Allahabad High Court
Arjun Singh Rathor vs State Of U.P. And 4 Others on 5 August, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- WRIT - A No. - 5471 of 2020 Petitioner :- Arjun Singh Rathor Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel.
Present writ petition has been preferred assailing the order dated 25.2.2020 passed by the District Inspector of Schools, Rampur (DIOS, Rampur) and for a direction to the respondents not to interfere in the working of the petitioner as an Asstt. Teacher in LT Grade for Mathematics/ Science subject at Jain Inter College, Rampur and to pay the petitioner his regular monthly salary on the said post.
The record in question reflects that there is an institution namely Jain Inter College, Rampur (in short "the institution in question"), which is recognized and aided Intermediate College and is governed by the provisions of UP Intermediate Education Act 1921 (in short "the Act of 1921") and UP Act No.24 of 1971. The institution in question is recognized as a minority institution. It appears that once Zafar Abbas Naqvi, who was permanent Asstt. Teacher for Science/ Mathematics subject in the institution was retired from service on 30.06.2013 thereby causing a substantive vacancy on the aforesaid post. The information of the said vacancy was given by the management to the DIOS, Rampur with a request for according permission to fill up the said post. Consequently, the DIOS, Rampur by order dated 12.2.2015 accorded permission for filling up the substantive vacant post of Asstt. Teacher in LT Grade for Science/Mathematics subject. Pursuant to the said permission, the management of the institution published advertisement in the newspaper 'Dainik Jagran' dated 14.6.2015 and 'Times of India' dated 13.6.2015 inviting applications from eligible candidates. The petitioner being qualified and eligible has applied for the said post. He appeared in the interview and got selected and thereafter he joined the institution on 19.2.2016. As per the provisions contained under sub-section (4) of Section 16-FF of the Act of 1921 the relevant papers were forwarded to the DIOS for according financial approval on 16.2.2016. Instead of according approval he has referred the matter for consideration to the Regional Level Committee. Consequently, an order was passed on 27.2.2016 from the office of Joint Director of Education, Moradabad Region considering the decision taken by the Regional Level Committee and held that power of according approval for appointment of a teacher in L.T. Grade vested in DIOS and as such the matter was relegated to him for passing necessary orders. Consequently, his claim was rejected by order dated 29.2.2016 and the management of the institution had also issued consequential order cancelling the appointment of the petitioner on 16.3.2016. The aforesaid action was subjected to challenged by the petitioner by preferring Writ-A No.14836 of 2016 (Arjun Singh Rathor v. State of U.P. & Ors.). In the aforesaid writ petition it has been pressed by the petitioner that the institution in question is minority institution and appointments are made in pursuance of Section 16-FF of the Act of 1921. Once the selection of a teacher is made by Selection Committee constituted under the aforesaid provision, such a proposal is sent for approval of the DIOS, who under sub-section (4) of Section 16-FF either grants or disapproves the approval of selection so made and the Regional Level Committeeor the Joint Director of Education has no role to play. It had also been pressed that the orders impugned are against the provisions of the Act as well as against Regulations 10 (g) and 17 (g) of the Regulations framed under the Act of 1921. Once the selection committee had found the petitioner to be best suited candidate for the post in question, either the approval is to be accorded or to be denied. In this backdrop, after hearing the rival contentions advanced by the parties, the said writ petition was partly allowed on 16.11.2019, the operative portion of the said judgment is quoted as under:-
"..............18. It is not in dispute that there stood a vacancy of an Assistant Teacher for Science/Mathematics in institution in question. An advertisement was made in two daily newspapers having wide circulation, i.e., Dainik Jagran and Times of India on 14.6.2015 and 13.6.2015 after respondent no.3 had accorded permission to the institution for said appointment. From perusal of the advertisement, it is clear, that requisite qualification, required for an Assistant Teacher, was as per norms of State Government. Thus, the finding recorded in the order issued by the office of Joint Director of Education that no qualification was prescribed in the advertisement, is factually incorrect.
19. The second objection so raised in the order impugned relating to compliant received in office of respondent no.3, on which Selection was earlier stopped, but on 28.1.2016, it was directed to complete the same in accordance with law, but the management instead of publishing the advertisement again in newspaper proceeded with the earlier advertisement. However, no material has been brought on record by the authority to show that process was to begin afresh. The institution, thus rightly proceeded to hold the selection on basis as applications received earlier and interviewed the candidates and selected list of candidate was sent to the office of respondent no.3 on 16.2.2016 for approval.
