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2016 DIGILAW 1231 (ALL)

Aafreen v. State of U. P.

2016-04-05

V.K.SHUKLA, VIVEK KUMAR BIRLA

body2016
JUDGMENT Present special appeal has been treated as defective due to non supply of the impugned order in question in original, today when the matter has been taken up learned counsel for the petitioner appellants has proceeded to file the original copy of the judgment in question and, accordingly, the defect as indicated/reported stands removed/cured. 2. Aafreen and six others are before this Court assailing the validity of the judgement dated 1.4.2016 passed in writ petition No. 12955 of 2016 ( Aafreen & 6 others v. State of U.P. & 5 others) wherein learned Single Judge has refused to interfere with the scheme which the Board has framed for conducting the examinations. 3. Brief background of the case is that in the State of U.P. education in Madarsas is governed under the U.P. Board of Madarsa Education Act, 2004 (hereinafter referred to as the “Act of 2004”), an Act to provide for the establishment of a Board of Madarsa Education in the State and for the matters connected therewith or incidental thereto. The said Act in question has been promulgated with the following statement of object and reasons. Earlier in paragraph 55 of the Education Code the Registrar, Arabi-Pharsi Examinations, U.P., Allahabad had been authorised to recognise the Arabi-Pharsi 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-Pharsi 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 for removing the difficulties arisen in running the Madarsas, improving the merit 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. 4. 4. Thus, this much is clear that Madarsas were brought within the scope and ambit of the Act of 2004 with a view to make available the best facilities of the study to the students studying in Madarsas and in order to improve the merit therein. In the Act of 2004 Section 2 (a) defines Board, 2 (b) defines Centre, 2 (f) defines Institution, 2 (h) defines Madarsa Education, 2 (I) defines Invigilator, 2 (j) defines Recognition, 2 (n) defines Superintendent of a Centre and 2 (o) defines Unfair means. The said definitions are being extracted below; “2. Definitions.- In this Act unless the context otherwise requires: - (a) “Board” means the Uttar Pradesh Board of Madarsa Education established under Section 3; (b) "Centre" means"an institution or a place fixed by the Board for the purpose of holding its examinations and includes the entire premises attached thereto". ......... (f) “Institution” means the Government Oriental College, Rampur and includes a Madarsa or an Oriental College established and administered by Muslim Minorities and recognised by the Board for imparting Madarsa education; ........ (h) “Madarsa Education” means education in Arbic, Urdu, Persian, Islamic-studies, Tibb Logic, Philosphy and includes such other branches of learning as may be specified by the Board from time to time; (I) “Invigilator” means a person who assists the Superintendent of a centre in conducting and supervising the examinations at a centre; (j) “Recognition” means recognition for the purpose of preparing candidates for admission to the Board's examination; …....... (n) “Superintendent of a Centre” means a person appointed by the Board to conduct and supervise an examination of the Board and includes an Additional Superintendent; (o) “Unfair” means in relation to an examinee while answering questions in an examination, means the unauthorised held from any person directly or indirectly or from any material written, recorded, copied or printed in any form whatsoever, or the use of any unauthorised telephonic, wireless or electronic or other instrument or gadget.” 5. Section 3 deals with the Constitution of the Board, Section 7 deals with the Meeting of the Board and Section 9 deals with the Functions of the Board. Relevant extract of the said rules are being extracted below; “Section 3. Section 3 deals with the Constitution of the Board, Section 7 deals with the Meeting of the Board and Section 9 deals with the Functions of the Board. Relevant extract of the said rules are being extracted below; “Section 3. Constitution of the Board.- (1) With effect from such date as the State Government may, by notification, appoint, there shall be established at Lucknow a Board to be known as the Uttar Pradesh Board of Madarsa-Education. (2) The Board shall be a body corporate. (3) The Board shall consist of the following members, namely: - (a) a renowned Muslim educationists in the field of traditional Madarsa-Education, nominated by the State Government who shall be the Chairperson of the Board; (b) the Director, who shall be the Vice-Chairperson of the Board; (c) the Principal, Government Oriental College, Rampur; (d) one Sunni-Muslim Legislator to be elected by both Houses of the State Legislature; (e) one Shia-Muslim Legislator to be elected by both Houses of the State Legislature; (f) one representative of National Council for Educational Research and Training; (g) two head of institution established and administered by Sunni Muslim nominated by the State Government; (h) one head of institution established and administered by Shia-Muslim nominated by the State Government; (I) two teachers of institutions established and administered by Sunni-Muslim nominated by the State Government; (j) two teachers of institutions established and administered by Shia-Muslim nominated by the State Government; (k) one Science or Tibb teacher of an institution nominated by the State Government; (l) the Account and Finance Officer in the