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C/M Shri Uday Singh Jain Kanya I.C. Thru' Manager S.K.Jain v. Joint Director Agra Region Agra And Others - WRIT - A No. 49694 of 2004  RD-AH 7879 (27 April 2007)
Court No. 39
Civil Misc. Writ Petition No. 49694 of 2004
Committee of Management
Shri Udai Singh Jain Kanya Inter College
Udai Singh Jain Road Aligarh through its
Regional Joint Director of Education
Agra Region Agra
Committee of Management Sri Udai Singh Jain Kanya Inter College through its Manager, Satendra Kumar Jain has approached this Court questioning the validity of the decision dated 13.08.2004 of District Inspector of Schools, Aligarh directing postponement of selection process until further orders on the ground that selection process has been undertaken without taking prior permission from the District Inspector of Schools, Aligarh.
In the district of Aligarh there is an institution known as Sri Udai Singh Jain Kanya Inter College. Said institution is duly recognized under the provision as contained in U.P. Intermediate Education Act 1921. Said institution in question has been established by the members of Jain community in year 1936 and is being running by the Society namely Sri Udai Singh Jain Kanya Inter College, Samiti, Aligarh. Said institution has been declared as minority institution on 09.06.2004. Committee of Management of the management of the institution in order to fill up the vacancies for post of Lecturer, Assistant Teachers, came out with an advertisement in two news papers namely Amar Ujala and Dainik Jagran. Prospective candidates applied pursuant thereto and thereafter order impugned has been passed mentioning therein that without taking any prior approval from the District Inspector of Schools advertisement has been made and as to why permission has not been taken and further selection process to be postponed. Petitioner has contended that thereafter reply was submitted, explaining that institution has been declared as minority institution, and has right to make appointment. Thereafter it has been mentioned that various correspondence has been done. Petitioner have also contended that request was made for giving time to explain the situation but no time was accorded. Representation has been made to the Director of Education also but no action has been taken.
Counter affidavit has been filed and it has been contended in para -4 that institution has not been recognised as minority institution by the Director, Minority Department, therefore, institution in question cannot be accepted as Minority Institution. It has also been contended that institution in question has no right to make advertisement.
Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and reiterating the averments mentioned in the writ petition. It has also been categorically stated that when said decision has been taken qua declaration of minority status, then non issuance of directions by the Director, Minority will be of no consequence for which petitioners cannot be made to suffer.
After pleading mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri J.J. Munir, Advocate appearing for petitioner contended with vehemence that once institution has been declared as minority institution then objection which has been raised by the District Inspector of Schools Aligarh is unsustainable, inasmuch as under U.P. Act No. II of 1921 and Regulation framed thereunder, there is no requirement of any prior permission from the District Inspector of Schools to advertise the vacancy before proceeding to make selection as such order passed by District Inspector of Schools is apparently erroneous order and is unsustainable.
Sri K.K. Chand, learned Standing counsel on the other hand contended that valid action has been taken and no interference is required and writ petition is liable to be dismissed.
After respective arguments have been advanced factual position which is emerging is to the effect that there is no dispute that institution in question has been established by the members of Jain community in year 1936 and same is being runn by the Society namely Sri Udai Singh Jain Kanya Inter College, Samiti, Aligarh. Categorical statement of fact mentioend in this regard in writ petition has been deal with in paragraph-4 of the counter affidavit filed on behalf of the State by mentioning that the contents of paragraphs 1 to 4 of the writ petition need no reply. State Government in its wisdom has chosen to declare the institution in question as minority institution on 09.06.2004 and letter of the State Government has been sent to Director Minority Welfare U.P. Lucknow. Once said institution has been declared and accepted as minority institution then merely because Director, Minority Welfare U.P. Government U.P. Lucknow has chosen not to pass any consequential order same will not alter or change the status of said institution of minority institution. Passing of the order dated 09.06.2004 is nothing but reiteration/certification of the fact that institution in question is minority institution.
Hon'ble Apex Court in the case of Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah U.P. Vs. Sachiv U.P. Basic Shiksha Praishad Allahabad and others reported in AIR 2006 SC 2974 in respect of institution runn and established by the members of Jain community has taken the view that Jain is minority community of the State of U.P and Jain community has right to establish and administer institution of their choice.
