State Of Up And 3 Others vs Smt. Abha Patel And 6 Others on 2 July, 2024

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Allahabad High Court

State Of Up And 3 Others vs Smt. Abha Patel And 6 Others on 2 July, 2024

1. The instant intra-court appeal is directed against the order of learned Single Judge dated 02.05.2024 in Writ-A No. 33173 of 2017, 'Smt. Abha Patel & 5 others vs. State of U.P. & 4 others'. By the said order, the stay vacate application of the appellants has been disposed of and the interim order granted initially dated 19.08.2017 has been modified so as to entitle the writ petitioners (respondents No. 1 to 6 herein) to the current salary keeping in abeyance the payment of arrears in terms of the initial interim order dated 19.08.2017.

2. The writ petitioners in the writ petition challenged an order dated 18.05.2017 by which the District Inspector of Schools, Gorakhpur declined to accord approval to the selection of the petitioners on different posts of Assistant Teacher in Abhai Nandan Inter College, Gorakhpur, a minority institution. The approval has been declined by placing reliance on a Government Order dated 28.08.2015 by which it was clarified that Regulation 20 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 19211 would also apply to minority institution. The other ground is that the writ petitioners do not possess the minimum qualification. The order does not indicate that what was the minimum qualification prescribed for the posts and how the writ-petitioners do not have the requisite qualification.

3. The case of the writ-petitioners before the Writ-Court was that they possess the prescribed qualification and also that the Government Order in question would not apply to minority institution. It is also the case of the writ-petitioners that the post was notified for selection after due intimation to the District Inspector of Schools.

4. Interim order dated 19.08.2017 initially passed in favour of the writ-petitioners was as follows:

"This writ petition has been instituted on behalf of six petitioners. It is sated that they have appointed as Assistant Teacher in Abhai Nandan Inter College (Minority Institution), Gorakhpur in terms of Article 30 of the Constitution. The sanctioned strength of Lecturers in the institution is 10 and 31 for Assistant Teachers.

The Committee of Management of the institution has issued an advertisement on 02.08.2016 in the English Daily news paper "Hindustan Times" and also in Hindi news paper "Aaj" calling the applications from the eligible candidates. It is stated that all the petitioners who are qualified made their applications pursuant to the said advertisement and have been selected. The papers were sent to the District Inspector of Schools for its approval. The approval has been declined mainly on two grounds that one of the Teachers does not have the essential qualifications and Regulation 20 of Chapter II of the Intermediate Education Act, 1921 provides that in case the appointment is not made within stipulated period, the posts shall stand surrendered.

Learned counsel for the petitioner submits that the Regulation 20 of Chapter II of the Intermediate Education Act, 1921 would not be attracted in this case as the determination of the post was finally determined in the year 2013 and there is no inordinate delay. The Committee of Management has sought permission from the District Inspector of Schools to initiate the selection proceeding on 30.03.2013 and 20.06.2013. Learned counsel for the petitioner has placed reliance on the judgment of this Court in the cases of Karunesh Kumar Singh vs. State of U.P. and Others, (2005) 3 UPLBEC 2361; Mukesh Singh Chauhan and Others vs. State of Uttar Pradesh and Others, 2006 (3) ESC 1782 and the order passed in Writ -A No. 2104 of 2015 in the case of C/M, Shri Ratanmuni Jain Inter College and Anr. vs. State of U.P. and Others, vide order dated 21.01.2015.

Lastly learned counsel for the petitioner submits that the teachers who do not have the qualification are not the petitioners in this writ petition and for the said reasons the salary of all the Teachers cannot be stopped.

I have heard the learned counsel for the parties and perused the record.

I find that the petitioners have made out a prima-facie case. There is no dispute with regards to the existence of the post and the vacancy. It is also not disputed that all the six petitioners have essential qualifications.

In view of the aforesaid facts and circumstances, Section 16FF(4) of the Intermediate Education Act, 1921 provided that in the matter of minority institutions, the District Inspector of Schools can withhold the approval only on the ground that the teachers do not have essential qualifications. No such ground has been pointed out by the District Inspector of Schools in respect of the six teachers.

Learned Standing Counsel has received the instructions which is taken on record.

In the instructions, there is no dispute that the petitioners regarding their qualifications and the existence of vacancies.

Accordingly the respondents are directed to pay the salary of the petitioners within six weeks.

Learned Standing counsel may file counter affidavit by the next date.

List this case on 09.10.2017."

5. The appellants being aggrieved by the said order preferred Special Appeal (D) No. 529 of 2017 and it was disposed of by order dated 30.10.2017 with the observation that the appellants may apply for vacation of the interim order and which application would be considered by the learned Single Judge at the earliest.

6. Thereafter, the appellants filed stay vacate application contending that the writ-petitioners do not possess minimum qualification; that the advertisement was not issued as per the requirement of law; that the procedure prescribed had not been followed and that Regulation 20 of Chapter-II would definitely apply to the facts of the case.

