Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 112 of 2018 Appellant :- Kasheem Alias Mohammad Qasim Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Prashant Kumar Lal Counsel for Respondent :- C.S.C.,Satya Prakash Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Order on Delay Condonation Application.
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the appellant was prevented by sufficient cause from preferring the Special Appeal within the period of Limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 23.2.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 112 of 2018 Appellant :- Kasheem Alias Mohammad Qasim Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Prashant Kumar Lal Counsel for Respondent :- C.S.C.,Satya Prakash Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble Jayant Banerji, J) By means of this Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, the appellant-respondent no.3 seeks to challenge the judgment and order dated 15 December 2017, passed in Writ-A No.71380 of 2011, whereby the writ petition has been allowed.
Heard learned counsel for the appellant-respondent no.3, learned Standing Counsel, appearing for respondent nos. 1 and 2 and Sri Satya Prakash Singh, learned counsel appearing for respondent no.3-Committee of Management.
From the record of the writ petition, it transpires that the Committee of Management A.S.K Raifah-e-Am Intermediate College, Khurja, District Bulandshahar runs an Intermediate College by the name of A.S.K. Rifah-E-Am Intermediate College which is a minority institution duly recognized under the provisions of the U.P. Intermediate Education Act, 1921. The appellant-respondent no. 3 namely, Kasheem Khan was appointed an Assistant Clerk in the Institution on 6 July 2005 on compassionate ground. It is alleged that in view of carelessness, misconduct, insubordination and dereliction in duties, it was decided to initiate disciplinary proceedings against the appellant-respondent no.3 and an Enquiry Officer was appointed and a charge sheet was served on 26 December 2009 upon him. It is stated that the appellant-respondent no.3 was suspended by the Committee of Management and thereafter a detailed enquiry was held in accordance with the procedure prescribed under Regulations 2 of Chapter 3 framed under the Intermediate Education Act, 1921. A show cause notice was issued to the appellant-respondent no. 3, to which he submitted a reply by letter dated 12 December 2010. The Committee of Management after considering the enquiry report decided to remove the appellant-respondent no.3 from service. The decision of the Committee of Management was communicated to the District Inspector of Schools through letter dated 14 December 2010. However, the District Inspector of Schools constituted a three member committee for submitting an enquiry report. The said Enqiry Committee by means of its report dated 10 October 2011 found the removal of appellant-respondent no.3 to be in violation of the Government Order dated 8 July 1996 and found that the enquiry conducted by the Committee of Management to be contrary to the rules and the report to be baseless and false. Accordingly, the District Inspector of Schools by means of his order dated 2 November 2011 disapproved the removal of the appellant-
respondent no.3.
It has been contended by the learned counsel for the appellant- respondent no.3 that the District Inspector of Schools had ample power to supervise the functioning of the minority institution in order to promote fairness and transparency and to save the employees therein from victimization. With regard to regulating the facets of administration like control over educational agencies and interference with the right of administration of educational institution of minorities, the Constitution Bench of the Supreme Court in T.M.A. Pai Foundation and others Vs. State of Karnataka and others1 answered the question No. 5(c) as follows:
"Q. 5(c). Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/ withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the 1 2002(8) SCC 481.
overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee."
In the case of C/M St. John Inter College Vs. Girdhari Singh and others2, the Court has observed as under:
"8................. There cannot be any rationale for conferring the power of approval or disapproval of an order of termination of an employee of a minority institution with the Inspector/Inspectress and with all other institutions with the Service Selection Board. Having conferred the power of approval/disapproval with the Selection Board under U.P. Act 5/82, the Legislature made it crystal clear by inserting Section 30 therein which states:"Nothing in this Act shall apply to an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India.The legislative intent is thus apparent that the Legislature never intended to subject the order of termination of an employee of a minority institution to the approval/disapproval of the Selection Board. In this view of the matter, it is difficult for us to hold that an order of termination of an employee of a minority institution cannot be given effect to, unless approved by either the Inspector/Inspectress, as provided in Section 16G(3) (a) or by Selection Board, as provided under U.P. Act 5/82. Under the provisions, as it stands, the conclusion is irresistible that question of prior approval of the competent authority in case of an order of termination of an employee of a minority institution does not arise."
This Court in Kumari Udyan Balika Inter College, Kanpur and others Vs. District Inspector of Schools, Kanpur Nagar and others3 following the aforesaid two decisions of the Supreme Court has observed that the remedy of the person who is dismissed from 2 2001 (2)AWC 1424 (SC) 3 2013 (4) ADJ 220 service from the minority institution lies before the Civil court and the District Inspector of Schools had no jurisdiction to revoke the order of dismissal.
In view of the facts and circumstances of the case and particularly in view of the admitted facts that the institution from which the appellant-respondent no.3 was dismissed from service is a minority institution, there can be no cause for interference in the judgment of the learned Judge.
This Special Appeal is, accordingly, dismissed.
Order Date :- 23.2.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)