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Allahabad High Court · body

2003 DIGILAW 1919 (ALL)

HASEEN AHMAD SIDDIQUI v. STATE OF U P

2003-08-26

RAKESH TIWARI

body2003
RAKESH TIWARI, J. Heard counsel for the parties and perused the record. 2. This petition has been filed by two petitioners praying that order dated 24-1-1998 and advertisement dated 5-5-1998 be quashed and a writ of mandamus be issued commanding the respondents to fill up the post of Principal according to Sections 16-E and 16-F of U. P. Intermediate Education Act, 1921 and for a further direction to the respondents not to interfere in working of the petitioner as Principal till duly selected principal of the Vijay Laxmi Pandit Inter College, Phulpur, Allahabad is appointed and provisions of Section 16-FF and of the Act be not invoked. 3. The petitioner No. 1 claims to be Ad hoc Principal of Vijay Laxmi Pandit Inter College (hereinafter called the College) and petitioner No. 2 claims to be Secretary of the U. P. Madhyamik Shikshak Sangh, a representative body of teachers working in the State. 4. The college is aided and is recognised Intermediate College. It was founded by a society known as Anglo Oriental School Association, Phoolpur which established a Junior High School in 1950. In 1953 it was raised to High School and was recognized for Intermediate classes in 1965. The name of this institute was changed to Vijay Laxmi Inter College, Phulpur. It is allowed 100% grant-in-aid by the State of U. P. 5. The Society known as Anglo Oriental School Association was registered as society on 16-9-1951. Its membership was open to all castes and communities. There was no restriction in membership or in admission of students. It is alleged by the petitioners that more than 60% students are non-muslims and prominent non-muslim persons have always been taken in the managing committee and it is not a minority institution. 6. As against that the respondent Nos. 6 and 7, the College and Society named above, have taken stand that the Institute is a minority institution hence they have a right to manage the affairs of the College uninterrupted by the provisions of the U. P. Intermediate Education Act (hereinafter referred to as the Act ). 7. The question of appointment of ad hoc principal has arisen due to retirement of one Sri Akhtar Ali Siddiqui who worked in the College up to 30-6-1997. The petitioner No. 1 Sri Haseen Ahmad Siddiqui is the senior most teacher. 7. The question of appointment of ad hoc principal has arisen due to retirement of one Sri Akhtar Ali Siddiqui who worked in the College up to 30-6-1997. The petitioner No. 1 Sri Haseen Ahmad Siddiqui is the senior most teacher. He has made a claim for the post of Ad-hoc Principal till a duly principal is selected by Commission. The management case is that the institution was declared minority institute on 2-4-1998; hence an advertisement was issued for the post of Principal on 5-5-1998. Present writ petition was filed on 24-8-1998 with prayer to quash the order dated 24-1-1998 and the advertisement. This Court granted ad-interim order that selection may go on but it shall not be given effect to. The parties were heard at length and they have submitted written submissions also. 8. The learned counsel for the petitioner submitted that looking into the memorandum of association of the Society, scheme of administration and the object of the Society, it is established that this was a secular organization set up for imparting moral educational and religious education and development of it to public in general and it was not confined to any particular community. 9. The respondents Nos. 6 and 7 filed application for declaring it as minority institution but State Government rejected it by order dated 20-8-1977 on the ground that its aim and objects and membership or activities were not restricted to minority community only. Similarly another application filed in 1989 was also rejected. It appears that with a view to avoid this objection the society-respondent No. 7 amended its Memorandum of Association by adding words "muslims specifically" in its objects in 1996. Now the amended objects contained in Rule 2 (b) are "general, Moral, Educational, Religious and Physical conditions of the Muslims specifically but words "public in General" still remain and the amendment has not changed the character of Society from Secular to that of Muslim Community only, hence order dated 24-1-1998, declaring the institution as minority institution is illegal and is liable to be quashed, particularly when there is no change in scheme of administration framed under Section 16-A of the Act. 10. 10. The learned counsel for respondents No. 6 and 7 has argued that the Society was established by 12 Muslims alone whose names are given in the memorandum of association (Annexure-1), since inception of Society, except one or two, all the members of the management committee have been Muslims only. After coming into force the U. P. Commission for Minorities Act (Act No. 22 of 1994) society applied in prescribed proforma to the competent authority for its recognition as minority institution. The committee constituted under the said Act by notification dated 24-1-1998 declared it to be a minority institution. After retirement of the regular principal the Committee of Management in its meeting held on 26-11-1998 in which petitioner No. 1 was also present, decided to invite applications for post and advertised it. The petitioner also applied for the post. Seven candidates were interviewed and finding no chance of being selected, the petitioner No. 1 has filed this petition in frustration challenging the notification dated 24-1-1998 and the advertisement. It is further stated that Mohammad Arif Siddiqui was selected as Principal on 22/23-11-98 whose academic career is far better than petitioner No. 1 hence he is estopped from challenging the decision. 