Allahabad High Court
Hari Om Yadav vs State Of U.P. And 3 Others on 11 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2966
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 89 Case :- WRIT - A No. - 58005 of 2017 Petitioner :- Hari Om Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sunil Kumar Srivastava,Ashok Khare Counsel for Respondent :- C.S.C.,C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Sri Sunil Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State- respondent.
2. In view of the office report dated 20th January, 2018, service of notice upon the respondent No.4 is deemed sufficient and accordingly, this Court proceeds finally to decide the matter.
3. The petitioner before this Court claims to have been validly appointed as Assistant Teacher in L.T. Grade by the 4th respondent in the institution, namely, 'Christian Inter Inter College, Mainpuri' admittedly a minority institution. The petitioner has become aggrieved by the order passed by the District Inspector of Schools dated 7th October, 2017, whereby an appointment of the petitioner has been disapproved by the District Inspector of Schools exercising power under Section 16 FF of Intermediate Education Act, 1921 and another order dated 13th October, 2017, whereby papers relating to the selection and appointment of the petitioner have been returned and the 4th respondent has been directed to act afresh in accordance with the letter dated 7th April, 2017 issued by the Director Education (Secondary), U.P. Lucknow.
4. Briefly stated facts of the case are that in the minority institution being run by the respondent No.4, it is stated that two vacancies arose of Assistant Teacher in L.T. Grade on 30th June, 2014 due to retirement of Mr. Stanley M. Lal and also on account of promotion of one Mr. Vinay Kumar as Lecturer (Hindi). According to the petitioner and as per norms the existing sanction strength of Faculty in L.T. Grade, the total number of posts are 29 duly approved by the State Government and this has come to be acknowledged by the District Inspector of Schools in his letter dated 20th December, 2012. As a consequence to the vacancy fallen vacant substantively, the 4th respondent issued an advertisement in two widely circulated newspapers, namely, Amar Ujala (Hindi) on 20th March, 2015 and Sunday Express (English) on 5th April, 2015, a copy whereof has been brought on record as Annexure- 2 to the writ petition. Pursuant to the said advertisement the petitioner applied for the post of Assistant Teacher in L.T. Grade and was interviewed on 6th July, 2016 by the Selection Committee and was selected. Selection result issued by the Selection Committee in which the petitioner and one Ajay Kumar Singh have been shown as selected bears the signatures of the members of the Committee including Chairman.
5. The papers were forwarded to the District Inspector of Schools by the Manager of the Committee of Management on 22nd July, 2016 as required under Section 16FF of the Intermediate Education Act, 1921. However, since the matter remained pending before the District Inspector of Schools and the statutory period provided for under the regulations within which the District Inspector of Schools has to take decision either way and he did not take decision, the Committee of Management proceeded to issue appointment order to the petitioner on 28th November, 2016. The petitioner submitted his joining on 1st December, 2015 in the institution as Assistant Teacher in L.T. Grade. As the petitioner had joined and was discharging duties that in the meanwhile on 7th October, 2017 the District Inspector of Schools passed a detailed order disapproving the selection and appointment of the petitioner as Assistant Teacher in L.T. Grade in the institution on two basic grounds:-
(1). First ground taken by the District Inspector of Schools in his order is that the post in question had lapsed in view of the relevant provisions as contained in the regulations under Intermediate Education Act, 1921. According to Regulation 20 of Chapter II of the Intermediate Education Act, 1921, if the post is not filled up within three months of its falling vacant, it automatically lapses and then it becomes necessary to get it revived. In support of the stand taken by the District Inspector of Schools, he has reminded the Committee of Management to its own letters dated 21st September, 2016 and 5th October, 2016 seeking revival of the vacancies that had been lapsed and the District Inspector of Schools in that regard had made recommendations for the revival for only two positions in his letter dated 21st January, 2017 addressed to the Director of Education (Secondary), U.P. Lucknow and the Director of Education (Secondary) U.P. Lucknow had issued an order on 7th April, 2017 reviving the post of Lecturers (Psychology) and (Hindi). However, in the category of L.T. Grade those two posts were not revived.
(2). Another reason assigned in the order impugned is that the advertisement was not properly made and that too not in two widely circulated in the daily newspapers and, therefore, the selections and appointments are bad being de hors the procedure prescribed in law and it is since the appointments have been held bad, the District Inspector of Schools has subsequently passed another order directing the management to proceed in accordance with letter dated 7th April, 2017.
