Patna High Court
Allama Iqbal College,Biharshar vs The State Of Bihar & Ors on 11 September, 2018
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8374 of 2009
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Allama Iqbal College, Biharsharif, Nalanda through its Prof. In-Charge,
Abdul Moid Karimi, son of Late Abdul Khalique, Resident of Daral Khair,
Millat Colony, Bari Road, P.S.- Gaya, District- Gaya ... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Human Resources
Development Department (Higher Education), Govt. of Bihar, New
Secretariat, Patna
2. The Principal Secretary, Human Human Resources Development
Department (Higher Education), Govt. of Bihar, New Secretariat,
Patna
3. The Director, Human Resources Development Department (Higher
Education), Govt. of Bihar, New Secretariat, Patna
4. The Magadh University, Bodh Gaya through its Vice Chancellor
5. Vice Chancellor, Magadh University, Bodh Gaya
6. The Registrar, Magadh University, Bodh Gaya
7. The Proctor, Magadh University, Bodh Gaya
8. The Finance Officer, Magadh University, Bodh Gaya
... ... Respondent/s
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Appearance :
For the Petitioner : Mr. Vinod Kr. Kanth, Sr. Advocate
Mr. Manoj Priyadarshi, Advocate
Mr. Ajay Kumar Singh, Advocate
For the State : Mr. Narendra Kumar Singh, AC to GP-22
For the University : Mr. Shivendra Kishore, Sr. Advocate
Mr. Ritesh Kumar, Advocate
For the Intervenors : Mr. K.D. Chatterjee, Sr. Advocate
Mr. Amit Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date : 11-09-2018 Heard Mr. Vinod Kumar Kanth, learned senior counsel appearing on behalf of the petitioner, Mr. Shivendra Kishore, learned senior counsel appearing on behalf of the Magadh University, Mr. K.D. Chatterjee, learned senior counsel appearing on behalf of the Intervenors and learned counsel appearing on behalf of the State.
2. This writ petition was filed on behalf of Allama Iqbal College through its Prof. Incharge in the year 2009 against the Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 2/10 decision contained in Annexure-20, the letter of the Registrar, Magadh University dated 22nd June, 2009, addressed to the Professor Incharge, Allama Iqbal College, Biharsharif, Nalanda, petitioner herein. For ready reference Annexure-20 is quoted below:-
"ex/k fo"ofo/kky;] cks/kx;k i=kad % ctV@217 @09 fnukad 22@6@2009 izs'kd] dqylfpo ex/k fo"ofo/kky;] cks/kx;kA lsok esa] izksQslj bupktZ vYykek bdoky dkWyst fcgkj "kjhQ] ukyUnkA fo'k;% f"k{kdksa ,oa f"k{kdsÙkj deZpkfj;ksa ds ekg ekpZ 2009 ,oa vizhy 2009 ds vfrfjDr osru dk HkqxrkuA egk"k;] mi;qZä fo'k;d vkids i=kad A/c/A/c III / 09 fnuk 29&04&2009 ds lanHkZ esa funs"kkuqlkj lwfpr djuk gS fd vkids }kjk xyr rjhds ls 23 f"k{kd ,oa 03 f"k{kdsÙkj deZpkfj;ksa dk uke foi= esa tksM+k x;k gS tcfd bu 23 f"k{kdksa dk p;u p;u lfefr }kjk ugh fd;k x;k gSA fu;ekuqlkj loZizFke bu f"k{kdksa dk p;u ifjfu;ekuq"kkj xfBr p;u lfefr ls gksuh pkfg,] blds ckn gh Hkqxrku gsrq izfØ;k izkjaHk dh tkrh gS ijUrq vki ,d ftEesokj in ij jgrs gq, bl rjg dk dk;Z fd;as gSa ;g cgqr gh v"kksHkuh; gSA fo"ofo/kky; ds dqykuq"kkld ftUgsa vkids egkfo/kky; ds foÙkh; fu;a=d dk nkf;Ro lkSaik x;k gS mUgsa Hkh Hkzfer dj ,oa okLrfodrk dh tkudkjh ugh fn;k x;k QyLo:i bl laca/k esa xyr vkns"k ikfjr gks x;k rFkk bu 23 f"k{kdksa dk ekg ekpZ 2009 ,oa vizhy 2009 dk osru vxzhe ds :i esa bl dk;kZy; ds i=kad ctV 190@09 fnukad 30&05&09 rd bl "krZ ds lkFk foeqDr fd;k x;k Fkk fd bu deZpkfj;ksa ds fu;qfä dk vuqeksnu ,oa osrukfn Hkqxrku gsrq vfrfjDr jkf"k dk ekax ljdkj ls dh tk jgh gS vxj jkT; ljdkj }kjk bldh Lohd`fr ugh nh tkrh gS rks oSlh fLFkfr esa bl vxzhe Hkqxrku dk lkeatu dj fy;k Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 3/10 tk;xk rFkk Hkfo'; esa rnuqlkj dkjokbZ dh tk;xhA bl vk"k; dk opuo˜rk i= lacaf/kr dfeZ;ksa ls izkIr djus ds i"pkr gh Hkqxrku djus dk funsZ"k fn;k x;k FkkA pqõ¡fd vHkh bu f"k{kdksa dh fu;qfä dk vuqeksnu p;u lfefr ls gh ugh gqvk gS vr,o ljdkj ls bl gsrq vuqnku dh ekax djuk oS/k ugh gksxk bl laca/k esa iwoZ esa fuxZr i=kad ctV@ 190@09 fnukad 30&05&2009 dh bl gn rd la"kksf/kr le>k tk;A mi;qZä lkjh ifjfLFkfr;ksa ij fopkjksijkUr ekuuh; dqyifr egksn; us vkns"k nsus dh d`ik dh gS fd ekg ekpZ 2009 ,oa vizhy 2009 es oSls 23 f"k{kd 03 f"k{kdsŸkj deZpkfj;ksa dks xyr Hkqxrku dh xbZ jkf"k dk lkeatu ekg ebZ 2009 ,oa twu 2009 ds osru ls dj fy;k tk; rFkk izksQslj bupktZ dks ;g psrkouh nh tk; fd Hkfo'; esa bl izdkj xyr dk;Z ugh djsaA lkFk gh izkQslj bupktZ viuk Li'Vhdj.k ,d lIrkg ds vUnj izLrqr djsa fd muds }kjk okLrfod fLFkfr dks utj vankt dj ekg ekpZ ,oa vizhy dk xyr osru ns;d D;ksa izLrqr fd;k x;k ,oa bl d`r ds fy, muds fo:} fu;ekuqdqy dk;ZokbZ D;ksa ugh dh tk;A dqylfpo ex/k fo"ofo/kky;] cks/kx;kA
