Hon'ble Ashok Pal Singh,J.
( By Hon. Rakesh Tiwari, J.) Heard learned counsel for the parties and perused the record.
This intra court appeal has been preferred by the appellant challenging the validity and correctness of the judgment and order dated 13.10.2009 passed by the Writ Court in Civil Misc. Writ Petition No. 42612 of 2009, Dhirendra Nath Dubey versus State of Uttar Pradesh & others, whereby the aforesaid writ petition had been dismissed.
Brief facts giving rise to the instant appeal are that Abdul Hakeem Agriculture Intermediate College, Ujiyar, Dudhara, Sant Kabir Nagar is a recognized minority institution and an aided intermediate college. Provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921') and Regulations framed thereunder, as also those of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971) (hereinafter referred to as the 'Act, 1971') are fully applicable to the teachers and staffs of the institution.
It appears that an advertisement was published by the institution inviting applications for appointment as L.T. Grade teachers in the subject of Hindi and Sanskrit on 8th July, 1994. Appellant- petitioner applied in pursuance thereof. He was selected and is stated to have been issued an appointment letter by the Committee of Management dated 24th August, 1994. Petitioner joined on 1st September, 1994 on a meagre salary of a sum of Rs. 750/- per month. He was however, restrained from discharging his duties w.e.f. 3rd July, 2001 by the Management of the institution, which compelled him to file writ petition no. 42057 of 2001, wherein an interim mandamus was issued on 4th December, 2001 directing the respondents to allow the petitioner to function and to pay him salary regularly or to show cause by filing counter affidavit. It appears that cause was shown and after exchange of affidavits the writ petition was decided vide order dated 28th May, 2008 directing the petitioner to move a representation before the Regional Joint Director of Education, Basti Region, Basti, who in turn was required to decide the same within the period specified.
Appellant- petitioner accordingly made his representations dated 16/26th August, 2008 and dated 26th June, 2009. The Regional Joint Director of Education vide his order dated 14th July, 2009 rejected the representation made to him. The Committee of Management thereafter advertised the vacancies of L.T. Grade teachers again on 1st October, 1997 and lastly on 20th July, 2009. The petitioner claims that he has also approached the Secretary, Secondary Education, U.P. Lucknow against the order of the Regional Joint Director of Education.
The order passed by the Regional Joint Director of Education dated 14th July, 2009 is being challenged on the ground that it is in violation of principles of natural justice, in as much as no opportunity of personal hearing was afforded and that case set up by the Management was considered behind the back of the petitioner.
Aggrieved by the aforesaid order dated 14.7.2009, the appellant-petitioner then preferred aforesaid Civil Misc. Writ Petition No. 42612 of 2009, Dhirendra Nath Dubey versus State of U.P. and others, which was dismissed vide judgment and order dated 13.10.2009 which is impugned in the present appeal.
The undisputed facts are that the Institution in question was granted recognition initially as a High School under Section 7A of Act, 1921 and also declared as minority institution on 13th March, 1995 with reference to the provisions of Act of 1921. Hence Section 16FF of Act, 1921 applies to it from the said date. The petitioner had been offered appointment under letter dated 24th August, 1994 issued by the Management of the institution. Pursuant thereof, the petitioner had joined the institution in question on 1st September, 1994 as Assistant Teacher in Hindi subject. The Regional Joint Director of Education in his order dated 14th July, 2009 recorded a categorical finding that there was no vacancy for L.T. Grade teacher in Hindi subject as on 1st September, 1994. After being declared as minority institution the provisions of Act 1982 seized to have effect and even otherwise in the case of having been declared as minority institution the appointment on the post of Assistant Teacher could be made only on the recommendation of Selection Committee as provided under Section 16 FF of Act, 1921.
The Writ Court in the impugned judgment dated 13.10.2009 has considered the five points raised by the learned counsel for the petitioner which are as follows:
"(a) provisions of Section 16FF of Act, 1921 are not applicable qua appointment of teaches in recognised and aided minority intermediate colleges in view of the enforcement of U.P. Act No. 5 of 1982,
(b) the procedure infact applicable under Section 16FF had been followed and therefore, the order which records otherwise is factually incorrect,
(c) full and fair opportunity of hearing to controvert the allegations made by the Management had not been afforded to the petitioner and therefore, the order is in violation of principles of natural justice,
(d) If Section 16FF of Act, 1921 is taken to be applicable qua appointment of L.T. Grade teachers, the appointment of other teachers is also liable to be struck down on the same ground.
