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2025 DIGILAW 489 (ALL)

Mazhar Ali v. Director Minority Welfare Up

2025-03-12

PRAKASH PADIA

body2025
JUDGMENT : Prakash Padia, J. 1. Heard learned counsel for the petitioner. Learned Standing Counsel accepted notice on behalf of respondent Nos.1 to 3 and Sri Pranav Mishra, learned counsel put up his appearance on behalf of respondent No.2. 2. The petitioner has preferred the present petition with the prayer to quash the notice dated 16.12.2023 issued by the respondent No.3/District Magistrate, Mau. By the aforesaid notice, a direction was given by him to the Chief Medical Officer, Mau to examine the petitioner & ascertain the correct date of birth of the petitioner and submit his report within a week before the respondent No.4/District Minority Welfare Officer, Mau. 3. Facts in brief as contained in the writ petition are that the petitioner was initially appointed on the post of Assistant Teacher in Fauquania in Madarsa Faiz- E-Aam, Mau (hereinafter referred to “Madarsa”) on 18.02.2003. 4. Subsequently vide resolution dated 14.06.2008, the petitioner was promoted on the post of Assistant Teacher in Alia and thereafter, he joined the promoted post on 30.11.2010. The aforesaid promotion was duly approved by the respondent No.2 vide its Letter No.1740/??? – 14(98)/2010 dated 30.11.2010 which is clear from perusal of Page 17 of the paper-book. Subsequent to the same, the petitioner was again promoted on the post of Principal vide resolution dated 27.07.2013 passed by the Committee of Management which was duly approved by the respondent No.2 on 11.10.2013 and subsequent to the same, the petitioner joined the post of Principal in the Institution in question and getting his salary with effect from 01.08.2013. It is stated that the work and conduct of the petitioner was found satisfactory and till date no disciplinary proceedings have ever been initiated against the petitioner. Along with the writ petition, a copy of the service book maintained by the office is also been appended as Annexure No.2 to the writ petition. In the aforesaid service book, the date of birth of the petitioner is mentioned as 03.07.1965 (??? ????? ?????? ?? ????). 5. After lapse of a period of more than twenty years from the date of initial appointment, due to enmity a complaint was made against the petitioner before the respondent Nos.2 & 4 that the petitioner by concealing his real date of birth/age, doing service in Madarsa. ????? ?????? ?? ????). 5. After lapse of a period of more than twenty years from the date of initial appointment, due to enmity a complaint was made against the petitioner before the respondent Nos.2 & 4 that the petitioner by concealing his real date of birth/age, doing service in Madarsa. Taking cognizance on the aforesaid complaint, a letter was written by the respondent No.4/District Minority Welfare Officer, Mau to the respondent No.2/Registrar/Inspector, U.P. Madarsa Board, Lucknow on 01.11.2023 regarding the verification of the date of birth of the petitioner. In the meanwhile, respondent No.4 also issued a letter to the petitioner on 24.11.2023 and reply of which has been submitted by the petitioner on 14.12.2023. Thereafter a complaint was also made on IGRS Portal being Complaint No.60000230176096 addressed to the Hon’ble Chief Minister on 30.08.2024 by one Chote Lal Gandhi. The aforesaid complaint was found without any force and the same was rejected by the respondent No.2 on 18.10.2023. A letter in this regard was also written by the respondent No.2 to respondent No.4, copy of the letter is appended as Annexure No.3 to the writ petition. 6. Not satisfied with the same, again a complaint was made by one Naseem Ahmad and he sought certain informations under Right to Information Act. A reply in this regard was also given by the respondent No.5 to the respondent No.4 vide letter dated 14.12.2023. Another complaint was made by Bharat Lal Rahi and others before the authorities regarding the date of birth of the petitioner and on the basis of the same, respondent No.2 wrote a letter to the Chief Medical Officer, Mau on 16.12.2023 with the direction to examine the petitioner to ascertain his date of birth and submit his report within a week before the respondent No.4/District Minority Welfare Officer, Mau. 7. Aggrieved by the aforesaid letter, the petitioner has preferred the present petition. The present writ petition was duly entertained and following order was passed on 18.01.2024:- Learned counsel for the petitioner is permitted to correct prayer clause of the writ petition The argument advanced by learned counsel for the petitioner is that District Magistrate, Mau has absolutely illegally directed for investigation into the correctness of the date of birth of the petitioner on the basis of a third party complaint and that too when the petitioner is going to retire within the next two years' time. Prima facie, the argument advanced by learned counsel for the petitioner appears to have substance and matter requires consideration. Learned Standing Counsel has accepted notice on behalf of respondent nos. 1 3 and 4 as well as Sri Pranav Mishra, learned Advocate appearing for respondent no. 2 shall be filing counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks' thereafter. Issue notice to respondent no. 5, returnable within eight weeks. Steps for service be taken within two weeks. List on the date indicated in the notice. In the meanwhile, until further orders of this Court, the effect and operation of the order dated 16th December, 2023 passed by District Magistrate, Mau shall remain stayed. 8. By the aforesaid order, time was granted to the respondents to file counter affidavit to the present petition but till date no counter affidavit has been filed. During the pendency of the present petition, another writ petition being Writ A No.17952 of 2024 ( Shri Hafeezur Rahman And 6 Others Vs. State of U.P. and others ) was filed by the Shri Hafeezur Rahman And 6 Others Assistant Teachers who are working in the aforesaid Madarsa regarding their financial approval & payment of salary. The aforesaid writ petition was connected with the present petition. During the hearing the petitions, learned counsel for the petitioner relied upon the decision taken by the respondent No.4 on 10.04.2024, copy of which is appended as Annexure No.11 of the Writ A No.17952 of 2024. 