20. As far as third objection that complaints were received before the date of interview is of no consequence as these complaints were never forwarded to the institution to bring to their notice ,and once the selection has been made, respondent no.3 cannot disapprove the same on the ground that complaints were pending before the date of interview. Had the respondent no.3 received such complaint it should have acted thereon and should have first asked the institution to explain the charges so made in the complaint.
21. Once the selections were over, the same cannot be disturbed only on the basis of mere unsubstantiated and uncorroborated complaint, which cannot be any ground for not according approval to a validly selected candidate.
22. Lastly, the ground, on which approval has not been granted, is that the Selection Committee has not followed the provisions for awarding quality point marks and the Selection Committee has not recorded any reason for approving or disapproving any candidate.
23. From the reading of Regulations 10(g) and 17(g) of the Act of 1921, it is clear, that the Selection Committee would proceed for selection on the basis of total quality point marks and the marks awarded in interview. The total of marks for this purpose shall be arrived at by addition of the quality point marks as obtained by a candidate and average of marks awarded by the members of the Selection Committee.
24. Sub clause (g) of Regulation 17 provides that after selection has been made, the Chairman of Selection Committee shall prepare two copies and forward the same for approval to District Inspector of Schools under Section 16-FF(4) of the Act of 1921 . Thus, the finding recorded by respondent nos.2 and 3 that no procedure was followed in awarding quality point marks, cannot be accepted.
25. As from reading of sub section (4) of Section 16-FF, it is clear, that in case of a teacher of a minority institution selected by Selection Committee, approval is to be considered by the District Inspector of Schools. The action of respondent no.3 by not according approval himself and forwarding papers to the Regional Level Committee, was completely unwarranted for and was against the mandate of sub-section (4) of Section 16-FF.
26. The observations made by the Regional Committee on the basis of which the office of the Joint Director of Education issuing order dated 27.2.2016 is patently illegal and against the provisions of law. Acting on the said order, respondent no.3 passed the consequential order disapproving the selection of the petitioner on 29.2.2016 on vague and unreasonable ground, which cannot be sustained.
27. Argument of Sri Khare has force, as the District Inspector of Schools was bound to decide the matter of approval in view of sub-section (4) of Section 16-FF of the Act of 1921, as the institution in question is a minority institution and reference to the higher authority by respondent no.3 is totally unwarranted.
28. The order passed by respondent no.3 on 29.2.2016, which is a consequential order passed on the recommendations of the orders issued by office of Joint Director of Education on 27.2.2016 is per se illegal and cannot be sustained.
29. In view of the above, I am of the firm opinion, that the orders impugned dated 27.2.2016, 29.2.2016 and 16.3.2016 are unsustainable and are hereby quashed. However, as respondent no.3 has not decided the matter of approval in view of the provisions of sub section (4) of Section 16-FF of the Act of 1921, considering the Regulations 10(g) and 17(g), the matter is remitted back to District Inspector of Schools, respondent no.3 to decide the same in accordance with law within a period of three months from the date of production of a certified copy of this order.
30. Writ petition stands partly allowed."
In response to the aforesaid order, the claim of the petitioner was considered and rejected by order dated 25.2.2020 holding the selection of the petitioner to be invalid, hence this writ petition.
Shri Ashok Khare, learned Senior Counsel appearing for the petitioner submits that while passing the order impugned the respondent authorities have failed to appreciate that the institution in question is a minority institution and with regard to a minority institution the selection of a candidate can be disapproved only in case it is found that the selected candidate does not possess the requisite qualification for appointment qua the post in question. Admittedly the selection committee recommended the name of the petitioner as best suited candidate for appointment and such determination of the selection committee cannot be subject matter of any scrutiny or objection either by the Regional Level Committee or by the DIOS. There does not exist any such procedure under Regulations framed under the Act of 1921 specifying the quality point required to be awarded to candidate in selection for appointment to minority institution. In most arbitrary manner and erroneously the respondents had proceeded to discard the selection proceedings by relying upon Regulation 10 (g) of Chapter II of the Regulations framed under the Act of 1921 even though the said provisions are not applicable to minority institution. The procedure for selection with regard to minority institution stands specified under Regulation 17 of Chapter II of the Regulations framed under the Act of 1921. Sub-clause (e) of Regulation 17 would demonstrate that it is only clause (e) and (f) of Regulation 10, which have been made applicable to selection proceeding with regard to minority institution. In the present matter admittedly entire selection was made strictly in consonance with the provisions contained therein. The said objection has been negated by this Court in the aforesaid writ petition with categorical finding, therefore, the same technical objection cannot be taken by the respondent at this stage.
