# C/M of Aljameatul Gausia Arbi College Utraula Balrampur v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-26
- **Case number:** Writ A No. 633 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-of-aljameatul-gausia-arbi-college-utraula-balrampur-v-state-of-u-p-ors-51649
- **Pages:** 16

## Headnote

A. Education Law - UP Board of Madarsa
Education Act, 2004 - S. 22 (5) - UP Non
Governmental Arabic and Persian Madarsa
Recognition, Administration and Services
Regulation, 2016 - Part II, Reg. 15 -
Scheme of Administration - No decision
on approval was taken even after a period
of six months - Failure of Madrasa Board,
when constitute the deemed approval -
Interpretation of statutory provision in
terms of its being either mandatory or
directory
-
Principle
of
legitimate
expectation - Applicability - Held, the
time window of six months provided to
the Board of has to be construed strictly
as a mandatory condition failing which it
would impair the smooth functioning of
the institutions concerned and would
defeat the very purpose for which the Act
of 2004 was promulgated - Since there is
no disapproval indicated by the Board of
Madarsa with regard to draft scheme of
administration
of
the
petitioner
institution, the approval to draft scheme
of administration is deemed to have been
accorded. (Para 29, 31 and 34)

B. Principle of legitimate expectation -
Applicability - When a statutory duty has
been cast upon authorities concerned, it
definitely lends a legitimate expectation in
favour of the persons concerned that the
statutory conditions indicated in the Act
434 INDIAN LAW REPORTS ALLAHABAD SERIES
and the regulations framed thereunder
would be adhered to. (Para 22)

C. Service Law - UP Non Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Part III, Reg. 11 and 16 -
Disciplinary proceeding - Committee's
power
to
initiate
proceeding
during
pendency of matter of approval of Scheme
of administration - Distinguishing position
of
probationer
and
substantively
appointed staffs - Held, the Committee of
Management
of
a
Madarsa
is
fully
empowered to take action as prescribed
under
Reg.
11
of
Part
III
of
the
Regulations
of
2016
regarding
a
probationer irrespective of pendency of
approval to the proposed scheme of
administration but cannot initiate any
disciplinary action against substantively
appointed teaching and non-teaching staff
of a Madarsa pending approval of the
scheme of administration. (Para 35 and
43)

D. Service law - UP Non Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Part III, Reg. 11 and 16 -
Punishment - Termination of service -
Committee passed the order - How far
Registrar has jurisdiction to disapprove it
- Held, the Registrar does not have any
power whatsoever under the aforesaid
Regulations 11 and 16 of Part III of the
Regulations of 2016 either to approve or
disapprove action taken by Committee of
Management against its employees with a
probationary or substantively appointed -
Registrar had no jurisdiction to interfere
with termination order of Committee.
(Para 51 and 61)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,925 of 53,843. This is a partial read: ask again with offset=39925 for what follows._

3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
433
contrary to the essence of merit wherever it
is deciphered on the scale of marks.
Therefore, the argument putforth by the
respondent/ petitioner herein that seniority
would assume the decisive role on a
candidate obtaining the benchmark is
fallacious and deserves to be rejected,
inasmuch as the real classification is based
on the actual marks obtained above the
benchmark.

(82) This Court may further note that
the respondent/petitioner at no point of
time has assailed the proceedings of
selection committee or the assessment of
merit to be affected on account of
punishment order, which on setting aside,
may automatically lead to the consequence
of review selection. The assessment of
merit being an independent process would
only lead to the consequence of review
when the marks awarded to a candidate are
higher as compared to his counterpart in the
zone of consideration chosen to have been
appointed. The classification of candidates
in the zone of consideration being on the
scale of marks above the benchmark,
therefore, would not constitute a single
category giving precedence to the rule of
seniority contrary to the mandate of Rule 4
of Rules, 1994.

(83) For all the reasons stated above,
we hereby allow the Special Appeals in
part and set aside the direction issued by
the learned Single Judge to the extent of
holding the review DPC. Insofar as setting
aside of the punishment order is concerned,
we affirm the impugned judgment/order
dated 31.10.2023. No order as to costs.
----------
(2024) 3 ILRA 433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.02.2024
BEFORE
THE HON'BLE MANISH MATHUR, J.

