Mohd. Shahin Riyaz Khan vs State Of U P And 6 Others
2022 Latest Caselaw 9187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  30.5.2022
 
						Delivered on  04.08.2022
 

 

 
Case :- WRIT - A No. - 1937 of 2022
 

 
Petitioner :- Mohd. Shahin Riyaz Khan
 
Respondent :- State Of U P And 6 Others
 
Counsel for Petitioner :- Sanjay Kumar Om
 
Counsel for Respondent :- C.S.C.,Rahul Mishra,Shahla Naz
 

 
Hon'ble Siddharth,J. 

Order on the Impleadment Application No. 02 of 2022

Heard Shri Sanjay Kumar Om, learned counsel for the petitioner and Shri Rahul Mishra, learned counsel appearing for proposed respondent no.8.

The proposed respondent no.8, Aftab Alam, claims himself founder member of the society and the person, who donated his land for establishment of the institution. Counsel for the proposed respondent no.8 has submitted that on the basis of forged post creation order dated 18.5.1987, 21 posts were wrongly shown in the institution, when only 15 posts were sanctioned. On the basis of illegal post creation order, state ex-chequer was defrauded for number of years. On 25.7.1992, the Deputy Director of Education, Vth Region, Varanasi, held that there were only 15 posts created in the institution. Inquiry was initiated against the petitioner on his complaint by the Deputy Director of Education (Secondary), U.P. at Lucknow and it was found that the petitioner was appointed on non-sanctioned post. He was appointed by his father, who is Manager of the institution. There was no post of Assistant Teacher in subject Commerce. The appointment of the petitioner has rightly been cancelled.

Counter affidavit has been filed in reply to the impleament application filed by Aftab Alam. Counsel for the petitioner has submitted that no relief has been sought by the petitioner against Aftab Alam. It has further been stated that Aftab Alam has been removed by general body on account of his nefarious activities in the year 2000 from the society and has not been inducted back in the society. He filed an Original Suit No. 563 of 2016 before the Civil Judge (J.D.), Shahganj, Jaunpur and got ex-parte injunction order regarding the land of the school, which was later set aside. He has no locus to challenge the appointment of the petitioner. He never challenged the approval granted to the selection of the petitioner by the D.I.O.S. on 24.9.2013 and on account of ulterior motives has sought impleadment in this petition. He might have donated some land for the institution but his activities were not in the interest of the institution. The allegation that the father of the petitioner was Manager at the time of selection of the petitioner is absolutely incorrect and has no substance.

This Court in Special Appeal No. 414 of 2021 has defined the "person aggrieved" in paragraph Nos. 13, 14 & 15:-

13. "Person aggrieved" means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. A legal right is an averment of entitlement arising out of law, which is a benefit conferred by a rule of law. A person who suffers from legal injury can only challenge the act or omission. Complainant may be "person aggrieved", if he establishes that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. If such complainant have no legal right or legally protected interest for a justiciable claim, he cannot be heard as a party.

14. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. He may be a "person aggrieved" only when he has legal right, which has been or is threatened to be violated for the reason that a legal injury creates a remedial right in the injured person, unless a person answers the description of "person aggrieved", he has no right to be heard.

15. Since the petitioner-appellant does not answer to the description of "person aggrieved", therefore, he had no locus standi to file the present writ petition. Thus, learned Single Judge while passing the impugned judgment, upholding that the petitioner-appellant is not "person aggrieved", has not committed any manifest error of law.

The Apex Court in the case of The Church of Christ Charitable Trust & Educational Charitable Society Vs. M/s Ponniamman Educational Trust, 2012 (4) Supreme 289, has held that a party against whom no relief has been sought is not a necessary party.

Hence it is clear that neither the proposed respondent no.8 is neither "person aggrieved' nor a "necessary party" to this petition, wherein no relief has been sought against him by the petitioner.

The impleadment application filed by proposed respondent no.8 is, accordingly, rejected.

Order on the Writ Petition

Heard Shri Sanjay Kumar Om, learned counsel for the petitioner and learned Standing Counsel appearing for respondent nos. 1 to 5.

This writ petition has been filed praying for quashing of the order dated 26.11.2021 passed by respondent no.5, Deputy Director of Education, Madhyamik-3, Directorate of Education, Prayagraj, U.P. Further prayer has been made for direction to the respondents not to withhold the salary of the petitioner as Assistant Teacher (L.T. Grade), Siraje Hindi Inter College, Kerakat, Jaunpur.

