Allahabad High Court
Asim Zafar And 22 Others vs State Of U.P. And 3 Others on 8 April, 2025
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:50532
Judgement Reserved on 18.02.2025
Judgement Delivered on 08.04.2025
Court No. - 33
Case :- WRIT - A No. - 5068 of 2021
Petitioner :- Asim Zafar And 22 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Akhilesh Kumar Singh,Anand Kumar Pandey,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Gaurav Sarkar,Pranav Mishra,Shashi Ranjan Srivastava
Hon'ble Prakash Padia,J.
1. Heard Sri Tanzeel Ahmad, learned counsel for the petitioner Nos.2 to 11 & 13 to 22, learned Standing Counsel for respondent Nos.1, 2 & 4 and Sri Pranav Mishra, learned counsel for the respondent No.3.
2. The petitioner has preferred the present petition with the prayer with the following prayers:-
(a) A writ order or direction in the nature of certiorari quashing the impugned order dated 17.2.2021, having letter no. 266/52-3-2021-Sa (44)/2019, (Annexure-24 to the Writ petition) passed by the Respondent no.1.
(b) A writ order or direction in the nature of Mandamus commanding the Respondents-Authorities not to interfere in peaceful functioning of the Petitioners on their respective posts in the Madarsa and to make payment of salary to the Petitioners as and when it comes due, including other benefits as admissible under law.
(c) Any other writ order or direction which this Hon'ble Court ew of the facts and may deem, fit and proper in view circumstances of the case.
(d) And award cost of the petition in favour of the Petitioners.
(e) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 15.3.2021 (Annexure-27 to the Writ petition) passed by the Registrar/ Inspector, Arabi Farsi Madarsa, U.P. Lucknow, the Respondent no.3.
3. The facts as stated in the writ petition are that the Madarsa Aliya Arabiya Rahmaniya, Rasra, District Ballia (hereinafter referred to as "Madarsa") is a minority institution, established by a Society, namely, The Madarsa Aliya Arabiya Rahmaniya, Rasra, District Ballia. The aforesaid society was established in the year 1941 and was registered on 26.11.1941. The Madarsa is imparting education upto the Tahtaniya, Faukaniya and Aliya, i.e. upto 12th Class.
4. Initially the rules for running Madarsa were framed in the year 1987, known as The Uttar Pradesh Non-Government Arabic and Persian Madarsa Recognition Rules, 1987 (hereinafter referred to as "Rules of 1987). Subsequently, in the year 2004, the Uttar Pradesh Board of Madarsa Education Act, 2004 was promulgated and under the aforesaid Act of 2004, new rules, namely, "Uttar Pradesh Non-Government Arabic and Persian Madarsa Recognition, Administration & Services Regulation, 2016" has been framed.
5. It is stated in the writ petition that initially the payment to the employees of the institution, since very beginning was made by the grant released in favour of Madarsa by the State Government. The said grant was released yearly basis. However, since 1990, the salary to the teaching and non-teaching staff of Madarsa is regularly made through the bank account. Thus, the Madarsa is a non-government aided institution and is on grant-in-aid list of the State Government.
6. By order dated 25.7.1985 passed by the Deputy Director of Education (Sanskrit), U.P. Allahabad, 23 posts of teaching and non-teaching staff were sanctioned. The petitioners have annexed the order dated 6.10.1994 passed by the Regional Assistant Director of Education (Basic), 5th Region, Varanasi to the District Basic Education Officer, Ballia, directing him to ensure the payment of 23 persons being teachers and non-teaching staff of the institution, in accordance with the government orders dated 29.5.1993 and 25.6.1993.
