Allahabad High Court
Azhar Sultan Ahmad vs State Of U.P. And Others on 23 January, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 22772 of 2012 Petitioner :- Azhar Sultan Ahmad Respondent :- State of U.P. and Others Counsel for Petitioner :- R.M. Saggi,V.K. Singh Counsel for Respondent :- C.S.C.,P.K. Pandey Hon'ble Yashwant Varma,J.
Heard Sri V.K. Singh, learned Senior Counsel in support of the writ petition and the learned Standing Counsel for the State respondents.
The petitioner aggrieved by the order dated 26 March 2012 passed by the District Inspector of Schools has instituted this writ petition. By the aforesaid order, the District Inspector of Schools has refused to accord approval to the selection and appointment of the petitioner as an Assistant Teacher in the sixth respondent institution. The following reasons are assigned by the District Inspector of Schools while refusing to accord approval: -
(a) The fact that the petitioner was awarded 47 marks out of 50 in the interview without any basis thereof being indicated in the proceedings of the Selection Committee;
(b) No prior approval of the District Inspector of Schools having been obtained for initiating the selection process;
(c) Various complaints with respect to the fairness of the procedure adopted by the Management having been received; and
(d) The number of sanctioned seats which were liable to be recognised as existing in the institution based on the total number of students in various classes.
Before this Court it is not disputed that the sixth respondent is a minority institution and consequently appointments made by the Committee of Management in such an institution shall be governed exclusively by the provisions made in Section 16-FF of the U.P. Intermediate Education Act, 19211 read with Chapter II Regulation 17(2) of the Regulations framed thereunder. As is evident from a perusal of Section 16FF of the 1921 Act, the Regional Deputy Director of Education or the Inspector of Schools, as the case may be, is entitled to interfere in a selection process undertaken by a minority institution only where it is found that the person selected does not possess the minimum qualifications prescribed or is otherwise ineligible. It becomes relevant to note that the impugned order does not hold against the petitioner on this score. Insofar as the issue of award of marks in the interview is concerned, suffice it to note that Regulation 17 does not mandate or prescribe that the total marks assigned for the interview be further sub divided or specified under different heads. It clearly envisages marks being cumulatively awarded upon an assessment of the candidate in the interview. In that light, the findings as returned by the District Inspector of Schools on the two aspects noticed above cannot possibly be countenanced.
The Court then notes the third objection which is taken, namely that no prior approval of the Inspector was obtained before initiating the selection process. It becomes pertinent to note that Chapter II which alone would apply to a minority institution nowhere requires the Committee of Management to obtain the prior approval of the Inspector before initiating a selection process. The only requirement which is placed in Chapter II and which may be said to apply is that contained in Regulation 17(2) which prescribes that no new post shall be advertised unless the sanction of the appropriate authority for its creation has been received. As the Inspector himself records in the impugned order, there were 19 posts which had been sanctioned in the Institution and out of which 11 were manned by appointees thus clearly leaving eight substantive vacancies to be filled by the Management. The impugned order does not record that these vacancies that existed had not been sanctioned or created in accordance with law. The issue of prior approval, as alluded to by the Inspector of Schools in the impugned order, had earlier fell for consideration before this Court in C/M Digamber Jain Girls High School Vs. State2 where after noticing the relevant statutory provisions, the Court held thus: -
"Even otherwise the sole provision of prior approval upon which the rival contentions of parties have pivoted was Regulation 17(2) appearing in Chapter-II of the Regulation framed under the Act, 1921. A bare reading of this provision establishes that it applies to a "new post'. The further words used in Regulation 17(2) are "for the creation thereof". It is therefore apparent that the said Regulation can come into play only when a new post is to be advertised and the injunction itself applies only when the sanction for creation thereof is required and received. The said provision does not apply to a vacancy created upon death or retirement of a holder of the said post. This because the post in question already exists and stands sanctioned. Upon retirement or death the said post only falls vacant. Death or retirement do not result in creation of a new post."(emphasis supplied) The Court consequently finds itself unable to sustain the reasoning adopted by the District Inspector of Schools on this score also.
The Court further notes that while passing the impugned order, the District Inspector of Schools has alluded to an interim order of restraint passed by the High Court on a writ petition on 4 June 2005. That order restrained the Committee of Management from making fresh appointments. The Court is apprised that the aforesaid order was passed pending an internecine dispute between two rival factions who claimed the right to manage the sixth respondent. However, as the impugned order itself records, that restraint came to be lifted and vacated on 21 April 2011. Admittedly the process of selection was initiated only thereafter. In that view of the matter, the Court finds itself unable to sustain the order impugned.
While parting, it may only be noted that while the Inspector refers to various complaints received by him raising allegations of the selection process being unfair, he does not hold that upon due enquiry these complaints were found to be of substance. The issue is thus left hanging on mere surmise and conjecture.
The writ petition is consequently allowed. The impugned order dated 26 March 2012 is hereby quashed. The respondent No. 4 shall proceed to consider the issue of grant of approval in respect of the selection of the petitioner afresh bearing in mind the observations entered hereinabove. The process of consideration shall be concluded with expedition and a final decision communicated not later than two months from today.
Order Date:- 23.1.2020 LA/-