The brief facts of the petition are that respondent no.6, Siraje Hindi Inter College, Murki, Kerakat, Jaunpur, is a minority institution duly recognized under the provisions of U.P. Intermediate Education Act, 2021. Two vacancies on the posts of Assistant Teacher arose in the institution on 11.4.2010 and 30.6.2010 respectively. The management of respondent no.6 advertised both the vacancies in two newspapers and the petitioner, who was duly qualified for the post, applied for the same. He has qualification of B.Com. B.A., Post Graduate (Political Science) and B.Ed. The institution is recognized in the subjects of Humanities and Hindi, English, Urdu, History, Geography & Economics was taught upto High School and in Intermediate the subjects of Humanities, Science and Economics are taught. The petitioner was eligible to teach Economics subject and he applied for appointment as Assistant Teacher (L.T. Grade) in pursuance of the advertisement dated 06.6.2010. Father of the petitioner, Dr. Riyazuddin Khan, was Manger of the institution and on coming to know that the petitioner has applied for appointment in the institution, he tendered his resignation from the post of Manager on 10.6.2010 and it was duly accepted on 17.6.2010. Thereafter, Sri Manjoor Ahmad Ansari, was appointed as Manger of the institution. The fact of the resignation of the father of the petitioner and election of Sri Manjoor Ahamad Ansari as Manager duly communicated to the District Inspector of Schools by letter dated 17.6.2010. In the selection process for two posts of Assistant Teacher (L.T.Grade), interview took place on 22.6.2010. On 23.6.2010 two persons, namely, Ashutosh Kumar Singh and the petitioner were selected and their names were forwarded for approval to the respondent no.2, District Inspector of Schools, Jaunpur and appointment letter dated 4.8.2010 was issued to the petitioner. Despite joining the institution, the petitioner and Ashutosh Kumar Singh were not paid their salary and hence approached this Court by way of Writ Petition No. 2677 of 2011, which was disposed of by the order dated 20.9.2013 directing the D.I.O.S. Jaunpur, to decide the representation of the petitioners and hence the respondent no.2 by the order dated 24.9.2013 granted approval to the appointments of the petitioner and Ashutosh Kumar Singh and directed release of their salary from the date of assumption of their duties. Thereafter, the petitioner continued to work. Some complaints were lodged against him and the respondent no.4, Director of Secondary Education, U.P. at Lucknow, directed inquiry regarding the appointment of the petitioner by his letter dated 3.4.2019 and the salary of the petitioner was withheld by the order dated 13.6.2019 by the respondent no.2, District Inspector of Schools, Jaunpur on the ground that the petitioner is having qualification of B.Com. whereas the institution is not recognized in the subject of Commerce. The inquiry committee found in its report dated 5.7.2019 that the petitioner is qualified to teach subject Economics in Classes - 6, 7, 8, 9 & 10 and found his appointment approved in accordance with Rules. Hence his salary was released by the respondent no.2 by the order order dated 9.7.2019. Thereafter another complaint was made by some stranger before the respondent no.3, Joint Director of Education, Varanasi Region, Varanasi and the salary of the petitioner was again withheld by the order dated 19.9.2019. The respondent no.2 again examined the validity of the appointment of the petitioner and by his report dated 19.9.2019 it informed the respondent no.3 that petitioner was appointed during the tenure and management of Sri Manjoor Ahmad and the same was communicated with the respondent no.3 on 17.6.2010. The respondent no.7 made another complaint to the respondent no.3, who by his letter dated 6.12.2019 directed respondent no.2 to conduct inquiry regarding the appointment of the petitioner after withholding his salary. The petitioner preferred number of representations to the authorities and thereafter approached this Court by means of Writ Petition No. 2370 of 2021 praying for direction for payment of his salary with effect from October, 2019. This Court on 12.2.2021 directed the Standing Counsel to seek instructions and thereafter by the order dated 28.7.2021 directed to release the salary of the petitioner w.e.f., October, 2019. Respondent no.4, Director of Secondary Education, U.P. at Lucknow, directed the Committee of Management to produce the records. In the inquiry ordered by respondent no.4 by his letter dated 17.11.2020 at the behest of respondent no.7, an order dated 26.11.2021 was passed wherein on the basis of ex-parte inquiry, the appointment of the petitioner was held to be illegal and in violation of the Rules. Hence this writ petition.

Counter affidavit has been filed on behalf of the respondent nos. 1 to 5, wherein it has been stated that the advertisements were published in two newspapers on 5.6.2010 and 6.6.2010 by the father of the petitioner, who was the Manager of the institution, inviting applications for the two posts of Assistant Teacher ((L.T. Grade) and the last date for receiving the applications was mentioned as 20.6.2010 and the date of interview was 22.6.2010. It has further been stated that on the date of publication of advertisements, one post of Assistant Teacher was vacant on account of retirement of Abhishek Srivastava from post on 11.4.2010, but the second post was not vacant and the incumbent Ramraj Yadav was retired on 30.6.2010. The institution was granted recognition in 1992 for the subjects of Hindi, Maths, Urdu, Sanskrit, English, History, Geography and Economics. No recognition for the subject, Commerce, was granted to the institution. The petitioner is Graduate in Commerce. D.I.O.S. in his report dated 19.9.2019 stated that at the time of appointment of the petitioner in July, 2010, eight Assistant Teachers were receiving salary which was beyond the sanctioned strength and hence approval was not granted to the payment of the salary of the petitioner. The appointment of the petitioner was made beyond the sanctioned strength. Sri Manjoor Ahmad was given charge of Manager on 17.6.2010 for some time, but he was never recognized as Manager of the institution by the department. On the date of initiation of selection proceedings, the father of the petitioner was duly recognized as Manager of the institution and he is still continuing the Manager of the institution. The approval to the appointment of the petitioner was granted on 24.9.2013 by the then D.I.O.S. in compliance of the order dated 20.9.2013 passed in Writ Petition No.2677 of 2011. In the last inquiry, the petitioner was granted opportunity to submit the relevant information and documents, but he did not co-operated and hence the inquiry was closed.