Per contra learned Standing Counsel has vehemently opposed the writ petition and submitted that the order impugned has been passed strictly in accordance with law and there is no infirmity in it. The selection was not conducted in accordance with law and as such the claim of the petitioner was negated by the authorities.
Heard rival submissions and perused the record.
For deciding the controversy in hand, it would be appropriate to quote Section 16-FF of the Act as under:-
"Section 16-FF. Saving 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 of India 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 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 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."
The Court in earlier round of litigation has observed that from the reading of Regulations 10(g) and 17(g) of the Act of 1921, it is clear, that the Selection Committee would proceed for selection on the basis of total quality point marks and the marks awarded in interview. The total of marks for this purpose shall be arrived at by addition of the quality point marks as obtained by a candidate and average of marks awarded by the members of the Selection Committee. Sub clause (g) of Regulation 17 provides that after selection has been made, the Chairman of Selection Committee shall prepare two copies and forward the same for approval to District Inspector of Schools under Section 16-FF(4) of the Act of 1921. Thus, the finding recorded by respondents that no procedure was followed in awarding quality point marks, was rejected by the Court. The Court had also considered the provisions of sub section (4) of Section 16-FF and opined that in case of a teacher of a minority institution selected by Selection Committee, approval is to be considered by the District Inspector of Schools.
The institution in question is a minority institution and they are entitled for protection under Article 30 of the Constitution of India. The said issue has been considered by this Court in Writ Petition No.14558 of 2006, Committee of Management, Sri Kund Kund Jain Inter College, Muzaffar Nagar Vs. State of U.P. & others, reported in 2006(3) ESC 1528 (All) and Special Appeal No.298 of 1999, Committee of Management A.B. Vidyalay Inter College, Kanpur Vs. Raj Kumar Shukla & others, reported in Allahabad Civil Journal 1999 (II) Vol.XXXI 1437.
The relevant paragraphs of the judgement passed in the Committee of Management, Sri Kund Kund Jain Inter College, Muzaffar Nagar (Supra) are extracted herein below:-
"9. Sri R.B. Singhal, learned Counsel for the petitioner, has advanced his submissions on the strength of several decisions to contend that the issue relating to the promotion of a Teacher from one grade to another has already been decided by this Court insofar as a minority institution is concerned in favour of the Management clearly holding that the provisions pertaining to claim of promotion under the Regulations do not apply to the minority institutions. He contends that in this view of the matter, the District Inspector of Schools was absolutely bereft of any authority to intervene in the matter and, therefore, the order impugned is liable to be struck down on this ground alone. To support his submissions, the first decision relied on by Sri Singhal is in the case of St. Josef Higher Secondary Schools v. R.S. Sharma reported in MANU/UP/0373/1975 : 1976 AWC 143. The said decision was rendered in a referred matter as to whether Section 16-G (3)(a) of the U.P. Intermediate Education Act, 1921, violated Article 30 of the Constitution or not. The said provision clearly relates to the appointment and dispensation of the services of the Head of the institution and Teachers which require prior approval of the Inspector in writing. The Division Bench, after quoting paragraphs from the decision of the Apex Court in The Ahmedabad St. Saviers College Society and Anr. etc. v. State of Gujarat and Anr. MANU/SC/0088/1974 : [1975]1SCR173 , and after considering the impact of another decision of the Apex Court in The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Ors. reported in MANU/SC/0070/1975 : [1975]3SCR810 , answered the reference in favour of the Management holding that the provisions of Section 16-G-(3)(A) referred to herein above was violative of Article 30 of the Constitution of India. Consequently, the Inspector would have no right to exercise any powers of prior approval as contemplated in the aforesaid provision. Sri Singhal contends that, thus, the District Inspector of Schools has no power to issue any such directions for the engagement of any Teacher in the institution by way of promotion and further the Inspector does not have any right to either approve or disapprove any such proposal on his own under the powers in the U.P. Intermediate Education Act.