In the present case as State Government has accepted the status of the institution as Minority Institution and in view of the dictum of Hon'ble Apex Court in the case of Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah U.P (supra) the respondents are stopped to take this plea that institution in question cannot be treated as minority institution. Orders have been passed by the State Government on 09.06.2004 and merely because Director, Minority Welfare has failed to pass any order, same will not dilute the effect of the order dated 09.06.2004 in any manner whatsoever.
Now the next question is being adverted to in respect of taking permission before proceedings to advertise the vacancies. In order to appreciate respective arguments, Section 16FF of U.P. Intermediate Education Act 1921 and Regulations 10 to 19 of Chapter II of U.P. Intermediate Education Act 1921 are being quoted below:
Section 16 FF:- Saving as to minority institutions-(1) Notwithstanding anything in sub-section (4) of Section 16-E and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of shall consist of five members (including its Chairman) nominated by the Committee of Management:
Provided that one of the members of the Selection Committee shall- (a) In the case of appointment of an Institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director;
(b) in the case of appointment of a teacher, be the Head of the institution concerned.
(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.
(3) No person selected under this section shall be appointed, unless-
(a) in the case of the Head of an institution the proposal of appointment has been approved by the Regional Deputy Director of Education; and
(b) in the case of a teacher such proposal has been approved by the Inspector.
(4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualifications prescribed and is otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section, the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of Head of Institution, and to the' Regional Deputy Director of Education in the case of a teacher.
(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final."
Regulations 10 to 19 of Chapter II are being quoted below:
Regulation 10: The procedure for filing up the vacancy of the Head of institution and thereafter by direct recruitment in any recognized institution shall as follows;
(a) After determining the number of vacancies to be filled through direct recruitment, posts shall be advertised by the Manager of the institution at least in two such newspaper out of which one be local having large circulation in the State:
Provided that list of the newspapers' shall be prepared by the Inspector after approval of the Regional Deputy Director of Education of his region and advertising by all Management Committees of the District in any two newspapers out of that would be compulsory. Details regarding type of vacancy (i.e. permanent or temporary) and number of vacancies, particulars of post (Principal or Headmaster, lecturer or teachers of L.T., C.T. or J.T.C/B.T.C grade and such subjects in which lecturer or teacher be (required) pay scale and other allowances, required experience, minimum prescribed eligibility for the post and minimum age limit, if any, be given in the advertisement and such last date (which generally should not be less than two weeks of the date of the advertisement) shall be prescribed upto which applications duly filled in prescribed form by the candidates shall be received in the office of the following:
i. District Inspector of Schools, or
ii. Regional Inspectress of Girls' Schools, in case of institution for girls.
The advertisement shall also state that the prescribed application forms can be had from the office of any Inspector on payment of Rs. 9 per form by a crossed postal order or bank draft or through Treasury challan by depositing the amount in the State Bank of India under the head indicated by the Inspector. In no case the payment shall be accepted in cash in the Office of the Inspector. A copy of each advertisement shall be simultaneously sent by the Manager to the District Inspector of Schools of the Regional Inspectress of Girls' Schools concerned and in case the post of the Head of institution is advertised a copy of the advertisement shall also be . sent to the Regional Deputy Director of Education. Notes- (1) All vacancies in the post of teachers and the head of the institution existing at the time of advertisement shall advertised.
(2) No new post shall be advertised unless sanctioned of the appropriate authority for the creation thereof has been received by the Management.
(b) The form of application shall be such as may be approved by the Director.
(c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not withheld by his employer but shall be forwarded to the District Inspector of Schools or the Regional Inspectress of Girls' Schools concerned immediately and in case of. a post in an institution referred to m Section 16-FF to the Manager thereof.
