Allahabad High Court
Intekhab Alam vs State Of U.P. And 5 Others on 21 October, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- WRIT - A No. - 4264 of 2016 Petitioner :- Intekhab Alam Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Prabhakar Awasthi,Awadh Narain Rai Counsel for Respondent :- C.S.C.,R.P. Singh Hon'ble Suneet Kumar,J.
1. Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri M.A. Ausaf, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
2. Facts giving rise to the instant writ petition, briefly stated is that Khalil Higher Secondary School, Bareilly1, is duly recognized high school and in grant-in-aid of the State Government. The Institution is a minority institution within the meaning of Intermediate Education Act, 19212. On the retirement of an Assistant Teacher (English) on 30 June 2011, a substantive vacancy arose. The Management notified the vacancy in two dailies, namely, Amar Ujala and Hindustan Times on 24 May 2012. Petitioner being duly qualified came to be recommended by the Selection Committee. The papers of the selection was transmitted to the office of the fourth respondent, Regional Level Committee for approval. The appointment of the Assistant Teachers in different subjects were approved, however, the matter of the petitioner, was kept on hold on some queries. In the meantime, the Management in exercise of powers under Regulation 17(g) of Chapter II, framed under the Act, 1921, granted appointed to the petitioner on the plea of deemed approval. Pursuant thereof, petitioner joined on 24 June 2013 and since then is performing his duties.
3. Petitioner, aggrieved that the matter was not being considered by the Regional Committee, approached this Court by filing a petition being Writ-A No. 66613 of 2013, which came to be disposed of on 16 December 2013 directing the District Inspector of Schools to consider and decide the representation of the petitioner. Pursuant thereof, the fifth respondent, District Inspector of Schools, Bareilly, vide order dated 24 February 2014 rejected the claim of the petitioner on two counts:
(i.) that petitioner did not have the requisite qualification for the post of Assistant Teacher (English);
(ii.) that there is no vacancy for Assistant Teacher in the Institution;
4. The order rejecting the claim of the petitioner was subjected to challenge in a petition being Writ-A No. 22710 of 2014 which came to be allowed partly by this Court vide order dated 12 May 2014, wherein, it was held that the petitioner had the requisite qualification for appointment on the post of Assistant Teacher (English). However, the matter pertaining to the determination of sanctioned post as conducted in 2013, by the State Government on the directions of this Court in Dhruv Narain Singh Vs. State of U.P. and others (Writ-A No. 26307 of 2010) decided on 13 January 2017 was directed to be ascertained. Relevant portion of the order reads thus:
"Although, from the order of the District Inspector of Schools, it appears that there was a vacancy which occurred upon retirement of one Mohd Shafeequ Khan Afridi on 30.06.2011. Pursuant to the aforesaid vacancy, the advertisement was issued, whether such a vacancy still exists or not is a question of fact, which can be looked into by the concerned authority. So far the qualification of the petitioner is concerned, petitioner admittedly is a B.Sc., and has a higher qualification of M.A. in English Literature, therefore, considering the decision of the Division Bench of this Court in the case of Laxmi Narayan Yadav vs. District Inspector of Schools and others 1988 (3) SLR 42, petitioner would be entitled for being appointed as Assistant Teacher in English in the institution, but so far the question with regard to availability of vacancy is concerned it can be suitably looked into by the Director Secondary Education, who will consider the qualification of the petitioner as well as availability of vacancy in the institution for his continuation in the institution as L.T. Grade teacher.
Accordingly, the writ petition is disposed of with the observation that in case the petitioner files a fresh representation before Director Secondary Education, the same shall be considered in accordance with law after giving opportunity to the Committee of Management and appropriate orders be passed within a period of three months from the date a certified copy of the order along with a fresh representation is produced before it.
Learned Counsel for petitioner submits that determination of sanctioned post has been conducted in the year 2013 whereas in the concerned institution 13 posts of Assistant Teachers have been duly determined by the said exercise. According to the learned counsel for the petitioner there exists vacancy upon which appointments have been made, this aspect will also be looked into by the Director Secondary Education.
With the aforesaid observation/ direction, the writ petition is disposed of."
5. Pursuant thereof, the impugned order came to be passed by the second respondent, Director of Education Secondary, Uttar Pradesh, rejecting the claim of the petitioner on two grounds:
(i) that Shri Intekhab Alam, Assistant Teacher in General subject is competent to teach English subject, therefore, the appointment of the petitioner is not warranted;
(ii) that as per the strength of the students for academic year 2010-11, 2011-12 and 2012-13, 8 Assistant Teachers would suffice as against the sanctioned strength of 13 teachers.
6. It is urged by the learned Senior Counsel that the findings returned by the second respondent, Director of Education (Secondary), U.P. in respect of the claim of the petitioner is perse perverse and based on conjunctures against the material available on record.
7. It is noted in the impugned order that before passing the order, opinion and instructions was obtained from the District Inspector of Schools regarding the sanctioned strength and the number of students in the Institution. The District Inspector of Schools vide communication dated 22 December 2015, has categorically stated that there are 13 sanctioned posts of Assistant Teachers and at the moment only 8 teachers in L.T. Grade are working. It is further noted that there is no teacher in English subject, 5 posts are vacant in the Institution. There are 8 sections from class VI to X and 266 students are presently taking instructions. It is, therefore, urged that it was not open for the second respondent to draw an inference that the teacher, who is not appointed in the subject, can teach (English) subject. Since the teacher in English subject is not available, the Institution was taking the help of a teacher who is otherwise not competent and qualified to teach English subject. Insofar as, the strength of students, vis-a-vis, sanctioned strength of teachers, it is always open to the Director of Education to either enhance or reduce the strength of teachers. Merely for the reason that the strength of students is not as per norms, the petitioner cannot be declined appointment. It is reflected from the report submitted by the District Inspector of Schools that there are 5 vacant post of teachers in the Institution, therefore, it is urged that due to non-availability of teachers the strength in the Institution had fallen. It is not open for the second respondent to have rejected the claim for appointment and salary of the petitioner merely for the reason that requisite number of students are not available. The power that could have been exercised by the second respondent under Section 16FF, in respect of minority Institution, in rejecting the appointment of the petitioner is only on the ground of the incumbent being unqualified. Petitioner admittedly is qualified and suitable for the post of Assistant Teacher (English).
8. Having due regard to the facts and circumstances of the case, the writ petition is allowed. The impugned order dated 19 January 2016, passed by the Director of Education (Secondary), U.P., is set aside and quashed. The respondents are directed to release and pay arrears of salary and salary on month to month basis to the petitioner, expeditiously, preferably within two months for the date of filing of certified copy of this order, failing which, petitioner shall be entitled to interest @ 6.5% on the amount from the due date.
9. No cost.
Order Date :- 21.10.2019 S.Prakash