Allahabad High Court
Ghulam Hussain vs State Of U.P. And 4 Others on 5 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:144978 Court No. - 36 Case :- WRIT - A No. - 14412 of 2023 Petitioner :- Ghulam Hussain Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Mohammad Ali Ausaf, Transfer From Lucknow Counsel for Respondent :- Pranav Mishra with Case :- WRIT - C No. - 19151 of 2023 Petitioner :- Mohd. Ali Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Indra Bhan Singh,Jawahir Yadav,Satyendra Pandey Hon'ble Kshitij Shailendra,J.
Writ-A No.14412 of 2023
1. These two writ petitions were connected together and nominated to this Bench under the order passed by the Hon'ble Chief justice. Affidavits have been exchanged and, therefore, both the petitions are being decided finally with the consent of parties.
2. Heard Sri Sankalp Narain, learned counsel for the petitioner, Sri Vinod Kumar Sahu, learned Additional Chief Standing Counsel for respondents no.1 and 3, Sri Pranav Mishra, learned counsel for the respondent no.2, and Sri Satyendra Pandey, learned counsel for the respondents no.4 and 5.
The Challenge
3. The instant writ petition has been filed challenging two orders. By the first order impugned dated 12.01.2018, the services of the petitioner, who was working as Assistant Teacher (Alia) in the respondent-Madarsa, were terminated by the Committee of Management and by the second order impugned dated 20.08.2018, the Registrar/ Inspector (respondent no.2) has withdrawn the financial approval granted to the appointment of the petitioner.
4. Brief facts of the case are that the petitioner was appointed as an Assistant Teacher (Alia) by the Committee of Management of the respondent-Madarsa on 27.07.2009. The Madarsa came on grant-in-aid on 30.08.2010. Thereafter, papers were forwarded by the Committee of Management to the Registrar (respondent no.2) on 15.09.2010 for according financial approval to the services/ appointment of the petitioner. Financial approval was accorded on 19.10.2010 and, consequently, the petitioner started receiving salary from the State Exchequer.
5. After a period of seven years, some dispute arose as to the experience certificate submitted by the petitioner at the time of his appointment. According to the petitioner, he had submitted an experience certificate showing his working from 08.02.1998 to 30.10.2001 in some Madarsa of Siddharth Nagar, whereas, as per the Committee of Management, there was another experience certificate showing working of the petitioner in a different Madarsa of Siddharth Nagar itself from 2006 to 2009. The petitioner was suspended on 30.10.2017, which order was assailed by him by filing a Writ Petition No.52997 of 2017, in which suspension order was stayed. Services of the petitioner were, thereafter, terminated vide order dated 12.01.2018 (first order impugned) on the ground that despite issuance of show cause notices by the Committee of Management, he did not appear to respond to the allegations and, consequently, after examining the record available, decision to terminate his services was taken.
6. The petitioner filed Writ-A No.5521 of 2018 assailing the termination order. The said writ petition was disposed by order dated 22.02.2018 recording a consensus between the learned counsel for the parties that the Registrar had power to look into the merits of the termination order and the procedure adopted before passing the order. Accordingly, the Registrar was directed to call for entire record of disciplinary proceedings held against the petitioner, to examine the same and to pass an order in the matter. It is pursuant to the said order of writ court that the order dated 20.08.2018, (second order impugned) has been passed.