(e) factual findings recorded by the Regional Joint Director of Education qua working of the petitioner are perverse."
During the arguments on the aforesaid points the Writ Court found the following undisputed facts in the order dated 14th July, 2009 passed the Regional Director of Education impugned in the writ petition which are thus:-
"lquokbZ ds le; izkIr fyf[[email protected][kd vfHkdFkuksa ,oa miyC/k djokgh dh xbZ vk[;[email protected]/kd dh vk[;k ds vuqlkj fuEuor~ fLFkfr Li"V dh xbZ gSA 1& fn0 01-09-94 ls :i;s [email protected]& ds ekfld ekuns; ij fu;qfDr gsrq ;kph /khjsUnz ukFk nqcs n~okjk ;kfpdk nk;j djrs le; tks izek.k&i= yxk;k x;k gS og iw.kZr;k QthZ ,oa vlR; gSa iwoZ izca/kd egksn; n~okjk ,slk dksbZ izek.k&i= Jh nqcs dks ugh fn;k x;k FkkA 2& fon~;ky; ds lsok fuo`Rr iz/kkukpk;Z ls ;kph Jh /khjsUnz ukFk nqcs izk;% feyrs&tqyrs FksA ;kph us fuo`Rr iz/kkukpk;Z ls dgk fd eS ,e0,0 fgUnh fo"k; ls gS] dkQh vk; gks xbZ gS ?kj ij cSBk jgrk gS ;fn vki dgsa rks vkids fon~;ky; esa vius KkuktZu gsrq f'k{k.k dk;Z nsus vkÅA blls esjk vuqHko c 3& ;kph ds nk;j ;kfpdk ds ek/;e ls ;g lkfcr djus dk Hkjiwj iz;kl fd;k x;k gS fd bl fon~;ky; esa lgk;d v/;kid ds in ij dk;Zjr gS] ;g dFku iwjh rkSj ij vlR; ,oa fujk/kkj gSA 4& ;kph Jh /khjsUnz ukFk nqcs fon~;ky; esa f'k{kk&l= 2000&01 esa dHkh dHkh vkrs FksA blh chp vodk'k vof/k esa fon~;ky; ds iz/kkukpk;Z d{k ls iz/kkukpk;Z dh uksfVl cqd] le; lkfj.kh mBk ys x;sA iz/kkukpk;Z n~okjk dkQh ryk'k dh xbZ] ijUrq uksfVl cqd] le; lkfj.kh ugh feyhA iz/kkukpk;Z ;g le> jgs Fks fd dgh j[k fn;k x;k gksxk /;ku vkus ij fey tk;sxk vrr% uksfVl cqd] le; lkfj.kh ugh feykA 5- uksfVl cqd] le; lkfj.kh dSls xk;c gqbZ dkSu ys x;k] bldh tkudkjh ekuuh; gkbZdksVZ ls Jh /khjsUnz ukFk nqcs n~okjk nk;j ;kfpdk dh izfr izkIr gksus ij gqbZA fjV esa bu nksuksa dh Nk;k izfr yxkbZ xbZ FkhA pawfd izdj.k ekuuh; gkbZdksVZ ds laKku esa vk x;k Fkk] blfy, ,Q0vkbZ0vkj0 ntZ djkuk lEHko ugh FkkA 6& ;kph Jh /khjsUnz ukFk nqcs us vHkh rd fon~;ky; dks ewy uksfVl cqd] le;&lkfj.kh okil ugh fd;k gSA 7& Jh nqcs us iwoZ izca/kd ds ikl vius vuqeksnu ds laca/k esa dksbZ Hkh i= ugh fn;k FkkA tc ;kph dh fu;qfDr bl fon~;ky; esa lgk;d v/;kid ds in ij dHkh Hkh ugh gqbZ Fkh rks vuqeksnu ds laca/k esa ckj&ckj i= nsus dk vkjksi QthZ ,oa fujk/kkj gSa ;g vYila[;d laLFkk ds izca/k&ra= ij ncko cukus dk ,d lkft'k gSA 8& ;kph Jh /khjsUnz ukFk nqcs us vius izkFkZuk&i= esa ;g fn[kk;k Fkk fd eq>ls nks tfu;j ¼dfu"B½ v/;kidksa dh fon~;ky; esa fu;qfDr djds vuqeksnu fy;k x;k gS] Jh nqcs dk ;g dFku vlR; gSA Jh nqcs bl fon~;ky; esa dHkh Hkh fdlh :i esa lgk;d v/;kid ds in ij dk;Zjr ugh Fks] blfy, twfu;j&lhfu;j dk iz'u gh ugh gS] ftu nks v/;kidksa dk fu;qfDr fon~;ky; esa dh xbZ Fkh] mu nksuksa inksa ds foKkiu fudkyus dh vuqefr rRdkyhu ftyk fon~;ky; fujh{kd cLrh n~okjk foKku] xf.kr vaxszth ,oa Hkwxksy