6. Assailing the order aforesaid, passed by the District Inspector of Schools, the argument advanced by the learned counsel for the petitioner is that the posts cannot automatically lapse as sanction once granted cannot be treated to be withdrawn automatically by lapse of time unless the order/ sanction is so conditioned. The provision as contained under Regulation 20 Chapter II, it is argued, is merely directory and recommendatory in nature. It is submitted vehemently that the post once has been created can be cancelled by way of a written order and that too with proper approval of the authority concerned. Moreover, he submits that the District Inspector of Schools has failed to detail out under what circumstances the post has lapsed as there is no reference about the period during which the post had remained vacant.
7. It has been further argued by the learned counsel for the petitioner that in the matter of minority institutions the parameters for granting approval to the selection is not same as applicable to other institutions. It is submitted that minority institution has been given freedom to make selection in accordance with its own choice and what has to be seen is only the applications are invited from open market and there is an advertisement of the vacancy and those selected possess requisite qualifications. It has also been argued that the stand taken by the District Inspector of Schools that vacancies were not duly advertised is not correct because vacancy was duly advertised in widely circulated daily newspaper like Amar Ujala (Hindi) and Sunday Express (English).
8. Per contra, the argument advanced by the learned Standing Counsel is that the minimum requirement of law is existence of vacancy and fair procedure in matter of the selection is sine qua non qua the appointments. He submits that once the management itself sought revival of the post in question and no order in response to the request was made by the competent authority, the management should have waited. It is further argued that the advertisement is meant for public, offering opportunities to all the eligible persons to apply against the vacancy advertised. Every advertisement should be clear in terms of qualification, pay-scale and the nature of the vacancy inasmuch as the date should be specified relating to time period within which the applicant has to apply. He submits further that the in respect of the aided institutions where the grant is being received from the public exchequer, a duty is cast upon the District Inspector of Schools to ensure that one who is paid salary is duly selected and appointed and is eligible for the post that he holds even in the matters of appointment in minorities institutions. He argued that there is no error much less a substantial one in the order impugned so as to warrant interference in the matter.
9. Having heard learned counsel for the learned counsel for the petitioner and their arguments advanced across the Bar and having perused the record, I find that only two points required consideration in the matter:-
(A). Whether the post would lapse under Regulation 20 Chapter II of the Intermediate Education Act, 1921 in case if it is not advertised/ proceedings for initiating selection and appointment is not made within a period of 90 days and so there did not exist vacancy resulting in appointment of the petitioner as null and void.
(B). Whether the procedure otherwise adopted by the institution in conducting selection and appointment of the petitioner is bad being vitiated in law for non compliance of necessary rules and the petitioner is otherwise also not eligible for the post he holds.
10. Coming to the first point; the controversy should no longer detain this Court as the regulations framed under Chapter II of the Intermediate Education Act, 1921 have been already held only guidelines in respect of the minorities institutions in the case of Mukesh Singh Chauhan and others v. State of U.P. and others, 2006 (4) AWC 3471.
11. Very recently in the case of C/M St. John's Girls' Inter College M.G. Road, Agra v. Joint Director of Education, Agra Region, Agra and others (Writ- A No.- 29428 of 2017 decided on 19th August, 2017) a concurrent Bench of this Court while dealing with Regulation 20 of Chapter II framed under the Intermediate Education Act, 1921 has held it to be not mandatory. This Court considering such above aspect in the judgment (supra) has held thus:-
"Indisputably, the institution is a minority institution. There is no dispute that the post on which the petitioner has made appointment is a sanctioned post and one regular teacher Smt. V. Ivan was working on the said post and she attained her age of superannuation on 30th June, 2015. It is also not disputed that the Committee of Management of the institution has sent three successive communications to the District Inspector of Schools seeking his permission to make the advertisement. This fact has been admitted in paragraph-13 of the counter affidavit. Section 16-FF(4) of the Act, 1921 came to be considered in a large number of cases by this Court. A simple reading of Section 16-FF(4) would show that the District Inspector of Schools has been empowered to withhold the selection only on the ground of lack of qualification of teachers. As regards Regulation 20 of Chapter II of the Regulations framed under the Act, 1921, it came to be considered in the above mentioned three cases. The consistent view taken by this Court is that the Regulations are merely guidelines in view of the explicit statutory provision, which has used the words that the District Inspector of Schools can withhold the approval only on the ground of lack of qualification.