7. It is further stated in paragraph 10 of the writ petition that the petitioner nos. 1, 2, 3, 5, 6, 8, 9, 10, 11, 12 & 13 to 20 were appointed prior to 1984 and their appointments were also duly approved by the Competent Authority. Their name find place in the list of employee, appointed prior to 1984. It is stated in paragraph 11 of the writ petition that the petitioner nos. 4, 7, 14, 15, 16, 17, 18, 19, 20 & 22 were appointed against their respective posts in the year 1999 and onward. The details of their appointment have been mentioned in annexure-3 to the writ petition. The appointment of aforesaid persons was duly approved by the Competent Authority, i.e., Registrar/Inspector, Arbi Farsi Madarsa, U.P. Lucknow by orders dated 19.12.2000, 7.11.2001, 5.8.2002, 28.1.2004 & 20.3.2007. The order of approval has been annexed as annexure-4 to the writ petition.
8. In paragraph 12 of the writ petition, it is stated that Mohd. Iqbal Qureshi and Nihal Ahmad being the father and son, though have no concern with the Madarsa, but due to the local politics, had been making false and baseless complaints to the various authorities from very beginning. From the documents and averments of the writ petition, it appears that Mohd. Iqbal Qureshi had made complaint with regard to the appointment of teachers and other employees of the Madarsa. The complaint made by Mohd. Iqbal Qureshi was investigated by the District Basic Education Officer, Ballia and report was submitted by him to the Director (Urdu). Nishatganj, Lucknow on 4.10.1993. In the said report, the District Basic Education Officer, Ballia, after submitting the entire enquiry has sought direction from the Director (Urdu) for release of payment of salary to the teachers and other employees of the institution. The Director (Urdu), by an order dated 1.3.1994, directed the District Basic Education Officer. Ballia to release the withheld payment of teachers and other employees of the institution. The said document has been annexed as annexure-5 to the writ petition.
9. A further letter of Registrar/Inspector, Arbi Farsi Madarsa dated 26.7.1998 written to the Under-Secretary, Minority Welfare and Waqf, Anubhag-3, Lucknow has been brought on record. In the aforesaid letter, the Registrar has reaffirmed by referring various enquiries and letters of other authorities that the teachers and non-teaching staff of the Madarsa have been appointed in accordance with law and were getting salary, as per various orders and approval given by the various authorities. The Registrar/Inspector has further requested the Under-Secretary to release withheld payment at the end of Under Secretary.
10. A further letter of inspector, Arbi Farsi Madana, U.P. Allahabad dated 19.7.1995 written to the District Basic Education Officer, Ballla has been brought on record, in which the appointment, working and payment of salary to the teachers and non-teaching staff of the Madarsa was further examined.
11. Mohd. Iqbal Qureshi not being satisfied with the earlier complaint and enquiries, further made a complaint dated 17.8.2002, which was recommended and forwarded by Shri Shardanand Anchal, M.L.A., Ballia by its letter dated 21.5.2002. The said complaint was investigated under the order of the Director, Minority Welfare, U.P. Lucknow by the District Minority Welfare Officer, Ballia. The District Minority. Welfare Officer, Ballia investigated the said complaint and submitted its report on 24.8.2002 to the Director, Minority Welfare, U.P. Lucknow, clearly recording a finding that the teaching and non-teaching staff, working in the Madarsa are working against the sanctioned post with approval of the Competent Authority and there is no irregularity in their appointment or approval. Relevant paragraph 6 of the said report is as under:
"मदरसे के सभी कार्यरत शिक्षक/शिक्षणोत्तर कर्मचारी मण्डलीय सहायक शिक्षा निदेशक (बेसिक) वाराणसी द्वारा निर्गत राज्य अनुदानित सूची के अनुसारएवं निरीक्षक/ रजिस्ट्रार, अरबी फारसी मदरसा यू०पी० के द्वारा अनुमोदित एवं सहमति प्राप्त के उपरान्त वेतन पा रहे हैं इसमें किसी प्रकार की अनियमितता नहीं है
12. A further office order dated 8.6.2012 has been annexed as annexure-8 to the writ petition. The entire proceedings conducted before the Under-Secretary, Minority Welfare & Waqf had been referred and finally on the basis of the report conducted by the Government, the said office order was passed. The operative portion of the aforesaid order passed by the District Minority Welfare Officer reads as under:
"अस्तु उ०प्र० अरबी तथा फारसी मदरसा मान्यता नियमावली 1987 के लागू होने के पश्चात मदरसा आलिया अरबिया रहमानिया रसडा बलिया में वर्ष 1999 से 2006 तक (श्री नौशाद अहमद लिपिक को छोड़कर) रिक्त पदो के सापेक्ष सभी 09 नियुक्तियों जिनका सक्षम स्तर से अनुमोदन भी प्राप्त है। इसलिये उनकी नियुक्तियों को वैध मानते हुए उनके अवरूद्ध वेतन आदि भुगतान के संबंध में शासन के पत्र संख्या 413 दिनाँक 02 अप्रैल 2012 के अनुपालन में सहमति प्रदान की जाती है"
13. A detailed report submitted by the Special Secretary, State of U.P. dated 2.4.2012 has also been annexed and in the said report, nothing adverse has been brought on record and the aforesaid office order dated 8.6.2012 was passed, based on the aforesaid report.
