Allahabad High Court

Rehan Ahmad vs State Of U.P. And 5 Others on 13 May, 2024

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved
 
Neutral Citation No. - 2024:AHC:85642-DB
 
In Chamber								A.F.R
 
Case :- SPECIAL APPEAL No. - 769 of 2023
 
Appellant :- Rehan Ahmad
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Appellant :- Mohammad Ali Ausaf,Sankalp Narain
 
Counsel for Respondent :- C.S.C.,Pranav Mishra,Sanjeev Singh
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

(Delivered by: Syed Qamar Hasan Rizvi,J.)

1. The instant intra Court Appeal has been filed by the appellant-respondent no. 4 under Rule 5 of Chapter VIII of Allahabad High Court Rules (Rules of the Court, 1952), against the judgment and order dated 07.11.2023 passed in Civil Misc. Writ-A No. 11817 of 2023 (Committee of Management Madarsa Sayeedul-Uloom (Behka) Post Office Puramufti, District- Allahabad through its Manager and another versus State of U.P. and others), by means of which the Hon'ble Single Judge partly allowed the writ petition filed by the Committee of Management, Madarsa Sayeedul-Uloom (Behka) Post Office Puramufti, District- Allahabad through its Manager Mohd. Ishaq (hereinafter referred to as 'Committee of Management').

2. Facts that are culled out from the pleadings and the material available on record before this Court that the appellant herein was appointed as Assistant teacher in Tahtaniya (Class 1 to 5) in the Madarsa Sayeedul-Uloom (Behka) Post Office Puramufti, District- Allahabad (hereinafter referred to as 'Madarsa') on 25.03.2005, based upon his eligibility for the post i.e. the 'Hafiz Certificate' said to have been issued in the year 1992 by the Madarsa Islahul Muslemeen, Alipurjeeta, District Kaushambi, as claimed by the appellant. It has not been disputed by the contesting parties in the present case that the appellant has been working as an Assistant Teacher in the Madarsa (respondent no. 4) since the date of his appointment.

3. The District Minority Welfare Officer, Prayagraj vide letter dated 22.02.2022 directed the Madarsa concerned to furnish a report as desired by the Registrar, U.P. Board of Madarsa Education, Lucknow vide his letter dated 14.02.2022 in respect of the teachers appointed on the basis of the 'Hafiz Certificate' that from which institution the said certificate was issued and about the issuing authority, for its onward transmission to the Registrar (respondent no.2). During the said process, the appellant herein was required to provide the aforesaid 'Hafiz Certificate' in original but he failed to produce the same. The contention of the learned counsel for the Committee of Management (respondent no.4) is that upon verification from the Madarsa Islahul Muslemeen, Alipurjeeta, District Kaushambi (respondent no.6) from where the appellant claimed to have obtained the 'Hafiz Certificate', but the said Madarsa (respondent no.6) denied the issuance of the said 'Hafiz certificate'. As a consequence of the same, the Committee of Management of the Madarsa (respondent no. 4) initiated disciplinary proceedings against the appellant. Accordingly the appellant was placed under suspension and a show cause notice was issued, to which he duly replied and since the reply filed by the appellant was not found to be satisfactory, a Charge-Sheet dated 05.08.2022 was issued by the Committee of Management (respondent no.4). The appellant submitted his reply to the said charge-sheet on 29.08.2022 and thereafter, the Enquiry Officer submitted his enquiry report on 06.09.2022 holding therein that the appellant could not prove the genuineness of the 'Hafiz Certificate'. On the basis of the said enquiry report, a resolution by the Committee of Management (respondent no.4) is stated to have been passed on 17.09.2022 for the dispensation of the services of the appellant and consequently the order of dismissal from service was communicated to the appellant on 21.09.2022.

