Smt Rizwana vs State Of Up And 4 Others
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Allahabad High Court

Smt Rizwana vs State Of Up And 4 Others on 7 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:82248-DB
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
***** 
 
(Sl No.23)
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 341 of 2024
 

 
Appellant :- Smt Rizwana
 
Respondent :- State Of Up And 4 Others
 
Counsel for Appellant :- Aditya Narayan Tiwari,Mahmoodul Hasan Khan,Shashi Kant Shukla
 
Counsel for Respondent :- Gulrez Khan
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Shashi Kant Shukla, learned counsel for the appellant-petitioners, Mr. Gulrez Khan, learned counsel for respondent no.5 and Mr. Fuzail Ahmad Ansari, learned counsel for the State respondents.

2. Present special appeal has been preferred assailing the validity of the judgment and order dated 07.03.2024 passed by learned Single Judge in Writ-A No.41222 of 2016 (Taufique Alam vs. State of U.P. and 4 Others) whereby the writ petition was disposed of and the orders dated 15.6.2016 and 16.6.2016 disapproving the appointment of the petitioner/respondent no. 5 were set aside and the petitioner/respondent no. 5 was directed to appear before the U.P. Madarsa Shiksha Parishad alongwith all documents, a copy of the petition and the present order on 19th or 20th March, 2024. For ready reference the impugned order dated 7.3.2024 is being reproduced as under:

" 1. This is second round of litigation on behalf of petitioner. Earlier petitioner has approached this Court by way of filing Writ-A No. 67893 of 2015, which was disposed of by following order dated 18.12.2015:

"The petitioner claims that initially he was appointed in the year 2009 by the committee of management but no appointment letter was issued and he was paid his salary by the committee of management from its own sources. Later on the said post was advertised by the committee of management in the year 2011. The petitioner made an application in pursuance of the said advertisement and he was found suitable. He was issued appointment letter dated 26.4.2011 and he was placed under probation of one year. It is stated that since then the petitioner is working in the institution in question.

The grievance of the petitioner is that in the year 2015, when the institution was included in the list of grant-in-aid list by the State Government the committee of management did not sent the name of the petitioner amongst the teaching staff to the competent authority. In this regard petitioner made a representation with no result.

The petitioner, having no other option, preferred Writ Petition No. 49168 of 2015 (Taufique Alam v. State of U.P. and 4 others) before this Court which was disposed of on 3rd September, 2015, with a direction upon the respondents to pass appropriate order. In compliance thereof, it is stated that the impugned order has been passed by the second respondent, wherein he has accorded approval for the payment of salary to Eleven teaching and non-teaching staff but in the said list the petitioner's appointment has not been approved only on the ground that he is ineligible for appointment. A copy of the said order has been brought on record as Annexure-7 to the writ petition. A perusal of the said document indicates that the name of the petitioner finds place at Serial No. 4 and in the last column it is mention that petitioner is ineligible. No other reason has been mentioned.

It is contended on behalf of the petitioner that the qualification of the petitioner has been mentioned in the aforesaid document itself, wherein it is shown that petitioner did his Molvi in the year 1990; Alim in the year 2007; and Fazil in the year 1998 in Second Division. Thus according to him he possess the essential qualification prescribed for the Assistant Teacher in Madarsa.

Taking into consideration, the facts and circumstances of the case, I am of the view, that no reason has been mentioned in the impugned order calling the response from the respondents would not serve any purpose. Therefore, in my view the end of justice requires that the claim of the petitioner be considered afresh by the Second respondent after furnishing opportunity to the petitioner and he shall pass speaking/reasoned order expeditiously preferably within a period of three months from the date of communication of this order in accordance with law.

With the aforesaid observations and order, the writ petition is finally disposed of.

No order as to costs.

It is expressly clarified that this Court has not expressed its opinion on the eligibility of the petitioner, that shall be considered by the Registrar, Arbi Farsi Madarsa in accordance with law."

