# C/M Azimuddin Ashraf Islamia Inter College, Barabanki v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1033
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Writ A No. 3793 of 2018
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-azimuddin-ashraf-islamia-inter-college-barabanki-v-state-of-u-p-ors-48394
- **Pages:** 4

## Headnote

A. Service Law - Education - Selection
and Appointment - U.P. Intermediate
Education Act, 1921 - Sections 2(dd),
16FF(4) & 16FF(5) - It was not open
for the District Inspector of Schools to
reopen the issue after adjudication by
the
Joint
Director
of
Secondary
Education, Faizabad Region, Faizabad
vide order dated 30.06.2017. All that
he was required to do was to verify the
educational testimonials and training
documents
for
the
purposes
of
payment of salary, instead he has
embarked
upon
an
unnecessary
exercise
pointing
out
certain
irregularities in the selection which
could not have been seen by him. The
order of the Joint Director is referable to
S.16 FF (5) of the Act of 1921 as also the
GO
dated
19.12.1997,
contained
as
Annexure No. 18 to the petition. Counter
affidavit is silent as to how the Joint
Director of Secondary Education, Faizabad
Region,
Faizabad
did
not
have
the
jurisdiction in the matter in view of the GO
dated 19.12.1997, veracity of which has not
been challenged. (Para 10)

Selected candidates are already working
and being paid salary in pursuance to the
interim order passed by this Court dated
07.02.2018. The educational testimonials
and training documents have been verified
by the District Inspector of Schools before
paying the salary in compliance of the
interim order of this Court. (Para 11)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 19.12.2017, passed by District
Inspector
of
Schools,
Barabanki,
holding the selection and appointment
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
of
teachers
by
the
petitioner
(Committee of Management) to be
illegal seeking certain clarifications.

## Text

5 All. C/M Azimuddin Ashraf Islamia Inter College, Barabanki Vs. State of U.P. & Ors.
1033
respondent department in 2006. In view
thereof, the impugned order dated 1
October
2015,
passed
by
the
third
respondent-Director, Viklang Jan Vikas,
U.P. Lucknow, in compliance of the order
dated 04 August, 2015, issued by the State
Government and all consequential orders
directing recovery from the petitioners, is
unsustainable and liable to the quashed.

21. Order accordingly.

22. The writ petition, is accordingly,
allowed.

23. The State-respondents are directed
to compute the entitlement of second and
third A.C.P. from the date of appointment
of the petitioners on deputation (1998) with
all consequential benefits, including retiral
dues. The petitioners are entitled to arrears,
if any. It is expected that the Staterespondents shall complete the exercise
within eight weeks from the date of filing
of certified copy of this order, failing
which, petitioners shall be entitled to
simple interest at the rate of 6% per annum
from due date till the date of payment on
the
amount
due
to
the
respective
petitioners.

24. No cost.
----------
(2022)05ILR A1033
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ A No. 3793 of 2018

C/M
Azimuddin
Ashraf
Islamia
Inter
College, Barabanki ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Aftab Ahmad, Qazi Mohd. Ahmad

Counsel for the Respondents:
C.S.C.

A. Service Law - Education - Selection
and Appointment - U.P. Intermediate
Education Act, 1921 - Sections 2(dd),
16FF(4) & 16FF(5) - It was not open
for the District Inspector of Schools to
reopen the issue after adjudication by
the
Joint
Director
of
Secondary
Education, Faizabad Region, Faizabad
vide order dated 30.06.2017. All that
he was required to do was to verify the
educational testimonials and training
documents
for
the
purposes
of
payment of salary, instead he has
embarked
upon
an
unnecessary
exercise
pointing
out
certain
irregularities in the selection which
could not have been seen by him. The
order of the Joint Director is referable to
S.16 FF (5) of the Act of 1921 as also the
GO
dated
19.12.1997,
contained
as
Annexure No. 18 to the petition. Counter
affidavit is silent as to how the Joint
Director of Secondary Education, Faizabad
Region,
Faizabad
did
not
have
the
jurisdiction in the matter in view of the GO
dated 19.12.1997, veracity of which has not
been challenged. (Para 10)

Selected candidates are already working
and being paid salary in pursuance to the
interim order passed by this Court dated
07.02.2018. The educational testimonials
and training documents have been verified
by the District Inspector of Schools before
paying the salary in compliance of the
interim order of this Court. (Para 11)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 19.12.2017, passed by District
Inspector
of
Schools,
Barabanki,
holding the selection and appointment
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
of
teachers
by
the
petitioner
(Committee of Management) to be
illegal seeking certain clarifications.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. By means of this petition the
petitioner has challenged the order of
District Inspector of Schools, Barabanki
dated 19.12.2017 holding the selection and
appointment of the Teachers by the
petitioner - Committee of Management to
be illegal seeking certain clarifications
from it.