fo"k; gsrq iznku dh xbZ FkhA nksuksa in ,y0Vh0 xzsM ds FksA p;u izfdz;k ds ckn fu;ekuqlkj ftyk fon~;ky; fujh{kd] cLrh n~okjk vuqeksnu iznku fd;k x;k FkkA 9& ;g fon~;ky; 'kklukns'k fn0 13-03-95 n~okjk ?kksf"kr vYila[;d laLFkk gSA 10& ;kph n~okjk vius dks d{kk 12 d{kk/;kid cukuk iw.kZ :i ls xyr gS rFkk QthZ gSA 11& Jh nqcs ds fy;s vyx ls dksbZ mifLFkfr iaftdk ugh cukbZ xbZ FkhA 12& Jh nqcs ftl vof/k esa ;kfpdk nk;j dj rjg&rjg ds vkjksi yxk;sa gS] ml vof/k esa fon~;ky; esa ,y0Vh0 xzsM esa dksbZ in fjDr ugh FkkA fon~;ky; esa dqy 12 in v/;kidksa ds l`ftr gS vkSj ml vof/k esa lHkh dk;Zjr FksA orZeku le; esa dk;Zokgd iz/kkukpk;Z dks ysdj dqy 10 v/;kid dk;Zjr gSA fjDr inksa esa ,d in fgUnh fo"k; ls lacaf/kr gS] D;ksafd fn0 20-01-03 dks fgUnh fo"k; ds v/;kid Jh vCnqy jÅQ] iz/kkukpk;Z ds in ij fu;fer :i ls vklku gks x;s Fks rHkh ls mudk in fjDr pyk vk jgk gSA nljk in Jh cks/kbZjke lgk;d v/;kid ds fn0 30-06-08 dks lsokfuo`Rr gksus ls lkekU; fo"k; ls lacaf/kr gSA 13& ;kph Jh nqcs ds fo"k; ls lacaf/kr in dk foKkiu vc rd dHkh Hkh ugh fudkyk x;k gSA ;fn fudkyk x;k gksrk] rks fu;ekuqlkj foHkkx ls vuqefr fy;k x;k gksrkA rnksijkar fu;qfDr dh dk;Zokgh izkjEHk gksrh gSA 14& fon~;ky; ds vYila[;d laLFkk gksrs gq;s Hkh lHkh oxZ ds f'k{[email protected] fon~;ky; esa dk;Zjr gSA fdlh ds lkFk tkfrokn] vU;k;] 'kks"k.k dk HksnHkko ugh gSA 15& o"kZ 1994 ls lgk;d v/;kid ds in ij dk;Zjr jgus fo"k;d Jh nqcs dk dFku iw.kZ:i ls vlR; gSA izca/k&lfefr us ;kph dh u rks dHkh fu;qfDr dk u rks fon~;ky; esa j[ks x;s] ;g iwjs rkSj ls izdj.k dks QthZ cukdj lkft'ku bl izdkj dk dk;Zokgh dj jgs gSA"
On basis of the above uncontroverted facts, the Regional Director of Education concluded :-
"ftyk fon~;ky; fujh{kd] lardchjuxj us Hkh viuh vk[;k fn0 25-06-09 izca/kd ds vfHkdFku dh iquo`fRr dh gS vkSj voxr djk;k gS fd Jh vCnqy jÅQ iz/kkukpk;Z ds in ij dk;Zjr jgrs gq;s fgUnh fo"k; c<+krs FksA mudk nsgkUr fn0 12-04-06 dks gks x;k gSA fon~;ky; esa fgUnh fo"k; ds v/;kid dk in fjDr pyk vk jgk gS] ftlls fgUnh fo"k; dk f'k{k.k dk;Z ckf/kr gSA ;|fi dh ;kfpdk esa yxk;s x;s layXudksa ds vk/kkj ij ftyk fon~;ky; fujh{kd] lardchjuxj us mudks ¼;kph dks½ l0v0 ds in ij f'k{k.k dk;Z fd;k tk jgk Fkk] crk;k x;k gS vkSj ;g Hkh lwfpr fd;k x;k gS fd Jh /khjsUnz ukFk nqcs ls lacaf/kr ¼fu;qfDr&i=koyh½ dk;kZy; esa miyC/k ugh gSA ftyk fon~;ky; fujh{kd dh mijksDr vk[;k vfHkys[kksa ij vk/kkfjr ugh gS] tcfd rRdkyhu ftyk fon~;ky; fujh{kd] cLrh vc lardchjuxj ls fjV ;kfpdk la[;k [email protected] esa fn0 21 vxLr] 2002 dks izfr'kiFk&i= izLrqr djrs gq;s ;kfpdk dk iw.kZ :i fojks/k fd;k gSA fon~;ky; izca/k&ra= dh vksj ls Hkh fn0 15-02-2002 dks izfr'kiFk&i= izLrqr djrs gq;s mDr ;kfpdk ,oa ;kfpdk esa O;Dr fd;s x;s dFku dks iw.kZ :is.k vLohdkj fd;k x;k gSA fon~;ky; esa 01-09-94 dks l0v0 ¼fgUnh½ dk dksbZ in Hkh fjDr ugh gSA 14 tqykbZ] 1992 ls