11. The main questions, therefore, arise are that whether the Vijay Laxmi Pandit Inter College is a minority institution and (II) whether managing committee of the institute has right to select principal ignoring the provisions of the U. P. Intermediate Education Act, 1921. 12. The Supreme Court in a recent land-mark decision in T. M. A. Pai Foundation v. State of Karnataka, reported in 2002 (2) LBESR 933 (SC) : JT 2002 (9) SC 1, has considered the scope of Article 30 of the Constitution. It has held by majority in the 11 Judge decision that (I) minority institution does not cease to be so, the moment grant in aid is received by it. It has held by majority in the 11 Judge decision that (I) minority institution does not cease to be so, the moment grant in aid is received by it. In answer to question No. 5 (c) it was held: " (ii) So far as statutory provisions regulating the facets of administration are concerned, in case of and 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 an 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. " 13. By notification No. 2015 dated 7-10-1994 issued under Section 2 of the U. P. Minorities Commission Act, 1994, the Muslims community was declared as Minority community in this state. 14. The procedure for declaring an institution as minority institution by the State Government procedure, conditions and standards was laid down by notification dated 28-4-1994 as modified by notification of 6-10-1994 and 22-2-1995. A proforma of application is enclosed with the notification. Condition Nos. 6 and 7 of prescribed conditions that a minority institution will be free to appoint any qualified candidate but qualification will be same as prescribed for other teachers prescribed by U. P. Education Board and will be filled up by open advertisement. Respondent No. 7 filed application which was processed by a committee appointed by State Government and declared it as minority institution by impugned order dated 24-1-1998. 15. Mere fact that some persons belonging to other communities are present in the managing committee will also not make any difference as held in the decision in case of Mohd. Maqbool Khan v. State, reported in 1986 UPLBEC 238. 16. This G. O. dated 28-4-1994. It provides that on receipt of recommendation from Director of Education committee of 5 officers will process it according to standards laid down in the G. O. and give recommendation. It performs purely administrative function and does not deal with any controversy between two parties. The only objection raised by petitioner is that the order does not contain reasons is of no avail. In discharge of judicial or quasi-judicial function reasons are required. The impugned order cannot be assailed on that ground. 17. It performs purely administrative function and does not deal with any controversy between two parties. The only objection raised by petitioner is that the order does not contain reasons is of no avail. In discharge of judicial or quasi-judicial function reasons are required. The impugned order cannot be assailed on that ground. 17. It was therefore not necessary to give reason as required in discharge of quasi-judicial functions and the impugned order cannot be assailed on that ground. 18. It is submitted by the petitioner that management of school is to be governed by Scheme of Administration framed under Section 16-A of the Act, copy of which has been filed as Annexure-2 to the writ petition. It is different from by-laws of the Society. Clause 4 of the Scheme of the Administration is as under: " (4) Committee of Management. The authority to manage and conduct the affairs of the institution shall vest in the Committee of Management which shall be responsible for properly running the institution in accordance with the provisions of the Act, the Regulations and the Instructions issued from time to time by the authorities of the Education Department of Uttar Pradesh. " 19. Clause 12 (ii) of the Scheme of Administration provides Powers. Duties and Functions of the Committee. 20. Clause 22 of the scheme of institution provides for employees including principal of college. It runs as under: " (22) Employees of the institution: (a) Subject to the provisions of the Act and the Regulations, all appointments of the Principal/head Master, teacher, clerk and the librarian shall be made by the Committee of Management in accordance with the provisions of the Intermediate Act, and all inferior staff by the Head Master/principal. (b) The terms and conditions of the service of the employees of the institution shall be governed by the Act, and the Regulations and the contract of service if any in so far as the same be consistent with the Act and the Regulations. " 21. It is submitted that the Scheme of Administration has statutory power and the institution is bound to follow it. However, Section 16-FF of the Act gives minority institution exemption from provisions of 16- A (i) of the Act, hence it is right of management to appoint principal of their choice who must be qualified. No other restriction can be placed on this right. However, Section 16-FF of the Act gives minority institution exemption from provisions of 16- A (i) of the Act, hence it is right of management to appoint principal of their choice who must be qualified. No other restriction can be placed on this right. The right of ad hoc principal on the basis of being seniormost teacher provided in Regulations will also be subject to Section 16-FF of the Act. 22. Chapter II of the Regulations framed under the Act for appointment of teachers and Head of institution provide for advertisement of posts. Conditions No. 6 and 7 of the conditions for declaration of minority institution also provide for advertisement of the post. Thus the advertisement dated 5-5- 1998 is not illegal and cannot be quashed. 23. For the aforesaid reasons, the writ petition fails and is dismissed. No orders as to costs. Petition dismissed. .