Writ A No. 633 of 2024

C/M of Aljameatul Gausia Arbi College
Utraula Balrampur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nagendra Bahadur Singh

Counsel for the Respondents:
C.S.C., Afzal Ahmad Siddiqui, Anand Mani
Tripathi, Mahendra Bahadur Singh, Rakesh
Kumar, Vikas Singh

A. Education Law - UP Board of Madarsa
Education Act, 2004 - S. 22 (5) - UP Non
Governmental Arabic and Persian Madarsa
Recognition, Administration and Services
Regulation, 2016 - Part II, Reg. 15 -
Scheme of Administration - No decision
on approval was taken even after a period
of six months - Failure of Madrasa Board,
when constitute the deemed approval -
Interpretation of statutory provision in
terms of its being either mandatory or
directory
-
Principle
of
legitimate
expectation - Applicability - Held, the
time window of six months provided to
the Board of has to be construed strictly
as a mandatory condition failing which it
would impair the smooth functioning of
the institutions concerned and would
defeat the very purpose for which the Act
of 2004 was promulgated - Since there is
no disapproval indicated by the Board of
Madarsa with regard to draft scheme of
administration
of
the
petitioner
institution, the approval to draft scheme
of administration is deemed to have been
accorded. (Para 29, 31 and 34)

B. Principle of legitimate expectation -
Applicability - When a statutory duty has
been cast upon authorities concerned, it
definitely lends a legitimate expectation in
favour of the persons concerned that the
statutory conditions indicated in the Act
434 INDIAN LAW REPORTS ALLAHABAD SERIES
and the regulations framed thereunder
would be adhered to. (Para 22)

C. Service Law - UP Non Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Part III, Reg. 11 and 16 -
Disciplinary proceeding - Committee's
power
to
initiate
proceeding
during
pendency of matter of approval of Scheme
of administration - Distinguishing position
of
probationer
and
substantively
appointed staffs - Held, the Committee of
Management
of
a
Madarsa
is
fully
empowered to take action as prescribed
under
Reg.
11
of
Part
III
of
the
Regulations
of
2016
regarding
a
probationer irrespective of pendency of
approval to the proposed scheme of
administration but cannot initiate any
disciplinary action against substantively
appointed teaching and non-teaching staff
of a Madarsa pending approval of the
scheme of administration. (Para 35 and
43)

D. Service law - UP Non Governmental
Arabic and Persian Madarsa Recognition,
Administration and Services Regulation,
2016 - Part III, Reg. 11 and 16 -
Punishment - Termination of service -
Committee passed the order - How far
Registrar has jurisdiction to disapprove it
- Held, the Registrar does not have any
power whatsoever under the aforesaid
Regulations 11 and 16 of Part III of the
Regulations of 2016 either to approve or
disapprove action taken by Committee of
Management against its employees with a
probationary or substantively appointed -
Registrar had no jurisdiction to interfere
with termination order of Committee.
(Para 51 and 61)

Writ petition allowed. (E-1)

List of cases cited :-
1. Gorkha Security Services Vs Govt. of NCT of
Delhi; MANU/SC/0657/2014; 2014(9) SCC 105

2. Civil Appeal No. 1083 of 1084 of 2022; St. of
Odisha & ors. Vs M/s Panda Infraproject
Limited, 2022 LiveLaw (SC) 206
3.
Civil
Appeal
No.
777
of
2020;
Dr.
Vijayakumaran C.P.V. Vs Central University of
Kerala & ors.

4. Civil Appeal No. 689 of 2021; Kotak Mahindra
Bank Limited Vs A. Balakrishnan & anr.

5. Ardhendu Kumar Das Vs St. of Odisha &
ors..; 2022 Live Law (SC) 539

6. X Vs Principal Secretary, Health and Family
Welfare Department, Government of NCT of
Delhi & anr.; (2023) 9 SCC 433

7. St. of Jharkhand & ors.Vs Brahmputra
Metallics Limited, Ranchi & anr.; (2023) 10 SCC
634

8. All Kerala Parents' Association of Hearing
impaired & anr.Vs St. of Kerala & ors.; (2018) 2
SCC 410

9. St. of Mysore & ors.Vs V.K. Kangan & ors.;
(1976) 2 SCC 895

10. Amardeep Singh Vs Harveen Kaur; (2017) 8
SCC 746

11. Devinder Singh & ors.Vs St. of Pun. & ors.;
(2008) 1 SCC 728

12. St Johns Teachers Training Institute Vs
Regional Director, National Council for Teacher
Education & anr.; (2003) 3 SCC 321

13. Writ A No. 13753 of 2020; C/M Madarsa
Muhammdiya Faiz-E Rasool & anr.Vs St. Of U.P.
& ors. decided on 26.08.2021

14. Writ A No. 10967 of 2022; Arshad Javed
Khan Vs St. of U.P & ors. decided on 05.08.2022
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Sandeep Dixit
learned Senior Advocate assisted by Mr.
Nagendra Bahadur Singh, learned counsel
for petitioner, learned State Counsel for
opposite party nos. 1 & 4, Mr. Afzal Ahmad
Siddiqui, learned counsel for opposite party
nos. 2 & 3 and Mr. A.M. Tripathi, learned
counsel for opposite party no. 5.
3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
435

2. Petition has been filed challenging
order dated 20.05.2023 so far as it relates to
petitioner, 09.11.2023 and 01.01.2024.
Further prayer for a direction to opposite
parties not to interfere in the peaceful
functioning of petitioner in administrating
in the institution in question has also been
sought.