14. A further enquiry report dated 2.6.2014 submitted by the Chief Development Officer, Ballia to the Chief Secretary, State of U.P., Minority Welfare and Waqf Anubhag-3. U.P. Lucknow had been annexed as annexure-10 to the writ petition and in the said report, again it was affirmed that the enquiry had already been conducted and all the appointments are approved by the Assistant Director (Basic). Varanasi and the Registrar of the Madarsa Shiksha Parishad. The operative portion of the aforesaid report dated 2.6.2024 is as under:
"यह भी अवगत कराया गया है कि प्रश्नगत प्रकरण की जाँच शासन के अनुमति से रजिस्ट्रार मदरसा शिक्षा परिषद, शिक्षा परिषद, उ०प्र० इलाहाबाद एवं तत्कालीन मुख्य विकास अधिकारी बलिया के पत्र सं० 5/आ०ल०/ जॉच मदरसा/98 दिनॉक 1 अप्रैल 1998 के द्वारा भी की जा चुकी है। इसके अतिरिक्त की गयी नियुक्तियों का अनुमोदन सहायक निदेशक (बेसिक) वाराणसी एवं रजिस्ट्रार मदरसा शिक्षा परिषद द्वारा दिया गया है। अभिलेखीय साक्ष्य के आधार पर श्री मजहर हसन अंसारी द्वारा नियुक्ति करने से पूर्व रजिस्ट्रार मदरसा शिक्षा परिषद से अनुमति ली गयी है तथा नियुक्तियों का अनुमोदन सहायक निदेशक (बेसिक) एवं रजिस्ट्रार मदरसा शिक्षा परिषद द्वारा दी गयी है
15. A further complaint was made by Mohd. Iqbal Qureshi, on which the enquiry was conducted by the District Minority Welfare Officer and the report was submitted to the Additional District Magistrate (Finance & Revenue) Ballia on 3.8.2017. The conclusion drawn in the aforesaid report is as under:
"उपरोक्त बिन्दुओ के अध्ययन से मैं इस तथ्य पर पहुँचा हूँ कि शिकायकर्ता श्री एकबाल कुरैशी द्वारा मदरसा आलिया अरबिया रहमानिया रसडा बलिया के अध्यापको एवं कर्मचारियों के संबंध में पूर्व में भी शिकायतें की जाती रही है। जिसे उच्च अधिकारियों द्वारा निराधार किया जाता रहा है। उक्त शिकायतें निरस्त योग्य है'
16. It appears that Nihal Ahmad, alleging himself to be the Manager of Madarsa, made further complaint to the State Government and the State Government by its order dated 3.8.2018, constituted a Committee consisting of District Magistrate, Ballia as Chairman, Shri R.P. Singh, Joint Director, Minority Welfare Directorate as Member and Shri Sahitya Nikas Singh, Deputy Director/Regional Minority Welfare Officer, Azamgarh as Members and directed them to conduct an enquiry and submit their report within 15 days. The District Magistrate, Ballia by its letter dated 20.7.2019 submitted its report to the Director, Minority Welfare Officer, U.P. Lucknow holding that there is no record for appointment made prior to 1.12.1985 and the appointments made after 1.12.1985 have been made during single operation by the Secretary, who had no authority to make appointment. With the aforesaid report, the District Magistrate, Ballia has sought direction from the Director, Minority Welfare regarding payment.