4. Against the aforesaid dismissal, the appellant herein preferred a writ petition being Writ-A No. 19669 of 2022 (Rehan Ahmad versus Uttar Pradesh Board of Madarsa Education and others), which came to be disposed of vide order dated 24.01.2023 in the wake of the fact that there existed an alternative remedy available in terms of paragraph no.11 of the 'Scheme of Administration'. The operative portion the order dated 24.01.2023 passed by the Hon'ble Single Judge in Writ-A No. 19669 of 2022 is quoted hereinbelow,

"Learned counsel for parties have not disputed that there is an alternative remedy available in terms of paragraph 11 of the Scheme of Administration to challenge the impugned order. However, a contention has been raised on behalf of petitioner that order impugned is still not send to the Registrar U.P. Madarsa Shiksha Parishad to which learned counsel for respondents has made an objection.

Be that is it may, since there is an agreement between the parties that there is an alternative remedy available in terms of paragraph 11 of the Scheme of Administration to challenge the impugned order, this writ petition is disposed of with direction to the Committee of Management that if the impugned order is still not sent, it will be sent forthwith to the authority concerned within a period of sixty day after hearing the parties on merit in accordance with law"

5. In pursuance of the aforesaid order dated 24.01.2023 passed by the Writ Court, the respondent no.2 issued notices to the concerned parties including notice to the respondent no.6 and decided the matter vide order dated 19.06.2023, whereby the petitioner was reinstated in service.

6. Assailing the aforesaid order dated 19.06.2023 passed by the Registrar (respondent no.2), the Committee of Management of Madarsa (respondent no. 4) filed a writ petition which was registered as Writ- A No. 11817 of 2023 (C/M Madarsa and another versus State of U.P. and others) inter alia challenging the veracity of the order dated 19.06.2023 passed by the Registrar (respondent no.2).

7. The Learned Writ Court by a detailed judgment and order decided the aforesaid writ petition vide the impugned order dated 07.11.2023. The relevant portion of the same is reproduced as under:

"18. This Court from the perusal of the order impugned passed by the second respondent, Registrar/Inspector Uttar Pradesh Board of Madarsa Education finds that the said order suffers from fundamental defect making it not only vulnerable but vitiated. The second respondent, Registrar/Inspector Uttar Pradesh Board of Madarsa Education has completely overlooked the settled principle of law that eligibility is to be seen on the last date of submission of the application form. He has relied upon the qualifications obtained by the fourth respondent post advertisement. A further question also arises that what would be the import and impact of the continuance of the fourth respondent since 2005 till the passing of the order/the verification exercise undertaken by the writ petitioners with regard to the doctrine of equity. These issues are also need consideration while deciding the issues in question. The second respondent is also required to go into the issue relating to the effect of non-verification of Hafiz certificate particularly when the stand of the respondents is that the register containing the details about the Hafiz certificate possessed by the fourth respondent was not verifiable. In the opinion of the Court, the second respondent was required to take a further exercise while going deeply into the issue as to what would be the net consequences when the register maintained for the said purposes did not suggest or prove that the qualification obtained by the writ petitioner, Hafiz certificate was not verifiable. No such exercise appears to have been undertaken by the second respondent, Registrar/Inspector Uttar Pradesh Board of Madarsa Education, Lucknow, lastly, the Court further finds that though a finding has been recorded that there has been violation of principles of natural justice and the disciplinary proceedings was conducted de hors the regulations but no reasons are forthcoming in the order impugned in coming to the said conclusion. Obviously, reasons are the heart beat and in absence of any reasons in coming to the conclusion the order becomes vitiated. Since the order impugned does not address the core and fundamental issues, thus, the order is liable to be set aside. At this juncture, Sri Tarun Agarwal, learned counsel who appears for the fourth respondent, Sri Pranav Mishra, learned counsel who appears for the second respondent and learned Standing Counsel who appears for respondents Nos. 1 and 3 have made a statement at bar that the order dated 19.06.2023 be set aside and the matter be remitted back to the second respondent to pass a fresh order.

19. To such a submission, learned counsel for the writ petitioners has no objection, however, he submits that he may be also allowed to raise all contentions seeking jurisdictional issue also.

20. Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel and Sri Pranav Mishra have no objection to the same.

21. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being decided in the following terms:

(a) the order dated 19.06.2023 passed by the second respondent is set aside;

(b) the matter stands remitted back to second respondent to pass a fresh order after putting to notice the writ petitioners, fourth and also the fifth respondent while fixing a particular date;

(c) on the date so fixed by the second respondent the version submitted by the writ petitioners, fourth respondent and fifth respondent be exchanged and after hearing, the orders be passed within a period of six weeks from the date of production of certified copy of the order.

22. Needless to point out that the second respondent shall pass an order strictly in accordance with law dealing with each and every contentions either legal or factual raised by the respective parties.

23. With the aforesaid observations, the writ petition stands partly allowed."

8. Being aggrieved by the said order dated 07.11.2023, the appellant has approached this Court by means of the instant Special Appeal. Assailing the said impugned order, learned counsel for the appellant contended as under:

9. The foremost submission as advanced by Sri Sankalp Narain, the learned counsel for the appellant is that by setting aside the order dated 19.06.2023 passed by the Registrar, Madarsa Education Board (respondent no.2) the Hon'ble Single Judge has effectively revived the illegal resolution and dismissal order passed by the Committee of Management (respondent no. 4) dated 17.09.2022 and 21.09.2022 respectively. His contention is that as per the provisions of 'U.P. Madarsa Education Board Act, 2004' and Regulation 16 the 'Uttar Pradesh Non-Governmental Arabic and Persian Madarsa Recognition, Administration and Services Regulation, 2016' clearly provides that disciplinary action can be taken, against teaching and non-teaching staff of a Madarsa only in accordance with the duly approved Scheme of Administration, but in the instant case, the Registrar (respondent no.2) on 20.05.2023 itself suspended the approval order dated 30.08.2022 granted to the Scheme of Administration of 31 Madarsas including that of the Madarsa (respondent no. 4) on the ground that the said approval was in contravention to the provisions of Section 22(5) of the U.P. Madarsa Education Board Act, 2004. In support of his contention, he submitted that in terms of Section 2(a) conjointly read with Section 3 and 22(5) of U. P. Madarsa Education Board Act of 2004, it was the Madarsa Education Board duly constituted under Section 3 of the U. P. Madarsa Education Board Act, 2004 and was exclusively empowered to approve the Scheme of Administration of the Madarsa. The Registrar, Madarsa Education Board merely happens to be a member of the Madarsa Education Board in terms of Section 3(3) of the Act and was not individually empowered to approve the Scheme of Administration. He submitted that on being noticed that the said approval dated 03.08.2022 was granted by the Registrar, Madarsa Education Board in its' individual capacity and suffers from the defect of coram non judice, the Registrar (respondent no.2) itself issued an order dated 20.05.2023 whereby it suspended the aforesaid approval granted to the Scheme of Administration of Madarsa (respondent no. 4) till an approval in that regard is granted by the U. P. Madarsa Education Board in terms of Section 22(5) of the U. P. Madarsa Education Board Act, 2004.

10. It has also been asserted on behalf of the appellant that the ramification of the aforesaid suspension order dated 20.05.2023 passed by the Registrar (respondent no. 2) is that once the order of approval of said Scheme of Administration has been suspended then all the actions taken by the Committee of Management of Madarsa (respondent no. 4) in terms of the said Scheme of Administration as well as the powers of the Authorities flowing from the same are rendered void ab initio, consequently, the resolution and dismissal order dated 17.09.2022 and 21.09.2022 respectively passed by the Committee of Management (respondent no. 4) and subsequent orders becomes illegal being beyond the competence and jurisdiction. In support of his argument, the learned counsel has placed reliance upon the judgment dated 05.08.2022 passed by in the case of Arshad Javed Khan versus State of U.P. and 3 Others, having WRIT-A No. 10967 of 2022 that has been affirmed by the Division Bench of this Court in Special Appeal No. 573 of 2022 Committee of Management, Madarsa Masdarul Uloom Asdaqiya and Ors. versus Arshad Javed Khan and Ors. as reported in 2023 (3) ADJ 605 (DB) and subsequently by the Hon'ble Supreme Court vide order dated 12.05.2023 passed in Special Leave Petition (Civil) No. 9393 of 2023 Committee of Management Madarsa Masdarul Uloom Asdaqiya Purani Chakiya & Anr. versus Arshad Javed Khan & Ors.