2. In pursuance of above, concerned respondent issued various communications for appearance of petitioner to hear his case. According to impugned order repeated dates (08.01.2016, 03.03.2016, 25.04.2016, 02.05.2016, 10.05.2016) were fixed and finally by letters dated 18.05.2016 and 27.05.2016, the petitioner was asked to appear but he did not respond and matter was considered on basis of available documents and claim of petitioner was rejected. For reference relevant part of impugned order is extracted hereinafter:

"???? ????? ??? ????? ???? ?????? ????, ?????? ??????????, ????? ?????? ?????? ????? ???????? ??? ???????? ??? ?????? ????????/????????? ?? ??????? ???? ??? ????? ???? ?? ?????? ????? ?????? ?????? ???-

1 ????? ????? ???? ?????? ??????? ??????? ??????? ????? ???? 1998 ?? ????? ???? ?? ????? ??????? ??????? ????? ?? ??? ????? ????? ?????? ???????? ?????? 1217/52-3-2015-??(8)/2012 ?????? 23 ????? 2015 ?? ?????? ?? ????? ?? ?????? ???? ?? ???? ??? ??? ???????? ????? ?????? ???? ???? ?????? 04 ?????? 26.04.2011 ?? ?????? ?? ???? ????? ??? ?? ????? ??????? ????? ?? ?? ?? ???????? ?? ???

2 ?????? ???? ????? ??? ?? ??? ????? ????? ????? ??????? ????? ???? ????? ?? ????? ???? 1990, ???? ???? 1992, ???? ????? ?????? ???? 1997 ??? ??? ???????? ????? ???? 1999 ??? ???????? ???? ??? ?????? ????? ?????? ?????, ???? ?? ????? ???? 1998 ??? ??????? ?????? ??? ???????? ???? ??? ???

3 ?? ????, ???? ????? ?????? ???? ???????? ?????? 42012/13/2007 ?????? 23 ????? 2010 ??? ????? ????? ????? ??????? ?????, ???? ????? ??? ?????????(?????? ??? ?????), ????????(????????) ??? ????? (???????????) ?? ??????? ????? ?? ??????? ??? ????? ???? ????? ???? ??? ???

4 ?????? ????? ?????? ????? ?????? ????? ????? ????? ??????? ????? ?? ???? ?? ????? ?? ???????? ?????? ??? ?? ?? ???

5 ???? ????? ??? ?????? ???? ???????? ???? 2009 ??? ??????????? ?? ?? ?? ???? ????? ??? ??? ?????? ????? ??????? ??? ???? ???????? 1987 ??? ??????? 1998 ??? ??????????? ?? ?? ???????? ???? ????? ?? ?????? ?? ???? ?? ????? ?? ????? ??? ??? ???? ?? ???????? ??????? ?? ?????? ????? ???? ???????? ??, ???? ????? ??? ?? ??? ????? ?? ????? ???? ?? ?? ??????? ??????? ??? ?????? ???? ???????? ??????? ???? ?? ??? ????? ????? ??????? ????? ?? ???? ?? ????? ?? ? ?? ??????? ????? ?????? ???????? ???? ??????? ?????? ?? ?? ?? ?? ? ?? ?????? ????? ?????? ?

1. ???? ????? ??? ?????? ????? ????? ????? ??????? ????? ?? ???? 1990 ??? ????? ?? ??????? ???????? ?? ?? ?? ??? ???? 1992 ??? ???? ?? ??????? ???????? ?? ?? ??? ???? ?? ???? ????? ??? ?? ???? ??? ??? ??? ?? ?? ???? ?? ?????? 3 ?????? ????? ?? ?????? ???? ?????? ???????? ??? ?????? ?? ?????? ???? ??????? 2 ?????? ??? ?? ???????? ?? ?? ?? ??, ?? ???? ??? ?? ?????? ???

??? ???? ?? ?????? ?? ?? ???? ????? ???, ??????????? ?? ???? ???????? ?????? ??? ???????? ????? ????? ???? ???? ??? ???? ???????? ????? ????? ???? ?????? ??????? ??????? ???????, ????? ?????? ???? ????? ??? ?? ?????? 28.04.2011 ?? ??????????? ?? ?? ?? ?? ?? ???????? ????? ??????? ??? ???????????? 1987 ??? ??????? 1998 ?? ?????? ? ???? ?? ???? ????? ?????? ???? ???? ????? ???? ???"

3. Petitioner has denied service of any above referred notice and according to him entire exercise was undertaken behind his back. Relevant paragraphs of writ petition in this regard is extracted hereinafter:

"38. That it is stated that the Registrar had not fixed any date for hearing nor the petitioner received any information regarding date of hearing from the office of the Registrar or from any other authority.

39. That when no date was fixed by the Registrar for hearing inspite of repeated request, the petitioner went to the office of the Registrar at Lucknow and personally contacted him and requested him for compliance of the order passed by the Hon'ble Court. The Registrar told the petitioner that there is nothing in his case and he will reject him claim. The Registrar further told that he will fix some date for hearing and the petitioner will be informed about the said date. The petitioner went back.

