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2019 DIGILAW 1836 (ALL)

Mohammad Shahid Raza v. State of U. P.

2019-07-31

PANKAJ BHATIA

body2019
JUDGMENT : Pankaj Bhatia, J. Heard Sri Anshu Chaudhary, learned counsel for the petitioner and Sri Sanjeev Singh, learned counsel appearing on behalf of the proposed respondents. 2. The petitioner has filed the present petition challenging the order dated 18.9.2017 passed by Registrar/Inspector U.P. Madarsa Shiksha Parishad, Lucknow (respondent no. 2) whereby the financial approval granted earlier on 18.11.2015 has been revoked by the respondent no. 2. When the matter was entertained the respondents were granted time to file counter affidavit vide order dated 27.10.2017, however, no counter affidavit was filed. This Court, vide order dated 30.4.2018, passed a stop order granting six weeks' and no more time to file counter affidavit. Despite there being stop order no counter affidavit has been filed. An impleadment application has been filed on behalf of Kamal Ahmad Khan and Jamil Ahmad on the ground that the applicant no. 1 is the Member of the Committee of Management and the applicant no. 2 is the Officiating Manager of the Institution. 3. Learned counsel for the petitioner opposed the impleadment application by filing counter affidavit to the said application, however, in the interest of justice, learned counsel, representing the said applicants, was also heard. 4. This Court, on 17.7.2019, had heard the matter and sought the clarification from both the counsel with regard to the Rules applicable for appointment and the matter was posted for further hearing on 19.7.2019. The matter was heard and judgment was reserved on 19.7.2019. 5. The brief facts which led to the filing of the present writ petition are that a post of Assistant Teacher Tahtania fell vacant on account of retirement of one Sri Rafiq Uddin in the Madarsa known as Jamia Rizvia Ahle Sunnat Gola Bazar, Gorakhpur which is a duly recognized Madarsa by the Madarsa Board and also receives grant-in-aid from the State Government. 6. It is further on record that the services are governed under the U.P. Board of Madarsa Education Act & Rules, 1987. It is stated that for appointment on the vacant post i.e. Assistant Teacher. 6. It is further on record that the services are governed under the U.P. Board of Madarsa Education Act & Rules, 1987. It is stated that for appointment on the vacant post i.e. Assistant Teacher. The Committee of Management advertised the post in question in two Newspapers, namely, Dainik Rashtriya Sahara and Dainik Samachar Aaj on 25.9.2015 and 24.9.2015 respectively and, in pursuance of the said advertisement, the petitioner applied and was selected by the Committee of Management and the relevant documents were forwarded before the District Minority Welfare Officer for approval of the appointment. 7. It is stated that on 18.11.2015 the Registrar granted the approval to the appointment of the petitioner and, for payment of the salary, the said approval is on record as Annexure-3 to the writ petition. It is also on record that in pursuance of the appointment letter and the financial approval granted, the petitioner joined the services and started functioning as an Assistant Teacher. 8. Learned counsel for the petitioner argued that some complaint was made before the Registrar with regard to the appointment of the petitioner on which the Registrar called for a report from the District Minority Welfare Officer and the said Officer submitted a report on 13.4.2016 in which it was reported that the appointment of the petitioner was in accordance with law. After the said appointment was found to be in order one Jamil Ahmed made another complaint on 3.3.2016 with regard to the appointment of the petitioner and based upon the said complaint, the Registrar passed an order on 19.12.2016 cancelling the appointment of the petitioner and the same was communicated to the Under Secretary Minority Institutions. 9. The basis on which the order dated 19.12.2016 came to be passed was an affidavit filed by certain Members of the Committee to the effect that no appointment was made and the Registrar further recorded that from perusal of the record it was revealed that no written test was conducted and the same was also not got signed from the Members and the Principal of Madarsa and further there was no record of any interview given by the petitioner as such the Registrar found that the appointment of the petitioner was forged. 10. 10. From the perusal of the order impugned, it is clear that no opportunity of hearing was granted to the petitioner prior to the passing of the order dated 19.12.2016. 