State Of Up And 2 Others vs Shafique Ahmad And Another
2025 Latest Caselaw 1768 ALL

Allahabad High Court

State Of Up And 2 Others vs Shafique Ahmad And Another on 10 July, 2025

Author: Manoj Kumar Gupta

Bench: Manoj Kumar Gupta

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:109536-DB
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL No. - 659 of 2025
 

 
Appellant :- State Of Up And 2 Others
 
Respondent :- Shafique Ahmad And Another
 
Counsel for Appellant :- Nagendra Kumar Pandey,Rajeshwar Tripathi
 
Counsel for Respondent :- Krishna Kant Vishwakarma,Madan Mohan Srivastava
 
Hon'ble Manoj Kumar Gupta,J.
 

Hon'ble Ram Manohar Narayan Mishra,J.

(Per : Hon'ble Ram Manohar Narayan Mishra, J.)

1. Heard Sri Rajeshwar Tripathi, CSC-II for State-Appellant and Sri Ashok Khare, learned Senior Counsel assisted by Sri Krishna Kant Vishwakarma, Advocate for the respondents.

2. By means of the the instant Special Appeal, the appellant has assailed the judgment and order passed by a Single Bench of this Court in Writ-A No.6586 of 2024, dated 11.03.2025. By the impugned order learned Single Judge Bench has allowed the writ petition filed by respondent-petitioner and quashed the order dated 28.03.2024 passed by Registrar/ Inspector U.P. Madarsa Shiksha Parishad, Lucknow by which the appointment of the petitioner as Assistant Teacher Tahtania was not found against the sanctioned post. As such the financial approval granted to the petitioner for the post of Assistant Teacher Tahtania was withdrawn with immediate effect. Further ordered that as initial appointment of the petitioner as Assistant Teacher Tahtania was against the rules, as such, the financial approval granted to the petitioner for the post of Assistant Teacher Fauquania is also withdrawn. Thus, resultantly by order dated 28.03.2024, the services of the petitioner Shafique were dispensed with.

3. The State of Uttar Pradesh, feeling aggrieved by the order passed by Single Bench dated 11.03.2025, in Writ-A No.6586 of 2024 Shafique Ahmad Vs. State of U.P. and three others has filed present Special Appeal before this Court under Chapter VII Rule 5 of High Court Rules, with following prayer:-

"The relief sought by means of present Special Appeal is that, this Hon'ble Court may graciously be pleased to set-aside the impugned judgment and order dated 11.03.2025 passed by learned Single Judge in Writ-A No.6586 of 2024 (Shafique Ahmad Vs. State of U.P. and three others), and/or to pass such other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case."

4. From perusal of record it appears that the factual matrix of the present matter is that Madarsa Jamia Alia Arabia, Alinagar, Mau (hereafter referred as "Madarsa") is a non-government aided minority Institution which imparts education up to class Fazil (graduation level). Madarsa is managed by a society namely Jamia Alia Arabia , Mohalla Alinagar, Mau, which was registered on 14.09.1982. The registration of the society was being renewed from time to time. The affairs of Madarsa institutions in U.P. are governed by set of Rules known as "Uttar Pradesh Non-Government Arabic and Persian Madarsa Recognition Rules, 1987", which was later on amended in the year 2016. These rules are applicable to teaching and non-teaching staff. Initially, at the time of preparation of AD Basic List on 29.11.1990, there was 1 post of Principal, 6 posts of Assistant Teacher Alia (Matric), 1 post of Head Master Fauquania (class VI to VIII), 3 posts of Assistant Teacher Fauquania, 1 post of Head Master Tahtania (class I to V), 11 posts of Assistant Teacher Tahtaniya, i.e. 22 posts of teaching and 5 non-teaching staff. Thus, total 27 persons were found working and getting their respective salary. Subsequently, in view of increase in strength of students, the respondent-Committee of Management proceeded with request of sanctioning more teaching staff. Considering the bonafide need of the institution, Director (Urdu)/ Western Language, U.P. Lucknow vide letter dated 28.09.1995 asked District Basic Education Officer, Mau to inquire into the matter and submit a report. As a matter of fact, before creation of Minority Welfare Department in State of U.P. in the year 1996, affairs of Madarsa were being looked after by the Department of Primary Education under the supervision of District Basic Education Officer, and at that time Director (Urdu)/ Western Language U.P. Lucknow was the competent authority to create/sanction any post in Madarsa.