Directorate of Minority Welfare, Uttar Pradesh; (m) the Inspector; (n) an officer not below the rank of Deputy Director nominated by the State Government, who shall be the member Registrar. (4) As soon as may be after the election and nomination of the members of the Board are completed, the State Government shall notify that the Board has been duly constituted: Provided that a notification under this sub-section may be issued even before the election of the member specified in clause (d) or clause (e) of sub-section (3) has been completed. (5)(a) Where there is only one Shia member or only one Sunni member in the State Legislators then each will be nominated by the State Government. (5)(a) Where there is only one Shia member or only one Sunni member in the State Legislators then each will be nominated by the State Government. (b) If no Shia member in the State Legislature is available then two Sunni-Muslim Legislators shall be elected as member of the Board and in the nomination paper of one of such Legislator it shall be mentioned before election that he shall cease to hold the office of the member of the Board on the date a Shia-Muslim Legislators takes oath as the member of the Board. Similarly, in the case of non-availability of Sunni-Muslim Legislator two Shia Muslim Legislators shall be elected as the member of the Board and in the nomination paper of one of such Shia Legislators it shall be mentioned before election that he shall cease to hold office of the member of the Board on the date of taking oath of the office of the member of the Board by a Sunni-Muslim Legislator. (6) On and from the date of the establishment of the Board under sub-section (1), the Arbi and Farsi Education Board functioning immediately before such establishment, hereinafter referred to as the earstwhile Board, shall stand dissolved and upon such dissolution,- (a) all the properties and assets of the earstwhile Board shall stand transferred to, and vest in the Board; (b) all debts, liabilities and obligations of the existing Board, whether contractual or otherwise, shall stand transferred to the Board; (c) all the officer and employees of the earstwhile Board shall become the officers and employees of the Board on the same terms and conditions and with the same rights and privileges as to retirement benefits and other matters as would have been applicable to them immediately before such dissolution till their employment under the Board is duly terminated or until their remuneration and other conditions of service are duly altered not to their disadvantage: Provided that an officer or employee of the earstwhile Board may be notice addressed to the Board served within a period of thirty days from such dissolution, intimate his option not to become an officer or employee of the Board and upon receipt of such notice, the post held until then by him shall stand abolished and his services shall stand terminated and he shall be paid an amount equivalent to his three months salary as compensation. .............. 7. .............. 7. Meeting of the Board.-(1) The Board shall meet at such time and place and shall subject to the provisions of sub-sections (2) and (3) observe such procedure in transacting the business at its meeting, including the quorum thereat, as may be provided by bye-laws made in this behalf. (2) The Chairperson shall preside at the meeting of the Board. In his absence, the Vice-Chairperson of the Board shall preside at the meeting. When Chairperson/Vice-Chairperson both were absent then the Chairperson shall be a senior member elected under clause (d) or clause (e) shall provide at the meeting. (3) All questions arising in a meeting of the Board shall be decided by majority of votes of the members present and voting and in case of equality of votes, the person presiding at such meeting shall have a second or casting vote. .............. 9. (3) All questions arising in a meeting of the Board shall be decided by majority of votes of the members present and voting and in case of equality of votes, the person presiding at such meeting shall have a second or casting vote. .............. 9. Functions of the Board.- Subject to the other provisions of this Act the Board shall have the following functions, namely: - (a) to prescribe course of instructions text-books, other books and instructional material, if any, for Tahtania, Fauquania, Munshi, Maulvi, Alim, Kamil, Fazil and other courses; (b) prescribe the course books, other books and instruction material of courses of Arbi, Urdu and Pharsi for classes upto High School and Intermediate standard in accordance with the course determined there for by the Board of High School and Intermediate Education: (c) to prepare manuscript of the course books, other books and instruction materials referred to in clause (b) by excluding the matters therein wholly or partially or otherwise and to publish them: (d) prescribe standard for the appointment of Urdu translators in the various offices of the State and ensure through the appointing authority necessary action with respect to filling up of the vacant posts; (e) to grant Degrees, Diplomas, Certificates or other academic distinctions to persons, who- (I) have perused a course of study in an institution admitted to the privileges or recognition by the Board; (II) have studied privately under conditions laid down in the regulations and have passed an examination of the Board under like conditions; (f) to conduct examinations of the Munshi, Maulvi, Alim and of Kamil and Fazil courses; (g) to recognise institutions for the purposes of its examination; (h) to admit candidates