Court No. - 35
Case :- WRIT - C No. - 39807 of 2019 Petitioner :- C/M Madarsa Shamsul Uloom, Niswan Ghosi And Another Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioners and learned Standing counsel appearing for the State-respondents.
2. By means of the present writ petition, the petitioners have prayed for the following main reliefs:-
(I) Issue writ order or direction in the nature of certiorari for quashing the impugned Resolution No. 6 of the order dated 16.07.2019 (Anex. No. 6 Page Nos. 68-79) as well as impugned order dated 18.11.2019 (Anex. No.7 Page Nos. 80-86) passed by Registrar, U.P. Madarsa Shiksha Parishad, Lucknow as well as consequential order dated 23.11.2019 (Anex No. 12 Page Nos. 109- 113) passed by the District Minority Welfare Officer, Mau.
(ii) Issue ad-interim mandamus directing and commanding the Respondent No. 2 to accept the examination fees and form with respect to the Board Examination of the Petitioner institution.
(iii) Issue ad-interim mandamus directing and commanding the Respondent Authority not to interfere in the peaceful functioning of Madarsa and its Hostel.
3. The case set forth by the petitioners is that the Committee of Management is running and administering two madarsas i.e Madarsa Shamsul Uloom, Ghosi, Mau (Boys Wing) and Madarsa Shamsul Uloom, Niswan, Ghosi, Mau (Girls Wing). The terms and conditions of affiliation and administration of Madarsa are governed by the Uttar Pradesh Ashaskiya Arbi Aur Farsi Madarsa Manyata, Prashashan Evam Sewa Viniyamawali, 2016 (hereinafter referred to as “Regulation, 2016”).
4. It is contended that on 12.08.2018, a First Information Report (hereinafter referred to as “FIR”) was registered as Case Crime No. 0312 of 2018 under Sections 376, 342, 505, 120-B and ¾ POCSO Act, at Police Station- Ghosi, District- Mau against five accused persons. Subsequent thereto, the District Magistrate, Mau constituted an eight member inquiry committee and the the said committee submitted its ex-parte report against the Madarsa on 20.09.2018, a copy of which is annexure 5 to the writ petition. The said committee in its report, so far as the incident of the FIR was concerned specifically observed that none of the witness could come up with any evidence in support of the incident. However, it was also indicated that the Madarsa is running a hostel without permission and as such, the said committee recommended for suspension of the recognition of the Madarsa.
5. It is contended that subsequent thereto, the Madarsa Shiksha Parishad, Lucknow in its meeting dated 16.07.2019, a copy of which is annexure 6 to the petition after considering the eight member committee report dated 20.09.2018 has required the Registrar to revoke the recognition of the Madarsa by indicating that the recognition of the Madarsa has already been suspended. Subsequent thereto, through an order dated 18.11.2019, a copy of which is annexure 7 to the writ petition, the Registrar of the Madarsa Shiksha Parishad has revoked the recognition of the Madarsa so far as it pertains to the Girls Wing i.e Madarsa Shamsul Uloom, Niswan, Ghosi, Mau (Girls Wing). Thereafter, a consequential order has been issued on 23.11.2019, a copy of which is annexure 12 to the writ petition by which the girls students of the Madarsa have been adjusted in other Madarsas.
6. Learned counsel for the petitioners contends that once there are specific regulations governing the Madarsa and suspension or withdrawal of the recognition, as such the respondents are required to comply with the said regulation namely the Regulation, 2016 and any order which has been passed by them in violation of the said regulation cannot be said to be legally sustainable in the eyes of law and accordingly prays that the impugned orders be quashed being in gross violation of the Regulation, 2016.
7. Elaborating the same, learned counsel for the petitioners contends that the suspension of recognition of Madarsa and its cancellation is covered by the Clause 13 of the Regulation, 2016. He contends that in case any irregularity is found in the running of Madarsa, a notice has to be issued for removal of said irregularity and in case the irregularity is not removed or the explanation is unsatisfactory then the recognition can be suspended. Subsequent thereto, the Madarsa is required to remove the illegality or irregularity and in case the said illegality or irregularity is not removed for a period of three years continuously only then the recognition can be withdrawn.
8. Learned counsel for the petitioner contends that in the instant case no order has been passed suspending the recognition of the Madarsa in question rather the respondents have proceeded to straight away withdraw the recognition of the petitioner’s Madarsa which would be contrary to Clause 13 of the Regulation, 2016 and thus the orders merit outright quashing.
9. Per contra, learned Standing counsel has justified the impugned orders by contending that once an incident, which has already been indicated above, occurred for which an FIR was lodged against certain persons and it had been found by the eight member committee that the Madarsa is not being run as per norms, as such, after issuance of notice to the Madarsa, the respondents have proceeded to withdraw the recognition of the Madarsa and consequently, it cannot be said that any illegality or irregularity has been perpetuated by the respondents while passing the impugned orders.
10. In support of his argument, learned Standing counsel contends that the respondents had initially issued a letter dated 06.09.2019 followed by notices dated 19.09.2019 and 11.10.2019 requiring the respondents to submit an explanation as to why the recognition of the petitioners be not withdrawn and once the Madarsa failed to submit its reply to the said notices that the impugned orders have been passed. He further contends that it cannot be said that the impugned orders have been passed without following the conditions as prescribed under Regulation, 2016 and consequently there is no illegality or error in the impugned orders and thus writ petition deserves to be dismissed. However, learned Standing counsel fairly admits that there is nothing on record to indicate that any order had been passed by the respondents by which the recognition of Madarsa had been suspended.