3. Vide impugned order dated
20.05.2023, the Registrar has stayed earlier
approval granted to petitioner's scheme of
administration, vide order dated 09.11.2023
the order passed by petitioner terminating
services of opposite party no. 5 have been
held to be without jurisdiction and vide
order
dated
01.01.2024,
the
District
Minority Welfare Officer has imposed
single hand operation in the institution in
question since petitioner was not including
the name of opposite party no. 5 in the
salary bills.

4. It has been submitted that the
opposite party no. 5 was initially appointed
as Assistant Teacher in the institution in
question on probation vide order dated
31.07.2021 for a period of one year which
was thereafter extended on 30.07.2022 for
a further period of one year. The services
and conduct of opposite party no. 5 not
having been found satisfactory, his services
were thereafter terminated vide order dated
30.07.2023 by petitioner whereafter the
impugned orders have been passed.

5. It has been submitted that since
opposite party no. 5 was continuing only on
probationary basis, his termination would
be referable to Rule 11 of the U.P Non
Governmental Arabic and Persian Madarsa
Recognition, Administration and Services
Regulation, 2016 whereunder petitioner
was only under an obligation to afford an
opportunity of hearing to the probationer,
which has been done in the present case
whereafter
finding
his
services
dissatisfactory, his services have been
terminated.

6. It is submitted that Rule 11 does
not provide any power or jurisdiction to the
Registrar to interfere with an order of
termination
or
discontinuance
of
a
probationary teacher once issued by the
management of the institution.

7. It is further submitted that earlier
petitioner institution had submitted its
scheme of administration which was
forwarded vide letter 07.08.2021. The State
Government
had
passed
order dated
07.01.2022 stipulating that in cases where
scheme of administration is pending
approval before the U.P. Madarsa Shiksha
Board, all proceedings undertaken by the
Management of institutions concerned
pertaining to disciplinary proceedings and
subsequent dismissals would be without
jurisdiction. It is submitted that thereafter
the Registrar vide order dated 28.04.2022
approved the scheme of administration of
petitioner institution which has thereafter
been stayed by means of the impugned
order dated 20.05.2023 purportedly in
exercise of power under Section 22 (5) of
the U.P. Board of Madarsa Education Act,
2004. It is submitted that once approval has
been
accorded
to
the
scheme
of
administration of an institution, there is no
provision under law whereby such approval
can be stayed by the Registrar. It is
therefore submitted that the order dated
20.05.2023 has been passed without
jurisdiction.

8. Similarly it has been submitted that
since the services of opposite party no. 5
had been terminated in terms of Regulation
11 of the Regulation of 2016, the same
436 INDIAN LAW REPORTS ALLAHABAD SERIES
were beyond purview of being interfered
with by the Registrar and therefore the said
order also is without jurisdiction.

9. It has been further submitted that
even if assuming that the power exercised
by the Registrar by means of order dated
09.11.2023 was under Section 16 of the
Regulations, a Co-ordinate Bench of this
Court in the case of C/M Madarsa
Muhammdiya
Faiz-E
Rasool
And
Another versus State Of U.P. And 3
Others the said Writ-A No. 13753 of 2020
has already held that the Registrar is not
conferred any power either under the
statute or regulation to interfere with an
order passed by the Management under
Regulation 16. Therefore, it has been
submitted that the power exercised by
petitioner terminating services of opposite
party no. 5 whether under Regulation 11 or
under Regulation 16 could not have been
interfered with by the Registrar.

10. Learned counsel appearing on
behalf of the opposite party no. 2 has
refuted submissions advanced by learned
counsel for petitioner with the submission
that in terms of Regulation 15 of the
Regulations of 2016, it is only the Board
which is empowered to approve the scheme
of administration of any institution and
since in the present case, there is no
resolution of the Board approving the
scheme of administration of petitioner
institution, recourse has rightly been placed
upon
the
Government
Order
dated
07.01.2022
whereunder
it
has
been
specifically provided that till approval of
the
scheme
of
administration,
no
management of any institution shall have
any powers to initiate any disciplinary
proceedings or pass any dismissal order
pertaining to an employee of the institution.
It is further submitted that the order dated
28.04.2022
issued
by
the
Registrar
purportedly
approving
scheme
of
administration of petitioner institution is
meaningless since it was only the Board
which could have passed such an order and
realizing this mistake, the impugned order
dated 20.05.2023 has been passed staying
the operation of earlier order.

