# C/M Madarsa Arabia Ataurrasool Maharajganj v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-01
- **Case number:** Civil Misc. Writ Petition No. 39779 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-madarsa-arabia-ataurrasool-maharajganj-v-state-of-u-p-and-others-41838
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.
30Termination order against a teacherworking
under
minority
institutionDirector Arbi Farsi Madarasa-set-a-side-
the order for non compliance of principle
of natural justice-whether the director
can exercise power of Inspector despite
of the provision of Para 34 of Madarasa
Niyamawali?
held-'No'
except
suggestions
by
Inspector,
Executive
Officer has no jurisdiction to interfere
with
disciplinary
action
of
the
management of minority institution.

Held: Para 11 and 12

In the circumstances para 34 of the
aforesaid rules, in my view, does not
confer any power or authority to the
Inspector
to
nullify
the
order
of
termination.

Once it is an admitted case of the parties
that the executive authorities had no
statutory power to interfere with the
disciplinary proceedings initiated by the
employer, I find no justification to
sustain
the
orders
passed
by
the
executive
authorities
having
no
jurisdiction to intervene in such matters.

## Text

1 All] C/M Madarsa Arabia Ataurrasool Maharajganj V. State of U.P. and others
209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 39779 of 2006

C/M Madarsa Arabia Ataurrasool Thru'
Manager A.A. Raini

 ...Petitioner
Versus
State oF U.P. Thru' Prin. Min. of Welfare
and others

 ...Respondents

Counsel for the Petitioner:
Sri H.C. Singh
Sri A.P. Singh
Sri Krishan Ji Khare

Counsel for the Respondents:
Sri Mansoor Ahmad
Sri Rizwan Ahmed
C.S.C.

Constitution
of
India,
Art.
30Termination order against a teacherworking
under
minority
institutionDirector Arbi Farsi Madarasa-set-a-side-
the order for non compliance of principle
of natural justice-whether the director
can exercise power of Inspector despite
of the provision of Para 34 of Madarasa
Niyamawali?
held-'No'
except
suggestions
by
Inspector,
Executive
Officer has no jurisdiction to interfere
with
disciplinary
action
of
the
management of minority institution.

Held: Para 11 and 12

In the circumstances para 34 of the
aforesaid rules, in my view, does not
confer any power or authority to the
Inspector
to
nullify
the
order
of
termination.

Once it is an admitted case of the parties
that the executive authorities had no
statutory power to interfere with the
disciplinary proceedings initiated by the
employer, I find no justification to
sustain
the
orders
passed
by
the
executive
authorities
having
no
jurisdiction to intervene in such matters.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Krishnaji Khare for the
petitioner and learned Standing Counsel
for respondents No.1 to 4. Respondent
No.5 is represented by Mrs. Swati
Agrawal but she is not present though the
case has been called out in revised list and
besides her, names of Sri Rizwan Ahmad
and Mansoor Ahmad are also shown in
the cause list.

2. It is contended that the petitionerinstitution,
namely,
Madarsa
Arabia
Ataurrasool,
Siswa
Bazar,
District
Maharajganj is a minority institution
wherein the respondent no. 5 was working
as Assistant Teacher. It appears that a
charge sheet was issued to the respondent
no. 5 and inquiry officer was also
appointed. After inquiry, the committee of
management
passed
an
order
on
22.01.2006 terminating him whereagainst
the respondent no. 5 made a complaint
before the Registrar/Inspector, Arabi and
Farsi Madarsas, U.P., Lucknow who has
passed
the
impugned
order
dated
16.03.2006 observing that the order of
termination appears to have been passed
without properly considering reply of the
respondent no. 5 and, therefore, is in
violation of the principle of natural justice
hence the appropriate action be taken. The
said order passed by the Registrar is
addressed to District Minority Welfare
Officer, Maharajganj who pursuant to said
order has passed the second impugned
order dated 17.03.2006 directing the
petitioner-institution
to
treat
the
respondent no. 5 in continuous service
and pay salary in accordance with law.
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

3. Sri Khare, learned counsel for the
petitioner
submitted
that
both
the
impugned
orders
passed
by
the
Registrar/Inspector,
Arabi
and
Farsi
Madarsas, U.P., Lucknow and District
Minority Welfare Officer, Maharajganj
are wholly without jurisdiction. They
have no such power under any provision
to interfere in the management of the
minority institution including disciplinary
action taken against teaching staff of such
institution.