11. Learned counsel for the appellant further submitted that it is trite law that there can be no consent given by the counsel appearing for the parties to confer jurisdiction upon a State officer against the legal provisions. In the present case the Hon'ble Single Judge vide Order dated 24.01.2023 passed in Writ-A No. 19669 of 2022 relegated the matter to the Registrar Madarsa Education Board in view of the provision contemplated under paragraph 11 of the Scheme of Administration and now when the approval of the same has been suspended by the Registrar (respondent no. 2) itself on 20.05.2023, no occasion arose to the Hon'ble Single Judge to remit the matter for re-consideration before the Registrar (respondent no. 2) even if consent in that regard was given by the counsels appearing for the parties. Further, by setting-aside the order dated 19.6.2023 passed by the Registrar (respondent no.2), the Hon'ble Single Judge vide the impugned Order dated 19.06.2023, virtually revived of illegal orders of termination dated 17/21.09.2022 passed by the Committee of Management (respondent no. 4). In support of his submission, he has relied upon the judgments passed by the Hon'ble Supreme Court in the cases of Godde Venkateshwara Rao versus Government of Andhra Pradesh and Others, reported in AIR 1966 SC 828 and State of Uttaranchal through Collector, Dehradun and Others versus Ajit Singh Bhola and Others, reported in 2004 (6) SCC 800 and also the judgment passed by the Divisional Bench of this Court in the case of Ashok Kumar Pandey and Others versus Basic Shiksha Adhikari and Others, reported in 1992 (2) UPLBEC 960 (DB).

12. Lastly, the learned counsel for the appellant submitted that the appellant was appointed on the post of Assistant Teacher in the Madarsa (respondent no. 4) way back on 25.03.2005 and has served as a teacher for a considerably long period of 17 years. Therefore, his appointment as a teacher cannot be terminated after a considerable lapse of time in view of the Full Bench judgement passed by of this Court in the case of Asha Saxena versus S. K. Chaudhari and Others, reported in 1990 (01) UPLBEC 516. (FB). Relevant portion of Paragraph 16 of the said judgment is reproduced hereinbelow,

"16. ... In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E(10) of the Act we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the /apse of 17 year by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time. In our opinion, the order of the Regional Inspectress of Girls Schools referring the matter to the Director of Education under Section 16-E(10) is thus liable to be quashed.

13. Per contra, Sri Sanjeev Singh, learned counsel appearing for the Committee of Management (respondent no. 4), vehemently opposed the arguments made by the learned counsel for the appellant. He submitted that the appellant procured the appointment on the post of Assistant Teacher in the Madarsa (respondent no. 4) on the basis of a fake 'Hafiz Certificate'; which was found to be a non-existent document during the course of verification and the Committee of Management of Madarsa (respondent no. 4) after noticing the said fraud, terminated the services of the appellant with immediate effect. He contends that it is well-settled proposition of law that fraud unravels everything and vitiates every solemn act. He in support of his assertion placed reliance upon judgments passed by this Court as well as by the Hon'ble Supreme Court in the case of United India Insurance Company Ltd. versus B. Rajendra Singh and others, reported in JT 2000(3) SC 151) and Ram Chandra Singh versus Savitri Devi and others, reported in 2003(8) SCC 319). He submits that the Hon'ble Supreme Court in the case of Employers in Relation to the Management of Bhalgora Area of Bharat Coking Coal Limited versus Workmen being represented by Janta Mazdoor Sangh, reported in (2021) 10 SCC 717 has made it abundantly clear that 'fraudulent practice to gain public employment cannot be countenanced to be permitted by a court of law'.