17. The Director, Minority Welfare by its order dated 14.8.2019 has directed to the District Minority Welfare Officer that the payment to the teachers and non-teaching staff be not made, as the enquiry at state level is pending and the question of validity of appointment of teacher is involved in the said report.
18. It is further stated that as the initiation of further enquiry by the State Government by order dated 14.8.2019 was wholly illegal, as such, the petitioners filed Writ-C No. 30900 of 2018. In the said writ petition, an order was passed, directing the Standing Counsel to obtain instructions, however, ultimately, the aforesaid writ petition was dismissed for want of prosecution. As the salary of the petitioners was stopped on the ground of pendency of enquiry by order dated 21.8.2019, the petitioner filed Writ-C No. 14748 of 2019 and in the said writ petition, an interim order dated 1.10.2019 was passed and it was directed that the salary of the petitioners shall not be stopped merely on the basis of the order dated 14.8.2019 and consequential order dated 21.8.2019. The interim order passed by Coordinate Bench of this Court has been annexed as annesure-18 to the writ petition. In paragraph 29 of the writ petition, it is stated that the said writ petition is still pending and no counter affidavit has been filed.
19. The petitioners have submitted their representation before the Under-Secretary, State of U.P. Lucknow on 30.7.2019 and the said representation they have annexed various enquiry reports submitted by the various Enquiry Officer. The Under-Secretary considered the earlier reports and recorded a finding in its letter dated 3.12.2019 to the effect that the enquiry report submitted by the Committee constituted by the District Magistrate, Ballia and the enquiry report earlier submitted by the Chief Development Officer, Ballia are contradictory, accordingly, a direction was issued to consider the case of both the parties and explained the contradictory state of affairs and submitted report before the State Government.
20. The Joint Director, Minority Welfare, Lucknow, by its letter dated 15.1.2020, directed the District Minority Welfare Officer, Ballia to intimate the petitioners as well as Nihal Ahmad to appear along with evidence on 27.1.2020 at 12.00 Noon in Room No. 623, Indra Bhawan, Ashok Marg, Lucknow,
21. Thereafter, a further letter dated 12.2.2021 was issued by the Special Secretary to the Registrar, Madarsa, directing him to appear before the Special Secretary on 15.2.2021 at 1.00 P.M. with regard to relevant information. It appears that the Deputy Collector/In-charge, District Minority Welfare Officer. Ballia has submitted a report dated 12.2.2021 before the Registrar/Inspector, Madarsa, U.P, Lucknow with a request to submit the aforesaid report before the Special Secretary.
22. Based on the report submitted by the Director, Minority Welfare Officer, Lucknow on 31.7.2019 and the enquiry report of District Magistrate, Ballia dated 20.7.2019, the Special Secretary has directed the Registrar, Madarsa, Lucknow to cancel the appointment of 23 teachers and non-teaching staff and submit report before the Government. By letter dated 17.2.2021, a direction has been issued to take action against the authorities who have granted financial approval to the appointment of 23 teachers and non-teaching staff of the institution from time to time.
23. On the basis of the direction dated 17.2.2021, the Registrar/Inspector, Madarsa has directed the District Minority Welfare Officer to submit its report with regard to the aforesaid teachers and non-teaching staff and the District Minority Welfare Officer has submitted its report on 19.2.2021. The Registrar, Madarsa passed an order dated 15.3.2021, holding that the appointment of the petitioners was made during single operation and accordingly, the financial approval granted to the petitioners was cancelled with immediate effect.
