Brijesh Kr. Mishra vs State Of U.P. And Others
2015 Latest Caselaw 5007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 1
 
Case :- WRIT - A No. - 21074 of 2011
 
Petitioner :- Brijesh Kr. Mishra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- R.N.Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Shri R.N. Yadav, learned counsel for the petitioner and Shri R.K. Pandey, learned Standing Counsel for the State-respondent nos.1 to 4.

2. As per the office report, the service on the respondent nos.5 and 6 are deemed to be sufficient.

3. None appears on behalf of the respondent nos.5 and 6.

4. Learned counsel for the petitioner submits that in view of provisions of Section 16 FF of the U.P. Intermediate Education Act, 1921 read with Regulation 17 under chapter II of the Regulations framed under the Act, there was no need for any prior approval. The government order dated 10.9.2008 (Annexure CA-1) and 19.4.2003 as relied by the state-respondent cannot over ride the aforesaid statutory provision. He submits that the state-respondents have no role till the selection is made by the Committee of Management and the name of candidate is forwarded to the D.I.O.S. for approval. The only power available to the state-respondents in the case of aided minority institution is that when after the selection of the candidate his name is forwarded for approval, the state-respondent may only verify his educational qualification. Except this they have no power to interfere with the appointment in a minority institution.

5. Shri R.K. Pandey, learned Standing Counsel submits that in view of Article 30 of the Constitution of India, the state-respondents may not interfere in the administration of the minority institution but the petitioner being an aided institution, the state-respondents, who not only sanctioned the strength of teaching and non teaching staff but also pay salary to them from the State Exchequer, have every right to regulate the things and to see that after due sanction and approval, the appointments are made in accordance with law, which shall ultimately help the institution in achieving the object for which it is established and ultimate beneficiary would be the students, who are builder of the nation. He submits that state-respondents cannot interfere in the administration of a minority institution but there is no prohibition for regulation.

6. I have carefully considered the submissions of the learned counsel for the parties and perused the record.

7. Briefly stated facts of the present case are that the petitioner is undisputedly a minority institution recognized under the U.P. Intermediate Education Act, 1921. It has a primary section. The controversy involved in the present writ petition relates to the appointment of assistant teacher in primary section. An advertisement was allegedly made by the petitioner on 5.2.2009 inviting application for recruitment on the post of assistant teacher. The vacancy was created due to the death of one Sri Jauhar Nizam (assistant teacher) on 31.7.2008. On 8.3.2009, the Committee of Management made a proposal on the basis of alleged interview and on the same day, issued an appointment letter to the selected candidate, namely, Shri Brijesh Kumar Mishra. The aforesaid Brijesh Kumar Mishra filed Writ Petition No.41552 of 2009 before this Court for a direction to the state-respondent for consideration of approval of his service. The said writ petition was dismissed vide order dated 13.8.2009 passed by the learned Single Judge, observing as under:

"From the document brought on record as Annexure-3 to the writ petition which is the resolution of the Selection Committee. This Court finds that absolutely no details of the candidates who appeared in the interview and marks allotted during the interview have been disclosed. On the contrary it is contended that interview had already taken place and, therefore, the best candidate be offered appointment. Accordingly Brijesh Kumar Mishra has been appointed.

I am of the considered opinion that such procedure followed is de horse the rule inasmuch as interview has to be conducted by the Selection Committee and it is the Selection Committee which has to select the best candidate. No details of marks awarded by the Selection Committee are on record. Consequently this Court records that there is insufficient material on record of this writ petition for any mandamus as prayed for being issued.

Writ petition is dismissed."

8. Aggrieved with the aforesaid order of the learned Single Judge, the petitioner filed Special Appeal No.1718 of 2009, which was disposed of directing the appellant to make an appropriate representation before the D.I.O.S. for consideration of the matter, who was directed to decide the same within a period of one month. Pursuant to the aforesaid order, the representation of the aforesaid petitioner was decided by the D.I.O.S., Jaunpur holding that since the appointment has been made by the Committee of Management without following directions contained in the government orders dated 19.4.2003 and 10.9.2008 and without prior approval of the state-respondents and thus, the appointment being irregular and against law, the representation is rejected. Aggrieved with this order, the petitioner has filed the present writ petition.

9. Before proceeding further, it would be appropriate to reproduce the relevant provisions of the Act and Regulation as well as relevant government orders as have been relied by the learned counsel for the petitioner and the learned Standing Counsel. Section 16 FF of the U.P. Intermediate Education Act, 1921 and Regulation 17 of Chapter II of the Regulations framed under the Act, reads as under:

16-FF. Savings as to minority institutions.- (1) Notwithstanding anything in sub-section (4) of 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 Institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and

(b) in the case 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 qualification 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 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.

Regulation 17 of Chapter II : The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF, shall be as follows:

(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manger of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e., whether temporary/permanent) and number of vacancies, descriptions of post (i.e., Principal or Headmaster, Lecturer or L.T., C.T. or J.T.C./B.T.C. Grade teacher including the subject or subject in which the lecturer or teacher is required), scale or pay and other allowances, experience required minimum qualification and age prescribed, if any, for the post and prescribing a date which should not ordinarily be less than two weeks from the date of advertisement) by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.

Notes-(1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised.

(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.

(b) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies of all the necessary certificates and testimonials. The management may charge cost of the application form not exceeding the amount referred to in Clause (2) of Regulation 10.

(c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.