4. Learned counsel appearing for
respondent no.5 through his counter
affidavit could
not show
that the
respondents no. 2 and 3 had any power
under statute to interfere with the order
passed by the management of petitionersinstitution in respect to disciplinary action
of its teaching staff.

5. Uttar Pradesh Ashashkiya Arbi
Tatha
Farsi
Madarson
Ki
Manyata
Niyamawali has been placed before this
Court. Apparently the rules are not
statutory as also declared by the covering
letter dated 22nd August, 1987 reads as
under:

^^vjch rFkk Qkjlh enjlksa dh ekU;rk ds
lEcU/k esa le; le; ij tkjh fd;s x;s vkns'kksa dks
fujLr djrs gq;s jkT;iky egksn; vjsfcd rFkk
Qkjlh enjlksa dh ekU;rk ds fy, layXu fu;ekoyh
1⁄4uku&LVsaV;qVjh1⁄2 dks vuqeksfnr djrs gSaA**

6. Further para 34 thereof reads as
under:

^^;fn izcU/kkf/kdj.k }kjk fdlh v/;kid @
deZpkjh dks lsok ls i`Fkd djus dk fu.kZ; fy;k
tkrk gS rks fu"dklu ls iwoZ fof/kd dk;Zokgh
vko';d gksxhA iwjh dk;Zokgh ds fooj.k fujh{kd]
vjch enjlk] m0iz0] bykgkckn dks izsf"kr djus
gksaxsA ;fn dk;Zokgh esa dksbZ vfu;ferrk ik;h x;h
rks fujh{kd dks ;g vf/kdkj gksxk fd og vius
lq>ko izcU/k lfefr dks HkstsaA**

7. From perusal of aforesaid rule it
appears that though it entitle an employee
of an institution to approach the Inspector,
Arbi Madarsa against any order of
termination passed by the Management,
but the Inspector Madarsa has not been
conferred any authority or power to
interfere with such order, if he finds the
same to be otherwise contrary to the
recognized procedure of law. It only says
that if any irregularly is noticed by the
Inspector, he shall have right to send his
suggestions
to
the
Committee
of
Management. The provision is much short
of empowering the Inspector to interfere
with the order of the Management against
which the concerned employee of the
institution approaches him. There is
nothing in the aforesaid rules to show that
suggestions of the Inspector shall or may
have the impact of making order of
termination illegal or nullified in any
manner. What would be status of the
suggestion, is not clear from the said rules
but at the best it may be construed as to
advice the management to remain careful
in future but so far as the order of
termination, whereagainst the incumbent
had approached the Inspector concerned,
the same shall stand invalidated as such,
is not prescribed in the rules.

8. The rule framing authority was not
short of the words. If it chose not to make
any provision empowering the Inspector to
cause any interference in an order of
termination passed by the Management, it
would not be for this Court to add certain
words in the statutes so as to have such a
result. It cannot be treated to be a casus
omissus. Even otherwise, normally a casus
omissus should not be read by the Court in
1 All] C/M Madarsa Arabia Ataurrasool Maharajganj V. State of U.P. and others
211
the statute and should not be easily supplied
unless it is found that by implication that it
was the intention of the legislature and
hence in the scheme of the statute, it is
necessary. This would amount to adding
something in para 34. This Court is aware
that the rules of the interpretation are not
rules of laws and are not to be followed like
rules enacted by legislature in Interpretation
Act as observed by the Hon'ble Apex Court
in Superintendent and Remembrance of
Legal
Affairs,
West
Bengal
Vs.
Corporation of Calcutta, AIR 1967 SC
997. The principles of interpretation serve
only as a guide. A casus omissus cannot be
supplied by the Court. There is no
presumption that a casus omissus exists and
language permitting the Court should avoid
creating a casus Omissus where there is
none. It would be appropriate to recollect
the observations of Devlin, L.J. in
Gladstone Vs. Bower,(1960) 3 All ER 353
(CA):-

"The Court will always allow the
intention of a statute to override the defects
of working but the Court's ability to do so is
limited
by
recognized
canons
of
interpretation. The Court may, for example,
prefer an alternative construction, which is
less well fitted to the words but better fitted
to the intention of the Act. But here, there is
no alternative construction; it is simply a
case of something being overlooked. We
cannot legislate for casus omissus."