5. In compliance of letter dated 28.09.1995, District Basic Education Officer, Mau got an inquiry done into need of sanctioning of more teaching staff, through Educational Superintendent Urban Area Mau, who after proper proceeding recommended for seven posts of Assistant Teacher Alia and fourteen post of Assistant Teacher Tahtania Madarsa. District Basic Education Officer, Mau vide letter dated 20.02.1996 sent his recommendation to Director (Urdu/ Western Languages) U.P. Lucknow for necessary action. The Director (Urdu/Western Languages), on 01.03.1996, accorded approval to payment of salary to those already working and for filling the remaining posts after advertising the posts. The petitioner was performing teaching work in Madarsa in question as Assistant Teacher Tahtania w.e.f. 1988, but was given salary from State Exchequer w.e.f December, 1995. Over the passage of time one Imtiyaz Ahmad Assistant Teacher Fauquania retired on 31.03.2021, on attaining age of superannuation. Therefore, 1 post of Assistant Teacher Fauquania had fallen vacant. The said post was filled up by promotion of the petitioner. The resultant vacancy on the post of Assistant Teacher Tahtaniya was filled up with the selection of one Shameem Anwar. The petitioner joined the post of Assistant Teacher Fauquania on 15.06.2021. The Manager of respondent committee by means of letter dated 08.09.2021 submitted the papers regarding promotion of the petitioner and selection of Shameem Anwar before the respondent- District Minority Welfare Officer. The District Minority Welfare Officer, in his turn, forwarded the same before respondent No.2 vide letter dated 13.09.2021. The respondent No.2 vide order dated 27.09.2021 granted necessary financial approval to the selection of petitioner.

6. This is the case of the petitioner that on account of default on the part of the respondents, payment of salary to the petitioner for promotional post of Assistant Teacher Fauquania could not commence. He was assured of completion of the formalities required for payment of salary on the post of Assistant Teacher Fauquania. However, despite repeated requests, neither petitioner was given salary on the promoted post, nor Shameem Anwar was given salary for the post of Assistant Teacher Tahtaniya, despite the fact that Shameem Anwar was duly selected for the post of Assistant Teacher Tahtania and his selection was approved by respondent No.2 vide order dated 29.09.2021.

7. Feeling aggrieved by in action of the respondents, Shameem Anwar approached this Court by way of Writ-A No.6429 of 2022, which was disposed of vide order dated 17.08.2022 with direction to respondent No.2 to take a final decision with regard to payment of salary to him. When respondents failed to take any decision with regard to payment of salary to Shameem Anwar, he filed a Contempt Application (Civil) before this Court, which was disposed of on 13.09.2023 and one more opportunity was given to respondents to comply the court's order. As no headway done in the matter of Shameem Anwar, he again filed a Contempt Application before this Court in the year 2024 and then respondent No.2 vide order dated 02.02.2024 declined the claim of Shameem Anwar. While dealing with the claim of Shameem Anwar, respondent No.2 with a view to justify his conduct for withholding the payment of salary to Shameem Anwar, by means of letter dated 23.02.2024 sought to test the validity of promotion of petitioner. In the meanwhile this Court in Writ-A No. 2745 of 2024 vide order dated 20.03.2024 directed that payment of salary for the post of Assistant Teacher Tahtania to claimant Shameem Anwar cannot be denied on any ground.

8. After passing of order dated 20.03.2024 by this Court with regard to payment of salary to Shameem Anwar, respondent No.2 passed an order dated 28.03.2024 by which he held that the appointment of petitioner as Assistant Teacher Tahtania was not against the sanctioned post, as such, the financial approval granted to the petitioner for the post of Assistant Teacher Tahtania is withdrawn with immediate effect. It was further ordered that the initial appointment of the petitioner as Assistant Teacher Tahtania was against the rules, as such, the financial approval granted to the petitioner for the post of Assistant Teacher Fauquania is also withdrawn.