10. The next decision relied upon by Sri Singhal which is directly in issue is the Division Bench decision in the case of N.B. Lal v. District Inspector of Schools and Ors. Writ Petition No. 9776 of 1984, decided on 31.8.1984. The relevant part of the said judgment is quoted herein below as the same cannot be stated by me in a more precise or better way than it has already been expressed therein:
Learned Counsel for the petitioner submitted that as the procedure for selection of teachers even of 16 FF of the Intermediate Education Act, it implies that in regard to the minority institutions also the quota of 40 per cent reserved for promotees contemplated under Regulation-5 aforesaid shall be maintained.
We do not agree with this contention. To a minority institution which is protected under Article 30 of the Constitution, such a restriction can not be read by implication. In our opinion, the mere fact that the procedure prescribed for selection is the same or similar to that applicable to other institutions cannot automatically bring in Regulation 5 of Chapter II. This provision not having been specifically applied to minority institutions the petitioner cannot base any claim thereon.
Learned Counsel for the petitioner next contended that the right to promotion under Regulation 5 against the 40 per cent quota was a condition of the petitioner's service and, therefore, Regulation 5 should be deemed to be applicable to minority institutions also. As Regulation 5 does not apply to a minority institution, it cannot be treated as forming part of the petitioner's conditions of service. A minority institution enjoys complete autonomy in respect of selections and appointments of teachers except to the extent specially restricted by the Intermediate Education Act. In the scheme of that Act, we find nothing which may have taken away the right of a minority institution to fill in the posts of teachers by direct recruitment regardless of the restrictions imposed as regards the quota of promotees contemplated in Regulation 5.
11. That aforesaid Division Bench judgment has been later on followed by 2 learned single Judges of this Court in the case of Ram Narain Lal Gupta v. Committee of Management and Ors. Writ petition No. 21301 of 1990, decided on 11.5.1993. The Court clearly held that the provisions of Regulation 5 of Chapter II of Regulations framed under the U.P. Intermediate Education Act cannot be enforced against the wishes of the minority, claiming protection under Article 30 of the Constitution of India. The same view has been expressed in the case of M.S. Karan v. Committee of Management and Ors. reported in MANU/UP/0551/ 1996 : (1997) 1 UPLBEC 491.
12. Apart from the aforesaid judgments, which are directly in issue, Sri Singhal in order to buttress the submissions advanced in support of the protection guaranteed under Article 30 of the Constitution to the petitioner - Committee of Management has cited the following decisions:
(1) N. Ammad v. Manager, Emjay High School and Ors. MANU/ SC/ 0588/1998 : AIR1999SC50 ;
(2) Board of Secondary Education v. Joint Director of Public Instruction MANU/SC/1277/1998 : (1998)8SCC555 ;
(3) Yunus Ali Sha v. Mohd. Abdul Kalam MANU/SC/0257/1999 : AIR1999SC1377 ;
(4) Committee of Management v. R.K. Shukla 1999 (4) AWC 3240.
(5) C/M St. John Inter College v. Girdhari Singh and Ors. MANU/ SC/0224/2001 : [2001]2SCR945 ;
(6) Udai Veer Singh v. District Inspector of Schools and Ors. MANU/ UP/0088/2001;
(7) Committee of Management v. District Inspector of Schools and Ors. 2003 (1) ESC 28;
(8) T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. MANU/SC/0905/2002 : AIR2003SC355 ;
(9) Bramho Samaj v. State of West Bengal and Ors. MANU/SC/ 0508/2004 : (2004)6SCC224 ;
(10) Committee of Management v. District Inspector of Schools, Deoria Writ Petition No. 49195 of 2003, decided on 27.1.2005;
(11) Matloob Husain v. State of U.P. and Ors. Writ Petition No. 10137 of 2006, decided on 23.2.2006; and (12) Interim Order dated 21.3.2006 in Writ Petition No. 14735 of 2006, Rajendra Singh v. State of U.P. and Ors."