Submissions on behalf of the petitioner
7. Learned counsel for the petitioner submits that both the orders impugned are without jurisdiction. He contends that at the time of petitioner's appointment, there were no statutory Rules framed and, in fact, the services were governed by Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki Manyata Evam Sewa Niyamawali, 1987. He submits that in the year 2004, U.P. Board of Madarsa Education Act, 2004 was enacted which contained power to frame regulations by the Board under Section 20 of the Act. The Board, in exercise of such powers, framed Uttar Pradesh Non-Governmental Arabic and Parsian Madarsa Recognition, Administration and Services Regulations, 2016. He submits that at the time when the services of the petitioner were terminated in the year 2018, Regulations of 2016 were in vogue. By referring to Regulation 16 contained in Part III, it is urged that investigation and trial of disciplinary proceedings is permissible only when there is a Scheme approved by the Board of Madarsa and since, till today, the Board has not approved the Scheme of the respondent-Madarsa, initiation of disciplinary proceedings as well as the consequential termination order is without jurisdiction. In support of his submissions, leaned counsel placed reliance upon order of coordinate Bench of this Court dated 26.08.2021 passed in Writ-A No.13753 of 2020 (C/M Madarsa Muhammadiya Faiz-E Rasool and another Vs. State of U.P. and 3 others), another judgment of coordinate Bench dated 05.08.2022 passed in Writ-A No.10967 of 2022 (Arshad Javed Khan Vs. State of U.P. and 3 others), judgment of Division Bench in Special Appeal No.573 of 2022 (Committee of Management, Madarsa Masdarul Uloom Asdaqiya and others Vs. Arshad Javed Khan and others): 2023 (3) ADJ 605 as well as order of Hon'ble Supreme Court dated 12.05.2023 in Special Leave to Appeal No.9393 of 2023 (Committee of Management Madarsa Masdarul Uloom Asdaqiya Purani Chakiya and another Vs. Arshad Javed Khan and others).
8. By placing reliance upon the aforesaid judgments/ orders, it is contended that Regulation 16 (Part III) has been consistently interpreted by this Court in the manner that unless there is a Scheme of Administration duly approved by the Board of Madarsa, no disciplinary action can be taken against the Principal or against Teaching or Non-Teaching staff. Apart from this, various other Regulations were also pressed into service and it was contended that since the writ court, in its order dated 22.02.2018 passed in Writ-A No.5521 of 2018, had observed about Regulation 34 of 1987 Regulations, the only power vested with the Inspector/ Director was that he could send his suggestions to the Committee of Management as regards disciplinary proceedings. He further submits that although Regulation 34 is not applicable after the Regulations of 2016 had come into force at the time when impugned termination order was passed, even if this Court referred the matter to the Registrar, he was under an obligation to see as to the applicability of the relevant statutory provisions and once Regulations of 2016 do not empower him to either approve or disapprove an order of termination or even to withdraw financial approval granted to the appointment of a teacher, the order passed by him is without jurisdiction. He further submits that merely because the matter was relegated to Registrar by consent of learned counsel who had argued the earlier Writ-A No.5521 of 2018, the same would not confer jurisdiction upon the Registrar to adjudicate something which was otherwise not within his jurisdiction as per law. In support of this submission, he has placed reliance upon judgment of Division Bench in Ircon International Limited Vs. Deepak Yadav: 2019 (5) AWC 4542 All as well as judgment of Supreme Court in S. Sethuraman Vs. R. Venkatraman and others: (2007) 6 SCC 382. He further submits that since the order impugned is without jurisdiction resulting into his ouster from services, the petitioner shall be entitled for all arrears of salary and other consequential benefits and in support of this plea, he places reliance upon judgment of Division Bench in State of U.P. Vs. Braham Kumar Saxena and others, 2023 (4) ADJ 285.
Submissions on behalf of Respondents
9. Per contra, learned Additional Chief Standing as well as learned counsel for the respondent-Committee of Management vehemently opposed the arguments advanced by contending that though there is no dispute that, till today, Scheme of Administration has not been approved by the Board, nevertheless it was sent by the Committee of Management to the Board for approval and in view of Regulations 15 and 16 (Part II) of the Regulations of 2016, since the Board has not returned the Scheme with its suggestions for any alteration or modification, the scheme would be deemed to have been approved and, hence, the orders impugned are perfectly within jurisdiction. It is further contended that the petitioner never participated in the disciplinary proceedings and once there was sufficient material on record to establish that experience certificate produced by the petitioner was a manufactured one, the appointment secured by the petitioner being null and void, the Registrar being the competent officer to look into all the aspects, was right in upholding the decision of the Committee of Management and, in fact, the Registrar being competent to withdraw the financial approval which he himself had granted in the year 2010 when the earlier Regulations of 1987 were applicable, his order impugned does not suffer from any illegality.