9. This order was assailed by the petitioner (who is respondent No.1 in the present appeal) before this Court by Writ-A No.6586 of 2024, in which prayer was made to issue a writ in the nature of certiorari quashing the impugned order dated 28.03.2024 passed by respondent Registrar/ Inspector and a direction in the nature of mandamus directing the respondents to continue to pay month to month salary to the petitioner for the post of Assistant Teacher Fauquania Madarsa, Jamia Alia Arabia , Alinagar, Mau together with arrear of difference of salary of the post of Assistant Teacher Tahtania and Assistant Teacher Fauquania alongwith adequate interest.

10. Learned Single Judge, while allowing the writ petition filed by the petitioner Shafique Ahmad observed as under:-

18. Heard learned counsel for the parties. From perusal of the entire record, it is established that the petitioner's appointment as Assistant Teacher Tahtania was approved and he was being paid his salary from December 1996 till February 2024. The letter of Director, Urdu, U.P. Lucknow dated 1.3.1996 is not being disputed by the respondents. It is not the case of the respondents that the petitioner was appointed against sanctioned number of post. The only contention of the respondent is regarding the power to create post, that the post can be created only with approval of the State Government, whereas in the present case, the post was created by the Director Urdu, U.P. Lucknow without prior permission of the State Government.

19. Thus, it is clear that neither the Committee of Management nor the petitioner has played any fraud in creation of post. The post was created and payment of salary to the petitioner and other Assistant Teachers was being made from State exchequer since December 1995 till February 2024. In the impugned order, the District Minority Welfare Officer has raised only objection that the post was created by the Director Urdu without prior permission of the State Government. In the impugned order, the only conclusion has been recorded by the Registrar, respondent no. 2 that the appointment of the petitioner as Assistant Teacher Tahtania was not against the post created by the State Government. There is no whisper regarding any fraud or misrepresentation being made either by the petitioner or by the Committee of Management in creation of post. 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 protected 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 public interest to unseat them." (emphasis supplied)

20. 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.

21. In the present case, the petitioner was selected and appointed as Assistant Teacher Tahtania against a post, which was created in the institution. The post was created by the Competent Authority or by an incompetent person, the petitioner or the Committee of Management of the institution has no role in the said creation of post or competence of the person of the authorities, sanctioning the post. Relying upon the documents of sanction of post, the State Authorities have granted financial approval and have made payment of salary to the petitioner from December 1995. For last about 30 years, there was no dispute or any allegation that the petitioner was paid salary against non-sanctioned post. It was open to the Competent Authority, who granted financial approval and started making payment of salary to the petitioner from the State exchequer to deny the financial approval or payment of salary to the petitioner in the year 1996 itself. The authorities being fully satisfied that the appointment of the petitioner is against the sanctioned post, he had been continuously getting his salary. Thus, the petitioner was not at all in fault. There is no mention of fraud or malpractice against the petitioner, who had served for about 30 years.

22. 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 prepa- ration 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.

23. Thus, in view of the facts stated above, the order impugned dated 28.3.2024 is illegal. The approval granted 30 years ago, cannot be withdrawn on the ground that the post was not created by the Competent Authority.

24. The order impugned dated 28.3.2024 is hereby quashed. The petitioner is entitled for all consequential benefits."

11. Learned State counsel appearing for appellant submitted that the learned Single Judge has not considered the fact that the State Government has issued Government Order dated 19.01.1996. In paragraph 8 of the aforesaid Government Order it is mentioned that permission for increase of posts will be made at the level of the Government. Learned Single Judge has failed to consider that since the said post was illegally created, therefore, the office after mentioning entire facts sought direction from the Registrar, U.P. Madarsa Education Board. Since no direction was received, therefore, the payment of salary to petitioner on the promoted post and the post of Assistant Teacher Tahtania could not be made.

12. He further submitted that the learned Single Judge, has erred in law while allowing the writ petition vide impugned order dated 11.03.2025, by mere stating that the approval granted 30 years ago cannot be withdrawn on the ground that the post was not created by the competent authority. This is well settled legal position that, if the appointments were made without any sanctioned posts, they are deemed illegal, and if the person has been appointed against a post not sanctioned by the State Government, he cannot claim salary against such unsanctioned posts. Learned Single Judge has also not paid heed to the contention of the State that the appointment of the Shafique Ahmad, writ petitioner, to the post of Assistant Teacher Tahtania was not against the post created by the State Government, thus, the appointment of writ petitioner to the post of Assistant Teacher Tahtania was against the rules, hence his promotion was also against the rules.

