidates on 28.07.2009, in which various candidates appeared. In the subject Mathematics, the respondent no. 2 was placed at serial no. 1 of the merit list prepared after interviews and in subject General, the respondent no. 3 was placed at serial no. 1 of the merit list. Thereafter, the Committee of Management sent the requisite papers to the D.I.O.S. for approval of their appointment vide letter dated 29.07.2009.
14. Selection to the posts of Assistant Teachers in minority instituions/colleges are governed by Section 16-FF of the Act of 1921, which provides as follows:
"16FF. Savings as to minority institutions. - (1) Notwithstanding anything in sub-section (4) of Section 16-E, and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management : Provided 'hat one of the members of the Selection Committee shall, -
(a) in the case of appointment of the Head of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the Institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless, -
(a) in the case of the Head of an Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be. does not approve of a candidate selected under this section, the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of a teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final."
15. A perusal of Sub-section (4) of Section 16-FF of the Act of 1921 indicates that the Inspector is prohibited from withholding approval of selection made under Section 16-FF where the persons selected possess the minimum qualification prescribed and are otherwise eligible. Thus the only ground on which the Inspector could withheld the approval for the selection, is that the person selected does not possess the minimum qualification prescribed or is otherwise ineligible.
16. Both the respondents no. 2 and 3 had categorically pleaded in the Writ Petition that they possess the requisite qualification and they are otherwise also eligible for appointment on the posts in question and this fact has not been disputed by any party. In view of this factual backdrop and the statutory provision contained in Section 16-FF(4), the Inspector is clearly forbidden from withholding approval of their selections. The Hon'ble Single Judge has rightly recorded a finding that there is no provision for passing a direction to hold interviews again in supervision of an Observer appointed by him. The aforesaid order dated 07.08.2009 has been passed on the basis of some allegations of bungling in the selection process but neither any enquiry was conducted in the said allegations of bungling nor was any categorical finding recorded by the D.I.O.S. that any bungling had actually taken place in the selection process. Any selection held in accordance with law cannot be interfered with on mere allegations of bungling in absence of any proof.
17. The learned counsel for the appellant has pressed another ground of challenge to the judgment of the Hon'ble Single Judge, that the posts in question were lying vacant since long and as per the provision contained in Regulation 20 in Chapter-II of the Regulations under the Act of 1921, that the post shall be deemed to have been surrendered and it could not be filled up unless its creation was sanctioned by the Director.
18. The D.I.O.S. had passed the order dated 07.08.2009 returning the files of selection files of selection of candidates on the ground that he had received complaints regarding irregularities committed in the selection process and newspapers have published news against the selection process due to which the candidates are dissatisfied. The D.I.O.S. has not passed the order dated 07.08.2009 on the ground that the posts in question were lying vacant since long and had to be deemed to have been surrendered under Regulation-20 in Chapter-II of the Regulations under the Act of 1921. It is well settled law that the validity of any order has to be judged on the basis of the reasons mentioned in the order itself and reasons to support an order cannot be afterwards. As the order dated 07.08.2009 does not make any mention of the posts in question not being available to be filled up as per the provision contained in Regulation-20 in Chapter-II of Regulations under the Act of 1921, the aforesaid provision cannot be pressed into service for validity of the order dated 07.08.2009.
19. The Hon'ble Single Judge has dealt with this ground and has held that an unsuccessful candidate Mohd. Nazeem Khan had given a representation to the Director and in the order dated 19.02.2010 passed on the representation of Sri. Nazeem Khan, the Director has recorded his satisfaction that the selections were held by a duly constituted selection committee after due approval of the competent authority, and he accorded approval to the selection of Sri. Nazeem Khan.
20. Along with the counter affidavit filed by the D.I.O.S. Copy of a letter dated 12.01.2009 issued by the D.I.O.S. has been annexed which states that he had got an enquiry conducted by the Assistants Accounts Officer regarding the existence of the aforesaid vacant posts and after obtaining a report from him regarding availability of vacant posts, permission was granted to publish an advertisement for conducting selection for appointment to the aforesaid posts. Therefore, from the record produced by the D.I.O.S. himself, it appears that he had recorded satisfaction about existence of the vacant post after getting an enquiry conducted in this regard. Morever, the order dated 19.02.2010 passed by the Director puts a seal of approval upon the entire selection process.
21. In these circumstances, refusal of the D.I.O.S. to accord approval to the selection of respondent nos. 2 and 3 namely, Sri. Mueez Ahmad and Sri. Mohd. Suhaib Hasan who were also selected in the same selection process, is apparently arbitrary and unreasonable.
22. We find that the judgment and order dated 28.05.2019 passed by the Hon'ble Single Judge is based on an appropriate appreciation of facts of case as well as the law applicable to it and there is no error or illegality in it so as to warrant any interference with the same in this intra-Court Appeal.
23. Both the appeals bearing Special Appeal No. 185 of 2020 and Special Appeal No. 340 of 2019 challenging the aforesaid judgment and order dated 28.05.2019 passed by the Hon'ble Single Judge in Writ Petition No. 4972 (S/S) of 2009 (Mueez Ahmad and another vs. State of U.P. and another), lack merit and are. accordingly, dismissed.
24. No order as to costs.
Order Date :- 21.3.2022 Ashish pd.