Allahabad High Court
Qamaruddin vs State Of U.P. And Others on 16 July, 2021
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Reserved
Court No. - 48
Case :- WRIT - A No. - 6467 of 2021
Petitioner :- Qamaruddin
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Kushmondeya Shahi
Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioner and Shri Govind Singh, Senior Advocate for the respondents.
Challenge in this writ petition is to an order dated 16.03.2021 passed by the District Inspector of Schools, whereby he has attested the signature of Smt. Farhat Mirza, Urdu Lecturer as Officiating Principal of S.M. National Inter College, Machchhati, Ghazipur while rejecting the claim of the petitioner raised by means of a letter dated 19.01.2001, wherein he was alleged to be the senior most Lecturer in the college. The claim raised on behalf of the petitioner has been turned down on the ground that the institution is a minority institution and the Committee of Management is competent to nominate anyone for discharging the duties of an Officiating Principal.
The contention of learned counsel for the petitioner is that the view taken by the D.I.O.S. in his order dated 16.03.2021 is contrary to the Regulations framed under the Intermediate Education Act. Regulation 9 of Chapter II of the Regulations provides that a temporary vacancy ranging from 3 days to less than six months is to be filed temporarily by an eligible teacher in the next lower grade on the basis of seniority. The order is, therefore, liable to be set aside. He has placed reliance upon the following judgments in support of his contention.
1. Tariq Maqbool And Others Vs. State of U.P. And Others, 2015(1) ADJ 650.
2. Committee of Management, National Inter College And Another Vs. State of U.P. And Others, 2020(4) ESC 1312.
3. Shainda Hasan Vs. State of Uttar Pradesh and others, 1990(3) SCC 48.
4. Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College And Another Vs. State of U.P. And Others, 2017(2) ESC 529.
Shri Govind Singh, learned Senior Advocate has supported the impugned order. He has also submitted that the case law relied upon by learned counsel for the petitioner is not applicable in the instant case, as they do not deal with the issue as to who can be an Officiating Principle in a minority institution.
I have considered the submissions made by learned counsel for the parties and perused the record as also the judgments cited on behalf of the petitioner.
Although, reliance has been placed upon the Regulation 9 of Chapter II of the Regulations framed under the Act, in my considered opinion, such reliance is misplaced. The relevant provision applicable in the case at hand is Regulation 2 of Chapter II. This regulation provides that in case the post of a Head of an institution falls vacant on account of the incumbent having been granted more than six months leave in a session or on account of death or retirement or suspension, the same shall be fill by the senior most eligible teacher. Its proviso states that this regulation will not be applicable in case of minority institutions governed by Section 16FF of the Act.
The judgment in the case of Tariq Maqbool And Others Vs. State of U.P. And Others, 2015(1) ADJ 650 has held that Chapter II Regulation 20 is applicable to minority institutions also and in case a vacancy arising is not filled up within three months from the date of its occurrence, it would be deemed to have been surrendered and any appointment on such post is permissible only after the post has been sanctioned fresh.
It is no doubt true that judgment holds that Regulation 20 Chapter II is applicable even to a minority institution but the same in my considered opinion, does not help the petitioner in any manner because as observed above, filling up of a temporary vacancy of the post of Principal is not governed by Chapter II Regulation 20 of the Regulations.
The decision in Committee of Management, National Inter College And Another Vs. State of U.P. And Others, 2020(4) ESC 1312 in its paragraph 50 has extracted from the judgment of the Apex Court in Shainda Hasan Vs. State of Uttar Pradesh and others, 1990(3) SCC 48. The said paragraph 52 is reproduced below:-
"52. Consequently, Court answered the question formulated above, holding in para-28, as under:
28. Thus the management's right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid Article and would hence be void."
The afore-noted extract in my opinion, holds against the petitioner and not in his favour.
The Full Bench of this Court in Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College And Another Vs. State of U.P. And Others, 2017(2) ESC 529 has drawn a distinction between statutory provisions, which are regulatory in nature as opposed to those which are mandatory and in paragraph 25, the Full Bench has observed as follows:-
"25. It is clear from this judgment that the regulatory measures are necessary for ensuring orderly, efficient and sound administration and so also security of the services of the teachers and other employees. The regulations, laying down eligibility criteria and qualification for selection and appointment, in our opinion, would also include include laying down criteria and procedure for considering teaching and non-teaching staff in minority institutions for promotion, leaving it open to the management to consider and select/appoint the teachers on promotion."
The distinction drawn by the Full Bench also does not improve the petitioner's case because the provision, namely Chapter II Regulation 2 of the Regulations Act, clearly provides that for filling of a temporary post of the Head of the Institution by the senior most lecturer is not applicable to minority institutions. The provision is clear on a bare reading and requires no interpretation regarding its import.
It is not in dispute that the institution where the petitioner is working is a minority institution.
Under the circumstances, and in view of what has been stated above, the impugned order is not liable to be interfered with.
The writ petition is accordingly found to be without merit and is dismissed.
Order Date :- 16.7.2021
Mayank
