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2015 DIGILAW 675 (ALL)

MOHAMMAD MERAJUL HAQUE v. STATE OF U. P.

2015-04-02

DEVENDRA KUMAR UPADHYAYA

body2015
JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—Heard learned counsel for the petitioner, learned Standing Counsel and Shri Zafaryab Jilani, learned Additional Advocate General. 2. These proceedings under Article 226 of the Constitution of India have been instituted by the petitioner seeking a direction to the opposite parties directing them to grant him study leave from 1.4.2013 to 31.3.2015. The petitioner has also challenged the order dated 3.2.2014 passed by the Director, Minority Welfare, Uttar Pradesh Lucknow, in compliance of an earlier order dated 9.1.2014 passed by this Court in Writ Petition No. 118 (S/S) of 2014, whereby the said writ petition was disposed of with liberty to the petitioner to move a representation to the Director, who was directed to decide the same within a period of one month by passing a reasoned and speaking order. 3. The petitioner is presently employed as an Assistant Teacher in a Madarsa known as Darul Uloom Alimia Jamdashahi, district Basti. The said institution is recognized by the Registrar and Inspector, Uttar Pradesh Madarsa Education Board, Lucknow which is a statutory body created under a State Legislation passed by the Legislature of Uttar Pradesh known as the Uttar Pradesh Board of Madarsa Education Act, 2004 (U.P. Act No. 29 of 2004). The institution where the petitioner is working as Assistant Teacher is on the grant-in-aid list of the State Government, meaning thereby that the petitioner has been drawing salary from the state exchequer. 4. The petitioner, desirous of pursuing higher education, applied to Jawaharlal Nehru University, New Delhi, for his enrollment in Ph.D. programme in Arabi in the School of Languages and Arabi and African studies. The application made by the petitioner for pursuing Ph.D. Course in Jawaharlal Nehru University, New Delhi was accepted and by means of a letter dated 6.8.2012 he was required to present himself for admission before the University. He was also required to produce certificate sanctioning leave/relieving order at the time of admission/registration from the employer for the duration of the programme permitting him to pursue his studies at the University. 5. He was also required to produce certificate sanctioning leave/relieving order at the time of admission/registration from the employer for the duration of the programme permitting him to pursue his studies at the University. 5. The petitioner thereafter pursued his Ph.D. Course and has been awarded the said degree for his thesis submitted with the title “Malikul Ulama Allama Zafaruddin Bihari and his role in enrichment of Arabic language and Islamic studies in State of Bihar.” The petitioner thereafter made an application to the Management of the Institution on 30.3.2013 for granting him study leave. The institution accordingly granted a certificate accepting the prayer for grant of leave to the petitioner on 30.3.2013. The information about the petitioner’s admission at Jawaharlal Nehru University in the aforesaid Ph.D.Course was given by the Institution to the Registrar, Madarsa Education Board at Lucknow. On the said information, the Management of the Institution was informed by the Registrar of Madarsa Education Board, Lucknow that the subjects not covered by Madarsa Manyata Evam Sewa Niyamawali, 1987, are governed by the Rules applicable to the employees in the education department of the Government and further that for grant of study leave appropriate provisions have been made in Rule 84 of the Financial Handbook part 2 to 4 and in the subsidiary Rule 146(Ka). The Management of the Institution accordingly sought approval of the leave granted to the petitioner from the authorities of the Minority Welfare Department. 6. By means of the order/letter dated 11.7.2013, the Registrar of Uttar Pradesh Madarsa Education Board accorded his concurrence for grant of study leave with pay in terms of the provisions contained in Financial Handbook and Intermediate Education Act, 1921. After the aforesaid concurrence was accorded to the study leave with pay to be granted to the petitioner by the Registrar of U.P. Madarsa Education Board, the petitioner appears to have demanded the salary of the period he remained on leave for pursuing his higher studies at Jawaharlal Nehru University, New Delhi. After the aforesaid concurrence was accorded to the study leave with pay to be granted to the petitioner by the Registrar of U.P. Madarsa Education Board, the petitioner appears to have demanded the salary of the period he remained on leave for pursuing his higher studies at Jawaharlal Nehru University, New Delhi. The District Minority Welfare Officer, district-Basti sought guidance from the Director of Minority Welfare, U.P. Lucknow by means of the letter dated 29.7.2013 and it appears that since no final decision regarding payment of salary to the petitioner was being taken, the petitioner had filed the Writ Petition No. 118 (S/S) of 2014, which was disposed of by this Court on 9.1.2014 directing the Director, Minority Welfare U.P., Lucknow to decide the representation of the petitioner made by him in regard to payment of salary for the period he remained on leave for pursuing his higher studies. It is in this background that the Director has passed the impugned order dated 3.2.2014, whereby the case of the petitioner for payment of salary for the period he remained on leave for pursuing his Ph.D. Course at Jawaharlal Nehru University,New Delhi, has been rejected. 