(d) Applications received shall be serially numbered and entered in a register in the form approved by the Director in the office of the Inspector and particulars of the candidates noted under appropriate columns alongwith quality-point marks obtained by each candidate. The quality point marks will be awarded to each candidate according to the criteria laid down in Appendix 'D' preferably by the local retired Gazetted Officers or retired principals or teachers of Degree College or University or retired heads of institutions engaged for the purpose by the Inspector and checked by the Inspector or an officer of the Department authorized by him in this behalf. These application forms will be collected by the Committee of Management through the Manager of the institution from the office of the Inspector within three days after the expiry of five days from the last date of receipt of applications notified in the advertisement failing which the Inspector shall cause the applications to be sent to the Manager of the institution concerned. The management shall maintain a register likewise. The candidates to be called for interview shall be selected in the order of quality point marks obtained by them. The number called for interview shall be seven of each post (the number of applicants permitting) provided that this number may be increased to accommodate candidates who get equal number of quality-point marks in the first seven places. The Inspector shall send intimation of the date, time and place for holding selection as may be fixed by him to the Committee of Management through its Manager at least two weeks before such date. Immediately on receipt of this information the Manager shall send intimation to the members of the Selection Committee other the candidates selected for interview by registered post specifying therein the date, time and place of holding selection, at least ten days before such selection. The selection Committee will hold its sitting for making the selection according. The Inspector shall intimate to the Experts nominated under clause (iii) of sub-section (1) or (2) of Section 16-F, as the case may be, the date, time and place fixed for holding of selection alongwith the name of the institution, sufficiently in advance of such date. If on account of any unavoidable reason, any expert is unable to attend the selection on the date fixed, the Inspector shall at once arrange for the expert on the waiting list. In the absence of two experts, the meeting of the Selection Committee shall be postponed and another date shall be fixed for the same.
(dd) Where the post advertised under clause (a) is that of Principal of an institution that two senior most teachers of such institution In the Lecturer's grade, and where the post advertised is that Headmaster for an institution the senior most teachers of such institution in the L.T. grade who possess the prescribed minimum qualification for such post and have to their credit a minimum of ten year's. continuous service in the respective grade, including the period, if any, during which they have worked temporarily as Principal/headmaster shall also be entitled to be called for interview for that post even if they do not come within the first seven places under clause (d).
(e) Every candidate called for interview will have to pay the interview fee at rates given below:
i. For the post of head of institution:
General candidates 20
Scheduled Caste /Tribes candidate 5
ii. For the post of teacher
General candidates 13
Scheduled Caste /Tribes candidate 3
The interview fee shall be payable by crossed postal order or bank draft or through treasury chalan by depositing the amount in the State Bank of India under the head indicated by the Inspector. In no case the interview fee shall be accepted in cash. All postal orders, bank drafts and treasury chalan shall be sent by the Manager to Inspector immediately after the selection.
(f) A statement (six copies) showing the names, qualifications and other particulars in respect of every candidate called for the interview shall be got prepared by the Committee of Management in the form given in Appendix 'c' and the same shall be placed before each member of the Selection Committee at the time of the interview. All the applications including those of candidates not called for the interviews, the register maintained by the institution referred to in clause (d), office copies of all letters sent to the members of the Selection Committee and of all interview cards including the post office receipts of sending the same by registered post and acknowledgments, if any, shall also be placed before the Selection Committee by Management through the manager of the institution.
(g)Selection shall be made by Selection Committee on the basis of the total quality point marks awarded in the interview. The total of marks for this purpose shall be arrived at by addition of the quality point marks as obtained by a candidate under clause (d) and the average of the marks awarded by the members of the Selection Committee out of 50, as for example, a candidate who obtains 90 quality point marks under clause (d) is awarded the following marks in the interview:
Member No.1 35
Member No.2 30
Member No.3 40
Member No.4 45
Member No.5 25
Then the total marks will be 90+175/5= 125. In addition, each Expert shall also note down in the statement referred to in clause (f) whether he agrees to the selection of the candidate or not. In case of disagreement he will state reasons in brief thereof. After all the candidates for any post are interviewed the Chairman of the Selection Committee shall either himself or by any other member thereof get a note prepared in duplicate on the proceedings of the selection held indicating therein the name of the selected candidate alongwith two other candidates on the waiting list drawn up in order of merit determined as per example aforesaid and also the names of at least two Experts who have agreed to the selection of such candidates. The note so prepared shall be signed by the Chairman and other members of the Selection Committee giving their full names, designations and addresses and date.One copy of this note alongwith one copy of the statement referred to in clause (f) shall be immediately forwarded by the Chairman to the management through the Manager and the other copy shall be forwarded to the Inspector concerned.
