Court No. - 30
Case :- WRIT - A No. - 8564 of 2018 Petitioner :- Fayyaj Ahmad Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Ashok Kumar Pandey,Ramesh Chandra Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri R.C. Dwivedi, learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record.
At the very outset, learned counsel for the petitioner and the learned Standing Counsel agree that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 22.3.2018 passed in Writ-A No. 8482 of 2018 ( Akhlak Ahamd vs. State of uP and 4 others).
The said judgement dated 22.3.2018 is quoted hereinunder:-
"Heard Shri R. C. Dwivedi, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.
The petitioner is assailing the order impugned bearing letter No. 1236 dated 14.3.2018 passed by the District Minority Welfare Officer, Sant Kabir Nagar and the impugned letter bearing letter No. 1238 dated 14.3.2018 passed by the District Minority Welfare Officer, Sant Kabir Nagar and has further prayed for commanding the respondents to pay the arrears of salary and future salary of the petitioner.
Record in question reflects that one Mustkim had filed the writ petition No. 57814 of 2017 being a member of the Committee of Management of the aforesaid Committee i.e. Madarsa Darool Uloom Ahle Sunnat Anwarul Uloom, Village Mehdewa Naankaar, Post Baurvyas, Police Station Dharam Singhwa, Teshil Mehdawal, District Sant Kabir Nagar (hereinafter referred to as the 'Institution') on the ground that the Committee of Management, in arbitrary manner, has proceeded to appoint Akhlak Ahmad (petitioner) and Faiyyaz Ahmad. The aforesaid writ petition was disposed of vide order dated 11.12.2017 asking the District Minority Welfare Officer, District Sant Kabir Nagar, to consider and redress the grievance of the petitioner and pass an appropriate order after according opportunity to the incumbent against whom the allegations were levelled.
The aforesaid order was also assailed by the Committee of Management by preferring an Special Appeal No. 25 of 2018 (C/M Darool Uloom Ahle Sunnat Anwarool Uloom & another versus State of U.P. and 4 others). The aforesaid Special Appeal was disposed of vide order dated 16.1.2018 with the following observations:
"Having heard the learned counsel for the appellant, who claims to be the Committee of Management, we dispose of the appeal permitting the appellant to file a recall application before the learned Single Judge along with an impleadment application. If such an application is filed, the learned Single Judge will consider and pass appropriate orders expeditiously."
In response to the direction issued in the aforesaid Special Appeal, the order impugned has been passed.
Shri R. C. Dwivedi, learned counsel for the petitioner precisely submits that the order impugned has been passed in violation of the provisions contained under the Uttar Pradesh Ashaskiya Arbi Aur Farsi Madarsa Manyata Prashashan Niyamawali, 2016 (hereinafter referred to as 'Niyamawali, 2016'). He further submits that the appointment of the petitioner was made after according due permission/financial approval by the Registrar/Nirikshak, U.P. Madarsa Shiksha Parishad, Jawahar Bhawan, Lucknow, vide order dated 18.7.2014, which is appended as Annexure-4 to the writ petition.
He further submits that on the complaint which was made earlier by Mustikim, the cognizance has already been taken by the Registrar, U.P. Madarsha Shiksha Parishad and the proceeding were dropped. Even on the said proceeding, the District Minority Welfare Officer vide an order dated 14.12.2017 has informed the Manager of the Institution to appear before the Registrar on the date fixed and as such, it is contended that once the matter was already sub-judice /pending consideration before the Registrar then in such situation there was no reason or occasion to pass the order impugned and the same is also contrary to the aforesaid Niyamawali, 2016 and as such, the order impugned is unsustainable and is liable to be set aside.
At the same time he very fairly submits that once the direction has already been issued in the aforesaid writ petition and in case there is any grievance to Shri Mustkim, the same has to be adjusted by the competent authority/Registrar. He further submits that the proceeding is also pending consideration before the second respondent and till the proceeding is not finalized by the second respondent, the petitioner would also make every endeavour to cooperate in the on going proceeding.
He further submits that since the petitioner's appointment has been approved by the competent authority way back in the year 2014 and since then the petitioner is continuously working in the institution in question then by no stretch of imagination the authority can restrain the salary of the petitioner.
In the aforesaid facts and circumstances, with the consent of learned counsel for both the parties, the writ petition stands disposed of asking the second respondent i.e. Registrar/Nirikshak, U.P. Madarsa Shiksha Parishad, Jawahar Bhawan, Lucknow, to decide the proceedings pending before him in accordance with law, expeditiously and preferably within three months' from the date of production of a certified copy of this order certainly after according ample opportunity to all the stake holders .
The second respondent would also be at liberty to pass an appropriate order, in accordance with law regarding payment of salary in question to the petitioner. Meanwhile, the petitioner is also at remedy to move an appropriate application before the second respondent, within a weeks' time and the appropriate order would be passed on the said application at the earliest."
Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 22.3.2018 passed in Writ-A No. 8482 of 2018 ( Akhlak Ahamd vs. State of uP and 4 others) as quoted above.
Order Date :- 30.3.2018 Abhishek