3. From the tenor of Annexure-20, it appears that objection was raised in the matter of payment of 23 teachers and 3 non-teaching employees on the ground that they were not appointed by the Selection Committee constituted in terms of University Statute and as such the University was of the view that incorporating their names in the budget and utilization of the fund towards payment to those 23 teachers and 3 non-teaching employees is not valid and to that extent the budget letter No. 190 of 2009 dated 30.5.2009 was modified.
4. Mr. Vinod Kumar Kanth, learned senior counsel appearing on behalf of the petitioner submits that undisputedly the Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 4/10 institution in question is a minority institution and minority institution has right to establish and administer the instruction on their own way. Neither State nor the University has any say in the matter of administration of the minority institution except in case of maladministration. In the instant case there is no issue of maladministration warranting interference in the affairs of the minority institution, otherwise, it would be in teeth of the Constitutional guarantee to the minority to establish and administer Educational Instruction of their own choice. The right and privilege of the minority institution was subject to scrutiny of the Apex Court in numerous occasions starting from the judgment of the Apex Court in the case of Re Kerala Education: (1967) SCC, wherein it has been held out by the Apex Court that right to administer minority institution is the right of the minority and the State and its instrumentality have no jurisdiction to interfere in the administration of the minority institution. The appointment of the Teachers and non-teaching employees is domain of the Managing Committee of the minority institution and the minority institution in question has appointed teachers and non-teaching employees after following selection process consistent with Articles 14 of the Constitution of India. The objection on the appointment of 23 teachers and 3 non-teaching staff is based on non adherence to the Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 5/10 University Statute for constitution of Selection Committee and selection is the pivotal issue which requires consideration in this writ proceeding. Mr. Kanth submitted that if the University Act or the Statute which prescribe constitution of selection committee is binding on the minority institution then the question of autonomy is meaningless. The State and the University cannot interfere in the administration of the minority institution which includes selection and appointment of teaching and non-teaching staff and if the Institution follows the procedure consistent with Article 14 of the Constitution then selection and appointment cannot be faulted. He admitted that the minority institution are obliged to follow the minimum standard prescribed for the purposes of affiliation and recognization and in this process they are obliged to follow the qualification and standard prescribed for affiliation and recognization. The authority competent to recognize the degree or grant of affiliation may prescribe qualification and can only lay down the standard which the minority institution cannot dilute in seletion and appointment. Mr. Kanth submitted that in the process of fixing eligibility criteria the competent authority can fix the minimum qualification for appointment but how selection is to be done is not in the realm of the State or the University as otherwise it would amount to interference with the autonomy and right to Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 6/10 establish and administer Educational Institution of the minorities which is most precious constitutional guarantee to the Minorities.