la'kksf/kr m0iz0 ek/;fed f'k{kk lsok vk;ksx vc p;u cksMZ vf/kfu;e] 1982 ds izko/kkukuqlkj lkekU; lgk;rk izkIr ek/;fed fon~;ky;ksa esa f'k{kdksa ds fjDr inksa ij ftyk fon~;ky; fujh{kd dh v/;{krk esa xfBr ftyk Lrjh; p;u lfefr n~okjk rnksijkUr o"kZ&1994 esa fd;s x;s la'kks/ku ds vuqlkj e.Myh; mif'k{kk funs'[email protected]; la;qDr f'k{kk funs'kd dh v/;{kk esa xfBr e.My Lrjh; lfefr ds ek/;e ls p;u dk;Zokgh ls v/;kidksa dh fu;qfDr;kW gksrh FkhA blh izdkj jktkKk fn0 13-03-1995 n~okjk izlaxk/kku fon~;ky; dks vYila[;d fon~;ky; ?kksf"kr dj fn;s tkus ij ek/;fed f'k{kk vf/kfu;e] 1921dh /kkjk 16pp] v/;k;&nks ds v/khu cu fu;[email protected];eksa ds vuqlkj f'k{kd ds fjDr inksa ij foHkkx ds l{ke vf/kdkjh dh fu;qfDr ,oa foHkkx n~okjk ukfer p;u lfefr ds fo'ks"kK dk mifLFkfr esa p;u vkfn dk dk;Zokgh lEikfnr gksrh gSA izLrqr izdj.k esa rRle; u rks fon~;ky; esa f'k{kd dk dksbZ in fjDr Fkk vkSj u gh p;u cksM vf/kfu;e] [email protected]/;fed f'k{kk vf/kfu;e 1921 dh /kkjk 16pp ds izko/kkuksa] mlds v/khu v/;k;&nks ds fu;eksa&fofu;eksa ds vUrxZr dksbZ p;u dh dk;Zokgh ugh gqbZ] vLrq Jh /khjsUnz ukFk nqcs ¼;kph½ ds izR;kosnu fn0 16-08-2008 ,oa 26 rFkk 27-08-08 esa yxk;s x;s vk/kkj ,oa yxk;s x;s lk{; fu;eksa] fofu;eksa ds varxZr u gksus ds dkj.k izR;kosnu cyghu gS] vLrq vLohdkj fd;k tkrk gS rFkk ,rn~n~okjk fjV ;kfpdk la[;k [email protected] esa ikfjr ekuuh; mPp U;k;ky; ds vkns'k fn0 28-05-09 dk vuqikyu fd;k tkrk gSA g0 viBuh;
¼vjfoUn dqekj ik.Ms;½ la;qDr f'k{kk funs'kd] cLrh e.My] cLrhA fnukad 14-07-2009"
In the light of the aforesaid order impugned in the writ petition, the Writ Court arrived to a conclusion that 1st September, 1994 as the date of petitioner's selection/appointment in the Institution in question was not disputed; that the Committee of Management of the Institution had no power to make any ad hoc appointment against a substantive vacancy existing in the institution which power in fact vested in the Committee presided over by the District Inspect of Schools. The Writ Court also noted that Section 9A was added in the U.P. Secondary Education Services Commission Rules, 1983 vide notification dated 16th July, 1992 (published in official gazette of the State of Uttar Pradesh dated 4th September, 1993). This section laid down a detail procedure for appointment on ad hoc basis by direct recruitment on the post of L.T. Grade teachers in a recognized Intermediate College. It is also an admitted fact that in the present case statutory procedure applicable on the date of her appointment was not followed.
The Writ Court after noticing the full Bench decision in the case of Smt. J.K. Kalra vs. Regional Inspectress of Girls Schools, Meerut & Ors. reported in AIR 1997 Alld. 44, found that it had been overruled by the Apex Court in the case of Committee of Management, St. John Inter College vs. Girdhari Singh & Ors. reported in (2001) 4 SCC 296.