7. The reasons indicated by the Director rejecting the claim of the petitioner for payment of salary for the aforesaid period while passing the impugned order dated 3.2.2014 is that the service conditions of the teachers of Madarsas are governed and payment of salary to them are made in terms of the provisions contained in Madarsa Manyata Avam Sewa Niyamawali, 1987 as has been amended from time to time and since there is no provision for grant of study leave or study leave with pay for higher education, and further that no provision has been made in the said Niyamawali, 1987 or in the Government Orders issued by the department from time to time for grant of study leave for pursuing higher education, the petitioner is not entitled to the said benefit. The Director has also stated that the provisions of Intermediate Education Act, 1921 or the provisions of Financial Handbook are applicable only in case of Government employees, as such the petitioner is not entitled to be given the salary of the aforesaid period unless and until these provisions are made applicable to the Madarsa teachers. 8. The Director has also stated that the provisions of Intermediate Education Act, 1921 or the provisions of Financial Handbook are applicable only in case of Government employees, as such the petitioner is not entitled to be given the salary of the aforesaid period unless and until these provisions are made applicable to the Madarsa teachers. 8. Rejection of the claim of the petitioner by the Director, Minority Welfare, U.P, Lucknow has created a situation which cannot be said to be conducive for farthering the cause of education. Admittedly, the institution where the petitioner has been teaching is an institution registered with and recognized by a statutory body created by the State Government under an Act of State Legislature, namely, U.P. Act No. 29 of 2004. A reading of Statement of Objects and Reasons of U.P. Act No. 29 of 2004 makes it clear that the said enactment has been made by the State Legislature, inter alia, on account of the difficulties which the State had been facing in managing the Madarsa Institutions for the reason that the Rules of 1987 were not statutory in nature, though such institutions were being administered under the said rules. To remove the complications which had arisen in running Madarsas under 1987 Rules, the State Legislature in its wisdom has passed U.P. Act No. 29 of 2004 making various Legislative provisions for not only establishment and constitution of a Board to monitor and oversee the Madarsa Education in the State of Uttar Pradesh but also for various other purposes. 9. Statement of Objects and Reasons of U.P. Act No. 29 of 2004 is quoted below : “Prefatory Note—Statement of Objects and Reasons—In Para 55 of the Education Code the Registrar, Arabi-Pharasi Examination, Uttar Pradesh, Allahabad had been authorised to recognise the Arabi-Pharasi Madarsas in the State and for conducting the examinations of such Madarsas. These Madarsas were managed by the Education Department. But with the creation of the Minority Welfare and Wakfs Department in 1995 all the works relating to such Madarsas were transferred from Education Department to the Ministry Welfare Departments by virtue of which all the works relating to Madarsas are being performed under the control of the Director, Minority Welfare, Uttar Pradesh and the Registrar/Inspector Arabi-Pharasi Madarsas, Uttar Pradesh. But with the creation of the Minority Welfare and Wakfs Department in 1995 all the works relating to such Madarsas were transferred from Education Department to the Ministry Welfare Departments by virtue of which all the works relating to Madarsas are being performed under the control of the Director, Minority Welfare, Uttar Pradesh and the Registrar/Inspector Arabi-Pharasi Madarsas, Uttar Pradesh. The Arabi-Pharasi Madarsas were being administered under the Arabi-Pharasi Madarsas Rules, 1987 but since the said rules have not been made under an Act, many complication arose in running the Madarsas under the said rules. Therefore with a view to removing the difficulties arisen in running the Madarsas, improving the ment therein and making available the best facility of study to the students studying in Madarsas it was decided to make a law to provide for the establishment of a Board of Madarsa Education in the State and for the matters connected therewith or incidental thereto. Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision the Uttar Pradesh Board of Madarsa Education Ordinance, 2004 (U.P. Ordinance No. 12 of 2004) was promulgated by the Governor on September 3, 2004. This Bill is introduced to replace the aforesaid Ordinance.” 10. The 2004 enactment came into force on 3.9.2004 in terms of the provisions contained in Section 1(2) of the said Act itself. However, till date, no rules under the said enactment have been framed, though the State Government is vested with the powers of framing the rules under Section 32 of the said Act. Section 32, in unambiguous terms, empowers the State Government to make rules by notification for carrying out the purposes of the said Act. It is also to be noted that though under Section 20 of the aforesaid Act of 2004, the Board has also been empowered to make Regulations for carrying out the purposes of the Act, however, even the Board has not framed any Regulations. 11. It is also to be noted that though under Section 20 of the aforesaid Act of 2004, the Board has also been empowered to make Regulations for carrying out the purposes of the Act, however, even the Board has not framed any Regulations. 11. From a perusal of the impugned order passed by the Director, it is clear that despite passing the said enactment in the year 2004, which has been enforced with effect from since 3rd of September, 2004, though sufficiently long time of around 11 years has elapsed, till date, for the purpose of carrying out the object of the said enactment, Rules and Regulations have not been framed by the State Government and the Board. Thus, these Madarsas Institutions are still being run under the 1987 Rules, which are non-statutory as is clear from a perusal of the Statement of Objects and Reasons of U.P. Act No. 29 of 2004. It is ironical to notice that the very purpose for which 2004 enactment was made was to provide a statutory machinery to the State Government to run and monitor the functioning of Madarsa Institutions under some statutory rules, however, even after passage of a period of 11 years since U.P. Act No. 29 of 2004 was enacted, till date, these institutions are still being run and managed under the non-statutory of Rules 1987. 