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Javed Alam Khan v. M.R. Sherwani Higher Secondary School & Others - WRIT - A No. 40249 of 2002  RD-AH 19267 (15 November 2006)
Court no. 31
Civil Misc. Writ Petition No. 40249 of 2002
Javed Alam Khan
M.R. Sherwani Higher Secondary School and ors.
Hon'ble Bharati Sapru, J.
Heard learned counsel for the petitioner, learned counsel for the respondent no.5, learned counsel for the respondents no. 1 and 2 and respondent no. 6.
The petitioner has filed this writ petition seeking a writ of certiorari to quash entire selection process adopted by the respondent no. 2 for the post of Assistant Teacher in the institution namely M.R. Sherwani Higher Secondary School in pursuance of the advertisement dated 21.6.2001 and also to quash the selection and advertisement of the respondent no. 6 and to quash the financial approval granted by the respondent no. 3 to the appointment of the respondent no. 6 granted on 17.5.2002. The petitioner has also made a prayer for a writ of mandamus commanding the respondent no. 2 to make a fresh selection on the post of Assistant Teacher (Sociology) in the institution in question. The other prayers are also consequential prayers for writ of mandamus.
The institution M.R. Sherwani Higher Secondary School (hereinafter referred to as the institution) is a minority institution, which is governed by the U.P. Intermediate Education Act, 1921 and as it is a minority institution, the provision of section 16FF of the Act, 1921 have special application to the institution in question. The procedures for filling up the vacancies of the head of the institution and teachers by direct recruitment of a minority institution are regulated under Chapter II of Regulation 17 of the Act. The Regulation 17 (e) provides as under:
"The provisions of clause (e) and (f) of Regulation 10 and those Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation."
Learned counsel for the petitioner has argued that in the present case, the provisions of Regulation 10 (f) and Regulation 11 have been violated.
The facts of the case are that an advertisement was made on 26.1.2001 by which the respondent institution inviting applications for the post of Assistant Teachers for teaching subject of the Sociology. The advertisement also mentions that the candidate should apply at least for two subjects from Geography, History, Political Science and Economics in B.A. and should be trained.
The petitioner who is M.A., B.Ed. also applied and made an application for the post on 29.6.2001. According to the petitioner, an interview took place on 26.7.2001 but the petitioner was not given an interview call. It is the allegation of the petitioner that the respondent no. 6 was the son of one of the clerks of the institution and simply in order to accommodate him, the application of the petitioner was not even considered even though he had the requisite qualifications. The petitioner did not get an interview call. The respondent no. 6 was appointed on 1.8.2001 and he joined the post on 1.8.2001. When the petitioner came to know all this, he sent a detailed representation to the District Inspector of Schools, Etah stating his grievance and saying that the respondent no. 6 was not even a proper candidate and yet he was being accommodated whereas the petitioner who was fully qualified has not been even called for interview.
It is the petitioner's contention that the petitioner's objection dated 3.8.2001 was sent to the District Inspector of Schools but no orders were passed on the said objection and in fact when the committee of management sent papers of the respondent no. 6 for approval, the petitioner's objections were not considered rather they were ignored.
The approval was granted by the Joint Director of Education to the appointment of the respondent no. 6 on 17.5.2002 as has been stated earlier. It is the argument of the learned counsel for the petitioner that this approval dated 17.5.2002 was made in violation of the provision of Regulation 10 (f) Chapter II which enjoins that while supplying information in Appendix ''C', the committee of management shall mention all applications including those of the candidates who have not been called for interview and the same shall be placed before the selection committee.
Learned counsel for the petitioner also relied on Chapter II Regulation 11, which qualifies that it will be bounden duty of the experts attending the selection of head of the institution and the teachers to scrutinize all papers and in particular to examine that the candidates who had been called for interview, had been rightly called as per the provisions of the Act and Regulations and no candidate has been deprived of the opportunity of interview, which should rightly have given to him. A certificate in this behalf is to be made by the experts attending the selection committee.
Learned counsel for the petitioner has argued that in absence of the filing of such certificate, entire proceedings of the interview would stand vitiated.
The third limb of the argument of the learned counsel for the petitioner is that if approval is granted to the appointment of any teacher in contravention of the provision of Chapter II, the District Inspector of Schools can decline to pay the salary and allowances to such a person and therefore he has argued that Regulation 19 Chapter II should be invoked in this particular case and the salary of the respondent no. 6 must be ceased.
The State has filed counter affidavit in this matter and in para 5 of the said counter affidavit, it has not denied that the petitioner has filed representation dated 3.8.2001 but has not stated as to how they have dealt with the said objection. The objection as raised by the petitioner was a valid one. Para 8 of the counter affidavit also does not disclose that as to how the objection of the petitioner was disposed of or dealt with.
In view of the averment made in the counter affidavit, it appears that the contention of the petitioner is fully justified and the respondent District Inspector of Schools as well as the Joint Director of Education failed to comply with the provisions of Regulation 17 Chapter II and Regulations 10 (f) and 11. It was bounded duty of the respondent District Inspector of Schools and Joint Director to go into this as the institution in question is receiving grant-in-aid from the State and therefore before releasing salary of any incumbent, it is expected that the State will make a proper consideration of the issues which are placed before them, so that only worthy candidates are selected and even though a minority institution may have a right to manage itself and to administer itself, that in itself does not give to minority institution a right to give a go bye to the Statutes and Regulations, which govern their very existence particularly in cases where the minority institution is receiving grant-in-aid from the State.
Having heard learned counsel for the petitioner and the learned counsel for the respondents, I am of the opinion that the respondents authority failed to perform their obligations properly as are envisaged under Regulation 17 Chapter II read with Regulations 10 (f), 11 and therefore the order of approval was granted in violation of the same. As such the order of approval dated 17.5.2002 deserves to be quashed.
Since the impugned order of approval dated 17.5.2002 was granted in violation of Regulation 17 Chapter II read with Regulations 10 (f), 11, it is expedient in the interest of justice that the matter is remanded to the respondent no. 3 Joint Director of Education to reconsider and decide the matter afresh after taking into consideration the objection of the petitioner dated 3.8.2001. It is needless to say that the respondents no. 1 and 2 and respondent no. 6 will also be given an opportunity of hearing. The respondent no. 3 will give a notice for the date of the hearing to all parties concerned within a week from the date of issuance of a certified copy of this order and thereafter he will decide the matter within a period of next three months. The authority concerned is also directed to invoke the provisions of Regulation 19 Chapter II of the U.P. Intermediate Education Act, 1921 with immediate effect.
The writ petition is allowed as above. The impugned order of approval dated 17.5.2002 is quashed. There will be no order as to costs.
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