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Allahabad High Court · body

2001 DIGILAW 358 (ALL)

Mohd. Aslam v. Inspector, Arabic Madarsas

2001-04-16

R.K.AGRAWAL

body2001
R. K. AGRAWAL, J. ( 1 ) THE petitioner, Mohd. Aslam, has approached this Court by filing the present writ petition under Article 226 of the Constitution of India seeking a writ, order or direction in the nature of certiorari quashing the impugned order dated 20. 4. 2000 passed by the Registrar/inspector, arabic Madrasas, U. P. , Allahabad/lucknow respondent No. 1 filed as Annexure No. 8 to the writ petition. He further seeks a writ, order or direction in the nature of mandamus commanding the respondents to release the salary to the petitioner without any further delay and make the payment of salary month to month whenever its falls due and also to grant financial accord to the petitioner on the post of Alia grade teacher upon which the petitioner was appointed. ( 2 ) THE facts of the case in brief are that there is a Madrasa known as Madrasa Jamiya Arabiya ziyaul Uloom, situate at Varanasi which is duly recognised by the Board of Arabic and Parsian examination, U. P. , Allahabad and is on the grant-in-aid list of the State Government. Its employees and teachers get the payment of salary through the State Government from the Public exchequer. On 31. 3. 96 the Committee of Management of the Madarsa issued an advertisement which was published in Daily newspaper Urdu roznama Awaz-e-Mulk in which the vacancy in alia grade was advertised. The petitioner applied for being appointed as teacher in Alia grade. According to the petitioner, he was selected and he joined the Madarsa. It appears that the committee of Management submitted a list of teachers and employees to the concerned authority at the time when the Madarsa was to be brought under the grant-in-aid list of the State government. The name of the petitioner was duly included in the said list. However, the respondent No. 1 while approving the list of teachers and employees of the Madarsa made a remark that the petitioner does not hold the necessary qualification of optional subject. The petitioner approached this Court by filing Civil Misc. Writ Petition No. 4946 of 1998 which was disposed of finally vide judgment and order dated 15. 7. 99 with a direction to the respondent No. 1 to consider, decide and dispose of the petitioners representation in accordance with law within a period of three months. The petitioner approached this Court by filing Civil Misc. Writ Petition No. 4946 of 1998 which was disposed of finally vide judgment and order dated 15. 7. 99 with a direction to the respondent No. 1 to consider, decide and dispose of the petitioners representation in accordance with law within a period of three months. Pursuant to the direction given by this Court in the aforementioned judgment the respondent No. 1 vide order dated 20. 4. 2000 had rejected the representation made by the petitioner. The order dated 20. 4. 2000 is under challenge in the present writ petition. ( 3 ) I have heard Sri N. A. Khan, learned Counsel for the petitioner, Sri Ashoke Khare, senior advocate, assisted by Sri K. Murari on behalf of the respondents No. 4 and 5 and the learned standing Counsel on behalf of the respondents No. 1, 2 and 3. ( 4 ) LEARNED Counsel for the petitioner submitted that the petitioner being fully qualified and eligible for appointment in the Alia grade, respondent No. 1 was not at all justified in holding that the petitioner did not fulfill the requisite qualification. He further submitted that the stand taken by the respondent No. 1 that since the petitioner was appointed sometimes in April, 1996, and the Madarsa having brought in grant-in-aid list on 1. 4. 1996 the appointment of the petitioner being subsequent, therefore, he is not entitled for payment of salary from the State Exchequer is wholly wrong inasmuch as the respondent No. 1 while approving the list of teachers and employees of the Madarsa who were entitled for payment of salary from the State Exchequer had categorically specified that the entitlement for payment of salary would be from 1. 4. 96 or from the date of appointment whichever is latter and, therefore, even if the appointment of the petitioner has been made after 1. 4. 96 he is entitled for payment of salary. He further submitted that the respondent No. 5 did not possess the necessary qualification for being appointed in Alia grade as he had not obtained Fazil degree nor had experience of three years of Fauqania on the date of this appointment on 23. 7. 97. Admittedly, he is, the respondent No. 5 had appeared in fazil examination in the year 1994 and the. 7. 97. Admittedly, he is, the respondent No. 5 had appeared in fazil examination in the year 1994 and the. mark-sheet was issued in 1996 and he did not have any experience of three years in Fauqania. ( 5 ) SRI Ashok Khare, Senior Advocate, learned Counsel for the respondents No. 4 and 5 submitted that the petitioner was not appointed in April, 1996 but was appointed on 20. 