10. Sri Pranav Mishra, learned counsel for the respondent-Board, vehemently submits that even if there is no Scheme of Administration approved so far, the same would not give a leverage to the persons who wrongfully and fraudulently secure their appointments. He submits that once an appointment is obtained based upon forged documents, it is void ab initio and no sanctity can be attached to it. He further submits that since salary to the Assistant Teachers is paid from the State Exchequer, neither any provision of the Act of 2004 nor the Regulations of 2016 can be read in a manner which would, directly or indirectly, result in making robbery on the purse of State Exchequer so as to release salary in favour of those teaching or non-teaching staff whose appointment is void right from inception. In support of his submissions, learned counsel has placed reliance upon judgment of the Supreme Court in Devendra Kumar Vs. State of Uttaranchal and others: AIR 2013 SC 3325 and, by referring to paragraphs no.14, 15, 16, 21 and 23 of the report, he submits that fraudulent misrepresentation in relation to securing appointment is void ab initio and liable to be denounced and there being sufficient material on record in the instant case to establish that the experience certificate produced by the petitioner was manufactured, the Committee of Management being the Appointing Authority and the Registrar of the Board being the Authority competent to grant as well as withdraw financial approval, both have acted in consonance with the legislative Scheme and according to law.
Analysis of rival contentions
11. Having heard learned counsel for the parties, this Court finds that when the petitioner was appointed in the concerned Madarsa, Regulations of 1987 were existent. Pursuant to the Act of 2004, the Regulations of 2016 came into force and the only provision regarding disciplinary proceeding is found in Regulation 16, Part III, which reads as under:-
"16. Disciplinary proceedings.--
Investigation and trial of disciplinary proceedings, suspension, punishment and any crime under moral incapability and misconduct against principal, teaching and non-teaching staff will be according to the approved, by Board of Madarsa, scheme of service and administration."
12. As far as Regulations 15 and 16, Part II, with regard to alleged deemed approval to the Scheme of Administration, the same are reproduced as under:-
"15. A period of six months reckoned from the first date of the months following the date of receipt of the draft Scheme of Administration shall be allowed to the Board in which it may either approve or return it with suggestions for any alteration or modification.
16. A period of three months reckoned from the date of receipt of the communication of the Board suggesting alteration or modification shall be allowed to an institution each time to make representations."
13. From a bare perusal of Regulation 16, Part III, it would be evident that investigation and trial of disciplinary proceedings in all forms has to be done according to the approved Scheme of Service and Administration. There is no dispute that till today the Scheme of the respondent-Madarsa has not been approved by the Board. As far as the submission of the respondents that since the Board has not returned the Scheme with its suggestions for any alteration or modification and, therefore, it would be deemed to have been approved, the Court finds that even if six months and three months period is prescribed respectively in Regulation 15 and 16 (Part II) for certain acts to be done, a conjoint reading of both the Regulations would not create a legal fiction and would not be treated as 'deemed approval' to the Scheme forwarded to the Board.
14. It is not so that the Regulations of 2016 do not visualize or contemplate significance of deeming clauses. In this regard, Regulation 9(4) can be referred to which contains such a deeming provision in relation to probation of appointment providing that if the Inspector of the Board does not give approval or objection within 60 days from the date of receiving consent letter, the appointment shall automatically be deemed to be approved from the date of joining. At this stage, reference to a Division Bench judgement of this Court in Ram Dhani Vs. State of U.P. and others: 2006 (7) AWC 6708 All, can be made in which this Court, dealing with the Regulations framed under U.P. Intermediate Education Act, 1921, has held that the provision for deemed approval has to be expressly provided by the Legislature.
15. In view of the above discussion and in absence of any deeming clause as regards grant of approval to the Scheme of Administration, this Court cannot read down something which is not there in the statutory Regulations and is of the considered opinion that there being no deeming clause in Regulations 15 and 16, Part II, mere forwarding of Scheme would not ipso facto be treated as deemed approval, even if the Scheme of Administration has not been returned back.
16. As far as the judgments and orders referred to by the learned counsel for the petitioner, it is found that the proposition based upon Regulation 16, Part III has been thoroughly explained by a Co-ordinate Bench of this Court in the case of Arshad Javed Khan (supra). The said writ petition was filed challenging order of termination of an Assistant Teacher. The Coordinate Bench found the termination as without jurisdiction in absence of an approved scheme of administration. The Committee of Management preferred a Special Appeal No.573 of 2022 which was dismissed by a detailed judgment dated 14.03.2023. The matter went to the Supreme Court where also the Special Leave to Appeal was refused on 12.05.2023. In view of the aforesaid discussion of legal provisions coupled with the orders passed by Coordinate Bench, Division Bench and the Supreme Court, no contrary interpretation of Regulation 16 (Part III) can be made by this Court.