[Explanation- Any reference to the Committee of Management or President or member thereof in this regulation shall, in cases referred to in sub-section (3) of Section 16-F, be construed as a reference to the Authorised Controller who shall, for purpose of awarding marks in the interview, under clause (d) be deemed to be a single member of the Selection Committee].
(h) Notwithstanding any thing contained in clause (g) if the total marks awarded to or more candidates are equal then the senior most in age shall be preferred.
Regulation 11: (1) It shall be the duty of the experts attending selection of a head of institution or teacher to scrutinise all papers concerning selection and in particular to examine that the candidates called for interview have been rightly so called as per provisions of the Act and the regulations and that no candidate has been deprived of the opportunity of interview which rightly should have gone to him. They should furnish a certificate to this effect in the proceedings of the selection as proposed in the statement in Appendix 'C'. In case they feel that a candidate has been deprived of the legitimate opportunity of interview as a result of an:y error or omission they shall inform the Inspector with full details of the case. If the Inspector is satisfied that the proceedings of the interview have been vitiated thereby he shall declare the proceedings of the interview null and void and shall pass orders for holding of selection again in such cases. The orders of the Inspector in this regard shall be final and binding on all concerned.
(2) All applications, papers and registers relating to selection shall be preserved by the Management till such period as may be prescribed by the Director and shall be furnished to the Inspector, Regional Deputy Director of Education or the Director as and when the same may be summoned.
Regulation 12: The Manager of the institution shall ensure that all necessary action to be taken under the Act and the regulations prior to the holding of selection including nomination of the Chairman or the members of the Selection Committee by the Committee of Management shall be taken well in time and that all arrangement have been made for the meeting of the Selection Committee and seating of candidates called for interview on the date fixed for the interview.
Regulation 13: The Inspector may fix one or more selections of one or more institutions at such place, time and date as may be found convenient.
Regulation 14: The panel of Experts referred to in sub-section (4) of Section 16-F shall be drawn by the Director for each region separately for the selection of teachers from amongst the categories of persons given below after they have given their consent in writing to act as Experts:
(a) Person who may be appointed as experts for the selection of heads of institution-
i. Principals of Degree Colleges, Training Colleges and Polytechnics including Central Schools;
ii. Gazetted Officers of the Education Department not below the P.E.S. level, whether serving or retired;
iii. Professors and Readers of Universities and Degree Colleges;
iv. Lecturers of University and Degree Colleges provided they have worked as such for at , least ten years;
v. Any other person considered suitable by the Director;
(b) Persons who may be appointed as exp(:!ts for the selection of teachers1. Principal or Headmaster of any Intermediate College, High School or Government Normal School, whether serving or retired;
ii. Gazetted OffIcer of the Educational Department not below the rank of a Deputy Inspector of School, whether serving or retired;
iii. Lecturers of Degree Colleges, Training Colleges or Polytechnics and Gazetted Officer or Education Department of at least five years standing;
iv. Any other person considered suitable by the Director.
The number of ,experts on each regional panel shall be such as may be considered necessary by the Director, provided that experts appointed for the selection of teachers of Intermediate Classes shall be experts in that 'subject (i.e. they should possess the minimum qualifications prescribed by the Board for a teacher of Intermediate classes in the subject concerned.) The regional panel shall remain valid for the three years but the Directors may add to or remove any person from the panel even during the above period. Name of one person may be included in more than one panels where necessary.
Regulation 15: As soon as a copy of the advertisement is received by the Regional Deputy Director of Education in respect of any post advertised for the head of institution he shall send a list of three experts nominated by him for the institution concerned alongwith one more name on the waiting list to the Inspector for being invited to participate in the selection. The Inspector shall likewise nominate three experts and one more on the waiting list for the institutions for which selection of teachers is to be held as soon as he receives the copy of the advertisement and invite them to participate in the selection.
Regulation 16: Every expert attending a meeting of the Selection Committee and every person engaged for awarding quality point marks shall be entitled to be paid remuneration at such rates as may be sanctioned by the State Government from time to time. In addition, the experts shall be paid travelling allowance at such rates as may be sanctioned by the State Government.
Regulation 17: The procedure for filling up. the vacancy of the head of the Institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF shall be as follows;
(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e. whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principle or Headmaster, Lecture or L.T., C.T. or J.T.C.B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale of pay and other allowances, experience required, minimum qualification and age prescribed, if any for the post and prescribing a date which should ordinarily be less than two 'weeks form the date of advertisement by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.
Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised.
(2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.
(a) All applications hall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies, of all the necessary certificates and testimonials. The management may charge cost of the application form not exceeding the amount referred to in clause (2) of the Regulation 10.
(b) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.
(c) All applications received form the candidates shall be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns, The Candidates to be called for interview shall be sever for each post (with the prior permission of the head of the institution). The Manager shall intimate by registered post all the members of the Selection Committee as well as such candidates as are called fir interview, the date, time and place of selection at least ten days before it is held. The Selection Committee will hold the selection accordingly,.
If on account of any unavoidable reason the expert selected by the Committee of Management under clause (a) of the proviso to sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed, the meeting of the Selection Committee shall be postponed.
(d) The provisions of clauses (e) and (f) of Regulation10 and those of Regulations 11,12, and 16 shall mutatis mutandis apply to selections made under this regulation.
(e) A panel of experts consisting of fifteen or more persons selected form category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned. The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in sealed cover to the management through its manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.
(f) Chairman of the Selection Committee after conducting interview of all the candidates for any post will get a note prepared in two copies on the proceedings of the selection which will mention the names of the selected candidates and names of two more candidates of waiting list. Chairman and other members of Selection Committee will sign on notes, so prepared, and mention their full name, designation and address. Chairman would immediately forward a copy of this note and a copy of statement referred to in clause (f) of Regulation 10 to the Regional Dy. Director of the Inspector, as the case may be, for approval as required under Selection 16FF.Regional Dy. Director or Inspector, as the case may be, within one month of the date of receipt of concerned records, will give his decision thereon and, failing to do so, it will be deemed to be approved].
Regulation 18: (1) Within fifteen days of the receipt of the recommendation of the Selection Committee constituted under sub-section (1) or (2) of Section 16-F, and in case of an institution referred to in Section 16-FF, the approval of the authority specified therein, the Manager shall, on authorization under resolution of the Committee of Management, issue an order of appointment by registered post to the candidate in the form given in Appendix 'B' requiring the candidate to join duty within ten days of the receipt of such order failing which the appointment of the candidate will be liable to cancellation.
(2) In case of promotions and ad hoc appointments also formal order of promotion or appointment in the form as near as possible to the form referred to in clause (1) shall be issued to the person concerned under the signature of the Manager.
(3) A copy of every order referred to in clauses (1) and (2) shall be sent to the Inspector and in case of appointment of the head of institution a copy thereof shall also be sent to the Regional Deputy Director of Education.
Regulation 19: Where any person is appointed as, or any promotion is made on any post of head of institution or teacher in contravention of the provisions of this chapter or against any post other than a sanctioned post the Inspector shall decline to pay salary and other allowance, if any, to such person where the institution is covered by the provisions of the V.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person
On the touch stone of the provisions quoted above, in the scheme of things provided for it is clearly reflected that Managing Committee of minority institution in question at the time of filling up the vacancy is not at all obliged to take prior permission before proceeding to advertise the vacancy. District Inspector of Schools, Aligarh has totally transgressed and overstepped its jurisdiction by mentioning to show as to whether permission has been taken and in case not, then the justification for publication and further also asked to postpone the selection process. The management could have been forced to ask for permission in case law demanded. There is no such permission required before proceedings to advertise the vacancy. Wherever permission is required, specific provision has been provided for as is evident from perusal of sub-regulation (2) of Regulation 17, which specifically provides that no new post shall be advertised, unless sanction of appropriate authority for creation thereof has been received by the management. The District Inspector of Schools has misdirected himself. Approval is required after entire selection process is over of the entire selection proceedings under Section 16-FF read with Chapter II Regulation 17 of the Regulation but certainly not before advertisement.
Consequently, order dated 13.08.2004 passed by District Inspector of Schools,Aligarh is hereby quashed and set aside. Writ petition is allowed. Management is free to undertake selection process under Chapter II Regulation 17 and in consonance with Section 16-FF of U.P. Act No. II of 1921 and thereafter entire papers in respect of selection proceedings shall be transmitted to District Inspector of Schools, Aligarh and thereafter District Inspector of Schools shall be free to take decision strictly in accordance with law.
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