5. 96 and was paid salary from own fund of the institution. He further submitted that it is not open to the petitioner to challenge the appointment of the respondent No. 5 in the present proceeding inasmuch as no relief for quashing the appointment of the respondent No. 5 has been claimed in the petition. He relied upon a decision of the Supreme Court in the case of Dr. Umakant Saran v. State of Bihar and Ors. , reported in AIR 1973 SC 964 and submitted that the petitioner has no locus standi to challenge the appointment of the respondent No. 5. He further submitted that since respondent no. 5 had subsequently obtained/ acquired the qualification of Fazil, therefore, his appointment cannot be set aside. ( 6 ) IN support of the aforesaid plea, learned Counsel for the petitioner relied upon the following decisions; Ram Sarup v. State of Harayana, reported in AIR 1978 SC 1536 and Smt. Shanti Devi verma v. The Deputy Director of Education, Region I, Meerut and Ors. , reported in 1982 uplbec 365. ( 7 ) HAVING heard learned Counsel for the parties, I find that in the order dated 20. 4. 2000 the stand taken by the Committee of Management before the Inspector, Arabic Madarsas, U. P. , ahahabad/lucknow, was that the petitioner was appointed in April 1996. Thus, the stand taken by the Committee of Management, respondent No. 4, in paragraph 7 of the counter affidavit filed by Maulana Gulam Nursalim, the Manager, that the petitioner was appointed on 23. 5. Thus, the stand taken by the Committee of Management, respondent No. 4, in paragraph 7 of the counter affidavit filed by Maulana Gulam Nursalim, the Manager, that the petitioner was appointed on 23. 5. 96 is contrary to what was stated before the respondent No. 1 when he was considering the mater, further form the list or teachers and employees of the Madarsa approved by the respondent No. 1, who are entitled to get salary from the State Exchequer which has been filed as Annexure No. 6 to the writ petition it has been specifically mentioned that they are entitled to get their salary from the State Fund from 1. 4. 96 or from the date or their appointment whichever is latter under the Government Order No. 610/52-296-14-197/95, dated 31. 3. 96. The list is not indispute. Thus all those teachers who have been appointed on or after 1. 4. 96 are entitled to get their salary from the State Fund. The objection taken by the respondent No. 1 at the time or approving list was that the petitioner did not have the necessary qualification regarding the optional subject. The respondent No. 1 has lost sight or the fat that the petitioner was fully qualified for being appointed as teacher in Alia grade and had the requisite experience of teaching in Fauqania. Thus, the impugned order in so far as its relates to disapproving the payment of salary to the petitioner from the State Fund is wholly illegal and cannot be sustained. ( 8 ) SO far as the question of respondent No. 5 is concerned, I find that admittedly on the date when he was appointed i. e. 23. 7. 93 he has not passed Fazil examination nor he had teaching experience of three years or Fauqania. Admittedly, he had appeared in Fazil examination or 1994 which was held in the year 1996 as the mark-sheet was issued to him which is not indispute bears the date 10. 1. 1996. He could not have been appointed on the post of teacher in Alia grade inasmuch as he did not possess the following qualifications which have been prescribed for appointment as teacher in Alia grade. . . (VERNACULAR MATTER OMMITED ). . 1. 1996. He could not have been appointed on the post of teacher in Alia grade inasmuch as he did not possess the following qualifications which have been prescribed for appointment as teacher in Alia grade. . . (VERNACULAR MATTER OMMITED ). . ( 9 ) SO far as the question of locus standi of the petioner to challenge the appointment of the respondent No. 5 is concerned, I find that in the case or Dr. Umakant Saran v. State of Bihar and ors. (supra), the Honble Supreme Court while holding that the appellant therein, who was not ors. (supra), the Honble Supreme Court while holding that the appellant therein, who was not eligible for appointment whereas the respondents were eligible could not be regarded as aggrieved parties for issue or mandamus for setting aside the appointment of the respondent. No such situation exists here. As discussed above, the petitioner possessed all the requisite qualifications for appointment whereas the respondent No. 5 did not possess the requisite qualification and, therefore, the petitioner is well within his right to challenge the appointment of the respondent No. 5 in the present writ petition. So far as the question of that the petitioner his not claimed any relief for quashing the appointment of the respondent No. 5 is concerned, I find that in the writ petition as also in the grounds therein the challenge to the appointment of the respondent No. 5 has been made. The petitioner has sought quashing of the order dated 20. 