9. The Hon'ble Apex Court in
Bangalore Water Supply and Sewerage
Board Vs. A. Rajappa and others 1978
(36) FLR 266 quoted with approval the
following observation of Lord Simonds in
the case of Magor & St. Mellons R.D.C.
Vs. Newport Corporation, (1951) 2 All
ER 839 (841):-

"The duty of the Court is to interpret
the words that the Legislature has used.
Those words may be ambiguous, but, even if
they are, the power and duty of the Court to
travel outside them on a voyage of
discovery are strictly limited."

10. It would be appropriate at this
stage to remind another principle that
though a Court cannot supply a real casus
omissus, it is equally evident that it should
not so interpret a statute as to create casus
omissus when there is really none. Recently
in Vemareddy Kumaraswamy Reddy
and another Vs. State of Andhra Pradesh
2006(2) SCC 670 the Court reiterated that
while interpreting a provision the Court
only interprets the law and cannot legislate.
If a provision of law is misused and subject
to the abuse of process of law, it is for the
legislature to amend, modify or repeal it if
deemed necessary. The legislative casus
omissus cannot be supplied by judicial
interpretative process.

11. In the circumstances para 34 of the
aforesaid rules, in my view, does not confer
any power or authority to the Inspector to
nullify the order of termination.

12. Once it is an admitted case of the
parties that the executive authorities had no
statutory power to interfere with the
disciplinary proceedings initiated by the
employer, I find no justification to sustain
the orders passed by the executive
authorities
having
no
jurisdiction
to
intervene in such matters.

13. The writ petition is accordingly
allowed. The impugned orders dated
16.03.2006 and 17.03.2006 (Annexures-9
and 10 to the writ petition respectively) are
hereby set aside. However, it is open to
respondent no. 5 to take such recourse
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
against the order of termination passed by
the petitioner-institution as is permissible
and available in law.

14. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2011

BEFORE
THE HON'BLE A. P. SAHI,J.

Civil Misc. Writ Petition No. 44314 of 2010

Shiksha Prasar Samiti and another

 ..Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Ajay Kumar Pathak

Counsel for the Respondents:
C.S.C.

Right of Children to free and Education
Act No. 35 of 2009-Petitioner's Society
running number of Primary Schoolssince last 50 years-when the U.P. Distt
Boards Primary Education Act 1926 as
well Basic Education Act 1972 not seen
the light of day-receiving lump sum
grant from time to time-contributing in
fulfillment of poise obligation of Govt.-
impugned order to shut down and close
such institution in absence of recognition
amounts to negating the object of
compulsory Education-on pure technical
plea-cannot sustain-opportunity to get
recognition and the Govt. to Frame
scheme to protect such institutions
given.

Held: Para 24

The
concept
of
not
allowing
unrecognised institutions to flourish is to
check mushrooming of institutions and
prevent
lowering
of
standards
of
education.
It
is
to
not
allow
the
benchmark to sink further in order to
maintain the quality of education. This
does not mean that institutions should
be compelled to shut down. The idea is
to compel institutions to improve their
standards upto the required level. To
close an institution on a pure technical
plea of recognition without assessing the
actual potential of the institution would
be negating the object of compulsory
education.

(Delivered by Hon'ble A.P. Sahi,J.)

1. The petitioner - society runs
several institutions of the primary and
middle level that came to be registered in
the year 1942, inspired by the preachings
of the Father of the Nation Mahatma
Gandhi and also encouraged by the local
population of district Aligarh, Agra and
the surrounding areas. The society was
set up with the object of removing
illiteracy and propagating education on
Gandhian lines.

2. The institutions run by the
petitioner - society are now called upon
to shut down and closed under the orders
of the Basic Educational Authorities on
the
ground
that
the
institutions
established and run by the petitioner -
society does not have any recognition
and, therefore, in view of the provisions
of Right of Children to Free and
Compulsory
Education
Act,
2009
running of such institutions is prohibited.

3. The petitioner had earlier come
up before this court questioning the said
action taken by the Assistant Basic
Education
Officer,
Khair
Aligarh
whereupon this court proceeded to
dispose of the writ petition with a
direction to consider the grievance of the