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2013 DIGILAW 1385 (ALL)

Azam Ali v. State of U. P. and Others

2013-05-09

A.P.SAHI

body2013
Amreshwar Pratap Sahi, J.;— Heard Sri R.K. Ojha, learned counsel for the petitioner. He submitted that this is a case that reflects the repression by a State - aided Minority Institution of its own employees of the Minority Community. The petitioner has come up before this Court questioning the correctness of his termination order on the ground that it is not only in violation of the principles of natural justice but is also in violation of the Constitutional provisions and the law which has already been framed by the State Legislature in this regard. Learned counsel for the petitioner contends that it is correct that the institution is a Madarasa and is a minority institution ptotected under Article 30 of the Constitution of India. The conditions of service of the employees of the said Madarasa is to be regulated under the law that has been framed for that purpose and if the Rule making authority has failed to perform his duty then this Court can step in and exercise its jurisdiction under Article 226 of the Constitution of India for the purpose of compliance of any such mandate that might be required to be pressed into service for framing the regular service conditions of such employees. Sri Ojha submits that there is no dispute with regard to the fact that Madarasa where the petitioner is working as a Clerk is an Institution which falls within the definition of a Madarasa under the Uttar Pradesh Board of Madarasa Education Act, 2004. The said Act has been framed by the State Legislature under Entry 25 of List 3 of the Seventh Schedule of the Constitution of India. The Act was accordingly framed and notified pursuant to the provisions of Clause 3 of Article 348 of the Constitution of India and has been promulgated for being enforced. The Act has come into force with effect from 3rd of September, 2004, as per Section 1 thereof. Section 23 and 24 authorize the framing of the procedure for appointment of teachers and other employees and provide for the conditions of service of such employees of Madarasa. Thus, the Act empowers the authority prescribed thereunder to lay down conditions of service of the teachers and other employees of the institution. Prior to the said act, there were non-statutory rules known as Madarsa Niyamawali, 1987 under which jurisdiction is still exercised by the Inspector Arbi, Pharsi Madarasas. Thus, the Act empowers the authority prescribed thereunder to lay down conditions of service of the teachers and other employees of the institution. Prior to the said act, there were non-statutory rules known as Madarsa Niyamawali, 1987 under which jurisdiction is still exercised by the Inspector Arbi, Pharsi Madarasas. On a perusal of these two Sections it appears that the service conditions shall be governed by regulations or any agreement between the Management and the Head of such institution with regard to teachers or other employees as the case may be. It further provides that such terms and conditions if inconsistent with the provisions of the Act shall be void. Thus, there is a peremtory nature of mandate contained in the aforesaid Sections to prescribe conditions of service. Sri Ojha therefore submits that the State is obliged to prescribe such rules and regulations, once the Act has been enforced in the year 2004. The obligation of the State to frame rules therefore is mandatory and the State cannot sit tight and thereby pretend to protect the fate of such employees as is presently involved inasmuch as in the event of any action being taken, the employees of such institutions are left in the merciless hands of Managements to find out any way and means for the redressal of their grievance. It is also submitted that before the the commencement of the Act in the State of Uttar Pradesh had framed non statutory rules known as Uttar Pradesh Arbi and Farsi Madarasa Niyamawali, 1987, but the same are also practically ineffective insofar as the employees of Madarsas are concerned as the rules have not been given a statutory status. Sri Ojha has invited the attention of this Court to Sections 31 and 32 of the 2004 Act to contend that the State has the power to remove difficulties and also has the power to frame rules. This also includes the power for framing regulations for the purpose of implementation. He therefore, contends that in view of the absence of any rules or regulation to regulate the service conditions this petition can be pressed into service. This also includes the power for framing regulations for the purpose of implementation. He therefore, contends that in view of the absence of any rules or regulation to regulate the service conditions this petition can be pressed into service. He contends that principles of natural justice which form part of Article 14 as declared by the Supreme Court time and again can also be pressed into service, as the employer cannot act in a hire and fire manner by bypassing the service conditions of the employees of a Madarasa. Such requirement has to be observed and if the Management fails to comply with these basic principles, then the law deserves to be enforced by this Court under Article 226 of the constitution of India. Sri Ojha contends that the State Government cannot abdicate or absolve itself of its duty to frame such rules as it has already framed the Act in order to prescribe conditions of service of such employees of Madarasa. Sri Ojha therefore prays, that this Court may issue a writ for the said purpose and may issue necessary directions in this regard. Countering the said submissions Sri B.D.Pandey, who has put in appearance on behalf of the respondent no. 4, Committee of Management contends that this writ petition is not maintainable as this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India against any order of termination passed by the Management which even otherwise has been done after complying with the principles of natural justice. He submits that in absence of any rule or regulation, no such public duty is cast that was to be performed. The writ petition is not maintainable for which he relies on the judgment in the case of Taj Mohammad Vs. State of U.P. passed in Writ Petition No. 69539 of 2011. Learned Standing Counsel submits that this writ petition would also involve the question of the minority status of a Madarasa and therefore in view of the provisions under Article 30 of the Constitution of India it will be required to be seen that whether this Court can enforce any regulations which have not been framed as yet in the shape of general principles, unless such action is taken by the State Government. Having heard learned counsel for the parties, the petitioner has definitely raised his voice with regard to the protection which he claims under Article 14 of the Constitution of India. This would further involve the individual right of the petitioner as against the protection of Article 30 of the Constitution of India granted to the respondent institution. Even otherwise, the issue relating to Madarasa being fully a State aided institution would raise the question as to whether regulatory provisions can be made applicable which do not any way impinge the right to administer a minority institution. The State Government for the past 9 years, inspite of the Act having been framed has not carried out its duty and obligations as cast under Section 23 and 24 read with Section 32 of the 2004 Act.The State can frame regulations to prevent the oppression of the employees of an aided Madarasa without offending Article 30 of the Constitution as held in Para 21 of 2007(1)SCC386 and in Paras 90 to 114 of 2010(8)SCC page 49. In the instant case the State itself has framed the Act of 2004. There is no reason as to why rules have not been framed so far. The Act cannot be allowed to suffer desuetude and frustrate its object. The apathy of the State for no valid reason is embarrasing to the law framed and failure of a constitutional as well as a statutory obligation. The Court therefore has to step in and the petition would be maintainable. A vast multitude of Madarasa employees cannot be abandoned like a rudderless ship by the deliberate inaction of the State. Rule framing is an executive act through in the form of a subordinate legislation or delegated authority. The legal compulsion, where the attitude is unreasonably indifferent, can be enforced as it directly involves the protection of fundamental rights and discharge of legal and constitutional obligations. In the aforesaid circumstances, an Ad-interim-Mandamus is issued to respondent no. 1 to inform the Court as to why the rules and regulations have not been framed so far inspite of a statutory duty have been cast upon the State of U.P. for framing such rules in order to govern service conditions of such employees of Madarasa or to get the rules framed and place it before the Court. The respondent no. The respondent no. 1 who is represented by the learned Standing Counsel has accepted notice and will file a counter affidavit enclosing the entire material by 30th May, 2013. Respondent no. 5 shall also file a counter affidavit by the next date fixed. Untill further orders of this Court, the respondent institution shall not create any third party rights in respect of the post that was occupied by the petitioner. List on 30.05.2013. Copy of this order be provided to the learned Standing Counsel Sri Upendra Singh or Sri J.S. Tomar or to Sri A.K. Yadav, within three days. _____________