11. Learned counsel appearing on
behalf of opposite party no. 5 has also
refuted submission advanced by learned
counsel for petitioner with the submission
that earlier during the first year of
probation, petitioner institution had issued
a show cause notice on 17.06.2022, which
was followed up by another show cause
notice and was replied to by the said
answering opposite parties on 01.07.2022
whereafter he was granted an extension of a
further period of one year on 30.07.2022. It
is submitted that during the second year of
probation, petitioner was issued a show
cause notice dated 13.05.2023 followed up
by
another
notice
dated
26.05.2023
whereafter another notice dated 07.06.2023
was
issued indicating
seven charges
levelled against petitioner. It is submitted
that thereafter an inquiry committee was
constituted which submitted its report on
25.07.2023 whereafter the termination
order dated 30.07.2023 has been passed on
the basis of the aforesaid inquiry report. It
is therefore submitted that the aforesaid
facts clearly indicate that termination order
has been passed not only looking to the
satisfactory service of petitioner of the
answering opposite parties but in fact
alluded to misconduct as well and therefore
it would fall within the conditions indicated
in Regulation of 16 and not Regulation 11
of the Regulations of 2016. Learned
counsel has placed reliance on the
following judgments to indicate that once
stigmatic charges are levelled against even
3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
437
a probationer, the notice is required to be
specific which it is not in the present case
and therefore the termination order dated
30.07.2023 is bad in law. It is further
submitted that even otherwise the charges
levelled against petitioner clearly indicate
that termination order has been passed as a
measure of misconduct and not merely as
an endeavour to judge his suitability for
continuance in service. Learned counsel for
opposite party no. 5 has placed reliance on
certain judgments rendered by Hon'ble
Supreme Court i.e. Gorkha Security
Services versus Govt. of NCT of Delhi
reported
in
MANU/SC/0657/2014;
2014(9) SCC 105, State of Odisha & Ors.
versus M/s Panda Infraproject Limited
passed in Civil Appeal No. 1083 of 1084
of 2022 reported in 2022 LiveLaw (SC)
206, Dr. Vijayakumaran C.P.V. versus
Central University of Kerala & Ors.
passed in Civil Appeal No. 777 of 2020,
Kotak Mahindra Bank Limited versus A.
Balakrishnan & Anr. passed in Civil
Appeal No. 689 of 2021, Ardhendu
Kumar Das versus State of Odisha and
Ors. reported in 2022 Live Law (SC)
539.

12. Upon consideration of submission
advanced by learned counsel for parties and
perusal of material on record, the following
questions arise for consideration in this
petition:-

I. Whether approval to scheme of
Administration of Madarsa can be deemed
upon expiry of six months of its receipt by
the Board in terms of Regulation 15, Part II
of the Regulations of 2016?

II. Whether the Committee of
Management of a Madarsa has any
jurisdiction
to
initiate
disciplinary
proceedings against teaching/non-teaching
staff during pendency of approval of
scheme of administration?

III. Whether the Registrar has any
jurisdiction to approve or disapprove
punishment orders by the Committee of
Management of a Madarsa inflicted after
disciplinary proceedings?

13. Question No. 1. So far as the first
question is concerned, Section 20 of the
Act
2004
provides
for
making
of
regulations by the Board for carrying out
the purposes of the Act. Section 21
stipulates that all regulations made shall be
only with the previous approval of the State
Government and published in the gazette.
In pursuance of aforesaid powers, the
regulations were framed and notified in
2016.

14. Regulation 15 of the regulations
provides that the Board shall either approve
the scheme of administration within a
period of six months of its receipt or shall
return it with suggestions pertaining to
amendment thereto. There does not appear
to be any deeming clause whereby the
scheme of administration of a Madarsa can
be said to be automatically approved upon
expiry of six months. At the same time,
some sanctity is required to be attached to
the time period of six months stipulated in
the regulations and the Board cannot be
permitted to act in an arbitrary and
whimsical manner ignoring the aforesaid
time period so stipulated in the statutory
regulations.

15. Regulation 15 of the regulations is
as follows:-

"15. पररर्ि को प्रर्शासन की योजना
प्राप्त होने के मास की प्रथम विवथ से िः मास की अववि िी
जायेगी वजसमें वे या िो उसे स्वीकार कर लेगी अथवा उसको
पररविानों अथवा सांर्शोिनों के सुझावों के साथ लौटा िेगी।"
438 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Hon'ble Supreme Court in the
case of X versus Principal Secretary,
Health and Family Welfare Department,
Government of NCT of Delhi and
another reported in (2023) 9 SCC 433 has
held that the wordings indicated in
statutory provisions or even in sub-ordinate
legislations are required to be implemented
in order to give effect to its purpose. The
relevant paragraph nos. 31 & 35 are as
follows:-

"31. The cardinal principle of the
construction of statutes is to identify the
intention of the legislature and the true
legal meaning of the enactment. The
intention of the legislature is derived by
considering the meaning of the words used
in the statute, with a view to understanding
the purpose or object of the enactment, the
mischief, and its corresponding remedy that
the enactment is designed to actualise.
Ordinarily, the language used by the
legislature is indicative of legislative intent.
In Kanai Lal Sur v. Paramnidhi Sadhukhan,
Gajendragadkar, J. (as the learned Chief
Justice then was) opined that "the first and
primary rule of construction is that the
intention of the legislature must be found in
the words used by the legislature itself".
But when the words are capable of bearing
two or more constructions, they should be
construed in light of the object and purpose
of
the
enactment.
The
purposive
construction of the provision must be
"illumined by the goal, though guided by
the word". Aharon Barak opines that in
certain circumstances this may indicate
giving
"an
unusual
and
exceptional
meaning" to the language and words used.