to its examination; (I) to demand and receive such fee as may be prescribed in the regulations; (j) to publish or withhold publication of the result of its examination wholly or in part; (k) to cooperate with other authorities in such manner and for such purposes as the Board may determine; (l) to call for reports from the Director on the condition of recognised institutions or of institutions applying for recognition; (m) to submit to the State Government its views on any matter with which it is concerned; (n) to see the schedules of new demands proposed to be included in the budget relating to institutions recognised by it and to submit if it thinks fit, its views thereon for the consideration of the State Government; (o) to do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising Madarsa-Education up to Fazil; (p) to provide for research or training in any branch of Madarsa Education viz., Darul Uloom Nav Uloom, Lucknow, Madarsa Babul Ilm, Mubarakpur, Azamgarh, Darul Uloom Deoband, Saharanpur, Oriental College, Rampur and any other institution which the State Government may notify from time to time; (q) to constitute a committee at district level consisting of not less than three members for education up to Tahtania or Faukania standard, to delegate such committee the power of giving recognition to the educational institutions under its control; (r) to take all such steps as may be necessary or convenient for or as may be incidental to the exercise of any power, or the performance or discharge of any function or duty, conferred or imposed on it by this Act.” 6. Section 10 deals with the Powers of the Board, Section 13 deals with the Power of the State Government, Section 17 deals with the Appointment and constitution of committee and sub-committees, Section 19 deals with the Superintendent of Centre and invigilator to be treated as public servant. The provisions quoted above are self sufficient, specifying the field of functions of the Board. 7. Petitioner appellants before this Court claim that they are students studying in various Madarsas in the State of U.P. and their grievance is that once they have been receiving the education in institutions recognised by the U.P. Board of Madarsa Education, Lucknow, then the examination in question should be conducted in the institution as defined under Section 2 (f) of the Act of 2004 and not in Government recognised or Government aided private intermediate colleges. 8. The backdrop of the case that is reflected in the present case is that number of complaints have been made by several District Minority Welfare Officers in regard to rigging in the examination of Madarsas and in order to remedy such a situation a meeting was convened by the Chairman of U.P. Madarsa Education Board and in the said meeting dated 1.6.2015 resolve was taken to declare 7 examination centres as blacklisted and debarment from being examination centres for a period of three years. In the meeting of the Board dated 1.6.2015 a resolve was also taken that a proposal shall be called from the Director of Education (Secondary), U.P. at Lucknow for providing superior procedure of examination by which free and fair examination is to be held for the students who are pursuing their education in Madarsas. Further, resolve was also taken to take active cooperation from the State Government and, accordingly, request was made to the State Government to issue directions to all the District Magistrate and District Minority Welfare Officers for giving cooperation to the Madarsa Board for conducting examination. This much is also reflected from the record that further meeting was convened on 8.2.2016, in which on Agenda No. 3, the matter pertaining to examination and allocation and allotment of examination of centres was discussed and it was resolved that a proposal shall be called from the Director of Education (Secondary) for a better conducting of examination. This much is also reflected from the record that further meeting was convened on 8.2.2016, in which on Agenda No. 3, the matter pertaining to examination and allocation and allotment of examination of centres was discussed and it was resolved that a proposal shall be called from the Director of Education (Secondary) for a better conducting of examination. Resolve was also taken to take cooperation from the State Government and request was made to the State Government to issue directions to all the District Magistrates and District Minority Welfare Officers for giving cooperation to the Madarsa Board for conducting examination. In the said meeting, it was also resolved and directed to the Registrar, Madarsa Board to obtain list of secondary schools for making examination centres for the examination-2016 from Directorate of Secondary Education at Lucknow. Record in question reflects that thereafter a further Board meeting was convened on 22.3.2016 of the Madarsa Board wherein detailed discussions have been held in regard to conducting Madarsa examinations for the year 2016 keeping in view the earlier Board meeting dated 1.6.2015 and 8.2.2016. This much is also reflected that Registrar, Madarsa Board informed that a list of 755 secondary schools have been received from the District Minority Welfare Officers for making examination centres for the Madarsa Examination for the year 2016. The list of the said institutions has been approved and Registrar has been directed to allocate and allot examination centres. At this juncture, once resolve has been taken to conduct the Madarsa examination 2016 and all arrangements in the said direction have been initiated, the petitioner appellants, as already mentioned above, claiming themselves to be the students studying in various institutions, are before this Court with the prayer that they should be permitted to appear in the examination 2016 only from their respective examination centres or in the institution recognised by the Board of Madarsas Education. The learned Single Judge on the basis of pleadings available before him by means of counter affidavit and rejoinder affidavit filed on 28.3.2016 and 30.3.2016 and on the basis of arguments, that have been so advanced, has proceeded to negate the claim of the petitioner appellants and as examination is to commence from 11.4.2016, the petitioner appellants are before this Court. 