3. The contention of learned counsel
for the petitioner is that selection was held
for filling up three posts of Lecturers and
one Assistant Teacher in the PetitionerInstitution which is a minority Institution
about which there is no dispute in the
counter affidavit. The proposal for approval
for such selection and appointment was
sent to the District Inspector of Schools
concerned who vide order dated 30.05.2017
rejected it on account of certain alleged
irregularities. The petitioner - Committee of
Management filed an appeal/representation
before the Joint Director of Secondary
Education, 9th Region, Faizabad Region,
Faizabad on 06.06.2017 under Section 16
FF (5) of the U.P. Intermediate Education
Act, 1921. The matter was considered by
the Joint Director who vide order dated
30.06.2017 set aside the order of the
District
Inspector
of
Schools
dated
30.05.2017. Copy of the order of Joint
Direction is annexed as Annexure No. 11.
This order was passed in compliance of the
judgment and order dated 20.06.2017
passed by this Court in Writ Petition No.
13986 (MS) of 2017 wherein a direction
had been issued to the appellate authority to
decide
the
petitioner's
appeal,
expeditiously, say by 10th of July, 2017
keeping in view the provisions as contained
in Section 16 FF (4) of the Act of 1921.

4. The Court has perused the order of
the Joint Director dated 30.06.2017 and
finds that a categorical finding has been
recorded by him that the selected persons
possess the requisite qualifications for the
post for which they have been selected.
Accordingly, in view of Section 16 FF (4)
of the Act of 1921 there is no reason for not
granting approval. Consequently, he has
granted approval subject to the condition
that if any concealment or falsehood is
found in the matter, then the approval
would automatically stand rescinded. He
has further observed that the District
Inspector of Schools, Barabanki shall be
under
an
obligation
to
verify
the
educational
testimonials
and
training
documents of the selectees from the
concerned Institution/University and pay
the salary only thereafter. Now, after this
order, all that the District Inspector of
Schools was required to do is to verify the
educational
testimonials
and
training
documents of the selectees. Instead of
doing so, by means of the impugned order,
he has held that the Joint Director, in fact,
had no jurisdiction and under Section 16
FF, it is Regional Deputy Director who had
jurisdiction in the matter and thereafter he
has pointed out various irregularities in the
selection and has held that the selection
appears to be irregular, accordingly he has
sought information from the petitioner.

5. Counsel for the petitioner has
invited attention of the Court to the
Government
Order
dated
19.12.1997
contained as Annexure No. 18 veracity of
which has not been denied in the counter
affidavit filed on behalf of the respondents,
5 All. C/M Azimuddin Ashraf Islamia Inter College, Barabanki Vs. State of U.P. & Ors.
1035
according to which the tasks which were to
be performed by the Deputy Director of
Education under the Act of 1921 are to be
performed by the concerned Joint Director,
but it seems that the District Inspector of
Schools, Barabanki was wholly oblivious
of this fact.

6. Section 16 FF (4) of the Act of
1921 reads as under:

"16 FF (4) - The Regional Deputy
Director of Education or the Inspector, as
the case may be, shall not withhold
approval for the selection made under this
section where the person selected possesses
the minimum qualifications prescribed and
is otherwise eligible."

7. The Court may refer to Section 2
(dd) of the Act of 1921 which defines
"Regional Deputy Director Education as
under:

"2
(dd)
"Regional
Deputy
Director, Education" means the Deputy
Director of Education in charge of a
region and includes an officer authorised
by the State Government to perform all or
any of the duties of a Regional Deputy
Director."

8. In view of this definition State
Government can authorise the Joint Director
Education to perform all or any of the duties of
a
Regional
Deputy
Director
and
the
Government Order dated 19.12.1997 is
referable to it.