The Writ Court after considering the case of Committee of Management St. John Inter College (supra) opined:-
" The contention raised on behalf of the petitioner is totally misconceived. The Hon'ble Supreme Court of India in the case of Committee of Management, St. John Inter College (Supra) was considering the matter with regard to grant of prior approval to the punishment proposed to be inflicted by a minority institution on its employee. Such provisions of seeking prior approval was held to be hit by Article 30 of the Constitution of India and it is in that background only that the Court held that once legislature declared that the provisions of Act No. 5 of 1982 will not apply to a minority institution, falling back upon the provisions of Act, 1921, i.e. Section 16-G(3)(a) for the same purpose was not called for.
The facts before this Court are clearly distinguishable. The issue up for consideration is as to what procedure is to be applied qua appointment of teachers in minority intermediate college. In view of Section 30 of Act, 1982, the provisions of Commission/Board Act will not apply qua appointment of teachers in minority high school/ intermediate college. No change has been made vis-a-vis the provisions which were applicable under Act, 1921 prior to the enforcement of U.P. Act No. 5 of 1982 qua the minority institutions. The procedure for appointment of teachers in minority intermediate college continues to be regulated by Section 16E read with Section 16FF of Act, 1921. Such provisions and procedures prescribed thereunder have continued in operation for decades together and at no point of time such provisions which regulates the mode and manner of selection and appointment of teachers in a minority institution have been found to be hit by Article 30 of the Constitution of India.
I am of the considered opinion that procedures prescribed under Section 16E read with Section 16FF of Act, 1921 have the effect of laying down a fair and reasonable method of selection which leads to good administration of intermediate college and has the effect of avoiding mal- administration because of wrongful selection of undeserving candidates as teachers. Therefore, such procedure cannot be said to be hit by Article 30 of the Constitution of India. The Hon'ble Supreme Court of India in the case of T.M.A. Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481I as well as in the case of Islamic Academic of Education & Anr. vs. State of Karnatka & Ors. reported in (2003) 6 SCC 697 has repeatedly held that any provision, which helps in better administration of minority institution and has the effect of avoiding mall administration will not be violative of Article 30 of the Constitution of India.