"35. The rule of purposive
interpretation was first articulated in
Heydon case in the following terms: (ER p.
638)

"...
for
the
sure
and
true
interpretation of all statutes in general (be
they penal or beneficial, restrictive or
enlarging of the common law), four things
are to be discerned and considered: .

1st. What was the common law
before the making of the Act.

2nd. What was the mischief and
defect for which the common law did not
provide.

3rd. What remedy Parliament
hath resolved and appointed to cure the
disease of the commonwealth.

And, 4th. The true reason of the
remedy; and then the office of all the
Judges is always to make such construction
as shall suppress the mischief, and advance
the remedy, and to suppress subtle
inventions and evasions for continuance of
the mischief, and pro privato commodo,
and to add force and life to the cure and
remedy, according to the true intent of the
makers of the Act, pro bono publico."

17. A perusal of the statement of
objects and reasons for promulgation of the
Act of 2004 has been indicated to the effect
that the Arbi Farsi Madarsas were being
administered earlier under the Rules of
1987, which having not been made under
provisions of any Act, gave arise to various
complications in smooth functioning of
Madarsas.
Therefore,
the
Act
was
promulgated with a view to removing the
difficulties arisen in running the Madarsas
for improving merit therein and making
available the best facility of study.

18. It is therefore quite evident that
the Act of 2004 and consequently the
Regulations framed thereunder have been
promulgated and notified for the smooth
functioning of the Madarsas since the
earlier Rules of 1987 were leading to
complications and difficulties.
3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
439

19. In view of aforesaid, the mischief
sought to be controlled by the Act of 2004
is clearly evident with the purpose of
establishment of the Board of Madarsa
Education under Section 3 of the Act of
2004. Section 22 of the Act of 2004
provides for a scheme of administration for
every
institution,
whether
recognized
before or after the commencement of the
Act and is required to provide for the
Constitution
of
a
Committee
of
Management vested with the authority to
manage
and
conduct affairs
of the
institution. The said section also provides
that the powers, duties and functions of the
head of the institution and Committee of
Management is required to be specified in
the scheme of administration.

20. It is thus evident that the primary
purpose of the scheme of administration
pertaining to every Madarsa is to effectuate
its smooth functioning and delineation of
powers of the authorities of a Madarsa. The
aforesaid
scheme
of
administration
therefore is a necessary requirement for
smooth functioning of a Madarsa and it is
probably for this purpose that a time limit
of six months has been indicated in
Regulation 15 of the Regulations of 2016
providing a window to the Board either to
approve the scheme of administration or to
indicate any amendments required therein.

21. It is also evident that in case the
Board does neither of the acts indicated in
Regulation 15 pertaining to approval of a
scheme of administration, it frustrates the
very purpose of the Act and the Regulations
framed thereunder. In view of aforesaid, the
Board thus is enjoined to adhere to the time
limit indicated in Regulation 15 of the
Regulations of 2016. From the discussion
made hereinabove, it is clear that the
Committee of Management of a Madarsa is
required to be governed in terms of
statutory provisions of the Act of 2004 and
the regulations made hereinunder which are
binding not only upon the Madarsa and its
authorities but upon State authorities as
well and the Board of Madarsa.

22. In such circumstances when a
statutory
duty
has
been
cast
upon
authorities concerned, it definitely lends a
legitimate expectation in favour of the
persons concerned that
the
statutory
conditions indicated in the Act and the
regulations framed thereunder would be
adhered to.

23. With regard to the principles of
legitimate expectation, Hon'ble Supreme
Court in the case of State of Jharkhand
and others versus Brahmputra Metallics
Limited, Ranchi and another reported in
(2023) 10 SCC 634 has held as follows:-

"46. As regards the relationship
between Article 14 and the doctrine of
legitimate expectation, a three-Judge Bench
in Food Corpn. of India v. Kamdhenu
Cattle Feed Industries45, speaking through
J.S. Verma, J., held thus: (SCC p. 76, paras
7-8)

"7. In contractual sphere as in all
other State actions, the State and all its
instrumentalities have to conform to Article
14 of the Constitution of which nonarbitrariness is a significant facet. There is
no unfettered discretion in public law: A
public authority possesses powers only to
use them for public good. This imposes the
duty to act fairly and to adopt a procedure
which
is
'fairplay
in
action'.
Due
observance of this obligation as a part of
good administration raises a reasonable or
legitimate expectation in every citizen to be
treated fairly in his interaction with the
State and its instrumentalities, with this
440 INDIAN LAW REPORTS ALLAHABAD SERIES
element forming a necessary component of
the decision-making process in all State
actions. To satisfy this requirement of nonarbitrariness in a State action, it is,
therefore, necessary to consider and give
due weight to the reasonable or legitimate
expectations of the persons likely to be
affected by the decision or else that
unfairness in the exercise of the power may
amount to an abuse or excess of power
apart from affecting the bona fides of the
decision in a given case. The decision so
made would be exposed to challenge on the
ground of arbitrariness. Rule of law does
not completely eliminate discretion in the
exercise of power, as it is unrealistic, but
provides for control of its exercise by
judicial review.