26. The last case which may have a bearing on the issue is the case of Committee Management, M.A.H. Inter College v. District Inspector of Schools, reported in MANU/UP/0492/2002. The issue involved in the said decision was as to whether an Intermediate College recognized as a minority institution could be compelled to make appointments on compassionate basis under Regulations 103 to 107 of Chapter III of the U.P. Intermediate Education Act. Previously, the said regulations extended the benefit of compassionate appointment against class III & IV posts only. However, under an amendment brought in the year 1995, the post of a trained graduate teacher was also made available for compassionate appointment and the same was also incorporated as an exception to the mode of recruitment in Section 16 of the U.P. Act No. 5 of 1982. However, it is to be remembered that U.P. Act No. 5 of 1982 is not applicable in the case of minority institutions. The aforesaid decision very elaborately traces out the entire legislative background of such appointments and after discussing the Apex Court decisions including the then latest decision of the Apex Court in the case of N. Ammad (supra), clearly held that the said regulations are violative of Article 30 of the Constitution of India in so far as minority institutions are concerned and it was held that the State Government acted in an insensitive manner by issuing the Notifications making applicable the said provisions on a minority institution and were, therefore, quashed. The said judgment has systematically and logically enunciated the position of law by following the Apex Court decision referred to herein above.
27. Sri Ashok Khare, however, has pointed out that the aforesaid decision was disagreed with in its reasoning in a Division Bench judgment in the case of St. Andrews College v. State of U.P. and Ors. reported in . The Division Bench went on to hold that regulations can be framed for the welfare of students and teachers in the light of the Constitution Bench judgment in the case of T.M.A. Pai Foundation case as contained in para 137 of the said judgment. It was further held that a regulation framed for the welfare of a Teacher or employee of a minority institution does not in any way impede the right of a minority institution guaranteed under Article 30 of the Constitution of India. A perusal of the said Division Bench judgment indicates that the same was with regard to a Notification/Government Order issued in respect of Degree Colleges and the institution in question was affiliated to Gorakhpur University. The case was not pertaining to an Intermediate College which had its own regulations and which had been struck down by the learned single Judge. Thus, the two cases were clearly different on facts. The Apex Court in the case of T.M.A. Pai Foundation has nowhere over ruled the ratio of the decisions relied upon by the learned Counsel for the petitioner to the extent so as to empower the State to interfere with the right of making appointment of the management of a minority institution. Paragraph No. 137 of the Constitution Bench judgment, nowhere holds that the right of the minority to make appointments through the Management of the minority institution can be interfered with. The compulsion of making an appointment against the choice of a minority institution has nowhere been approved by the Constitution Bench judgment. Apart from this, the decision in St. Andrew's case (supra) in para 20 of the judgment, has held that the case of the Apex Court in N. Ammad v. Manager, Emjay High School, had got nothing to do with compassionate appointment against a class III post. It was on that distinction that the said case was found to be inapplicable to the controversy. In the instant case, the dispute is with regard to appointment of a teacher and not of a class III post and, as such, the said Division Bench cannot govern the issues raised in the present case. It has been, time and again, held by the Apex Court that the ratio of a decision is not what can be perceived of it but is what it actually decides. The Division Bench decision of St. Andrew's case, therefore, is not a decision which lays down the ratio in respect of the appointment of a teacher by a minority institution. The said decision, therefore, is not applicable to this controversy and, therefore, the argument advanced by Sri Khare has to be rejected.
28. In view of the conclusions and the findings arrived at herein above, the order impugned dated 16.2.2006 is beyond the jurisdiction of the District Inspector of Schools and is unsustainable and is, therefore, quashed. The writ petition is, accordingly, allowed with no orders as to costs."
Considering the facts and circumstances of the case, the Court is of the opinion that in the earlier round of litigation each and every aspect of the matter has been considered. The objection so raised while passing the order impugned is wholly misplaced as the selection committee recommended the name of the petitioner as best suited candidate for appointment and such determination by the Selection Committee cannot be subject matter of any objection by the DIOS as the institution in question is a minority institution and with regard to a minority institution the selection of a candidate can be disapproved only in case it is found that the selected candidate does not possess the requisite qualification for appointment qua the post in question.
In the aforesaid facts and circumstances, the Court is of the considered opinion that the order impugned is not in consonance with the observations so made by the order dated 16.11.2019 passed in earlier round of litigation and as such the order impugned cannot sustain and is accordingly set aside. The matter is remitted to the competent authority to look into the grievance of the petitioner and pass appropriate order strictly in consonance with the observations so made in the aforesaid judgment preferably within six weeks from the date of production of copy of this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 5.8.2020 SP/