24. A counter affidavit has been filed by Shri Rajeev Kumar Yadav, District Backward Welfare Officer/In-charge, District Minority Welfare Officer, Ballia on behalf of all the respondents. In the counter affidavit, the stand taken in the report dated 20.7.2019 submitted by the District Magistrate. Ballia has been referred and relied upon. It is further stated in the counter affidavit that no record for appointment earlier to 1.12.1985 is available with the institution and the appointment made after 1.12.1985 was during single operation by the Secretary, who has only right to make ad-hoc appointment. It is pertinent to mention that various reports annexed by the petitioners have not been denied. Only this much has been stated in some of the paragraphs that the financial approval was granted by the Competent Authority by concealing material facts.
25. The ground mentioned in the counter affidavit that the approval was obtained by concealing material facts, is not at all basis for passing of the impugned order and in the report dated 20.2.2021 submitted by the District Magistrate, Ballia, there is no finding that the approval to the appointment of the petitioners was made by the authorities on concealment of facts. Thus, new ground taken by the respondents in the counter affidavit regarding concealment of material fact is not tenable.
26. The learned counsel for the petitioners has argued that no proper opportunity has been given to the petitioners before passing the impugned order dated 15.3.2021. It is further argued that by letter dated 27.2.2021 issued by the District Minority Welfare Officer, Ballia, the petitioners were required to appear before the Registrar, Madarsa, Lucknow on 1.3.2021. As the time provided for submitting the explanation and appearance for hearing was very short, i.e. only 2 days, an application was moved by the petitioners for granting 1 month time to submit their case with evidence, however, again by letter dated 3.3.2021, hearing was fixed for 8.3.2021 at Lucknow. The time granted was only five days, which being insufficient time, the petitioners could not appear and filed their evidence. It is argued that no sufficient time has been granted to the petitioners to submit their explanation and appearance for hearing, as such, the impugned order is violative of principles of natural justice. It is further argued that only report of the District Magistrate, Ballia dated 20.7.2019 has been considered for passing the impugned order, whereas there was another report submitted by the Deputy Collector/In-charge, District Minority Welfare Officer dated 12.2.2021, which duly contained the fact that in various inquries conducted by the various authorities, the appointment of the petitioners were found in accordance with law. The said report dated 12.2.2021 which was submitted in pursuance of the order dated 15.2.2020 passed by the Chief Secretary has not at all been considered. It is also argued that in grant of financial approval by the Competent Authority, the petitioners have no role and it is not at all case of the complainant or the authorities that any fraud has been played in obtaining the report, as such, in view of the judgment in case of Radhey Shyam Yadav & others Vs. State of U.P. & others, reported in AIR 2024 SC 260, the impugned orders are illegal and are liable to be quashed.
27. Heard learned counsel for the parties.
28. From perusal of the record, it is clear that the appointments of the petitioners have been made as per prescribed procedure & their appointments were duly approved and financial approval has also been granted by the competent authority and on the basis of the same, the petitioners were getting their salary from the State Exchequer. In case, the appointments of the petitioners have been made by the Secretary of the Institution, there is no fault of the petitioners and there is no allegation against the petitioners that they have got their appointments by way of fraud or fabricated documents or misrepresentation. The aforesaid appointments have been duly approved and financial approval was granted by the authorities & on the basis of the same, they started receiving their salary. It is clear from perusal of the record that some of the petitioners have already retired and they were getting their post retiral benefits.
29. The learned counsel for the petitioners has relied upon a judgment of Apex Court passed in the case of Radhey Shyam Yadav (supra). Relying on the aforesaid judgment, the learned counsel for the petitioner submits that as the appointment of the petitioners were approved and they were getting salary from the date of initial appointment and financial approval to the appointments of the petitioners was granted, as such, after working for more than several decades, the State Government cannot direct the Inspector to cancel the financial approval.
