Mohammad Ahmad vs M.R. Sherwani Higher Secondary ...
2017 Latest Caselaw 5376 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1624 of 2006
 

 
Appellant :- Mohammad Ahmad
 
Respondent :- M.R. Sherwani Higher Secondary School & Others
 
Counsel for Appellant :- Brij Raj Singh,Ashok Khare
 
Counsel for Respondent :- C.S.C.,V.K. Saxena
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Heard Sri Brij Raj Singh, learned counsel for the appellant and Sri Vipin Saxena for the respondent no. 6. Learned Standing Counsel has been heard for the respondent nos. 3 to 5. The respondent nos. 1 and 2 are the management and Manager, respectively of the Institution were represented before the learned Single Judge and they had filed a counter affidavit to the writ petition but no counsel has appeared in the present appeal on their behalf inspite of notice to them.

The appeal questions the correctness of the judgment of the learned Single Judge dated 15th November, 2006 in a writ petition filed by the respondent no. 6, seeking to declare the selection proceedings and appointment of the appellant as Assistant Teacher in Sociology in M.R. Sherwani Higher Secondary School, Ganjdundwara, District-Etah to be invalid.

It is not necessary to delineate the entire facts but suffice it to say that the institution in question is an Intermediate College governed by the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder, and is admittedly a declared minority Institution aided by the State Government. The facts leading to the dispute are that the post came to be advertised by the management of the Institution, which is a sanctioned post, on 21.06.2001. It is undisputed as per the affidavits exchanged between the parties on record that the appellant as well as the respondent no. 6, both applied for the said post. The respondent no. 6 was not called for interview which took place on 26th July, 2001. According to the case set up by the appellant before the learned Single Judge out of the 35 applicants only 14 had been called for interview, and the reason given is that the other candidates had been short listed on account of deficiency in their eligibility conditions. Thus, it is an admitted fact that the respondent no. 6 alongwith the other candidates, who were short listed, were not called for interview.

Aggrieved, the respondent no. 6 alleged that he moved a representation after he came to know that the appellant had been selected and offered appointment on 1st August, 2001. The objections according to the respondent no. 6 had been filed but the District Inspector of Schools, who is the authority competent under the Regulations to process such appointment, did not adhere to the objections raised by him which related to the violation of the procedure as prescribed in Regulation 10(f) and Regulation 11 of Chapter II of the Regulations framed under the 1921, Act. The contention of the respondent no. 6 before the learned Single Judge was, therefore, that without deciding the said objections the papers of the appellant were processed and forwarded for approval which was granted by the Joint Director of Education, who is the approving authority, on 17th May, 2002.

Having failed to get his grievances redressed, the respondent no. 6 filed the writ petition giving rise to this appeal assailing the selection and appointment of the appellant.

The management as well as the appellant and the State, all filed their counter affidavits. The main issue canvassed before the learned Single Judge was that the selection procedure stood vitiated on account of non-compliance of Regulation 10(f) and Regulation 11 of Chapter II of the Regulations as referred to hereinabove. On this issue the affidavits that were exchanged between the parties was taken into account and the learned Single Judge found that the aforesaid contention of the respondent no. 6 had not been attended too and the District Inspector of Schools has failed to apply his mind to the objections raised and, therefore, the selection, appointment and approval of the appellant was vitiated.

We have also perused the averments in this regard and the relevant averment is contained in paragraph 21 of the writ petition where the respondent no. 6 had come out with a clear case to the effect as narrated hereinabove. In reply, paragraph 18 of the response given by the management is clearly to the effect that the respondent no. 6-petitioner had not been found suitable as per his record and, therefore, his papers were not placed before the Selection Committee. The counter affidavit of the State is silent on this issue as to whether the Selection Committee and its members including the experts were apprised of the entire documents and as to whether such documents on scrutiny had been referred to in Appendix-C as is required under Regulation-11. The learned Single Judge, therefore, found that there was deficiency in assessing the selection process due to the said alleged violations and, consequently, after quashing the selection and appointment orders, remitted the matter back for consideration before the concerned authority, namely, the Joint Director Education and for deciding the matter.

From the above discussion and the findings recorded by the learned Single Judge, we may put on record that Regulation -11 requires the recording of a satisfaction by the District Inspector of Schools while processing the selection papers in relation to such selections. Regulation-11 prescribes, that if the Inspector is satisfied that the proceedings of interview has been vitiated, he also has the powers to nullify the interview process. The orders of the Inspector, in this regard, are final and binding on all concerned. In the instant case, no such power has been exercised by the District Inspector of Schools and the Regional Joint Director Education has proceeded to grant approval without noticing the said fact.

Consequently, in our opinion, the learned Single Judge has appropriately interfered in the matter and has rightly directed the Joint Director Education to reconsider and decide the matter afresh after taking into consideration the objections raised by the respondent no.6-petitioner. We are, therefore, not inclined to interfere with the impugned judgment for the reasons hereinabove.

However, what we find on record is that this appeal came to be admitted for hearing on 3rd January, 2007 and while admitting the appeal, keeping in view, the facts and circumstances of the case, namely, that the appellant had been functioning in the Institution and getting salary, an interim order was passed to the effect that the operation of the judgment in appeal would remain stayed until further orders. The result is that the operation of the impugned judgment remained stayed and the appellant continued to function in the institution. In such circumstances, we direct that the interim protection with regard to the functioning of the appellant shall continue to be available to him till the disposal of the dispute by the Regional Joint Director Education as directed by the learned Single Judge which shall be concluded within a period of three months from today.

The interim protection as extended by us herein above should not be construed to mean recognition or acknowledgment of any of the rights of the appellant on the post in question. The Regional Joint Director of Education shall ensure that the decision shall be delivered within three months and no protection will be available to the appellant thereafter.

The appeal stands disposed of, accordingly. No order as to costs.

Order Date :- 12.10.2017

S.Chaurasia