In view of the above, I am of the opinion that the view taken by the District Inspector of Schools-II, Agra, the second respondent, declining approval is unsustainable. Accordingly, the impugned order dated 05th December, 2016 passed by the second respondent is set aside."
12. Coming to the second aspect of the matter law is well settled that in matters of procedure to be followed by in the minorities institutions in the light of the spirit of the provisions as contained under sub-section 4 of Section 16-FF, in my considered opinion, once the candidate is found to be eligible who has been given appointment, the District Inspector of Schools cannot hold approval. Sub-section 4 of Section 16-FF of the Intermediate Education Act, 1921 is reproduced hereunder:-
"16-FF(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."
13. This Court had already dealt with such controversy in the case of Mukesh Singh (supra) wherein the Court was dealing with Regulation 17(A) (2) of Chapter II of the Regulations which provided for the procedure to be followed in matters of advertisement to be made in respect of the vacancies which are sought to be filled in. The Court held that these regulations are mere guidelines and if a candidate is otherwise eligible, his appointment cannot be disapproved in the minorities institutions by the authorities. Vide paragraph 8 of the judgment (supra) this Court has held thus:-
"8. Clause (4) of Section 16-FF indicates that the authority could not withhold the approval for the selection made where the persons selected possesses the minimum qualifications prescribed and was otherwise eligible. The impugned order does not speak about the qualifications of the petitioners nor does it indicate that the petitioners did not possess the requisite qualifications. In the absence of a finding in this regard, the District Inspector of Schools was therefore required to grant the approval of the appointments of the petitioners and could not go into the intricacies or irregularities alleged to have been made in the selection process, which otherwise did not exist, as would be clear hereinafter. In my opinion, the provision contemplated under Regulation 17 of Chapter II of the Regulations framed under the Intermediate Education Act, in my opinion, could not override Sub-clause) of Section 16-FF of the Intermediate Education Act. In the opinion of the Court, Regulation 17 is only a guideline and any irregularity committed would not make a candidate ineligible when he was otherwise eligible and qualified for an appointment as contemplated under Sub-section [4] of Section 16-FF of the Act."
14. The freedom of the minorities institution in making selection and appointment against the vacancies in the institution has come to be considered in many cases by the Apex Court. The Apex Court in the case of The Manager, Corporate Educational Agency v. James Mathew and others, decided on 11th July 2017 (Civil Appeal Nos.- 826-827 of 2017) held that the emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.
15. Further in the case of Secretary Malankara Syrian Catholic College v. T. Jose and others, reported in 2007 (1) SCC 386 repelling the argument raised by the learned counsel for the petitioner that Regulation 30 (1) cannot be used against members of the teaching staff as teachers belong to the same community in matters of appointment of Headmaster to the institution. Where the management has chosen headmaster exercising its discretion to select a person of its own choice, the Apex Court has held vide paragraph 28 of the judgment (supra) thus:-
"28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions."
16. Section 57(3) of the said Act that provided that the rule of seniority-cum-fitness for selection and appointment on the post of Principal of the aided institution was held to be violative of Article 30(1) of the Constitution and, accordingly, was held not applicable to the minority institutions.
17. In view of above exposition of law emerging out from the authorities cited above, coming to the facts of the present case, and reason assigned in the order impugned in the present writ petition, I find that the District Inspector of Schools disapproved the selection and appointment only on the ground that the post had lapsed under the relevant regulations and that advertisement was not proper as per the provisions contained under the Regulations and the procedure prescribed for preparation for select list and now applying the law as discussed above, the reasons assigned in the order, therefore, cannot be sustained.
18. The District Inspector of Schools has not held anywhere in the order that the petitioner who was duly selected and appointed, did not possess the minimum qualification prescribed for under the Appendix (A) to the Regulations of Chapter II of the Intermediate Education Act, 1921. Accordingly, the order dated 7th October, 2017 and 13th October, 2017 passed by the District Inspector of Schools cannot be sustained and are hereby quashed.
19. The District Inspector of Schools is directed to reconsider the matter of approval, however he can exercise his discretion of enquiry only to the limited extent as to whether the petitioner did possess the requisite qualification for holding post on the date of his selection and appointment or not.
20. It is made clear that in case if the petitioner is found to have possessed the requisite qualification on the date of selection and appointment, the District Inspector of Schools shall proceed to issue positive directions approving appointment order and also for payment of salary.
21. The writ petition is, thus, allowed in terms of the order passed hereinabove.
Order Date :- 11.9.2019 Atmesh