14. Defending the impugned order dated 07.11.2023 passed by the Hon'ble Single Judge, learned counsel for the Committee of Management (respondent no. 4) asserted that it has very rightly set aside the order dated 19.06.2023 passed by the Registrar (respondent no. 2) in as much as the Writ Courts cannot let an appointment obtained through fraud to survive. He submitted that the principle of finality of litigation will not apply where fraud has been played by the delinquent to secure appointment. To substantiate his argument he placed reliance upon the judgement passed by the Hon'ble Apex Court the case of S.P. Chengal Varaya Naidu (dead) by L.Rs versus Jagannath (dead) by L.Rs and others, reported in AIR 1994 SC 853, wherein the Hon'ble Supreme Court held as under,

"7. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank loan- dodgers and other unscrupulous is persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely."

15. In the instant special appeal, we are required to examine the correctness of the impugned order dated 07.11.2023 passed by the learned Single Judge setting aside the order dated 19.06.2023 by means of which the matter was remitted to the Registrar (respondent no.2) to pass a fresh order after putting to notice the concerned parties. It would not be out of place to note that the said order was passed with the consent of the contesting parties.

16. We have heard the learned counsel for the parties and perused the material available on record. The issue on illegality of the Scheme of Administration for the first time has been raised on behalf of the appellant-petitioner before this Court in appeal. The fact that suspension of the approval of the Scheme of Administration by the Registrar vide order dated 20.05.2023 and its consequential effects were never raised earlier by either of the parties. It is noteworthy that in earlier two rounds of litigation, the question of legality of the Scheme of Administration and the competence of the Registrar to deal with the matter flowing from the said Scheme of Administration were never raised by the parties and in the earlier round of litigation in Writ- A No.19669 of 2022 (Rehan Ahmad versus Uttar Pradesh Board of Madarsa Education and 5 others) filed by the appellant-petitioner assailing the order of dismissal from service, the appellant-petitioner did not dispute the same rather accepting the legality of the same, accorded consent for the matter to be decided by the Registrar as an alternative remedy in terms of paragraph no.11 of the Scheme of Administration and accordingly, the Writ Court vide order dated 24.01.2023 disposed of the writ petition with certain directions. Accordingly the Registrar (respondent no.2) decided the matter and passed the following order:

"पंत्रावली पर प्राप्त अभिलेखों / साक्ष्यों का अनुशीलन, परीक्षण करने पर पाया गया कि सेवायोजित होने के समय श्री रेहान अहमद द्वारा प्रबन्तंत्र / प्रवस्यक पाया सईदुल उलूम बेहका प्रामुपती, प्रयागराज को उपलब्ध करायी गयी हिब्ज की डिग्री हाफिज (हिब्ज) के अभिलेखों को प्रबन्धक, मदरसा इस्लाहुल मुस्लेमीन अलीपुरजीता, कौशाम्बी से प्राप्त कर अवलोकन किया गया और पाया गया क़ि हिब्ज का रजिस्टर किसी सक्षम स्तर से प्रमाणित नहीं है। प्रबन्धक मदरसा के अनुसर हिब्ज के छात्र की हाजिरी अंकित नहीं होती है। हिब्ज़ का प्रमाण पत्र मदरसे में आयोजित होने वाले वार्षिक जलसे में छात्रों को वितरित कर दिया जाता है, जिसकी प्रति को सम्बन्धित रजिस्टर में नहीं रखा जाता है। हिब्ज से सम्बन्धित छात्र द्वारा कुरान मजीद को कंठस्थ कर लेने के पश्चात हिब्ज का प्रमाण पत्र दे दिया जाता है। यह मदरसा बोर्ड द्वारा निर्धारित कोई पाठ्यक्रम नहीं है तथा हिय्ज के सम्बना में गदरसा बोर्ड द्वारा कोई समय सीमा निर्धारित नहीं है, जिरा) श्री रेहान अहमद के हिब्ज की डिग्री के सम्बन्ध में कोई स्पष्ट पुष्टि नहीं हो पायी। इसके अतिरिक्त श्री रेहान अहमद द्वारा उपलब्ध कराया गया अन्य अकपत्रों / प्रमाण पत्रों का भी अवलोकन किया गया जिसमें उनके द्वारा इण्टरमीडिएट उर्दू राहित एवं नियुक्ति के समय वर्ष 2005 की कामिल की डिग्री एवं फाजिल के अतिरिक्त अन्य डिग्री भी दो अलग-अलग बोर्ड से प्राप्त करायी गयी हैं, के अवलोकन से रपष्ट होता है कि तहतानिया कक्षाओं में शिक्षण कार्य हेतु उनके पास पर्याप्त डिग्री हैं। ऐसी स्थिति में मात्र हिब्ज की डिग्री के आधार पर प्रबन्धक मदरसा द्वारा उनकी रोवा समाप्त किया जाना न्यायोचित नहीं है। क्योंकि हिब्ज की डिग्री किसी विश्वविद्यालय एवं बोर्ड रो प्रमाणित नहीं है और इसी आधार पर प्रदेश केः लगभग सभी मदरसों में शिक्षक कार्यरत हैं। ऐसी स्थिति में प्रबन्धतत्र / प्रबन्धक मदरसा द्वारा श्री रेहान स०अ० तहतानिया की; की गयी सेवा समाप्ति दिनांक 17.09.2022 नियमानुरूप न होने के कारण निरस्त किये जाने योग्य है, जिसे निरस्त किया जाता है एवं श्री रेहान को सवेतन बहाल करते हुए प्रबन्धक मदरसा को निर्देशित किया जाता है कि वह श्री मोहम्मद रेहान स०अ० तहतानिया से पूर्व की भांति नियमानुसार शिक्षण कार्य कुरायें।