17. Now testing the submission of the respondents that the appointment secured by the petitioner, being forged, was void ab initio, it is to be observed that in service matters nobody can presume any appointment as void unless the Disciplinary Authority, in appropriate proceedings, ultimately arrives at the said conclusion. For the said purpose, the disciplinary proceedings must be maintainable and permissible to be held under the law regulating the same. No such law has been placed before this Court which, directly or indirectly, lays down that even if disciplinary proceedings are not maintainable and are barred by statutory provisions, merely because some officer or the Appointing Authority presume the appointment to be void or they have arrived at a conclusion to that effect, the appointment would be void. Since this Court is examining validity of the order of termination, certainly the power vested in the Disciplinary Authority in that regard has to have a statutory sanction which is not found to exist in the instant case.
Conclusion
18. In view of the above discussion, this Court concludes that the impugned order of termination dated 12.01.2018 having been passed in the proceedings which were not maintainable and were hit by Regulation 16 (Part III) of Regulations, 2016 is without jurisdiction and is hereby set aside.
19. As regards the second order dated 20.08.2018 passed by the Registrar, since financial approval is to be understood in relation to the appointment, even if it was withdrawn by the Registrar, his order, directly or indirectly, approves the decision of the Committee of Management to terminate the services as, in the finding part, the Registrar has accorded approval to the report submitted by District Minority Welfare Officer, Basti as well as Manager of the respondent-Madarsa to the effect that the petitioner had wrongfully secured appointment by placing forged experience certificate. In this view of the matter, the second order impugned dated 20.08.2018 is also held to be illegal and without jurisdiction and is hereby set aside.
20. The writ petition succeeds and is allowed.
21. The petitioner shall be forthwith reinstated on his post and shall be paid month to month salary. He shall also be entitled for arrears of salary from the date of termination as well as all other consequential benefits. This is without prejudice to the right of the Committee of Management to proceed against the petitioner in accordance with law but certainly only after the Scheme is approved by the Board.
Writ-C No.19151 of 202322. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner, Sri Vinod Kumar Sahu, learned Additional Chief Standing Counsel for State-respondents no.1 to 3 and Sri Satyendra Pandey, learned counsel for the respondent no.4.
The Challenge
23. The instant writ petition has been filed by one Mohd. Ali challenging the order dated 31.03.2023 passed by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur by which he has adjudicated a dispute regarding managerial rights allegedly held by the petitioner in the year 2008-09 and 2009-10.
Facts of the case
24. As per the pleadings contained in the writ petition, one Munir Ali was the Manager of the respondent-Madarsa in the year 2008 and he issued certain letters giving appointments to his sons-in-law. One Ghulam Hussain, i.e. the petitioner in the connected writ petition, whose services were terminated under the order impugned in that writ petition, moved a complaint before the District Minority Welfare Officer and also the District Magistrate. During the course of consideration of the complaint, the District Minority Welfare Officer, Basti sent a letter dated 20.10.2022 to the Assistant Registrar concerned in which the contents of complaint and other material were reproduced and certain questions were raised by him as regards tendering of resignation by Munir Ali as well as Managerial post held in 2008-09 and 2009-10. It appears from the record that the dispute was as to whether Munir Ali or Mr. Mohd. Ali, i.e. the petitioner, was holding the chair of Manager at the time when the appointment was offered to the sons-in-law of Mr. Munir Ali.
Submissions on behalf of petitioner
25. Learned counsel for the petitioner submits that though various observations were made in the letter of the District Minority Welfare Officer, the operative portion of the said letter, in fact, contained a request from the Assistant Registrar to send a duly registered list of office bearers of the year 2008-09 and 2009-10. The submission is that the Assistant Registrar was to submit the list so asked for but he went on to adjudicate the entire dispute with regard to managership pertaining to the aforesaid years and recorded various findings not only as regards the chair of Manager but also validity of the resignation tendered by Mr. Munir Ali. He also held that in the year 2010, signatures of petitioner-Mohd. Ali were found in the concerned register.