8. The mere reasonable or legitimate
expectation of a citizen, in such a situation,
may not by itself be a distinct enforceable
right, but failure to consider and give due
weight to it may render the decision
arbitrary, and this is how the requirement
of due consideration of a legitimate
expectation forms part of the principle of
non-arbitrariness, a necessary concomitant
of the rule of law. Every legitimate
expectation is a relevant factor requiring
due consideration in a fair decision-making
process. Whether the expectation of the
claimant is reasonable or legitimate in the
context is a question of fact in each case.
Whenever the question arises, it is to be
determined not according to the claimant's
perception but in larger public interest
wherein
other
more
important
considerations may outweigh what would
otherwise
have
been
the
legitimate
expectation of the claimant. A bona fide
decision of the public authority reached in
this manner would satisfy the requirement
of non-arbitrariness and withstand judicial
scrutiny.
The
doctrine
of
legitimate
expectation gets assimilated in the rule of
law and operates in our legal system in this
manner and to this extent." (emphasis
supplied)

47. More recently, in Noida
Entrepreneurs Assn. v. Noida, a two-Judge
Bench of this Court, speaking through B.S.
Chauhan,
J.,
elaborated
on
this
relationship in the following terms: (SCC
pp. 524-25, paras 39 & 41)

"39. State actions are required to
be non-arbitrary and justified on the
touchstone of Article 14 of the Constitution.
Action of the State or its instrumentality
must be in conformity with some principle
which meets the test of reason and
relevance. Functioning of a 'democratic
form of Government demands equality and
absence
of
arbitrariness
and
discrimination'. The rule of law prohibits
arbitrary
action
and
commands
the
authority concerned to act in accordance
with law. Every action of the State or its
instrumentalities
should
neither
be
suggestive of discrimination, nor even
apparently give an impression of bias,
favouritism and nepotism. If a decision is
taken without any principle or without any
rule, it is unpredictable and such a decision
is antithesis to the decision taken in
accordance with the rule of law.

41. Power vested by the State in a
public authority should be viewed as a trust
coupled with duty to be exercised in larger
public and social interest. Power is to be
exercised strictly adhering to the statutory
provisions and fact situation of a case.
'Public authorities cannot play fast and
loose with the powers vested in them.' A
decision taken in an arbitrary manner
contradicts the principle of legitimate
expectation. An authority is under a legal
obligation to exercise the power reasonably
and in good faith to effectuate the purpose
for which power stood conferred. In this
context, "in good faith" means "for
3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
441
legitimate reasons". It must be exercised
bona fide for the purpose and for none
other." (emphasis supplied)

As such, we can see that the
doctrine
of
substantive
legitimate
expectation is one of the ways in which the
guarantee of non-arbitrariness enshrined
under Article 14 finds concrete expression."

24. Upon applicability of the
aforesaid
principle
of
statutory
interpretation read with Regulation 15 of
the Regulations of 2016, it is evident that
the Board of Madarsa has been provided a
window of only six months from the date
of receipt of the draft scheme of
administration either to approve the same
or to return it with suggestions.

25. In the case of All Kerala Parents'
Association of Hearing impaired and
another versus State of Kerala and
others reported in (2018) 2 SCC 410 has
held as follows:-

"5. It is well settled that when the
language of any statutory provisions is
clear and unambiguous, it is not necessary
to look for any extrinsic aid to find out the
meaning of the statute inasmuch as the
language used by the legislature is the
indication of the legislative intent."

26. It is also settled law that
provisions of statute are either mandatory
or directory in nature but the language
alone employed in the statutory provision is
not the sole determinative of such a factor
and has to be considered in the light of
effect of such a statutory provision and the
consequences which would follow in case
it is held not to be mandatory.