9. Everyday, we find that such decisions
are being taken by the Joint Director of the
concerned Region.

10. Considering the provisions of Section
16 FF (4) of the Act of 1921, according to which
the Regional Deputy Director of Education which
now is Joint Director of Education in view of the
aforesaid Government Order which is referable to
Section 2 (dd) read with Section 16 FF of the Act
of 1921 or the Inspector as the case may be shall
not withhold the approval for selection made
under this Section where the person selected
possesses the minimum qualification prescribed
and is otherwise eligible and also in view of the
adjudication of the matter by the Joint Director of
Education vide order dated 30.06.2017 passed in
pursuance to the judgment of this Court dated
20.06.2017 passed in Writ Petition No. 13986
(MS) of 2017 wherein he has held that the
selected
candidates
possess
the
requisite
qualification and has accordingly approved the
selection and appointment, the order of the District
Inspector of Schools impugned herein is clearly in
the teeth of the law as also highly objectionable in
the sense he has forgotten the hierarchy and
control which is the hallmark of any
administrative organization. It was not open for
the District Inspector of Schools to reopen the
issue after adjudication by the Joint Director of
Secondary Education, Faizabad Region, Faizabad
vide order dated 30.06.2017. All that he was
required to do was to verify the educational
testimonials and training documents for the
purposes of payment of salary, instead he has
embarked upon an unnecessary exercise pointing
out certain irregularities in the selection which
could not have been seen by him. The order of the
Joint Director is referable to Section 16 FF (5) of
the Act of 1921 as also the Government Order
dated 19.12.1997, contained as Annexure No. 18
to the petition. Counter affidavit is silent as to how
the Joint Director of Secondary Education,
Faizabad Region, Faizabad did not have the
jurisdiction in the matter in view of the
Government Order dated 19.12.1997 veracity of
which has not been challenged.
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Selected candidates are already working
and being paid salary in pursuance to the interim
order passed by this Court dated 07.02.2018.
Obviously, the educational testimonials and
training documents have been verified by the
District Inspector of Schools before paying the
salary in compliance of the interim order of this
Court.

12. In view of the above, the impugned
order dated 19.12.2017 is hereby quashed.
Consequences shall accordingly follow as per law.

13. The petition is allowed.
----------
(2022)05ILR A1036
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Writ A No.17936 of 2021

Bindu ...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vijay Tripathi

Counsel for the Respondents:
Sri Ashish Mishra, Sri Rahul Agarwal

Construction of the expression, "if he has
been for not less than seven years an
advocate"
in
Article
233(2)
of
the
Constitution - This expression means seven
years as an advocate immediately preceding the
application and not seven years any time in the
past. This is clear by use of 'has been'. The
present perfect continuous tense is used
for a position which began at some time in
the past and is still continuing. Therefore,
one of the essential requirements articulated by
the above expression in Article 233(2) is that
such person must with requisite period be
continuing as an advocate on the date of
application. (Para 4)

The term used "has been" is interpreted to
mean seven years and has to be in present
perfect continuous tense and not has been
seven years during any period. (Para 6)

B. In view of the interpretation of Article
233, rules debarring judicial officers from
staking their claim as against the posts
reserved for direct recruitment from bar
are not ultra vires as rules are subservient
to the provisions of the Constitution.

- U/Article 232(2), an Advocate or a pleader
with 7 years of practice can be appointed as
District Judge by way of direct recruitment in
case he is not already in the judicial service of
the Union or a State.

- For the purpose of Article 233(2), an
Advocate has to be continuing in practice for not
less than 7 years as on the cut-off date and at
the time of appointment as District Judge.
Members of judicial service having 7 years'
experience of practice before they have joined
the service or having combined experience of 7
years as lawyer and member of judiciary, are
not eligible to apply for direct recruitment as a
District Judge.

- The rules framed by the High Court
prohibiting judicial service officers from
staking claim to the post of District Judge
against the posts reserved for Advocates
by way of direct recruitment, cannot be
said to be ultra vires and are in conformity
with Articles 14, 16 and 233 of the
Constitution of India. (Para 7)

In case on hand, the petitioner ceased to be an
Advocate under the Advocates Act, 1961 in
August 2017 when she got selected as
EXAMINER OF TRADE MARK & G.I. It is
submitted by learned counsel at that time she
surrendered her practicing licence. Thereafter in
the year 2019, she was selected as Public
Prosecutor in CBI where she is still working. The
petitioner is a Public Prosecutor at present but