11. The order dated 19.12.2016 was challenged by the petitioner by filing Civil Misc. Writ Petition No. 5007 of 2017 which was allowed by this Court solely on the ground that no opportunity of hearing was given to the petitioner prior to the passing of the order dated 19.12.2016 and the matter was again remanded for fresh decision in accordance with law. 12. The Registrar, after hearing the petitioner, passed an order dated 18.9.2017 once again holding that the appointment of the petitioner was not in accordance with law. It is this order dated 18.9.2017 which is under challenge in the present writ petition. 13. Learned counsel for the petitioner has assailed the said order stating that in respect of the selection of the petitioner the Committee of Management had forwarded the list where marks were allotted and were also signed by the Selection Committee and to substantiate the said averment, the petitioner has brought on record a copy of the proceedings of the selection duly signed and containing the marks both in written as well as in interview. The petitioner has also filed the affidavits of persons who had participated in the selection process wherein they have stated that the selection was in order and was duly signed. 14. The impugned order passed by the Registrar records the affidavits filed by Jamil Ahmad, Shahid Raza (the petitioner), Mohd. Siddiqui (Principal) and one Tehrir Ahmad. The affidavit filed by Jamil Ahmad was to the effect that : (a) The Management did not register the minutes pertaining to the observers, who were called on 28.10.2015. Sri Murtaza Ali, the Manager did not name the Members of the Selection Committee. (b) The Manager, Murtaza Ali has taken all the papers to his residence for its wrong use. (c) Sri Murtaza Ali should have got the signature of all the Members of the Selection Committee. (d) He has got the forged signatures of the Members on the meeting dated 21.10.2015. (e) The signatures of the Principal was not got made on the entire selection process. (f) Sri Murtaza Ali is related to Shahid Raza. (g) The present Committee is disputed. (h) Signatures of Shahid Raza are not present on the file. 15. (d) He has got the forged signatures of the Members on the meeting dated 21.10.2015. (e) The signatures of the Principal was not got made on the entire selection process. (f) Sri Murtaza Ali is related to Shahid Raza. (g) The present Committee is disputed. (h) Signatures of Shahid Raza are not present on the file. 15. Shahid Raza, in his affidavit, had stated that the appointment was in accordance with law. Mohd. Siddiqui, the Principal also gave an affidavit before the Registrar stating that the selection process was in accordance with law and the written and the oral examination were done before him. Sri Tehrir Ahmad and Assistant Teacher also gave an affidavit stating that the selection process was indeed carried out properly. The Registrar in the impugned order without even adverting to the contents of affidavits disbelieved all the affidavits on the ground that there was no disclosure as to when the meeting of the Selection Committee was held and on that sole basis he recorded his finding that the entire selection process was irregular. A perusal of the order dated 18.9.2017 shows glaring errors apparent on the record inasmuch as the affidavit of Shahid Raza duly disclosed all the steps followed leading to the appointment of the petitioner. The affidavit of the Principal was also categorical to the effect that the written in the oral examination was held before him as well as the affidavit of Tehrir Ahmad also reiterated the facts regarding the written examination as well as the oral interview. No reason has been recorded by the Registrar for disbelieving the affidavits of the petitioner, the Principal or Tehrir Ahmad. The Registrar further failed to take into consideration the earlier approval granted by the Registrar himself as also the report of the District Minority Welfare Officer dated 13.4.2016. On these grounds alone the impugned order is perverse and being bereft of any reasoning cannot be sustained and is liable to be set aside. 16. Sri Sanjeev Singh, learned counsel for Kamal Ahmad Khan as well as Jamil Ahmad, has filed an impleadment application and tried to justify the cancellation order of the petitioner. He was called upon to address this Court as to where is the requirement for conducting written test for appointment, nothing could be pointed out with regard to requirement of written test prior to appointment. 17. He was called upon to address this Court as to where is the requirement for conducting written test for appointment, nothing could be pointed out with regard to requirement of written test prior to appointment. 17. Sri Sanjeev Singh, learned counsel representing the proposed respondents, argued that the Rules of 1987 are non-statutory and, in support of his contention, relied upon a judgment of this Court in Special Appeal No. 447 of 2016 (Mohammad Shoeb vs. State of U.P. and others) wherein statement of one of the counsel was recorded that the Rules of 1987 are not non-statutory. I have perused the said judgment. In the said case, neither any question of the validity of the Rules or the Rules being statutory or non-statutory arose nor was considered as such reliance of Sri Sanjeev Singh on the said judgment is wholly unwarranted. 