26. The submission is two fold, one that the Assistant Registrar has done what he was not required to do as his task was, at that time, confined to sending lists of office bearers and, secondly, that even if there was a dispute regarding managership, he had no competence to adjudicate the same as such a dispute could be decided only by the Prescribed Authority in exercise of powers under Section 25(1) of the Societies Registration Act, 1860 (as applicable in the State of U.P.).
Submissions on behalf of the Respondents
27. Per contra, learned Additional Chief Standing Counsel appearing for the State-respondents as well as Sri Pandey appearing for the Committee of Management submit that the entire administrative machinery was moved by Ghulam Hussain and at one point of time Ghulam Hussain had moved a complaint before the District Magistrate to adjudicate the same dispute and also filed Writ-A No.6591 of 2018 before this Court, which was disposed of on 23.02.2018 directing the District Magistrate to consider and decide his representation. The District Magistrate, by order dated 25.05.2018, decided the complaint and held that the promotion granted to various teachers was contrary to the Service Regulations and also that in the year 2010, petitioner-Mohd. Ali was the Manager of the Madarsa. It is, therefore, contended that once the order of the District Magistrate has not been challenged by the petitioner or by Ghulam Hussain, the same has attained finality and, hence, no contrary view can be taken as regards Managership.
Submission in Rejoinder
28. In rejoinder, it is contended by learned counsel for the petitioner that though the order of the District Magistrate has not been challenged either by Ghulam Hussain or even by the petitioner, the said order was passed in relation to appointment and promotion offered to the concerned Assistant Teachers and the District Magistrate was examining the complaint as to whether the appointment and promotion was in consonance with or contrary to the Service Regulations and, even otherwise, the order is against the Assistant Teachers appointed by the Management.
Analysis of rival contentions
29. Having heard learned counsel for the parties, I find that the complaint that had reached to the District Minority Welfare Officer did raise a Managerial dispute in relation to year 2008-09 and 2009-10. Though the District Minority Welfare Officer is not competent under any law to adjudicate such a dispute, even if he proceeded to call upon the approved lists of office bearers of the concerned period from the Assistant Registrar who otherwise is competent to act as per the provisions of the Societies Registration Act, 1860 (as applicable in the State of U.P.), the Assistant Registrar could have only sent the lists to the District Minority Welfare Officer. Even in that event, it was the Prescribed Authority who would have competence, power and jurisdiction in terms of Section 25(1) of the Act to record a finding regarding resignation or election/designation of Manager in 2008-09 and 2009-10. There is nothing on record to demonstrate that such a dispute has ever reached to the Prescribed Authority. However, this Court is not entering into such a dispute at this stage in the year 2024 by which time there might have been various changes in formation of the Committee of Management. This Court is confined to examine the challenge made to the order impugned only.
30. As far as the order of District Magistrate relied upon by the respondent side, the order has to be read in the context it was passed. Mentioning in single line in the end that in the year 2010 it was Mohd. Ali who was the Manager of the Committee of Management would, in the opinion of the Court, not attach finality to the aspect of holding of chair of the Manager by Mohd. Ali as, for that purpose, even the District Magistrate would not be competent and it is only within the jurisdiction of the Prescribed Authority, as aforesaid. Hence, the order of the District Magistrate would not be treated as conclusive to that extent particularly when he was examining the complaint as to whether the appointment and promotion of Assistant teachers was in consonance with the Service Regulations.
Conclusion
31. In view of the above discussion, the Court arrives at a conclusion that except part of the order impugned by which the Assistant Registrar had sent the lists of office bearers pertaining to year 2008-09 and 2009-10 to the District Minority Welfare Officer, all other findings and adjudication made in the order impugned, being without jurisdiction and not in the context of proceedings, is held to be bad on facts and law.
32. Consequently, the writ petition succeeds and is allowed in part.
33. The order impugned dated 31.03.2023 passed by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur is set aside to the extent indicated above.
34. The District Minority Welfare Officer may consider the list of office bearers of 2008-09 and 2009-10 received by him within the permissible limits of his competence to examine the same and before proceeding further with the matter, he shall afford opportunity of hearing to all the parties concerned as well as the Committee of Management.
Order Date :- 5.9.2024 AKShukla/-
(Kshitij Shailendra, J.)