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2016 DIGILAW 3883 (ALL)

AFZAL AHMAD v. STATE OF U. P.

2016-12-02

ARUN TANDON, VIVEK KUMAR BIRLA

body2016
JUDGMENT By the Court.—This Special appeal is directed against the judgement and order of the learned Single Judge dated 29.11.2010 passed in Writ Petition No. 37695 of 2010 (Madarsa Qurania Adampur Akbar, District Jaunpur and others v. State of U.P and others). 2. It is not in dispute that a Madarsa in the name and style of Madarsa Qurania was established prior to 1943. The said institution was granted recognition on 10.8.1943 by the Inspector, Arabi Madarsa, U.P. The institution was brought on the grant-in-aid list in the year 1960. The institution was earlier run from the Mosque i.e., Jama Masjid, Jaunpur. 3. The State Government framed the Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarso Ki Manyata Evam Sewa Niyamawali (hereinafter referred to as the ‘1987 Niyamawali’). One of the requirement of the aforesaid Niyamawali was that the Madarsas should have their own premises for running of the institution. It appears that the the institution was shifted to Adampura Akbar Jaunpur where certain rooms for running of the institution had been constructed on a waqf land. 4. From the records, it is apparent that the Committee of Management of the Madarsa, which is duly recognized, decided to construct a new building at Gopalpura and that the institution be run from the new building so constructed. 5. One Abdul Waheed, who claims to be the Principal of the Madarsa alongwith a faction led by Afzal Ahmad filed the writ petitions challenging the order of the Special Secretary, Government of Uttar Pradesh dated 13.4.2010 whereunder the State Government had cancelled its order dated 9.7.1999 and directed that the matter with regard to running of the Madarsa be placed before the Manyata Samiti of the U.P. Madarsa Shiksha Parishad for taking a decision in the light of the order of the Government. 6. They also prayed for quashing of the order dated 12.5.2010 whereby the Registrar on the basis of the recommendation of the Manyata Samiti had permitted the Madarsa to run from its original place i.e., Jama Masjid. The earlier decision of shifting the Madarsa from Jama Masjid to Adampura Akbar had been cancelled. 7. The appellant-Committee of Management of the Madarsa, which is undisputedly the recognized Committee of Management of the institution objected to the maintainability of the writ petition at the behest of the rival faction, who claimed to be the Committee of Management of the Madarsa without any basis. 7. The appellant-Committee of Management of the Madarsa, which is undisputedly the recognized Committee of Management of the institution objected to the maintainability of the writ petition at the behest of the rival faction, who claimed to be the Committee of Management of the Madarsa without any basis. 8. The learned Single Judge under the order impugned has recorded that although the learned counsel for the petitioner had contended that petitioner-Committee of Management had not been validly elected but it is not necessary to enter into the said issue as the order of the Registrar dated 12.3.2010 was contrary to provisions of Rule 11 of 1987 Niyamawali, which required that every Madarsa should have its own building for running of the institution. The learned Single Judge has also held that the order passed would not mean that the Court has recognized the petitioner-Committee of Management as validly elected Committee of Management. 9. We, in order to ascertain as to whether the lawful management of the institution entitled to manage the institution had constructed its own building at Gopalpura or not and to ascertain the faculty members and the number of students admitted therein required the District Minority Welfare Officer, Jaunpur to make spot inspection. We also directed the District Minority Welfare Officer to inspect the institution, which may be found running at Adampur also, inasmuch as the petitioners had claimed that the institution was being run at Adampura. 10. A detail report has been submitted by the District Minority Welfare Officer and it has been reported that there are 314 students admitted in the Madarsa, which is running at Gopalpura, out of which 237 were present at the time of inspection and that there were sufficient number of rooms for running of the Madarsa. 11. It has also been noticed that the scheme of mid-day meal as well as distribution of free uniform was in force at the institution at Gopalpura. The names of the teachers found working alongwith the teachers appointed on Mandey has also been recorded. 12. It has been stated that there is a dispute in respect of 5 new teachers/employees in the Madarsa, which is still awaiting the approval for payment of salary. 13. So far as the institution at Adampura is concerned, it has been noticed that the building has been constructed over a waqf property. 12. It has been stated that there is a dispute in respect of 5 new teachers/employees in the Madarsa, which is still awaiting the approval for payment of salary. 