18. Sri Sanjeev Singh next contended that new set of regulations have been framed in the year 2016, however, he conceded that the said Regulations of 2016 will not apply to the case of the petitioner as his appointment was prior to the said Regulations. 19. Coming to the Rules 1987, the said Rules provide for manner of appointment which are relevant for the adjudication of the case in question are being quoted here-in-below: 20- izcU/krU= }kjk] xfBr p;u lfefr }kjk 'kSf{kd l= izkjEHk gksus ds ,d ekg iwoZ f'k{kdksa dk pquko dj fjDr LFkkuksa dh iwfrZ dj ysuk vko';d gksxkA l= ds e/; esa fjDr LFkkuksa ij fu;qfDr;k¡ izcU/kkf/kdj.k }kjk rnFkZ vkpkj ij nks ekl ds vUnj dj yh tk;saxhA lgk;d v/;kid ds p;u esa iz/kkuk/;kid@iz/kkukpk;Z Hkh p;u lfefr ds lnL; gksaxsA 21- izcU/kd rFkk iz/kkukpk;Z ds fuEukafdr fudV lEcfU/k;ksa dh fu;qfDr ugha dh tk;sxh& ¼d½ iq=@iq=h ¼[k½ HkkbZ@cfgu ¼x½ ifr@iRuh ¼?k½ ekrk&firk 22- fdlh Hkh fjDr in ij ¼uol`ftr ;k vLFkkbZ ;k LFkkbZ :i ls fjDr½ fu;qfDr gsrq de ls de nks nSfud lekpkj&i=] ftuesa ,d {ks=h; Lrj dk rFkk ,d izknsf'kd Lrj dk gksxk] foKkiu fn;k tk;sxkA foKkiu esa ;ksX;rk] vk;q lhek rFkk osruØe vkfn dk fooj.k gksuk vfuok;Z gksxkA fdlh ,sls in ij fu;qfDr ugha dh tk;sxh tks foHkkx }kjk Lohd`r u gksxkA 20. It is important to notice that there is no averment on record even on behalf of the proposed respondents that any documents annexed especially Annexure-1 or Annexure-7 to the writ petition are either forged or fabricated. It is important to notice that there is no averment on record even on behalf of the proposed respondents that any documents annexed especially Annexure-1 or Annexure-7 to the writ petition are either forged or fabricated. There is no averment on record that the petitioner was in any way related to the Principal, attracting the bar as contained in Rule 21 of the 1987 Rules. A perusal of the impugned order also does not in any way so that the Annexure-1 or Annexure-7 were forged and fabricated which led to the grant of financial approval at the first instance by the Registrar on 18.11.2015. The appointment of the petitioner, based upon the documents on record, makes it clear that the same was in accordance with 1987 Rules and was rightly granted the approval and the impugned order dated 18.9.2017 was clearly passed on considerations other than merit and at the instance Kamal Ahmad Khan and Jamil Ahmad without being any material on record. 21. Supplementary affidavit has been filed by the petitioner which clearly shows the mala fide of Jamil Ahmad. At the instance of Jamil Ahmad, an FIR was lodged on 13.10.2017 under sections 419, 420, 467, 468, 471 and 120-B IPC which is related to the appointment of the petitioner. The said FIR was investigated and final report was filed to the effect that there is no evidence to substantiate any of the allegations levelled in the FIR. It did not stop at that when the final report was filed before the Court for its acceptance. Sri Jamil Ahmad did not raise any objection and, in fact, prayed before the Court to accept the final report, which was accepted vide order dated 6.4.2019 and has been filed on record by means of a supplementary affidavit. 22. From the documents on record, it is clear that Kamal Ahmad Khan and Jamil Ahmad have made constant efforts to harass the petitioner in one way or the other and, unfortunately, the Registrar has been influenced by Kamal Ahmed Khan and Jamil Ahmad while passing the order dated 18.9.2017 without any application of mind and incomplete disregard to the 1987 Rules. The petitioner has thus suffered on account of illegal actions initiated at the instance of Kamal Ahmad Khan and Jamil Ahmed. 23. The order dated 18.9.2017 deserves to be quashed and is quashed on all the reasoning given above. The petitioner has thus suffered on account of illegal actions initiated at the instance of Kamal Ahmad Khan and Jamil Ahmed. 23. The order dated 18.9.2017 deserves to be quashed and is quashed on all the reasoning given above. A mandamus is issued commanding the respondent no. 2 to ensure the payment of salary to the petitioner in terms of his appointment on the post of Assistant Teacher as duly approved on 18.11.2015. 24. The writ petition is allowed in terms of the writ issued above with a cost of Rs. 25,000/- to be paid by Kamal Ahmed Khan and Jamil Ahmad to the petitioner within a period of two months from today. In the event of non-payment of the cost as directed above to the petitioner within a period of two months from today, the District Magistrate, Gorakhpur is directed to recover the cost of Rs. 25,000/- from Kamal Ahmed Khan, resident of Ward No. 6, Nagar Panchayat Gola Bazar, Dank Bangla Road, District Gorakhpur and Jamil Ahmad, resident of Gola Bazar, Post Gola, Tehsil Gola, District Gorakhpur jointly and severally as arrears of land revenue and pay the same to the petitioner positively by 01.12.2019.