(d) All applications received from the candidates shall be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns. The candidates to be called for interview shall be seven for each post (the number of applicants, permitting). The Manager shall intimate by registered post all the members of the Selection Committee as well as all such candidates as are called for interview, the date, time and place of selection at least ten days before it is held. The Selection Committee will hold the selection accordingly. If on account of any unavoidable reason, the expert selected by the Committee of Management under Clause (a) of the proviso to sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed the meeting of the Selection Committee shall be postponed.

(e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation.

(f) A panel of experts consisting of fifteen or more persons selected from category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned, The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in a sealed cover to the management through its Manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.

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10. The Government order dated 10.9.2008 relied by the state-respondent is reproduced below:

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11. From perusal of the afore-noted Government order, it is clear that in the case of primary section of non aided government college, the vacancy may be filled-up after approval of the State-respondents to be obtained by submitting details with regard to the number of students studying in the institution, annual result and posts sanctioned etc. There cannot be any dispute that an aided minority institution has right to appoint teachers in terms of the provisions of Section 16-FF of the U.P. Intermediate Education Act, 1921 read with Regulation 17 of Chapter II of Regulations framed under the Act and Article 30 of the Constitution of India. However, in terms of the Government order dated 10.9.2008, as afore-noted, the validity of which has not been questioned in the present writ petition; prior permission for filling-up vacancies in primary section of a minority institution is required, which has to be obtained by submitting details, sanctioned posts, number of students studying in the institution, annual result and number of teachers/employees working in the institution. The salary to the teaching and non teaching staff of an aided minority institution is paid from the State Exchequer, and therefore, the condition of prior permission as required by the Government orders dated 19.4.2003 and 10.9.2008 by submitting relevant information cannot be said to extraneous, irrelevant or encroaching upon the power of minority institution to appoint teachers. The said Government order does not interfere with the appointments in an aided minority institution in terms of Section 16-FF and Regulation 17 of Chapter II of the Regulations framed under the Act. It merely requires prior permission before initiating proceedings for appointment by submitting the informations as afore-noted, which appears to be in the interest of the institution and its ultimate beneficiary, namely, the students. There cannot be any dispute that if the State Government who pay salary from the State Exchequer, requires submission of information as to the number of students studying in the institution prior to the filling-up vacancies, such requirement does not infringe any right of minority institution to administer institution. No decision taking contrary view has been cited by the petitioner.

12. In the case of Kolawana Gram Vikas Kendra vs. State Of Gujarat & Ors, 2010 (1) SCC 133, the Hon'ble Supreme Court observed as under:

7. In our considered view, we do not view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there were actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujarat before us in its counter-affidavit.

9. In view of this clear stand taken by the State Government, we cannot pursue ourselves to hold that the aforementioned Circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals.

10. However, Mr. Ahmadi raised another point saying that if the prior approval or the no-objection certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent authority to issue the no-objection certificate within the time provided in the said Circular which is of seven days. Of course, if there are any objections, the authority will be justified to take some more time within the reasonable limits.

13. In the case of Javed Ahmad Khan and others vs. State of U.P. and others, 2014 (3) ALJ 112, similar question as point no.3 was considered and following the law laid down in the case of Kolawana Grama Vikas Kendra (supra), it was observed as under:

17. In the case of Kolawana Gram Vikas Kendra v. State of Gujarat, (2010) 1 SCC 133: (1999 AIR SCW 7647), the Apex Court, while considering the right of a minority institution to appoint its staff, has held that it is open to the State, while granting financial approval to the appointment, to consider whether there were actually posts available in the institution as per the strength of students. The relevant observation is contained in paragraph 7 of the report, which reads as under:

"It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether where were actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department."

Thus, the strength of the students in an institution becomes a relevant consideration at the time of deciding whether to accord or not to accord approval to new appointments. Therefore, the Government Orders providing for maintenance of student-teacher ratio in an institution, cannot be said to be arbitrary.

18. Further, in the case of Tulsi ram and others v. State of U.P. & others, 2010 (78) ALR 693: (2010 (3) ALJ (NOC) 359), it was held such Government Orders have the force of law, inasmuch as, the State Government has the power to issue such orders in exercise of the powers vested in it under section 9 (4) of the U.P. Intermediate Education Act, 1921. While holding as above, the Court observed that in the earlier judgments rendered in the case of Krishna Kumar v. DIOS (supra) and Mohd. Ayub v. DIOS (supra), the impact of the Government Orders was not considered. Therefore, in the light of the decisions of the Apex Court noticed above, as also the decision of this Court in the case of Tulsi Ram (2010 (3) ALJ (NOC) 359) (supra), the authorities cited on behalf of the petitioners are not of much help to them.

19. For the reasons detailed above and in view of the finding that the petitioners were appointed in excess of the permissible limits set out by various Government Orders, this Court is of the considered view that refusal to pay salary to the petitioners from the State fund is neither arbitrary nor illegal in any manner.

14. The facts of the present case and the Government Order, as aforementioned, clearly indicates that it does not interfere in the selection process by a minority institution for appointment of teaching or non teaching staff. The requirement of prior approval is necessitated because of the fact that the Government wants to see as to whether there were actually posts available in the institution as per the strength of the students. The said Government Order does not interfere in the internal working condition in the minority institution. Similar view was taken by the Hon'ble Supreme Court while considering similar controversy in the case of Kolawana Gram Vikas Kendra (supra). Thus, the impugned order passed by the respondents relying upon the aforesaid Government Orders cannot be said to suffer from any infirmity.

15. In view of the above discussion, I do not find any infirmity in the impugned order. The writ petition lacks merit and therefore deserves to be dismissed.

16. In result, the writ petition fails and is hereby dismissed.

Order Date :- 3.12.2015

Ajeet

(Surya Prakash Kesarwani, J)