9. Mrs. 9. Mrs. Swati Agrawal, learned counsel for the petitioner appellants, submitted with vehemence that the learned Single Judge in the present case has not at all considered the issue raised in its correct perspective, inasmuch as, under the provisions of the Act of 2004 such an arrangement, that was being sought to be made, was not at all permissible and, in view of this, the very purpose of the Act i.e. Act of 2004 has been breached and, accordingly, this Court should intervene in the matter in order to see and ensure that examination centres that are set-up is brought up in line of the statutory provisions, as contained in the Act of 2004, as such, special appeal deserves to be allowed. Apart from this, it has also been sought to be contended that large scale manipulations have been made and the respondents have not at all acted fairly, in the present case and behind this exercise concerned Minister has taken undue interest and the entire exercise lacks bonafides. 10. The arguments, so advanced on behalf of petitioner appellants, have been resisted by Sri Ramesh Upadhyaya, learned Chief Standing Counsel, appearing for opposite party nos. 1 to 5 and Sri Safdar Ali Kazmi, Advocate, who has entered appearance on behalf of opposite party no. 6, by submitting before this Court that in order to maintain purity in Madrsa examination such a resolve has been taken and as far as petitioner appellants are concerned, none of their legal rights are infringed, inasmuch as, holding of examination and fixation of examination centres is exclusive domain of the Madarsa Board and, in the present case, right from 1.6.2015 when large scale malpractices have been reported, remedial measures were being explored and, accordingly, way has been find out in the shape of policy decision to hold the examination centres outside the control of institutions and concerned Minister has been only to ensure purity in examination and nothing else, in view of this, no interference should be made by this Court and, as such, special appeal is liable to be dismissed. 11. 11. After respective arguments have been advanced, the factual situation, that is so emerging, is that in the examination, that has been held in the year 2015 large scale mall practices have been reflected in the examination concerned and as it was a matter of concern for the Board, the concerned Board in its turn in its meeting dated 1.6.2015 resolved to call for suggestions from the Director of Education (Secondary) qua the manner in which examination should be conducted so that the mall practices that have come to the notice in the previous year Board's examination, are not repeated and purity is maintained in the examination of the year 2016. Record in question also reflects that in the said meeting the Board has blacklisted various Madarsas where mass cheating was found to have been carried out as well as result of number of students found guilty of using unfair means was cancelled. This much is also reflected from the record that Board was taking a serious view of the matter by changing the examination centres in the examination by obtaining a report from Madhyamik Shiksha Parishad, which is a body conducting one of the largest examinations in the State in discharge of its duties under the U.P. Intermediate Education Act, 1921. Pursuant to the said resolve, meeting of the Examination Committee dated 8.2.2016 was held wherein it was resolved to get a meeting fixed with the officials of the State Government, so that the decision would be taken for holding Board's examination in intermediate colleges. Resolve was also taken to call for a list of intermediate colleges from the department of the Secondary Education where the Board's examination should be conducted. Record in question reflects that thereafter a meeting was held in between the representatives of the State Government and officials of the Board on 24.2.2016 in which decision was taken to hold Board's examination from 3.4.2016 and, thereafter, communication in question has been issued for holding of examinations after it has been ratified by the Board in its meeting dated 31.3.2016. 