40. That the petitioner sent a representation dated 22.2.2016 by registered post to the Registrar that without fixing any date for hearing and without hearing the petitioner, deciding to reject the claim of the petitioner is against the order passed by Hon'ble Court. The photo stat copy of the report dated 22.2.2016 alongwith postal receipt is being filed herewith as Annexure-9A to this writ petition.

41. That the petitioner filed civil contempt petition no. 2027 of 2016 (Taufique Alam vs. Mohd. Tariq Registrar Arabi Tatha Farsi Madarsas) for deliberately and willfully violating the judgment and order dated 18.12.2015. The Hon'ble Court on 20.4.2016 issued notice to the contemner-opposite party. The respondent no. 2 filed an affidavit of compliance in the contempt petition and the said contempt petition is pending."

4. In the counter affidavit filed on behalf of Respondents-1 and 2, above contentions were replied in para 16 thereof, which is reproduced hereinafter:

"16. That the contents and paragraph nos. 36, 37, 38, 39 and 40 of the writ petition are not admitted hence denied. The correct facts have already been given in the preceding paragraphs of this counter affidavit."

5. Sri Gulrez Khan, learned counsel for petitioner, has vehemently argued that the reason assigned in impugned order that petitioner was not qualified was wrong and incorrect and has placed various documents that he was eligible for post concerned.

6. Sri Arditya Narain Tiwari, learned counsel appearing for Respondent-4, has also vehemently supported impugned order and Sri Mahmoodul Hasan Khan, learned counsel appearing for Respondent-5 submitted that petitioner has no locus to challenge her appointment.

7. I have head counsel for parties at length. There are various documents on record of present writ petition, which required to be considered being substantial in nature and since petitioner's stand was not heard before impugned order was passed, therefore, I am of the considered opinion that petitioner should be head firstly by concerned respondent. Therefore, in the interest of justice impugned orders dated 15.06.2016 and 16.06.2016 are hereby set aside and the writ petition is disposed of with following direction:

(a) Petitioner will appear before Respondent, Uttar Pradesh Madarsa Shiksha Parishad alongwith all documents, a copy of writ petition and present order on 19th or 20th March, 2024.

(b) On appearance, the concerned respondent will provide an acknowledgement, fix a date of hearing and shall proceed further and take a reasoned decision thereon within a period of six weeks after giving opportunity of hearing to all concerned parties including Respondent-5."

3. The facts in brief of the case are that Darul Uloom Samadia Niswan, Shekhu Nagar, Bhatipura, Mahoba (hereinafter referred as 'Madarsa') is a recognized Madarsa from Tehtania to Aalia i.e., from Primary to High School, where the petitioner/respondent no. 5 was appointed in the year 2009 on the post of Assistant Teacher (Aalia). However, no appointment letter was issued to him and he was being paid salary by the Committee of Management from its own resources. Later, the Committee of Management advertised the post in the year 2011 and in pursuance to the said advertisement the petitioner-respondent no. 5 made an application and on being found suitable to the said post he was appointed to the said post vide letter dated 26.04.2011 and placed under a probation of one year. Later in the year 2015, the said Madarsa came under the grant-in-aid list of the State but the name of the respondent-petitioner was not sent by the Committee of Management to the competent authority for approval amongst the teaching staff. Thereby, the respondent/petitioner preferred the Writ Petition (A) No. 49168 of 2015 (Taufique Alam vs. State of U.P. and 4 Others) before this Court which was disposed of vide order dated 03.09.2015, directing the respondent authority to pass an appropriate order. On 16.11.2015, the respondent authority granted approval to 11 out of 14 persons of teaching and non-teaching staff of the Madarsa, leaving the petitioner/respondent no. 5 on the ground being unqualified for the said post which he challenged in Writ Petition (A) No. 67893 of 2015 (Taufique Alam vs. State Of U.P. And 3 Others) which was disposed of by this Court on 18.12.2015 with a direction to respondent authority to decide the claim of the petitioner/respondent no. 5 within a period of three months. In the meantime the Committee of Management published an advertisement in one Hindi daily newspaper 'Dainik Anwar Kaum as well as Urdu Newspaper 'Dainik Anwar-a-Kaum' for three posts i.e., Assistant Teacher (Aalia), Assistant Teacher (Faukaniya) and Assistant Teacher (Tehtaniya), on 15.12.2015 and in pursuance to the said advertisement appellant, being fully qualified for the post of Assistant Teacher (Aalia) duly applied for the said post before the Committee of Management and on being found suitable for the said post she was appointed as Assistant Teacher in the said Madarsa on 09.01.2016 alongwith other two candidates and on 16.06.2016 the Committee of Management sent the names of the appointed candidates and the same was approved by the respondent authority on the same day. However, the representation of the petitioner/respondent no. 5 was rejected on the ground that he does not possess the essential qualification and experience for the said post of Aalia as petitioner's Alim Degree from Bihar State Madarsa Education Board is not recognized in U.P. Madarsa Education Board and his testimonials/degree are meaningless in the State of Uttar Pradesh. The petitioner/respondent no. 5 being aggrieved by the order dated 15.06.2016 and 16.06.2016 filed the Writ Petition (A) No. 41222/2016, which was disposed of and the aforesaid orders were set-aside by this Court vide order dated 07.03.2024, with following directions:-