27. In three judge bench decision of
Hon'ble Supreme Court in the case of State
of Mysore and others versus versus V.K.
Kangan and others reported in (1976) 2
SCC 895 the proposition has been
enunciated as follows:-

"10. In determining the question
whether a provision is mandatory or
directory, one must look into the subjectmatter and consider the importance of the
provision disregarded and the relation of
that provision to the general object
intended to be secured. No doubt, all laws
are mandatory in the sense they impose the
duty to obey on those who come within its
purview. But it does not follow that every
departure
from
it
shall
taint
the
proceedings with a fatal blemish. The
determination of the question whether a
provision is mandatory or directory would,
in the ultimate analysis, depend upon the
intent of the law-maker. And that has to be
gathered not only from the phraseology of
the provision but also by considering its
nature, its design and the consequences
which would follow from construing it in
one way or the other. We see no reason why
the rule should receive a permissible
interpretation instead of a pre-emptory
construction. As we said, the rule was
enacted for the purpose of enabling the
Deputy Commissioner (Land Acquisition
Collector) to have all the relevant materials
before him for coming to a conclusion to be
incorporated in the report to be sent to the
Government in order to enable the
Government to make the proper decision.
In Lonappan v. Sub-Collector of Palghat
the Kerala High Court took the view that
the requirement of the rule regarding the
giving
of
notice
to
the
department
concerned was mandatory. The view of the
Madras High Court in K. V. Krishria Iyer v.
State of Madras is also much the same."

28. Hon'ble Supreme Court in the
case of Amardeep Singh versus Harveen
442 INDIAN LAW REPORTS ALLAHABAD SERIES
Kaur reported in (2017) 8 SCC 746 has
held as follows:-

"18. In determining the question
whether
provision
is
mandatory
or
directory, language alone is not always
decisive. The court has to have the regard
to the context, the subject-matter and the
object of the provision. This principle, as
formulated
in
Justice
G.P.
Singh's
Principles of Statutory Interpretation (9th
Edn., 2004), has been cited with approval
in Kailash v. Nanhku reported in (2005) 4
SCC 480 as follows: (SCC pp. 496-97, para
34)

"34. ... 'The study of numerous
cases on this topic does not lead to
formulation of any universal rule except
this that language alone most often is not
decisive, and regard must be had to the
context, subject- matter and object of the
statutory
provision
in
question,
in
determining whether the same is mandatory
or directory. In an oftquoted passage Lord
Campbell said: "No universal rule can be
laid down as to whether mandatory
enactments shall be considered directory
only or obligatory with an implied
nullification for disobedience. It is the duty
of courts of justice to try to get at the real
intention of the legislature by carefully
attending to the whole scope of the statute
to be considered." ' " (p. 338)

" 'For ascertaining the real
intention of the legislature', points out
Subbarao, J. 'the court may consider inter
alia, the nature and design of the statute,
and the consequences which would follow
from construing it the one way or the other;
the impact of other provisions whereby the
necessity of complying with the provisions
in question is avoided; the circumstances,
namely, that the statute provides for a
contingency of the non-compliance with the
provisions;
the
fact
that
the
noncompliance with the provisions is or is not
visited by some penalty; the serious or the
trivial consequences, that flow therefrom;
and above all, whether the object of the
legislation will be defeated or furthered'. If
object of the enactment will be defeated by
holding the same directory, it will be
construed as mandatory, whereas if by
holding it mandatory serious general
inconvenience will be created to innocent
persons without very much furthering the
object of enactment, the same will be
construed as directory." (pp. 339-40)"

29. In the case of Devinder Singh
and others versus State of Punjab and
others reported in (2008) 1 SCC 728,
Hon'ble Supreme Court has interpreted
statutory clauses in terms of being
mandatory or directory in nature. The
relevant paragraph no. 55 is as follows:-

"55. The approach of the High
Court in this behalf, in our opinion, is
totally erroneous. A provision of a statute is
either mandatory or directory. Even if a
provision is directory, the same should be
substantially complied with. It cannot be
ignored in its entirety only because the
provision is held to be directory and not an
imperative one."

30. In view of aforesaid, the time
window of six months provided to the
Board of Madarsa for approving the draft
scheme of administration has to be strictly
adhered to. Attaching any other meaning or
providing extension of the time limit of six
months to the Board of Madarsa would
eviscerate the specific statutory provision
by undesirable lapses on the part of Board.

31. The only conclusion which can be
drawn therefore is that the time window of
six months provided to the Board of
3 All. C/M of Aljameatul Gausia Arbi College Utraula Balrampur Vs. State of U.P. & Ors.
443
Madarsa has to be construed strictly as a
mandatory condition failing which it would
impair the smooth functioning of the
institutions concerned and would defeat the
very purpose for which the Act of 2004 was
promulgated. In such circumstances, there
is no other option but to hold that in case
the Board of Madarsa does not return the
draft scheme of administration with its
suggestions for amendment within the
stipulated time limit of six months,
approval
of
the
draft
scheme
of
administration would be deemed.

32. This is all the more evident since
under Regulation 15 of the Regulations of
2016, no power has been given to the
Board of Madarsa to disapprove of a draft
scheme of administration. The silences of
the statutory provision cannot be a ground
to
provide
the
Board
of
Madarsa
untrammeled power to Act arbitrarily by
withholding approval to the draft scheme of
administration for all times to come.