In the opinion of the Court, if the contention raised on behalf of the petitioner is accepted, i.e. because of Section 30 of the U.P. Act No. 5 of 1982, none of the provisions of the Act, U.P. Intermediate Education Act, 1921, qua their appointment as assistant teachers in minority institution will apply, it will lead to serious consequences. The essential minimum qualification prescribed for appointment of assistant teachers. In intermediate colleges, under Appendix-A of Chapter-II of the Regulations framed under Act, 1921 would also cease to be applicable for the same reason and therefore, anybody can be appointed in minority institution, irrespective of the qualification being possessed by him. The contention raised on behalf of the petitioner is too broadly stated to be accepted by any Court of law. It is held that provisions of Section 16E read with Section 16FF, which lays down the procedure for appointment of assistant teachers in a minority institution hold good and apply with full force qua appointment of assistant teachers in a minority institution irrespective of the enforcement of U.P. Act No. 5 of 1982.............................................
Having arrived at aforesaid conclusion, this Court may record that under Section 16E for making appointment on the post of teachers, which applies to minority institution also, vacancy is required to be published in at least two newspapers, having adequate circulation in the State. In the facts of the present case, advertisement was admittedly published in only one newspaper, and therefore, there has been violation of Section 16 E (2) of Act, 1921."
Thereafter the Court on considering the pleas raised by the petitioner answered the same saying :-
"So far as the plea of the petitioner qua the impugned order being in violation of principles of natural justice, is concerned, this Court is of the considered opinion that for the facts and reasons recorded and for the legal principles as noticed herein above, only one view is possible in the facts of the present case. The factual issue raised by the Committee of Management need not be gone into any further. This Court is of the considered opinion that the plea of violation of principles justice as raised by the learned counsel for the petitioner is futile, inasmuch as non-compliance of the statutory provisions qua appointment claimed are admitted on records.
So far as the last but one plea raised by the learned counsel for the petitioner, is concerned, this Court may only provide that if any other appointment has been made contrary to the statutory provisions applicable, it is left open for the petitioner to make a representation, ventilating all his grievances, supported by such documents, as he may be advised before the Director, Secondary Education, U.P. Lucknow qua such appointees along with a certified copy this judgment. On such representation being made the Director shall call for the records and after affording opportunity of hearing to the parties concerned, shall pass a reasoned speaking order, within 8 weeks thereafter.
It is needless to emphasize that petitioner cannot claim any negative equality, inasmuch as if appointment as alleged by the petitioner qua other teachers are illegal, he cannot be permitted to obtain an order from this Court that the same illegality be perpetuated by granting relief prayed for by the petitioner.
So far as the last point issue on behalf of the petitioner is concerned, this Court feels that the issue has become more or less infructuous, in view of the conclusions arrived at on admitted facts on issues nos. a to c.
The present writ petition is therefore, dismissed. No orders as to costs."
The aforesaid findings of the Writ Court are assailed in this appeal on the ground that it has committed an error apparent on face of record while passing the judgment in treating the advertisement in two newspaper as mandatory; that the institution in question being a minority institution and the provision of Section 16 E of U.P. Intermediate Education Act, 1921 being inapplicable to the minority institution, the Writ Court has wrongly held that the provisions of Section 16-E 10 of Act, 1921 have not been followed in case of appointment of the petitioner.
Learned counsel for the appellant submits that the Writ Court has wrongly held that the institution in question was not a minority institution before 13.3.1995 while it was disputed before the Writ Court that the institution in question was a minority institution prior to 13.3.1995 and also the provisions of Act no. 5 of 1982 were not applicable to it.
Learned Standing counsel has supported the finding recorded by the Writ Court in the impugned judgment and submits that there is no illegality or infirmity in it, hence no interference is required by this Court.
After hearing learned counsel for the parties and on perusal of the record it appears that under Section 16 E of U.P. Intermediate Education Act, 1921 for making appointment on the post of teachers applies to minority institution also, vacancy is required to be published in at least two newspaper having wide circulation in the State but in the instant case, advertisement was admittedly published in only one newspaper i.e. 'Dainik Gramdoot' and, therefore, there has been violation of Section 16 E (2) of Act, 1921.
We therefore, fully concur with the aforesaid finding and do not find any illegality or infirmity in the impugned judgment of the Writ Court, hence no interference is required by this Court.
For the reasons stated above, the appeal is dismissed. No order as to costs.
Dated: 4.9.2014 CPP/-