"(a) Petitioner will appear before Respondent, Uttar Pradesh Madarsa Shiksha Parishad alongwith all documents, a copy of writ petition and present order on 19th or 20th March, 2024.

(b) On appearance, the concerned respondent will provide an acknowledgement, fix a date of hearing and shall proceed further and take a reasoned decision thereon within a period of six weeks after giving opportunity of hearing to all concerned parties including Respondent-5."

4. Aggrieved by the said order dated 07.03.2024, the appellant (respondent no. 5 in Writ A No. 41222 of 2016) has filed this intra court appeal on the grounds that the Madarsa was put on grant-in-aid in the year, 2015 and consequently, the post was advertised in a widely circulated newspaper and the appointment of the appellant was accorded by the respondent no.2, Registrar, Arabi Tatha Farsi Madarsas, U.P., Lucknow, vide order dated 16.06.2016. The petitioner/respondent no. 5 had set-up the case before the Writ Court on the basis of his old engagement in the Madarsa and his representation was rejected by the order dated 15.06.2016 on the grounds that he was not eligible for the post in question.

5. Learned counsel for the appellant in this backdrop vehemently submits that as the appellant is not the back door entry and has been appointed in response to the advertisement through widely circulated newspaper and proper selection took place and her credentials were found to be in order and later on the financial approval was also accorded by the authority vide order dated 16.06.2016. He submits that while passing the impugned order dated 07.03.2024, the learned Single Judge has relegated the matter to the respondent to consider the claim of the petitioner-respondent no. 5 and the order dated 15.06.2016 whereby his claim was non-suited could be set-aside and the matter could be relegated but instead of the quashing the order dated 15.06.2016 only, the learned Single Judge has also quashed the order dated 16.06.2016 whereby the appointment of the appellant-respondent was approved. Learned counsel for the appellant therefore submits that the learned Single Judge has erred in law and failed to visualize that the appellant/respondent is also duly selected and appointed teacher and approval has also been granted and she is teaching since the date of her appointment, without granting sufficient opportunity and without considering that her career prospects will adversely affected. Therefore, the impugned order passed by the learned Single Judge is liable to be set aside.

6. Mr. Fuzail Ahmad Ansari, learned Standing Counsel submits that while passing the order dated 15.06.32016, the respondent- authority after scrutiny of the relevant papers, had found that the petitioner- respondent no.5 was not suitable for the post in question and contrarily the Authority had found the selection and appointment of the appellant to be in order and approval was accorded by the competent authority, therefore, the appointment of the appellant could not be nullified.

7. In this backdrop, Mr. Gulrez Khan, learned counsel for the petitioner-respondent no. 5 states that he has no objection if the claim of the petitioner-respondent no. 5 is considered by the authority as per law and the appointment of the appellant shall be subject to the final outcome of the said proceedings. The said argument has been resisted by Mr. Shukla, learned counsel for the appellant submitting that the appointment of the appellant, who was duly selected as per selection procedure known to law which was accorded due approval vide an order dated 16.06.2016, was not under challenge but the same has also been quashed by the learned Single Judge, vide impugned order dated 7.3.2024.

8. Having considered the entire matter in all its' ramification and considering the facts and circumstances of the case, the instant intra court appeal is partly allowed and the order dated 07.03.2024 is modified to the extent that quashing of approval order dated 16.06.2016 is set aside. The respondent no.5 shall appear before the Respondent- U.P. Madarsa Shiksha Parishad alongwith all supportive documents in support of his claim within two weeks from today alongwith certified copy of this order. The U.P. Madarsa Shiksha Parishad is directed to decide the proceedings within next six weeks in accordance with law from the date of filing of documents by respondent no.5 applying his independent mind, without being influenced by any of the observations made above.

9. The approval of the petitioner, shall abide by final outcome of the proceedings by the respondent- Board.

Order Date :- 7.5.2024

Shubham Arya

(Anish Kumar Gupta, J.) (M.C. Tripathi,J.)