Court No. - 58
Case :- WRIT - A No. - 25087 of 2018 Petitioner :- Manisha Jain Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Krishna Mohan Asthana Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Jain Inter College, Chaurasi Mathura is a recognized minority institution situated at Mathura. Provisions of Payment of Salaries Act, 1971 are also applicable upon the institution. It appears that a post of Assistant Teacher in L.T. Grade had fallen vacant in the institution concerned, upon which the committee of management proceeded to appoint the petitioner and papers were transmitted to the District Inspector of Schools for according approval to it. The District Inspector of Schools vide its order dated 3.5.2017 has rejected the proposal on the ground that the post itself had lapsed by virtue of Regulation -20 of Chapter-II, framed under the U.P. Intermediate Education Act, 1921. The order records that since the post itself was not available and the revival of post has been allowed granted by the authorities after making of the appointment itself, the Committee of Management would have to initiate fresh process for appointment in the institution concerned.
Learned counsel for the submits that the limited scope of scrutiny available with the Inspector in a minority institution would be as per Section 16-FF of the Act of 1921. Submission is that the petitioner has been duly appointed and he possess the requisite qualification and, therefore, the direction of the concerned authority for recruitment to be undertaken afresh would result in an exercise which would serve no purpose. It is also stated that a Division Bench of this Court in Tariq Maqbool and others Vs. State of U.P. and others, reported in 2015(1) ADJ, 650 had taken a view that even in a minority institution the institution would not be competent to make an appointment once the post itself stood lapsed by virtue of Regulation-20. This judgment was assailed before the Hon'ble Supreme Court in Special Leave to Appeal No. 5871-5872 of 2015 in which the Special Leave to Appeal has been disposed of vide following orders:-
"After haring the matter at length, learned counsel appearing for the parties agree that the matter may be resolved in the following way;
The common respondent no. 5-College shall, in pursuance of the directions given by the High Court vide the impugned order dated11.12.2014 in Special Appeal Nos. 1359 of 2013, make an application to the competent maturity for fresh sanction of posts and to retify the posts according to the selection of the petitioners already made. The competent authority shall consider granting sanction for the vacant posts either retrospectively or with effect from the date the application is made. We find there is dispute that the petitioners are either unqualified or otherwise not suitable.
We Ravindra Shrivastava, learned Senior Counsel appearing for the petitioenrs, sttes that the petitioenrs would not claim any arrears of their salaries even if their appointment is ratifiedfrom the retrospective date.
We order accordingly.
The instant special leave petitions stand disposed of in the above terms.
As a sequel to the above, pending interlocutory applications, if any, stand disposed of."
Learned counsel for the petitioner submits that the petitioner, herein, also undertakes to give up her claim for salary from the retrospective date and that the authority be directed to consider the petitioner's for appointment in accordance with law.
Learned Addl. Chief Standing Counsel for the respondents, although disputes the submission, but does not dispute that the post has already been revived in the institution concerned and that the limited scope for examination to the Inspector would be confined to the parameters laid down in Section 16-FF of the Act of 1921.
Considering the facts and circumstances, noticed above, it would be appropriate to direct the District Inspector of Schools, Mathura to accord consideration to petitioner's claim in light of the orders passed by Hon'ble Supreme Court, extracted above, within a period of three months from the date of presentation of certified copy of this order, after affording an opportunity of hearing to respondent no. 5.The Inspector shall be at liberty to examine the qualification of petitioner and his scope of inquiry would be confined to Section 16-FF of the Act of 1921. No useful purpose would be served in directing a fresh exercise to be undertaken inasmuch as the scope of inquiry by the Inspector, otherwise, would be restricted to Section 16-FF of the Act of 1921.
The order impugned dated 3.5.2017 and 19.4.2017 shall remain subject to the fresh orders to be passed by the Inspector, as intimated above.
Order Date :- 28.11.2018 n.u.