13. So far as the institution at Adampura is concerned, it has been noticed that the building has been constructed over a waqf property. There are sufficient number of rooms available for running of the Madarsa. However, in Classes 9th, 10th, 11th and 12th as well as Kamil first year, second year and third year and Fazil first year and second year, not even a single student was present at the time of inspection. Against the total strength of 241 students, who have been admitted in various classes, only 109 students were present at the time of inspection. It has also been reported that the schemes of the mid-day meal and free distribution of uniform were not functional at the institution of Adampur Akbar. Names of only five teachers said to be working at Adampur Akbar have been mentioned in the report. 14. The report, in our opinion, clearly suggests that the Madarsa is actually being run from the building, which has been established at Gopalpur, where all the facilities of teaching in various classes including mid-day meal and distribution of free uniform to the students, is being implemented. 15. The teachers at the institution at Adampur appears to be an effort on the part of the Principal to contest the shifting of the institution at the behest of rival Committee of Management for reasons best known to him. 16. We are of the opinion that it is within the discretion of the recognized Committee of Management of the Madarsa to construct its own building and to run the institution therefrom in view of the 1987 Niyamawali. The Principal or the teacher of any institution cannot object to such shifting of the institution by the lawful Committee of Management. Even otherwise, if the institution is one and the same, there cannot be parallel classes at two different buildings, nor two persons can claim to be the Principal for the same Madarsa. 17. In the totality of the circumstances on record and having regard to the fact that the petitioner Committee of Management hopelessly failed to establish before us that it was the lawful Committee of Management duly recognized, we hold that writ petition on its behest was misconceived. 17. In the totality of the circumstances on record and having regard to the fact that the petitioner Committee of Management hopelessly failed to establish before us that it was the lawful Committee of Management duly recognized, we hold that writ petition on its behest was misconceived. The Principal alone is left, who object to the shifting of the institution, in our opinion, he has no right in that regard. 18. In the totality of the circumstances on record, we are of the considered opinion that the Madarsa should be permitted to run from the building, which has been constructed by the Committee of Management at Gopalpur, Shahri Jaunpur. At the same time we are conscious of the fact that there should be no uncalled harassment on lawful Principal/Teachers appointed in the Madarsa and who may be found for certain reasons to be discharging their duties at present in the institution at Adampur Akbar. We, therefore, deem fit and proper to issue following further directions: A. Only such Principal and Teachers, who have been duly appointed, shall be permitted to work in the Madarsa established at Gopalpur Sahari, Jaunpur and the teachers at present working at Adampur Akbar may therefore join their duties at the institution at Gopalpur Sahari. The Management of the institution of the Madarsa shall not cause any undue hindrance in the joining of the Principal/Teachers concerned or in the matter of payment of salary to them. B. Only such Principal/Teachers shall be entitled for salary from the State Exchequer, who have been duly appointed. For this purpose the concerned authority shall pass a reasoned order in respect of each of the Principal/Teacher concerned either justifying the payment or for withholding their salary. He shall afford opportunity of hearing to the faculty concerned. C. All the students, who had been validly enrolled in the institution at Adampur Akbar, Jaunpur shall be given an option to continue their studies from the institution at Gopalpur Sahari, Jaunpur without being insisted upon to take any fresh admission. D. The exercise in that regard shall be completed by the authority preferably within four weeks from the date of production of a certified copy of this order. E. There are allegations qua certain teachers to be the relatives of the District Minority Welfare Officer. D. The exercise in that regard shall be completed by the authority preferably within four weeks from the date of production of a certified copy of this order. E. There are allegations qua certain teachers to be the relatives of the District Minority Welfare Officer. We, therefore, deem it fit and proper to direct that the legality or otherwise of the Principal/Teachers of the Madarsa, who may be entitled to salary from the State Exchequer, may be examined by the Director, Minority Social Welfare Department, U.P., Lucknow. 19. The Special Appeal is accordingly disposed of.