12. Admittedly, the petitioner is not a Government employee. However, he is an employee of an institution which is registered by a statutory body created under the State statute, namely, U.P. Act No. 29 of 2004. There is no dispute as to the liability of the State Government to make payment of salary to the petitioner from the state exchequer. Hence, I do not have any room of doubt or any reason to believe that the matters, such as the one engaging attention of the Court in the present case i.e. grant of study leave with pay for pursuing higher education by a teacher working in these institutions, can be treated at par with any other teacher working in educational institutions, including the institutions being recognized, run and managed under the various provisions of U.P. Intermediate Education Act, 1921. 13. Mere fact that 1987 non-statutory rules do not have any provision for grant of study leave with pay for pursuing higher education cannot be a ground to deny the petitioner such a benefit. 13. Mere fact that 1987 non-statutory rules do not have any provision for grant of study leave with pay for pursuing higher education cannot be a ground to deny the petitioner such a benefit. It is noticeable that the 1987 Rules even do not prohibit or create a bar on seeking study leave for pursuing higher education with pay. School of Languages and Arabic and African Studies at Jawarlal Nehru University is a prestigious institution in itself. The petitioner had sought leave which has been granted by the institution for pursuing the Ph.D. Course with the object of equipping the petitioner as a teacher with higher and better skills and knowledge. Higher studies gained by a teacher ultimately benefits the students apart from raising the teaching standards in the institution. If the petitioner has pursued his higher studies and completed the Ph.D. Course from a prestigious University of the country, he cannot be denied the benefit of study leave with pay merely because 1987 non statutory rules do not contemplate any such leave. As already observed above, 1987 rules do not even prohibit or create a bar on a teacher of Madarsa Institutions, who is paid his salary from the state exchequer, from seeking study leave with pay for pursuing higher education. 14. At this juncture, Shri Zafaryab Jilani, learned Additional Advocate General states that the issue engaging attention of this Court in this case has never been brought to the notice of the State. He, however, appears to be in agreement with the submission advanced on behalf of the petitioner that acquiring higher education by a teacher, who is teaching in an institution where the burden of salary is being borne by the state exchequer, has an avowed object of equipping the teacher with higher knowledge which benefits the cause of education itself. He also agrees that by acquiring higher qualification it is not only the teacher, who benefits personally but it is also the students, who are benefited and that it is a gain for the academic institutions as well. 15. He also agrees that by acquiring higher qualification it is not only the teacher, who benefits personally but it is also the students, who are benefited and that it is a gain for the academic institutions as well. 15. Looking into the overall facts and circumstances of the case, I hereby direct the State Government in the department of Minority Welfare to look into the entire matter and take appropriate decision for grant of study leave with pay to the petitioner in the light of the observations made herein above in the preceding paragraphs of this judgment, ignoring the impugned order dated 3.2.2014 passed by the Director, Minority Welfare. The said exercise by the State Government shall be completed within a period of two months. For the aforesaid purpose, the petitioner shall represent his cause, by making a fresh representation annexing therewith all the relevant documents, to the State Government within fifteen days from today. Once the representation is, as observed above, made, the State Government shall consider the case of the petitioner and ventilate his grievances by passing a reasoned and speaking order within a period of two months thereafter. 16. Adverting to the Statement of Objects and Reasons of U.P. Act No. 29 of 2004, it has been noticed above that till date no rules by the State Government nor any Regulations by the Board have been framed under the said Act for regulating and administering the Arabi, Farsi Madarsas in the State of U.P. and the said institutions are still being run under the Non-statutory Rules of 1987. 17. In these circumstances, it is expected of the State Government and the Board that they shall frame appropriate Rules and Regulations respectively in their wisdom under U.P. Act No. 29 of 2004 so that the purpose of the said Act is achieved and Arbi Farsi Madarsas are administered in the State of U.P. in tune with the desires of the State Legislature expressed in U.P. Board of Madarsa Education Act, 2004. I hope and trust that the aforesaid exercise of framing the Rules and Regulations shall also be completed by the State Government and the Board within a period of three months. 18. I hope and trust that the aforesaid exercise of framing the Rules and Regulations shall also be completed by the State Government and the Board within a period of three months. 18. Learned Additional Advocate General will communicate this order, whereby the Court has expressed its desire and expectation for framing the statutory Rules and Regulations for appropriate administration of the Madarsa Institutions in the State of Uttar Pradesh, to the appropriate authorities in the State Government. 19. With the aforesaid observations and directions, the writ petition is finally disposed of. ——————