Allahabad High Court
Anil Kumar Mishra And 4 Others vs State Of U.P. Thru. Its Prin. Secy. ... on 23 March, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 18 Case :- WRIT - A No. - 1965 of 2023 Petitioner :- Anil Kumar Mishra And 4 Others Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt. Of Secondary Edu. Lko. And 4 Others Counsel for Petitioner :- Pradeep Tiwari Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Sri Sudeep Seth, learned Senior counsel assisted by Sri Pradeep Tiwari, learned counsel for petitioner as well as learned Standing Counsel for respondent Nos. 1 to 4.
2. In light of the proposed order notices to respondent No. 5 is dispensed with.
3. The petitioner has approached this Court seeking a direction to the respondents to release/make payment of salary to the petitioners forthwith along with arrears since the date of joining and further a direction to respondents to continue payment of salary as and when the same falls due. It has been stated that 06 posts of Lecturer, 15 posts of Assistant Teacher, 10 posts of Assistant Teacher (C.T.), three posts of Clerks and 12 posts of Peon have been sanctioned in Rahat Janta Inter college, Nanpara, District Bahraich.
4. It is stated that the said institution has a minority status and is under the grant in aid list of the State Government. Certain vacancies arose in the said institution which was sought to be filled up and an advertisement dated 11.04.2017 was published in the Newspaper, the interview was fixed on 5.05.2017 and further that DIOS was invited to monitor the said selection process.
5. Despite intimation the DIOS did not participate nor did he nominate any person to take part in the section process and the selections were done and the petitioners found successful in the said selection process. The proposal and all the relevant documents was forwarded to the DIOS vide letter dated 23.05.2017 but no orders were passed with regard to grant of approval as contemplated under Section 16 FF (3).
6. It has been submitted by learned counsel for petitioner that once the papers have been forwarded in terms of mandate of Section 15 read with Regulations 17 Chapter II of Act and no approval is grant granted. There is provisoin for deemed approval as provided under Section 17(g) of Chapter II framed under 1921 Act.
7. In light of the aforesaid provisions, the appointment made by the Committee of Management would have been deemed to have been proved by virtue of provision provided under Section 17(g) of Chapter II framed under 1921 Act. It has further been submitted that once the appointment has been deemed to be approved then the natural consequences of the same will be the payment of salary to the petitioners by virtue of Uttar Pradesh High School and Intermediate College (Payment of Salary to Teacher and Other Employees) Act, 1971.
8. It has further been stated that District Inspector of Schools, Bahraich has gone through the entire material regarding process of appointment of the petitioners and forwarded the papers for necessary guidance to the Director of Education by letter dated 16.12.2022 but till date no orders have been passed either by the Director of Education or by the District Inspector of Schools, Bahraich.
9. It has further been vehemently submitted that once the appointment of the petitioners have been deemed to be approved under the statutory mechanism, the petitioners ought to have been paid the salary which has not been paid and accordingly the rights of the petitioners stands under Article 19 and 21 of the Constitution of India have been violated and hence, the prayer has been made in the present writ petition for a direction to the respondents to release the salary of the petitioners.
10. Learned Standing Counsel on the other hand on the basis of instructions has stated that prior to issuance of the advertisement a letter was issued to the Committee of Management to restrain them from going ahead with the said advertisement. Against the said restraining order a writ petition was preferred before this Court being Writ Petition No. 177303 of 2017 and further the Committee of Management had filed another Writ Petition No. 29472 of 2017 which was allowed on 19.02.2018 and the restraining order dated 05.05.2017 was quashed.
11. It has further been stated that subsequently the respondents themselves recall the order dated 05.05.2017 vide order dated 27.05.2018..
12. Considering the submissions made at the bar, the issue raised in the present writ petition has to be decided in the light of the statutory framework and the benefits given to the minority institutions and contained in Section 16FF of the Intermediate Education Act read with Regulation 17(g) of Chapter II of the Regulations framed under the U.P. Intermediate Education Act and the same are reproduced herein below :
"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 that 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."
(g) Chairman of the Selection Committee conducting interview of all the candidates for any post will get a note prepared in two copies on the proceedings of the selection which will mention the names of the selected candidates and names of two more candidates of waiting list. Chairman and other members of Selection Committee will sign on notes, so prepared, and mention their full name, designation arid address. Chairman would immediately forward a copy of this note and a copy of statement referred to in Clause (f) of Regulation 10 to the Regional Dy. Director of the Inspector, as the case may be, for approval as required under Section 16FF Regional Dy. Director or Inspector, as the case may be, within one month of the date of receipt of concerned records will give his decision thereon and, failing to do so, it will be deemed to be approved."
13. Section 16FF of the Act confers the power upon the selection committee so prescribed to make the selections; the power to grant approval as specified under section 16FF(4) is mainly circumcised and is confined to the perusal of the possession of minimum qualifications that is prescribed. To the said extent, the minority institutions under the Act are granted a privilege, which is not available to the other institutions. The said privilege is in consonance with the mandate of Article 30 of the Constitution of India. Regulation 17 provides for a procedure and Regulation 17(g) provides for a 'deeming provision' and effect of it as soon as the time prescribed under section 17(g) comes to an end. Thus, the import of Section 16FF read with Regulation 17(g) is that as soon as the period of one month comes to an end, the vested right of appointment accrues in favour of the person who is appointed. The only exception to the said appointment can be if the person appointed does not possess the minimum prescribed qualification or any errors are pointed with regard to the constitution of the selection committee as prescribed under Section 16FF of the Act.
14. In the present case, as per the instructions and even from the order referring the matter to the Director of Education, there is no allegation or averment that the persons so selected including the petitioners did not possess the requisite qualification or that there was an error in the constitution of the selection committee as envisaged under Section 16FF of the Act. Thus, on the expiry of one month from the date when the papers were forwarded i.e. 23.05.2017, a vested right accrued in favour of the petitioners by virtue of the provision of deemed approval.
15. The similar controversy on the same facts was decided by this Court in Writ Petition No. 167 of 2023 vide order dated 22.02.2023. All these aspects of the matter which ought to have discussed hereinabove were duly considered by this Court while allowing writ petition and directing the respondents to pay salary to the petitioners within a period of four months from today.
16. This Court is of the considered view that the facts in the present case are fully covered by the aforesaid judgment.
17. Thus, the inescapable conclusion from the averments made in the writ petition and the stand taken by the State in the instructions, there is a deemed approval of the appointment of the petitioners made by the Selection Committee under Section 16FF of the Act and therefore, they are entitled to payment of their salary since the date of appointment.
18. The arrears of the salary shall be computed and paid to the petitioners within a period of four months and the petitioner shall continue to get their salary as and when the same falls due in terms of the mandate of the U.P. Intermediate Education Act.
19. The writ petition is allowed in terms of the said order.
(Alok Mathur, J.) Order Date :- 23.3.2023 Ravi/