33. In the present case, it is evident
that the scheme of administration of the
Madarsa concerned had been forwarded to
the Board on 07.08.2021 which was
received on 08.08.2021 whereafter it is still
pending consideration despite passing of
more than two and half years.

34. In the aforesaid circumstance and
particularly since there is no disapproval
indicated by the Board of Madarsa with
regard to draft scheme of administration of
the petitioner institution, the approval to
draft scheme of administration is deemed to
have been accorded.

35. Question No. 2. The said question
pertains to whether the Committee of
Management has any jurisdiction to initiate
disciplinary
proceedings
during
the
pendency of approval of the scheme of
administration.

36. The aforesaid question can clearly
be divided into two parts pertaining to
Regulations 11 and 16 of the Regulations of
2016. While Regulation 11 of Part III of the
Regulations of 2016 pertain to probation
and confirmation, Regulation 16 of the
aforesaid part pertains to disciplinary
proceedings
against
the
Headmaster,
teaching and non-teaching staff of a
Madarsa. Aforesaid two regulations are as
follows:-

"11. पररवीक्षण िथा स्थायीकरण- समस्ि
नववनयुक्त व्यवक्तयों को एक वर्ा की पररवीक्षा पर रखा जायेगा, वजसे
आगे एक वर्ा के वलए कारण उवजलवखि करिे हुये प्रबन्ि सवमवि
द्वारा बढाया जा सकिा है। यवि पररवीक्षण अववि में सम्बवन्िि
कमाचारी का काया एवां व्यवहार असन्िोर्जनक पाया जािा है, िो
प्रबन्ि सवमवि द्वारा कारण बिाओां नोवटस िेने एवां स्पष्टीकरण प्राप्त
करने के पिाि् पररवीवक्षि सेवा समाप्त की जा सकिी है। यवि
पररवीक्षण अववि में कोई नोवटस पररवीक्षण अववि बढाने का नहीं
विया जािा है िो पररवीक्षण काल पूणा होने पर सम्बवन्िि कमाचारी
अपने पि पर स्थायी वकया हुआ समझा जायेगा।

16. अनुर्शासवनक कायावाही (िण्ड, जााँच िथा
वनलम्बन) - मिरसों के प्रिानाचाया, वर्शक्षक एवां वर्शक्षणेिर
कमाचाररयों के सम्बन्ि में अनुर्शासवनक कायावाही, वनलम्बन एवां
िण्ड िथा नैविक अिमिा से अन्िाग्रस्ि वकसी अपराि के वलए
वकसी िवण्डक मामले मेंअन्वेर्ण या ववचारण की कायावाही मिरसा
वर्शक्षा पररर्ि द्वारा अनुमोविि सेवा एवां प्रर्शासन योजना के अन्िगाि
की जायेगी।"

37. Regulation 11 indicates that a
person can be engaged in service for a
period of one year on probation which is
extendable to a further period of one year.
In case the work and conduct of the
probationer is found to be dis-satisfactory,
his services can be dispensed with after
issuing a show cause notice to him and
providing opportunity to rebut the same.
The provision also indicates automatic
confirmation
of
a
probationer
upon
444 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfactory completion of the probation
period.

38. The aforesaid regulation is clearly
an independent provision pertaining to
services of a person engaged on probation
by a Madarsa. Quite evidently, the said
provision is independent of the scheme of
administration applicable upon a Madarsa.

39. In stark contrast, Regulation 16
which pertains to disciplinary proceedings
is completely dependent on the approved
scheme
of
administration
and
the
conditions of service which would be
indicated therein.

40. In such circumstances the only
result of such an examination is that the
Committee of Management of a Madarsa is
fully competent to take action with regard
to dispensing with services of a probationer
upon expiry of the probation term but
subject
to
fulfillment
of
conditions
indicated in Regulation 11 whereas action
against substantively appointed teaching
and non-teaching staff of a Madarsa is
completely dependent upon the approved
scheme of administration.

41. It is thus evident that while
provisions regarding probation have been
clearly delineated in the Regulations of
2016,
those
regarding
disciplinary
proceedings against substantive employees
of the Madarsa have been indicated to be
subservient
to
the
scheme
of
administration. Therefore, the provisions of
Regulation 11 being a part of sub-ordinate
legislation
would
definitely
have
precedence
over
the
scheme
of
administration.

42. The aspect of precedence of
delegated legislation has been enunciated
by Hon'ble Supreme Court in the case of St
Johns Teachers Training Institute versus
Regional Director, National Council for
Teacher Education and another reported
in (2003) 3 SCC 321 in the following
terms:-

"10. A Regulation is a rule or
order prescribed by a superior for the
management of some business and implies
a rule for general course of action. Rules
and Regulations are all comprised in
delegated legislations. The power to make
subordinate legislation is derived from the
enabling Act and it is fundamental that the
delegate on whom such a power is
conferred has to act within the limits of
authority conferred by the Act.