30. From perusal of the record, it is clear that neither the Committee of Management nor the petitioners have played any fraud in obtaining approval. The post was created and payment of salary to the petitioners was being made from the State exchequer from the date of their initial appointments. In the impugned order, only objection was that there is no record of appointments made prior to 1985 and appointments after 1985 has been made by the Secretary during single operation who has no authority. In the impugned order, the only conclusion has been recorded by the Principal/Special Secretary, Minority Welfare & Waqf Anubhag-3, U.P. Shashan, Lucknow/Respondent no.1 that the appointments of the petitioners as Assistant Teachers was not made by the Competent Authority. There is no whisper regarding any fraud played or misrepresentation being played either by the petitioner or by the Committee of Management in getting approval. The Apex Court in case of Radhey Shyam (supra) has affirmed the judgment of Shivanandan C.T. & others Vs. High Court Kerala & others reported in (2023) SCC Online SC 994, wherein it was held that even if the appointment of more than advertised vacancy, after lapse of two decades, the same should be protected. Relevant paragraph 29 of the judgment is as under:
29. More recently, this Court in Vivek Kaisth (supra). following the judgment of the Constitution Bench in Sivanandan C.T. and Others v. High Court of Kerala and Ors., (2023) SCC OnLine SC 994 profected the appointments of the appellants even after finding that their appointments were in ex- cess of the advertised vacancies. This Court held as under:-
"32........ Today, when we are delivering this judgment the two appellants have already served as Judicial Officers for nearly 10 years. Meanwhile, they have also been pro- moted to the next higher post of Civil Judge (Senior Division). In this process of their se- lection and appointment (which has obviously benefitted them), nothing has been brought to our notice which may suggest any favouritism, nepotism or so-called blame as to the conduct of these two appellants, in securing these appointments. The High Court in fact notes this factor. While placing the blame on the State Commission it records that "..... there is nothing on record suggestive of the fact that any mala fides were behind the selection of respondents Nos. 4 and 6.....
34. The appellants were not entitled for any equitable relief in view of the High Court as they were the beneficiaries of an illegality committed by the Selection/appointing authority. But then it failed to take this question further, which in our opinion, it ought to have done. What the High Court never answered was as to how much of this blame of illegal selection and appointment would rest on the High Court (on its administrative side). Undoubtedly, with all intentions of timely filling of the vacancies, the High Court still can-not escape the blame....."
"36. What is also important for our consideration at this stage is that the appellants e in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial officers now have a rich experience of 10 years of judicial service behind them. Therefore, unseating the present appellants from their posts would not be in public interest. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody's case that the appellants have been appointed by way of favouritism. nepotism or due to any act which can even remotely be called as "blameworthy". Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants. In a recent Constitution Bench decision of this Court in Sivanandan C.T. and Ors. v. High Court of Kerala and t Ors. (2023) SCC OnLine SC 994 though the finding arrived at by this Court was that the Rules of the game were changed by the High Court of Kerala by prescribing minimum marks for the viva voce, which were not existing in the Rules and therefore in essence the appointment itself was in violation of the Rules, yet considering that those persons who had secured appointments under this selection have now been working for more than 6 years it was held that it would not be in pubdlic interest to unseat them." (emphasis supplied)
31. The Hon'ble Apex Court, further held that when the appellants were not party of post creation, they cannot be blamed and suffer. Relevant paragraph 30 is as under:
"30. The situation of the appellants in the present case is no different from the individuals whose appointments were protected in the cases cited hereinabove. They had no blameworthy conduct. They were bona fide -applicants from the open market. The alleged mischief. even according to the State, was at the end of the School and its Manager. It will be a travesty of justice if relief is denied to the appellants. Enormous prejudice would also occur to them."
32. Insofar as the present case is concerned, the petitioners were duly selected and appointed against their respective posts which were created in the Institution. In case, the letters of appointment were issued in place of Manager/Secretary of the Committee of Management, there is no fault of the petitioners and the financial approval has also been granted by the competent authority and the payments of salary has been made to the petitioners for several decades. There was no dispute or any allegation that the petitioners were paid salary against non-sanctioned posts. It was open to the Competent Authority, who granted financial approval and started making payment of salary to the petitioners from the State exchequer to deny the financial approval or payment of salary to the petitioner at the relevant time itself, i.e., at the time of grant of approval. The authorities being fully satisfied that the appointment of the petitioners are against the sanctioned posts, they had been continuously getting their salary. Thus, the petitioners were not at all in fault. There is no mention of fraud or malpractice against the petitioners, who had served for several decades.