7. The matter, thereafter, came up for consideration before learned Single Judge and by impugned order, as noted above, the interim order initially passed on 19.08.2017 has been modified and now the writ-petitioners are held entitled to current salary only. The appellants being aggrieved thereby have filed the instant appeal. The submission is that once approval was not granted by District Inspector of Schools, Gorakhpur to the selection of the writ petitioners, any order directing payment of salary to the writ petitioners amounts to granting a final relief. It is submitted that learned Single Judge has not considered the specific case in the counter affidavit that the writ petitioners do not possess minimum qualification as prescribed under Appendix A to Chapter-II of the Intermediate Education Act, 1921. In support of the contention, learned counsel for the appellants has placed reliance on Clause 3(1) at Serial No. 2 and Clause 4 at Serial No. 32 of Appendix A. He also submits that under Chapter-II Regulation 17 (a) the advertisement should have specified the nature of vacancies, descriptions of post, scale or pay and other allowances, experience required, minimum qualification and age prescribed, if any, for the post but which is lacking in the advertisement issued in the instant case. He further submits that in the Selection Committee, there was no expert, who as per Regulation 17(2)(f) of Chapter-II, has to be nominated by the Regional Deputy Director of Education from the panel prepared by the Director for each region. It is also contended that the selection procedure was faulty as the Selection Committee did not award quality-point-marks as prescribed by Regulation 10(g) of Chapter-II of the Act. There were other candidates who got first position in all the examinations but since quality-point-marks were not given and therefore, they were not selected. The selection was to be made on basis of the total quality-point-marks and the marks awarded in the interview. However, in the instant case, the Selection Committee acted illegally and arbitrarily in selecting the candidates merely on basis of their performance in the interview. It is submitted that in such circumstances, the minority institution which is receiving grant-in-aid from the Government cannot be permitted to appoint the writ-petitioners or to pay salary to them from the said grant. In support of contention, reliance has been placed on the judgment of Supreme Court in State of U.P. & others vs. Principal, Abhay Nandan Inter College & others2in relation to the same Institution wherein it has been held that once an institution decided to avail grant-in-aid, it has to abide by the conditions of the grant. It is urged that in such circumstances, even though, the Institution is a minority institution, the appointments could not be made without approval of the District Inspector of Schools. The District Inspector of Schools, it is contended, is empowered to examine whether the selected candidates possess minimum qualification and also whether the procedure prescribed under the Act has been followed or not.

8. Shri R.C. Dwivedi, learned counsel appearing on behalf of the writ-petitioners concedes that the said aspects have not been considered by the learned Single Judge while considering the stay vacate application. He, however, submits that even District Inspector of Schools while declining to accord approval has also not considered these issues and only cursory finding has been recorded that the petitioners do not possess the minimum qualification. Learned standing counsel, Shri Ashish Mohan Srivastava, appearing for the appellants does not dispute the said factual position.

9. Learned counsel for both the parties suggest, in the facts and circumstances obtaining above, that the matter be remitted to the District Inspector of Schools for passing a fresh order after hearing the writ petitioners.

10. This, in our opinion, would sub-serve the ends of justice.

11. Accordingly and with consent of learned counsel for the parties, we pass the following orders:

(A) The order of District Inspector of Schools dated 18.05.2017 impugned in the writ petition would stand set aside.

(B) The District Inspector of Schools will accord opportunity of hearing to the writ-petitioners and will pass a fresh order.

(C) It shall be open to the writ-petitioners to file their detailed objection along with evidence within two weeks from today before the District Inspector of Schools and the District Inspector of Schools would hear the writ-petitioners on 23 July 2024 and in case hearing does not conclude on that date, on some other date not later than one week. The District Inspector of Schools, thereafter, will pass a fresh order. The Committee of Management of the Institution will also be afforded opportunity of hearing. In this regard, it shall be open to the Committee of Management also to file its reply within two weeks and to remain present on the date of hearing.

12. The appeal and the writ-petition stand disposed of, accordingly.

13. A copy of the instant order be placed on the record of Writ-A No. No. 33173 of 2017.

14. Shri R.C. Dwivedi, learned counsel for the writ-petitioners states that in case any contempt application is pending at the behest of the writ-petitioners before this Court, it shall not be pressed and would be withdrawn.

Order Date :- 2.7.2024 Mukesh Kr.

(Manish Kumar Nigam,J.)        (Manoj Kumar Gupta,J.)
 

 
Neutral Citation No. - 2024:AHC:106543-DB
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 471 of 2024
 

 
Appellant :- State Of Up And 3 Others
 
Respondent :- Smt. Abha Patel And 6 Others
 
Counsel for Appellant :- Ashish Mohan Srivastava,Jagannath Maurya
 
Counsel for Respondent :- Pramod Kumar Dubey,Ramesh Chandra Dwivedi
 

 
Hon'ble Manoj Kumar Gupta,J.
 
Hon'ble Manish Kumar Nigam,J.
 
Ref:	Order on Civil Misc. (Exemption) Application No. 01 of 2024
 
1. The application is allowed.
 
2. The filing of certified copy of the formal order is dispensed with.
 
3. Office shall allocate regular number to the instant appeal.
 
Order Date :- 2.7.2024
 
Mukesh Kr.
 

 
(Manish Kumar Nigam,J.)        (Manoj Kumar Gupta,J.)

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Allahabad High Court