रिट याचिका संख्यां-19669/2022 में मा० उच्च न्यायालय इलाहाबाद द्वारा पारित आदेश दिनांक 24.01.2022 के समादर में प्रकरण को एतद्वारा निस्तारित किया जाता है।"

17. In the second round of litigation, wherein the Committee of Management (respondent no.4) dissatisfied with the aforesaid order dated 19.06.2023 passed by the Registrar (respondent no.2) filed a Writ Petition No.11817 of 2023 (C/M Madarsa and another versus State of U.P. and 7 others). The appellant who was the respondent in the said writ petition contested the matter but did not raise the aforesaid question regarding the validity of the said Scheme of Administration nor did he raise the competence of the Registrar to deal with the matter and the writ petition was finally allowed by the Writ Court vide the impugned order dated 07.11.2023. The Hon'ble Single Judge with the consent of the parties remitted the matter to the Registrar (respondent no.2) to pass a fresh order by setting aside the order dated 19.06.2023 passed by the Registrar (respondent no.2).

18. Suffice it to say that in the aforesaid second round of litigation too, the appellant did not raised the question of the validity of the Scheme of Administration or the competence of the Registrar rather accorded his consent for the remittance of the matter to the respondent no.2. It has also been brought to the notice of this Court that the order of the Registrar dated 20.05.023 whereby he suspended the approval of the said Scheme of Administration has never been challenged by the parties. The order dated 20.05.2023, is reproduced below for the ready reference:

"प्रेषक,

रजिस्ट्रार, उ०प्र० मदरसा शिक्षा परिषद 704, जवाहर भवन, लखनऊ।

 
सेवा में,
 
	जिला अल्पसंख्यक कल्याण अधिकारी 							संबंधित जनपद (बस्ती, संतकबीर नगर, देवरिया, बलरामपुर, गाजीपुर, कुशीनगर, 	जौनपुर, लखनऊ,कौशाम्बी, प्रयागराज)
 
पत्रांंक- 476/म०शि०परि०/2023			          दिनांकः 20/05/2023
 
विषयः मदरसों की प्रशासन योजना के अनुमोदन के सम्बन्ध में।
 
महोदय,

विषयगत संदर्भ में अवगत कराना है कि उत्तर प्रदेश मदरसा शिक्षा परिषद अधिनयम, 2004 की धारा- 22(5) में मदरसों की प्रशासन योजना के संबंध में निम्न व्यवस्था दी गई है- "प्रत्येक संस्था की प्रशासन की योजना परिषद के अनुमोदन के अधीन होगी और प्रशासन की योजना में किसी भी समय कोई संशोधन या परिवर्तन परिषद के पूर्व अनुमोदन के बिना नहीं किया जायेगा।