12. Holding of examination is the exclusive domain of the Examining Body and as to what would be appropriate place for holding of the examination also falls within the exclusive domain of the Examining Body. 12. Holding of examination is the exclusive domain of the Examining Body and as to what would be appropriate place for holding of the examination also falls within the exclusive domain of the Examining Body. Section 2 (b) defines "Centre" as "an institution or a place fixed by the Board for the purpose of holding its examinations and includes the entire premises attached thereto". Section 2 (f) defines “Institution” as "the Government Oriental College, Rampur and includes a Madarsa or an Oriental College established and administered by Muslim Minorities and recognised by the Board for imparting Madarsa education". The definition in question clearly reflects that as far as centre is concerned wherein examination is to be held, same should be an institution or a place fixed by the Board for the purpose of holding of its examinations and includes the entire premises attached thereto. The definition of institution provides for under Section 2 (f) could be included under Section 2 (b) but apart from the same the Board has the authority to hold its examination at any place and, in view of this, the arguments, that have been advanced from the side of the petitioner appellants that only examination centres could have been fixed in the institution that are falling under the Act of 2004, cannot be accepted by us, in view of definition of the word "centre" in Section 2 (b), an examination centre could also be a place fixed by the Board for the purposes of holding its examinations. The definition of the word "centre" under Section 2 (b) is not restricted to an 'institution' as defined under Section 2 (f). Thus, the Board is competent to designate any other place apart from an institution as defined under Section 2 (f) for conducting the Board's examination. 13. The learned Single Judge is right at the point of time when he proceeds to make a mention that the definition of the word "centre" under Section 2 (b) is not restricted to an 'institution' as defined under Section 2 (f). The Board is fully competent to take the resolve to fix any other place apart from the institution as defined under Section 2 (f) for conducting the Board's examination. 14. The Board is fully competent to take the resolve to fix any other place apart from the institution as defined under Section 2 (f) for conducting the Board's examination. 14. In the present case, as a matter of policy in order to avoid the malpractices in the examination and in order to ensure purity in examination such an exercise has been undertaken and same is well within the competence of the Board in question, in such a situation and in this background such a challenge raised by handful of students casts serious doubt on their bonafides of being before this Court and we have a gut feeling that such students are being used as stooges by people with vested interest. Free/fair/transparent examination has been the demand of the situation, and once the Madarsa Board has risen to the occasion for maintaining purity in the examination and in order to ensure paramountecy and trustworthiness of the system as well as the sustenance of the confidence reposed upon it for holding of examination, then in exercise of authority of judicial review no interference is called for by us. 15. Consequently, in the facts of the case, once the Board of Madarsa Education has the authority to fix the examination centres and examination centres have been fixed in consonance with the policy decision, that have been taken from time to time and not only this what we find that even the Minister concerned, in the present case, has proceeded to supervise the situation as in the meeting that has been held on 24.2.2016, he has presided over the emergent meeting. On account of such participation, motives have been imputed on the Minister concerned. On account of such participation, motives have been imputed on the Minister concerned. Purity of examination is the paramount consideration and once in the said direction even the Minister concerned has supervised the matter, then to say that Minister has shown undue interest in the matter, cannot be accepted by us, inasmuch as, the Minister concerned happens to be the Head of the concerned department of the Ministry, which he heads and in case there are infirmities in the concerned department, then the Minister concerned will have to take a call and thus Minister concerned acted well within his competence by participating in the meeting convened for improvement of functioning of the system, inasmuch as, on the floor of the House it is the Minister who has to reply on all the matters of the department concerned. The Minister concerned, in the present case, has presided over the meeting in public good for maintaining purity in the examination and, as such, no motives can be imputed to him and here, in the present case, most surprisingly the motives have been sought to be imputed to him by impleading him as a party by name. Minister of concerned department has every right to participate in meeting, falling under his Ministry, as functions and duties that are vested in the State Government by Statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution of India. 16. Before us mention has been made that all the petitioner appellants are pardanasheen girls and their privacy would be adversely affected. 17. Such arguments have also no force, as at the changed examination centre, petitioner appellants are required to appear in examination in the same manner as they would have appeared in centres at Madarsa. However, Registrar, Madarsa Board on 4.2.2016 has addressed, even this concern of petitioner appellants, as by means of instruction no. 5, directives have been given for pulling curtain, and lady teachers have been asked to invigilate at the said examination centre. 18. In view of the above, on considering overall aspect of the matter, we are of the firm opinion that the order dated 1.4.2016 passed by the learned Single Judge in Writ Petition No. 12955 of 2016 does not warrant any interference by us as none of the legal rights of petitioner appellants has been infringed. 19. Special appeal is dismissed, accordingly. 19. Special appeal is dismissed, accordingly. Appeal dismissed.