In the rejoinder affidavit filed by the petitioner, it has been stated that the averments in the counter affidavit filed by the State respondents are false and fictitious. The appointment of the petitioner was duly approved by the D.I.O.S. on 24.9.2013 and his appointment has been cancelled after 11 years on the basis of illegal inquiry by the respondent no.5 at the behest of respondent no.7. The appointment of the petitioner has been illegally cancelled as per Section 16-E(10) of the Intermediate Education Act. The allegation that he was appointed during the tenure of his father as Manager is incorrect. His father resigned from the aforesaid post on 10.6.2010 and his resignation of the Committee of Management was accepted on 17.6.2010 and Sri Manjoor Ahmad was appointed as Manager, who later expired. All the facts were duly examined by D.I.O.S. while granted approval of the petitioner. The process of selection was initiated prior to retirement of Ramraj Yadav only to avoid academic loss to the students. The process was initiated in June so that in the new session the loss of teaching to the students is not caused. The posts advertised were regarding substantive vacancies for appointments and not beyond the sanctioned strength. Two inquiries were conducted earlier wherein reports were in favour of the petitioner and their reports have not been set aside by any competent court or authority.

After hearing the rival contentions, this Court finds that in the counter affidavit filed on behalf of the State respondents nos. 1 to 5 it has been stated that there were only 7 posts sanctioned at the time of appointment of the petitioner in July 2010, but eight Assistant Teachers were receiving salary which was beyond the sanctioned strength of the Assistant Teachers in the institution. When the institution came under the grant-in-aid, post of only seven Assistant Teachers were approved by the Deputy Director of Education, 5th Region, Varanasi, by his order dated 18.5.1987. The appointment of the petitioner was duly approved by D.I.O.S. on 24.9.2013. The above order of D.I.O.S. was never challenged or set aside. Therefore his appointment of petitioner cannot be held to be beyond the sanctioned posts. Regarding the eligibility of the petitioner it is found that he is graduate in Commerce (B.Com.) and was eligible to be appointed as teacher in subject Economics as per the provision of U.P. Intermedia Education Act for teaching 9 & 10 Class. In this regard the finding has been given in favour of the petitioner in the inquiry dated 5.7.2019, Annexure No.10 to the writ petition. In the inquiry report of the three members committee it has been recorded that the appointment of the petitioner was made for teaching the junior classes treating the B.Com degree of the petitioner equal to graduate degree and he was not appointed for the subject of Commerce. The petitioner has qualification of Commerce, in Intermediate alongwith subject Hindi and English and has further qualification of B.Com. and B.Ed. For the purpose of teaching Class 6, 7, 8 and Class 9 & 10 subject Economics he was eligible and hence appointed as Assistant Teacher in L.T. Grade.

At the time of his selection and interview his father was not Manager of the institution and the subsequent Manager, Sri Manjoor Ahmad, had taken the charge of the Committee of Management. The Apex Court in the case of Javid Rasool Bhat and others Vs. State of Jammu & Kashmir and others, 1984 AIR 873, has dealt with such a situation and it upheld the appointment of the candidate, who was daughter of the Principal of the Medical College, since his father disassociated himself from selection Committee of Management and the Apex Court did not found any fault in the same.

Finally, this Court finds that in the case of S.K. Chaudhari Vs. Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Lookerganj, Allahaband and others, (1991)1 UPLBEC 250, has held that the powers of cancellation of appointment should be exercised within reasonable period of time as per Section 16(E)(10) of the U.P. Intermediate Education Act 1921. In the present case, the appointment of the petitioner was approved in the year 2013. Thereafter, initially in two inquiries, no fault was found with his selection, appointment and approval, but by the last inquiry the issues earlier settled in the previous inquires have been unsettled and his appointment has been cancelled, after period of more than eight years.

In view of the above, the impugned order dated 26.11.2021 passed by respondent no.5, Deputy Director of Education, Madhyamik-3, Directorate of Education, Prayagraj, U.P. is, hereby, quashed.

The petitioner is directed to be paid his salary with effect from the date it was stopped in pursuance of the order dated 26.11.2021 alongwith 6% interest, within 8 weeks from today. He shall be permitted to work on his post of Assistant Teacher (L.T.Grade) in the institution, if he is not working, within one week of this order. In case, the petitioner is not permitted to work within the time provided by this Court and not paid his salary also within time provided, he shall be entitled to 12% interest on the entire arrears of his salary from the date it became due. The period during which, the petitioner was forced out of employment, shall not be considered as break in service for any purpose whatsoever.

The writ petition is allowed. No Costs.

Order Date :- 04.08.2022

Ruchi Agrahari