9. On the basis of the aforesaid order, it is argued by learned counsel for the petitioner that since the matter was adjudicated by the respondent No.4/District Minority Welfare Officer, Mau in great detail and thereafter an order dated 10.04.2024 was passed by him according to which the date of birth of the petitioner is 03.07.1965 (??? ????? ?????? ?? ????). The order dated 10.04.2024 reads as follows:- 10. It is admitted between the parties that aforesaid order has become final between the parties and the same has not yet been set aside by any competent authority/court. 11. Heard learned counsel for the parties and with the consent of learned counsel for the parties, the present petition is disposed of at the admission stage. 12. It is admitted between the parties that aforesaid order has become final between the parties and the same has not yet been set aside by any competent authority/court. 11. Heard learned counsel for the parties and with the consent of learned counsel for the parties, the present petition is disposed of at the admission stage. 12. From perusal of the record, it is clear that on the basis of the complaint made against the petitioner regarding correctness of his date of birth, matter was inquired and thereafter complaint made against the petitioner was found incorrect by the authorities. Thereafter, another complaint was made by one Chote Lal Gandhi on the IGRS portal of the Hon’ble Chief Minister on 30.08.2023 and the aforesaid complaint was duly examined and reply was given by the respondent No.2 to the Chief Secretary, Minority Welfare and Wakf Anubhag –3 U.P. Lucknow on 18.10.2023 in which it is stated that the complaint was found baseless. Thereafter another complaint was made by one Naseem Ahmad on which an order was passed by the respondent No.4 on 10.04.2024, according to which the date of the petitioner is 03.07.1965. It is admitted between the parties that the aforesaid order has become final and till date the aforesaid order has neither been stayed nor set aside by any competent authority/court. 14. Since the controversy regarding the date of birth of the petitioner has already been decided by the District Minority Welfare Officer, Mau/respondent No.4 vide its decision dated 10.04.2024 declaring the date of birth of the petitioner is 13.07.1965, there is no occasion for the District Magistrate, Mau to direct the Chief Medical Officer, Mau to examine the petitioner regarding his correct date of birth. 15. Law in this connection is also well settled that the District Magistrate has no authority, power or jurisdiction to interfere in the educational matters. Insofar as the teaching employees working in the Minority Institution, it is the District Minority Welfare Officer and thereafter the Registrar/Inspector, U.P. Madarsa Board, Lucknow is the appropriate authority to take decision in the matter. 16. The Hon’ble Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat , (1995) 5 SCC 302 , has held that if statutes confer a power on a authority then he alone can exercise that power and no superior authority had any jurisdiction to issue direction to control the said power. 16. The Hon’ble Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja v. State of Gujarat , (1995) 5 SCC 302 , has held that if statutes confer a power on a authority then he alone can exercise that power and no superior authority had any jurisdiction to issue direction to control the said power. 17. The Hon’ble Supreme Court has considered this issue in the case of case of Purtabpore Co. Ltd. v. Cane Commissioner of Bihar , (1969) 1 SCC 308 the matter was in respect of exercise of power by the Cane Commissioner under the provisions of Sugar Cane (Control) Order, 1966 which empowers the Commissioner to divide the reserved area into two portions and allot one portion to the Sugar Mill/respondent no.5 therein. The Cane Commissioner in compliance of the direction of the Chief Minister divided the reserved area into two portion. The order of the Cane Commissioner was challenged on the ground that the Cane Commissioner without application of mind had carried out the directions of the Chief Minister, thus he had abdicated his authority under the Act. The Hon’ble Supreme Court set aside the order of the Cane Commissioner on the ground that Clause 6 (1) is a statutory power and the said Clause empowers the Commissioner alone to take the decision in the light of the Scheme of the Statutory provisions. The Hon’ble Supreme Court held that Clause 6 (1) is a statutory power and he alone could have exercised that power. The Hon’ble Supreme Court further observed while exercising that power the Commissioner cannot abdicate his responsibility in favour of the State Government or the Chief Minister. The Court expressed its displeasure and observed that it was not proper for the Chief Minister to have interfere with the functions of the Cane Commissioner. 18. Professor De Smith, in his Principles of Judicial Review 1999 Edition, page 240 has aptly said :- "an authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of government who were prompted by extraneous motives. In at least two Commonwealth cases, licensing bodies were found to have taken decision on the instructions of the heads of government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure." 19. Professor Wade in his Administrative Law, 7th Edition has dealt with "Surrender, Abdication, Dictation" and "Power in the wrong hands " in the following words :- "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them.… Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...." 20. This paragraph of Professor Wade has been applied by the Supreme Court in the case of Anirudhsinhji Karansinhji Jadeja (supra) 21. In this view of the matter, the Court is of the opinion that the letter dated 16.12.2023 written by the respondent No.3/District Magistrate, Mau to Chief Medical Officer, Mau is liable to be set aside and the same is hereby set aside. 22. The writ petition is allowed. No order as to costs. 23. A mandamus is issued to the authorities to permit the petitioner to work in the Institution in question till the date of his superannuation as per relevant rules taking into consideration of his date of birth as 03.07.1965 and make the payment of salary as and when it falls due. No order as to costs. 23. A mandamus is issued to the authorities to permit the petitioner to work in the Institution in question till the date of his superannuation as per relevant rules taking into consideration of his date of birth as 03.07.1965 and make the payment of salary as and when it falls due. The arrears of salary, if any, be also paid to the petitioner within thirty days from the date of production of certified copy of this order.