33. The Honble Apex Court in case of Rajesh Kumar & others Vs. State of Bihar & others, reported in (2013) 4 SCC 690 has held that innocent party, even if in revaluation do not make the grade, still the appointments ought to be protected. Relevant paragraph 21 is as under:
"21. There is considerable merit in the sub-mission of Mr Rao. It goes without saying that the appellants were innocent parties who have not, in any manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit po-sition may be relevant for the appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation and shall pick up their appointments on that basis according to their inter se position on the merit list."
34. It is also clear from the various reports annexed along with the writ petition, (which have not been denied by the that respondents in their counter affidavit) that since 1991, the enquiry has been conducted by the various authorities and in all the reports, it was found that the approval was granted by the Competent Authority in accordance with law.
35. The question of non-availability of record of appointment made prior to 1985 with the Committee of Management is not tenable, inasmuch as the record, must be available with the authorities. The various reports based on record have been admitted by the respondents in the counter affidavit. No infirmity or illegality had been pointed out in the impugned order with regard to appointment made prior to 1985. Thus, merely because the record was not available with the Committee of Management, after 35 years, the appointment of the petitioners appointed prior to 1985 cannot be annulled.
36. So far as the appointment made after 1985, during course of single operation by the Secretary is concerned, none of the members of the Committee of Management have raised objection. The appointment made by Secretary had been approved by granting financial approval by the authorities and this approval had been subject matter of various enquires by various authorities. Thus, after about 30 years of appointment, the cancellation of financial approval is not tenable in law.
37. From the facts it is also clear that no proper opportunity of filing reply and submitting evidence had been given by the Registrar, Madarsa before passing the order dated 15.3.2021. The direction to appear on 1.3.2021 by letter dated 27.2.2021 clearly established that only one day time was available to the petitioners to submit their explanation. The adjournment application was moved, in which time was granted by letter dated 3.3.2021 to appear on 8.3.2021 that too at Lucknow. There was only five days gap in submission of reply. Thus, five days is not reasonable time to submit reply, especially when the matter was too old. On the ground of not providing proper opportunity of hearing before passing the impugned order, the matter should have been relegated for passing fresh order but as the petitioners are being subjected to various enquiries since 1991 and all the reports (except the report dated 20.2.2019) are in favour of the petitioners, the Court did not consider it fit case to remit back for passing fresh order by giving proper opportunity.
38. From the record it is also established that the State Government, while directing the Registrar, Madarsa to cancel the appointment, has not provided any opportunity of hearing to the petitioners and once the State Government itself has taken decision to cancel the appointment, it was obligatory in his part to provide opportunity of hearing to the petitioners before directing the Inspector to initiate proceedings for cancellation of financial approval.
39. Thus in view of the facts stated above, the impugned order dated 17.2.2021 (Annexure-24 of the writ petition) passed by the respondent no. 1-Principal/Secretary, Minority Welfare and Waqf. Anubhag-3, U.P Lucknow directing the Registrar, Arbi Farsi Madarsa, U.P Lucknow/respondent no. 3 being illegal and contrary to law, is hereby quashed. Insofar as the petitioner Nos.2 to 11 & 13 to 22, the consequential order dated 15.3.2021 passed by the Registrar/Inspector Arbi Farsi Madarsa, U.P. Lucknow-respondent no. 3 cancelling the financial approval granted to 23 teachers/non-teaching staff of Madarsa i.e. the petitioners is also hereby quashed.
40. The petitioner Nos.2 to 11 & 13 to 22 were granted financial approval by the Competent Authority and were getting salary since last about three decades, they are entitled for all consequential relief, i.e.. payment of salary including arrear of salary and all other retiral benefits.
41. The writ petition is allowed.
Order Date :- 08.04.2025
saqlain
