Court No. - 5
Case :- WRIT - A No. - 11844 of 2019 Petitioner :- C/M, Yadgar-E-Hussaini Inter College, Allahabad, And Another Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare (Sr. Advocate),Mahboob Ahmad Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Mahboon Ahmad, learned counsel for the petitioners and learned Standing Counsel for the respondents.
2. The petitioners by means of the present writ petition have assailed the order dated 09.07.2019 passed by the Joint Director of Education, Prayagraj Region, Prayagraj whereby he has refused to accord approval to the appointment made by the petitioners in the college.
3. The petitioners are committee of management of Yadgar-E- Hussaini Inter College, Nakkhas Kona, Allahabad which is a minority institution. The petitioners published an advertisement inviting applications for filling up seven posts of Assistant Teacher and two posts of Class-IV employee. The petitioners after completing the selection process, selected seven candidates on the post of Assistant Teacher and forwarded the selection proceedings before the District Inspector of Schools, Allahabad on 09.09.2016 for according approval to the appointment of the selected candidates.
4. The District Inspector of Schools, Allahabad by order dated 14.09.2016 declined the approval to the selection made by the petitioners.
5. The petitioners feeling aggrieved by the order of District Inspector of Schools dated 14.09.2016, preferred a writ petition bearing Writ-A No.4412 of 2017 before this Court which was dismissed on the ground of alternative remedy, as petitioners have remedy of appeal before the Joint Director (Secondary) Education, Allahabad.
6. Pursuant to the judgement of this Court in Writ-A No.4412 of 2017, petitioners preferred representation/appeal before the Joint Director of Secondary Education, Allahabad, who by order dated 02.07.2018 rejected the representation/appeal of the petitioners.
7. The order of the Joint Director of Education dated 02.07.2018 was assailed by the petitioners in Writ-A No.16378 of 2018, and this Court by judgement and order dated 10.12.2018, allowed the writ petition. Paragraph 7 of the said judgement is being extracted hereinbelow:-
“7. Consequently, writ petition succeeds and is allowed. Orders dated 14.9.2016 and 2.7.2018 stand quashed. The educational authorities would proceed to pass a fresh order upon the claim made for grant of financial approval on 07 posts of Assistant Teacher in L.T. Grade, keeping in view the sanctioned strength of teaching and non-teaching staff determined by the State Government on 12.5.2016. The authorities concerned shall also keep in view the fact that the petitioner is a minority institution and the scope of consideration for the purposes of approval would be with reference to the parameters laid down under Section 16-FF (4) of the U.P. Intermediate Education Act, 1921. The required consideration would be made within a period of three months from the date of presentation of certified copy of this order.”
8. Thereafter, the Joint Director of Education issued a notice dated 07.06.2019 to the petitioners fixing the date of hearing on 15.06.2019, on which date, petitioners have submitted detailed representation. Thereafter, the Joint Director of Education by order dated 09.07.2019 declined to accord approval to the appointment of seven Assistant Teachers, who have been selected by the petitioners.
9. The impugned order dated 09.07.2019 has been challenged by the learned Senior Counsel for the petitioners on the ground that the Joint Director of Education has no power under Section 16-FF (4) of the Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921') to accord approval to the teachers, as the power to accord approval is vested with the District Inspector of Schools, and therefore, the order impugned is illegal and without jurisdiction.
10. He further contends that this Court in Writ-A No.16378 of 2018 while remanding the matter to District Inspector of Schools has mandated to consider the approval of teachers within the parameters laid down under Section 16-FF (4) of the Act, 1921 in considering the approval to the appointment of the teachers. He further submits that the objections taken by the Joint Director of Education in declining the approval are not relevant inasmuch as, powers under Section 16-FF (4) of the Act, 1921 are limited, and authority can deny the approval only if a candidate does not possess requisite qualification or is otherwise eligible. The petitioners in this respect have made necessary averments in paragraphs 34, 35, 37 & 38 of the writ petition.