4. 2000 passed by the respondent No. 1, wherein he had upheld the appointment or the respondent No. 5, thus, the plea raised by the learned Counsel for the respondent No. 5 is misconceived. rs. (supra), the Honble Supreme Court while holding that the appellant therein, who was not eligible for appointment whereas the respondents were eligible could not be regarded as aggrieved parties for issue or mandamus for setting aside the appointment of the respondent. No such situation exists here. As discussed above, the petitioner possessed all the requisite qualifications for appointment whereas the respondent No. 5 did not possess the requisite qualification and, therefore, the petitioner is well within his right to challenge the appointment of the respondent No. 5 in the present writ petition. No such situation exists here. As discussed above, the petitioner possessed all the requisite qualifications for appointment whereas the respondent No. 5 did not possess the requisite qualification and, therefore, the petitioner is well within his right to challenge the appointment of the respondent No. 5 in the present writ petition. So far as the question of that the petitioner his not claimed any relief for quashing the appointment of the respondent No. 5 is concerned, I find that in the writ petition as also in the grounds therein the challenge to the appointment of the respondent No. 5 has been made. The petitioner has sought quashing of the order dated 20. 4. 2000 passed by the respondent No. 1, wherein he had upheld the appointment or the respondent No. 5, thus, the plea raised by the learned Counsel for the respondent No. 5 is misconceived. ( 10 ) THE submission made by Sri Ashok Khare, Senior Advocate, on behalf of the respondent nos. 4 and 5 that the respondent No. 5 had subsequently obtained the necessary qualification and, therefore, it should be taken into consideration, I find that at the time of appointment of respondent No. 5 he did not possess the Fazil degree which is pre-requisite for appointment in alia grade. It is not the case that the petitioner has gained experience or teaching in Fauqania subsequently which could have been held only to be irregular. The decision of the Supreme court in the case of Ram Sarup v. State of Haryana (supra), considered a situation where the person concerned was having the requisite qualification except the experience. In these circumstances, the Honble Supreme Court held the appointment to be irregular but not void. No such situation exists here. In the case or Smt. Shanti Devi Verma v. The Deputy Director of education, Region I, Meerut and Ors. (supra), this Court had held as follows : "the employers may really be estopped from pleading a disability for the purpose or dispensing with the services or an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. (supra), this Court had held as follows : "the employers may really be estopped from pleading a disability for the purpose or dispensing with the services or an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. Obviously, it would not be in conformity with the principles of equity and justice that despite the fact that the appointee has acquired himself well in this post the employer may be allowed at a later stage to turn round and remove the appointee on the ground of his initial lack of qualification at the time of his appointment. This is a principle which needs be evolved in order to protect a candidate, who with the approval, tacit or otherwise, of the employer has entered into service and discharged his duties satisfactorily. The correct thing always for the appointing authority is to scrutinise and examine the qualification possessed by a candidate before appointing him and refuse to appoint who falls short or the required qualification. But having once given a go-by to such requirement and permitted a candidate to prove his worth and matter, it does not behave the employers later on to go back on their implied assurance and to take advantage of their own failure to enforce the requirement of the qualification rigidly". The Court had considered the power of relation of the qualification which was there in Section 16-F of the u. P. Intermediate Education Act. No such power of relaxation of qualification is available with the Committee of Management and Clause 43 only empower the State Government to relaxed any of the Rules. The State Government has not relaxed any of the qualification prescribed for appointment as teacher in Alia prade. ( 11 ) IN view of the foregoing discussions, the writ petition succeeds and is allowed. The impugned order dated 20. 4. 2000 filed as Annexure No. 8 to the writ petition is quashed and it is held that the petitioner is entitled for payment of salary from the State Fund. . .