11. Heard learned counsel appearing for the contesting parties and perused the records.
12. From a perusal of records it is apparent that the petitioners are running two Madarsas the details of which have been given above. The controversy pertains to the withdrawal of recognition of the girls wing of the Madarsa. Admittedly, an FIR has been lodged against certain persons on 12.08.2018 registered as Case Crime No. 0312 of 2018 under Sections 376, 342, 505, 120-B and ¾ POCSO Act, at Police Station- Ghosi, District- Mau. An eight member committee which had been formed under the direction of District Magistrate, Mau submitted its report on 20.09.2018 whereby the incident which had led to filing of Case Crime No. 0312 of 2018 as well as the Madarsa hostel being run without permission have been indicated. However, so far as Case Crime No. 0312 of 2018 is concerned, the committee has specifically recorded that the independent witnesses have not given any evidence in support of their statement. The committee has further recorded that the hostel of the Madarsa is being run without permission and as such recommended for suspension of the recognition of the Madarsa. Subsequent thereto, in the meeting of the Uttar Pradesh Madarsa Shiksha Parishad, Lucknow held on 16.07.2019, so far as the Madarsa was concerned at Serial No. 6 of the minutes of the meeting, it has been indicated that the recognition of the Madarsa has already been suspended and the Registrar has been required to take action under the provisions of the Regulation, 2016 for the purpose of withdrawal of the recognition. Thereafter, the Registrar has proceeded to pass the order dated 18.11.2019 by which the recognition of the Madarsa (Girls Wing) has been withdrawn and the students have been adjusted to other Madarsas by the consequential order dated 23.11.2019.
13. Admittedly, the suspension and revocation of recognition of the Madarsa is governed by the Regulations, 2016. Clause 13 of the Regulation, 2016 would be relevant for the controversy in question which pertains to the procedure by which the suspension and withdrawal of the recognition of the Madarsa is dealt with. Clause 13 (1) of the Regulation, 2016 provides for issuing of a notice where any irregularity in the running of a Madarsa comes to the knowledge either based upon an inspection or otherwise. It is only when the reply is either found unsatisfactory or no reply is received that the recognition of the Madarsa can be suspended. Clause 13 (3) of the Regulation, 2016 provides that in case after suspension the Madarsa continuously for a period of three years still does not fulfil the conditions which were found to be lacking then in those circumstances the recognition can be withdrawn. Thus, from a perusal of Clause 13 of the Regulation, 2016 it is apparent that withdrawal of a recognition of a Madarsa shall be preceded by an order of suspension and the withdrawal of the recognition would only follow where for a period of three years continuously the Madarsa fails to rectify the illegality, irregularity or condition which has been pointed out.
14. In the instant case, it is apparent that no order of suspension of recognition was passed of the Madarsa concerned. Despite issue of notice to the Madarsa concerned, in terms of Clause 13 (3) the respondents did not wait for three years continuously for removal of the alleged defects or irregularity that may have led to the suspension of the recognition of the Madarsa rather the respondents have proceeded to withdraw the recognition of the Madarsa concerned straight away by means of the order dated 18.11.2019. Clause 13 of the Regulation, 2016 leave no doubt that withdrawal of the recognition of the Madarsa is to be preceded by suspension of the recognition of the Madarsa. Once there was no suspension of the recognition of the Madarsa consequently there would not be any occasion for withdrawal of recognition. From a perusal of eight member committee report dated 20.09.2018 it comes out that withdrawal of the recognition of the Madarsa was not occasioned on account of FIR that had been lodged against certain persons rather the report has categorically stated that there are no independent witnesses to verify the veracity of the incident which led to the lodging of the FIR. The committee has also indicated that the hostel of the Madarsa is being run without permission. Though, it was notice for this irregularity which was required to be given by the respondents, if at all, prior to suspending the recognition of the petitioners and even if after notice, for three years continuously, the permission for running of the Madarsa was not obtained, only then an order could be passed for withdrawal of recognition of the Madarsa. However, as already indicated above, the respondents have proceeded straight away to withdraw the recognition of the Madarsa by means of the impugned order dated 18.11.2019 which thus runs contrary to the specific provisions of Clause 13 of the Regulation, 2016. Accordingly, all consequential orders would thus be bad on this ground alone.
15. Considering the aforesaid, the writ petition deserves to be allowed and is allowed. A writ of certiorari is issued quashing the resolution dated 16.07.2019, a copy of which is annexure 6 to the writ petition so far as it pertains to the petitioners, the order dated 18.11.2019 passed by the Registrar, a copy of which is annexure 7 to the writ petition and as well as consequential order dated 23.11.2019 passed by the District Minority Welfare Officer, Mau, a copy of which is annexure 12 to the writ petition. Consequences to follow
16. It would be open for the respondents to proceed against the Madarsa/ petitioners in accordance with law after following the process of law as provided under Regulation, 2016 or any other orders issued in this regard.
Order Date :- 25.10.2021 Pachhere/-
(Abdul Moin, J.)