11. In paragraph 11 of the counter affidavit filed by the respondents- State, which deals with the reply of paragraphs 34, 35, 37 & 38 of the writ petition, does not deny the assertions made in the paragraphs 34 of the writ petition that power to accord approval is vested in the District Inspector of Schools, and such power could not have been exercised by the Joint Director of Education. Further, there is no specific reply to the averments made in paragraph 37 of the writ petition. Paragraph 11 of the counter affidavit is being reproduced hereinbelow:-
“11. That the contends of the paragraph nos.33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 & 47 of the writ petition are completely baseless, vague and misconceived, hence denied, in reply it is respectfully submitted that the selection process of the Assistant Teachers in the minority institutions are made in terms of provisions of Chapter-II Regulation 17 of the Regulations framed under the U.P. Intermediate Education Act clearly mandates that the advertisement clearly disclosed the particular subject which is being advertised. Further, provisions of Regulation 17(E) provides that provisions of Regulation 10 and its subsections (E) and (F) as well as sub-section 11, 12 and 16 will be applicable over the selection made under the said Regulation. Regulation 17 did not mention the basis of preparation of merit, while Rule 10, provides that the merit will be determined after adding the average marks in the merits. It is further submitted that the Manager vide his letter dated 24.06.2019 informed that by means of letter dated 10.06.2019, he had been directed to furnish the original minutes of the meeting of the selection committee but the institution did not furnish the same. Thus, the Joint Director of Education, Prayagraj Region, Prayagraj after adjudicating all the aforementioned aspects, passed a detailed and comprehensive order dated 09.07.2019, which is just and proper.”
12. I have considered rival the submissions of the parties and perused the record.
13. Section 16-FF(4) & (5) of the Act, 1921, relevant for the purposes of present dispute, is being extracted hereinbelow:-
“16-FF Minority savings 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 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 the Head 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). ..
(3). ..
(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 the Head of Institution, and to the Regional Deputy Director of Education in the case of a teacher.”
14. Section 16-FF(4) of the Act, 1921 clearly provides that power to accord approval to teachers in a minority institution is vested with District Inspector of Schools, and Section 14-FF(5) of the Act, 1921 provides that where the Inspector does not accord approval to candidate selected under this section, he may make a representation to Regional Deputy Director of Education in the case of a teacher.
15. Thus, reading of Sections 16-FF(4) and 16-FF(5) of the Act, 1921 clearly shows that the power to accord approval is vested with the District Inspector of Schools and not with the Joint Director of Education, and if approval is refused by the District Inspector of Schools, the Committee of Management has a right to prefer appeal before the Regional Deputy Director of Education.
16. Accordingly, this Court is of the view that the impugned order passed by the Joint Director of Education is illegal and without jurisdiction. Further, this Court finds that this Court while deciding Writ- A No.16378 of 2018 has given specific direction that the scope of consideration for the purposes of approval would be with reference to the parameters laid down under Section 16-FF(4) of the Act, 1921.
17. The impugned order does not reveals that it has given any consideration to the parameters laid down under Section 16-FF(4) of the Act, 1921 while refusing to accord approval to the appointment of teachers.
18. Since, this Court is of the view that the impugned order is without jurisdiction and is not sustainable in law, therefore, the other submissions advanced by the learned counsel for the petitioners are not being dealt with.
19. Thus, for the reasons give above, the writ petition is allowed and impugned order dated 09.07.2019 passed by the Joint Director of Education, Prayagraj Region, Prayagraj is set aside. The respondent no.4- District Inspector of Schools, Allahabad is directed to consider the approval of teachers selected by the petitioners as per the direction given by this Court in Writ-A No.16378 of 2018 strictly, within the parameters of Section 16-FF(4) of the Act, 1921 expeditiously, preferably within a period of three months from the date of production of copy of this order downloaded from the official website of High Court, Allahabad duly certified by the learned counsel for the petitioners.
Order Date :- 30.7.2021 Sattyarth