13. Sri Ashok Khare, learned Senior Counsel for the petitioner, on the other hand, submitted that the action of the respondent in opening the issue relating to sanction of the post of Assistant Teacher, Tahtaniya after almost thirty years and that too while examining the issue relating to payment of salary to Shamim Anwar, was a result of colourable exercise of power. The post was sanctioned in pursuance of order of Director, Urdu on 1.3.1996 and since then, the petitioner was being duly paid salary from the State Exchequer. The petitioner had no role in the creation of the post, nor there is allegation of fraud or misrepresentation against him. In such circumstances, there is no illegality in the order of learned Single Judge.

14. We have considered the rival submissions and perused the record. It is not disputed that at the time of preparation of list of teachers and employees of the Institution on 29.11.1990 by Additional Director of Education, Basic, Region - VII, Gorakhpur, 1 Principal, 6 Assistant Teacher Aliya (Matric), 1 Headmaster Fauqania (Class 6 to 8), 3 Assistant Teacher Fauqania, 1 Headmaster Tahtaniya (Class 1 to 5), 11 Assistant Teacher Tahtaniya, i.e. 22 teaching staff and 5 non teaching staff, total 27 persons, were found working and getting their respective salary.

15. In 1995, while ascertaining additional requirement in view of increased student strength, an enquiry was got conducted through the District Basic Education Officer, Mau. The District Basic Education Officer submitted his report on 20.2.1996 along with report of Educational Superintendent, Urban Area and wherein, he recommended for 7 posts of Assistant Teacher, Aliya and 14 posts of Assistant Teacher, Tahtaniya. Thereafter, Director, Urdu/Western Languages, U.P., Lucknow vide order dated 1.3.1996 granted appoval to 13 posts, including the post on which petitioner was working. The order also records that all the 13 appointments in respect of which recommendation was made by District Basic Education Officer were found to be as per Rules. The petitioner on basis of the said sanction order was paid salary from the State Exchequer since December, 1995 and continued to be paid salary as such, without interruption. The respondents during this period never questioned the power of the Director to sanction the post without approval of the State Government. It was only after one Imtiyaz Ahmad, Assistant Teacher, Fauqania retired on 31.3.2021 and in whose place the petitioner was promoted and one Shamim Anwar was appointed on the post of Assistant Teacher, Tahtaniya, vacated by the petitioner consequent to his promotion, the respondents took up the specious plea of his initial appointment being illegal for lack of approval of the State Government to the sanction of the post.

16. Concededly, it is not the case of the respondents that creation of 13 posts of Assistant Teacher, Tahtaniya by the Director, in pursuance of recommendation of the Basic Education Officer vide letter dated 20.2.1996 was not commensurate to the student strength. Thus, it is not the case of the State that in the given set of facts, the order of Director, Urdu dated 1.3.1996 recommending for creation of 13 posts of Assistant Teacher, was not warranted, except for the technical plea that the approval should have been obtained from the State Government. In case any formal approval from the State Government was required, the respondents should have obtained the same and it is still open to them to obtain such approval.

17. Learned Single Judge has placed reliance on a judgment of Hon'ble Supreme Court in case of Radhdey Shyam (supra) has affirmed the judgment of Shivanandam C.T. & others vs. High Court Kerela & others reported in (2023) SCC Online SC 994 (supra), wherein it was held that even if the appointment was of more than advertised vacancy, after lapse of two decades, the same should be protected. The petitioner was selected and appointed as Assistant Teacher Tahtaniya against the post which was created in the institution. When original petitioner was not party to creation of posts, he cannot be blamed and suffered after putting in about thirty years of service to the institution. There was no allegation of any fraud or misrepresentation against the petitioner.

18. We therefore find no illegality in the view taken by learned Single Judge that the action of the respondents in dispensing with the services of the petitioner after thirty years of his initial appointment, was ex facie illegal.

19. The appeal lacks merit and is dismissed.

Order Date :- 10.7.2025

Ashish/-/Jaideep

(R.M.N. Mishra, J.) (Manoj Kumar Gupta, J.)