5. Mr. Kanth submitted that from the materials available on record, it would be evident that appointments have been made in the institution after following the selection process after due advertisement and on the recommendation of the Selection Committee comprising of the experts of the subject.
6. Mr. Shivendra Kishore, learned senior counsel appearing on behalf of the Magadh University submits that under the scheme of Section 57A (5), the minority institution are also saddled with the procedure applicable for appointment of teaching and non-teaching employees in affiliated colleges.
7. Mr. Kanth in reply submitted that firstly the amended provision will not apply in the present case as the appointments have been made much before coming into force the amended provision of Section 57A. Therefore, the objection raised in Annexure-20 is inapplicable as the amendment and 57A (5) was introduced subsequently and it is not made effective from retrospective date. Secondly, he submits that the reason assigned in Annexure-20 cannot be supplemented by way of counter affidavit or argument advanced by the counsel appearing on behalf of the University. The decision has been taken publically and therefore it Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 7/10 has to be tested at the touchstone of the reasons assigned in Annexure-20. The law in this regard is well settled by the Apex Court in the case of Mohinder Singh Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors. : AIR 1978 SC 851 wherein it has been categorically held out that the public order taken publically cannot be supplemented by way of counter affidavit. By same standard the submission cannot be accepted on any reason not assigned in Annexure-20.
8. In view of the above, the Court finds substance in the submission of Mr. Kanth that the reason assigned in Annexure-20 cannot be supplemented beyond what is incorporated in it. The Court also finds substance in his submission that the amended provision will not apply in the present case as the amendment was not introduced with retrospective effect and the decision contained in Annexure-20 cannot be affected by the subsequent amendment in Section 57A(5).
9. The second limb of argument of Mr. Kanth that Annexure-20 was never acted upon. In fact, the University kept on making payment and funds were regularly released for payment to all the teachers including 23 teachers and 3 non-teaching employees as referred to in Annexure-20.
Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 8/10
10. Mr. Shivendra Kishore, learned senior counsel for the University submits that subsequently the University has granted approval to the services of 23 teachers and 3 non-teaching employees and as such today there is no rub that there is any infirmity in the selection/appointment of the 23 teachers and 3 non-teaching employees, referred to in Annexure-20.
11. Mr. K.D. Chatterjee, learned senior counsel appearing on behalf of the intervenors submits that the Managing Committee is not required to refer the case of the 23 teachers and 3 non-teaching employees for approval of the University or any other authority as it would amount to surrendering the jurisdiction, which the University and the State is lacking, in the matter of administration of minority institution. He submits that the appointments were made after following the selection process and the Managing Committee of the institution has approved the selection and issued appointment letter and there is no infirmity in their appointment.
12. In view of the fact that the University admits the approval of the services of all the 23 teachers and 3 non-teaching employees referred to in Annexure-20, the Court does not see any reason to make any authoritative Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 9/10 declaration to legality and validity of Annexure-20 as it has now lost its utility.
13. In the peculiar facts and circumstances when Section 57A(5) has no application in the present case, there is no occasion for this Court to examine the applicability of Clause (5) of Section 57A of the Act, that can be examined in appropriate cases. In the facts of this case, the Court holds that the State and the Magadh University cannot interfere in the administration of the minority institution including in the matter of appointment of teaching and non-teaching staff if the posts are sanctioned. The minority institution may appoint even beyond sanctioned strength but the State cannot be fastened with accountability of financial aid to meet the payment of teaching and non-teaching staff appointed beyond the sanctioned strength. In the present case appointments have been made within the sanctioned strength as is evident from Annexure-6 and as such the Court has no hesitation in holding that to the extent of appointment within sanctioned strength after following the selection process consistent with Article 14 of the Constitution, the State is obliged to cater the need of the institution for payment of salary as the Institution is deficit grant college as such to the extent of teaching and non-teaching staff appointed in the institution after following the selection process i.e. after Patna High Court CWJC No.8374 of 2009 dt.11-09-2018 10/10 advertisement and on the recommendation of the expert and teachers and non-teaching staff appointed in the Institution answers the eligibility and they are within the sanctioned strength approved by the State Government.
14. In view of the above, as the decision contained in Annexure-20 which was not acted upon, shall not be acted upon. Annexure-20 shall not be a ground to raise any objection in future on the payment of salary to the teaching and non-teaching employees working in the institution within the sanctioned strength including 23 teaching and three non-teaching staff referred to in Annexure-20.
15. With the aforesaid, the writ petition stands allowed and disposed of.
(Anil Kumar Upadhyay, J) spandey/-
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