उल्लेखनीय है कि पत्र के साथ संलग्न 31 मदरसों की सूची जिनकी प्रशासन योजना पर परिषद कार्यालय द्वारा सहमति प्रदान की गई है, उसे उ०प्र० मदरसा शिक्षा परिषद द्वारा अनुमोदन प्राप्त होने तक अथवा परिषद द्वारा संशोधन का सुझाव दिये जाने तक प्रदान की गई सहमति तत्काल प्रभाव से अग्रिम आदेश तक स्थगित की जाती है।

संलग्नक- उपरोक्तानुसार।

 
									(भवदीय)
 
								     (जगमोहन सिंह)								    	    रजिस्ट्रार/ निरीक्षक
 
पत्रांक व दिनांक उपरोक्तानुसार।
 
प्रतिलिपि- निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित-			   1. मा० अध्यक्ष, उ०प्र० मदरसा शिक्षा परिषद, लखनऊ।					  2. प्रबन्धक/प्रधानाचार्य संबंधित मदरसा।
 
									(जगमोहन सिंह)								               रजिस्ट्रार/ निरीक्षक"

19. Furthermore, it is evident from the record that the Scheme of Administration in question was suspended by the Registrar (respondent no.2) only on 25.05.2023 vide the above the above-mentioned order meaning thereby that the same was enforced at the time of passing of the dismissal order. In any case the legality of the Scheme of Administration was not a subject matter of dispute before the Writ Court. Accordingly, the judgments referred by the learned counsel for the appellant in respect of his contention are not attracted in the factual matrix of the case.

20. Insofar as the correctness of the impugned order dated 07.11.2023 passed by the Hon'ble Single Judge is concerned, the same was passed on the basis of the material that was available before the leaned Writ Court. The Hon'ble Single Judge while deciding the said writ petition, set aside the order dated 19.06.2023 passed by the Registrar (respondent no.2) and remitted the matter to the respondent no.2 with a direction to pass a fresh order after putting to notice the writ petitioner, Rehan Ahmad (respondent no.4) and Principal, Madarsa Islahul Muslemeen Alipurjeeta, District- Kaushambi (respondent no.5). While fixing a particular date, it is also directed that on the date so fixed, the version submitted by the parties be exchanged and after hearing the orders be passed within a stipulated period.

21. While deciding the matter, the Hon'ble Single Judge categorically observed that the respondent no.2 shall pass order strictly in accordance with law dealing with each and every contentions either legal or factual raised by the respective parties. Taking into consideration the factual matrix of the case and also the settled legal preposition that the appeal against the order passed with the consent of the parties are normally not entertainable in unless any such legal question is involved that may cause a serious legal consequence.

22. It is a trite law that once the consent by the contesting parties is accorded before the Court of law then they have no right to challenge the order passed on the basis of their consent in appeal and only non-contesting parties have privilege to prefer appeal. A co-ordinate Bench of this Court while deciding the Special appeal Defective No.826 of 2015 [Neutral Citation No.2016: AHC: 285 (D.B.)] has held that an Special Appeal arising out of an order passed with consent of the parties is incompetent and not maintainable. The relevant portion of the order passed in the above mentioned case is as under:

"On the matter being taken up today, in our respectful opinion, present special appeal in question cannot be held to be competent and maintainable for the simple reason that once the order dated 20th March, 2015 is a consent order, then in such situation, in this background, the special appeal in question will not at all be entertained and in case it is the case of the respondents-appellants that on wrong premise the said agreement has been arrived at and the question is not covered with the decision of Special Appeal No.276 of 2006 decided on 28th August, 2010, then the remedy lies in approaching the learned Single Judge for recall/ review of the said order.

In view of this, present special appeal in question is dismissed as incompetent."'

23. Having regard to the facts and circumstances of the case, this Court finds no reason to entertain the said appeal filed by the petitioner in the teeth of the fact that the Hon'ble Single Judge vide the impugned order dated 07.11.2023 has made it open to the parties to press their pleas before the Registrar (respondent no.2) with a direction to the said authority to pass order strictly in accordance with law dealing with each and every contentions either legal or factual raised by the respective parties.