# C/M Shiraze Hind Inter College, Jaunpur & Anr v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-31
- **Case number:** Writ-A No. 9763 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-shiraze-hind-inter-college-jaunpur-anr-v-state-of-u-p-ors-48657
- **Pages:** 9

## Headnote

A. Service Law - Jurisdiction - Power to
stay order of termination - U.P. Secondary
Education Services Selection Board Act,
1982: Section 30, 32; U.P. Intermediate
Education Act, 1921: Section 16(G) to
16(I), 16(G)(3)(a), 16(G)(7), 16-FF; U.P.
High Schools And Intermediate Colleges
(Payment Of Salaries Of Teachers And
Other Employees) Act, 1971 (U.P. Act No
24 of 1971) - The District Inspector of
School has no jurisdiction to interfere with
the power of administration of minority
institution
w.r.t.
their
right
to
take
disciplinary action against their staff.
Petitioner's college is a minority college,
therefore, District Inspector of School has no
jurisdiction to pass the order dated 25.02.2021.
(Para 31, 32)

U.P. Intermediate Education Act, 1921 -
Sections 16(G)(3)(a) - Since no appropriate
guidelines have been provided for exercise of
power u/s 16G(3)(a) of the Act, such an
uncanalised power on the Inspector or the
Inspectress would tantamount to an inroad into
the power of disciplinary control of the
Managing Committee of the minority institution
over its employees; hence the said provision
would not apply to the minority institution
as it impinges the right of minority to have
disciplinary control over its employees.
(Para 23, 24, 28)

Protection is given to the minority institutions
u/Art. 30(1) of the Constitution of India for their
administration. Regulations which are framed to
ensure the standard of institution and are for
the benefit of institution are permissible, but the
moment it goes beyond a mere regulation and
may impair the right of administration of
minority institutions, Art. 30 of Constitution of
India comes into play and such regulation is hit
by Art. 30 of Constitution of India. (Para 27)

B. U.P. Secondary Education Services
Selection Board Act, 1982 - Sections 30 &
32 - It is worth to point out that after
enactment of Act, 1982, the power of approval
or disapproval as provided u/s 16(G)(3)(a) of
the Act, 1921 has been vested in the Board
under the Act No. 5 of 1982. S.32 of the Act No.
5 of 1982 which deals with the applicability of
Act, 1921 and provides that provision of Act,
1921 and regulations framed therein so far as
they are not inconsistent with the provisions of
26 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act, 1982 or rules made thereunder shall
remain in force for the purposes of selection,
appointment, promotion, dismissal, removal,
termination or reduction in the rank of a
teacher. (Para 29)

Section 30 of the Act, 1982 states that the
provisions of the said Act shall not apply
to
the
institution
established
and
administered by a minority referred to in
Clause (1) of Article 30 of Constitution of
India. Thus, reading of S.30 of the Act, 1982
clearly suggests that legislature did not want to
put any fetter upon the power of management
of minority institution in disciplinary matters
otherwise there was no reason
for the
legislature to exclude the minority institution
from the purview of Act, 1982. (Para 30)

Writ petition allowed. (E-4)

Precedent followed:

## Text

6 All. C/M Shiraze Hind Inter College, Jaunpur & Anr. Vs. State of U.P. & Ors.
25
Singh (supra) and Pawan Kumar (supra),
therefore,
the
order
impugned
dated
31.03.2022 cancelling the candidature of
the petitioner is not sustainable in the eye
of law and the same is liable to be set aside.

12. In view of the above, the
impugned order dated 31.03.2022 passed
by respondent no.6 is set aside and the
matter is remitted to the respondent no.6,
who in turn, shall consider the case of the
petitioner herein and take a decision afresh,
in accordance with law as well as keeping
in view the law laid down by Apex Court in
Avtar Singh (supra) and Pawan Kumar
(supra), within a period of two months
from the date of receipt of certified copy of
this order, if there is no other legal
impediment.

13.

With
the
aforesaid
observations/directions, this writ petition is,
accordingly, allowed.
----------
(2022)06ILR A25
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 9763 of 2021

C/M Shiraze Hind Inter College, Jaunpur &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Raees Ahamad, Sri Sanjay Kumar Om

Counsel for the Respondents:
C.S.C., Sri Rahul Mishra, Ms. Shahla Naz

A. Service Law - Jurisdiction - Power to
stay order of termination - U.P. Secondary
Education Services Selection Board Act,
1982: Section 30, 32; U.P. Intermediate
Education Act, 1921: Section 16(G) to
16(I), 16(G)(3)(a), 16(G)(7), 16-FF; U.P.
High Schools And Intermediate Colleges
(Payment Of Salaries Of Teachers And
Other Employees) Act, 1971 (U.P. Act No
24 of 1971) - The District Inspector of
School has no jurisdiction to interfere with
the power of administration of minority
institution
w.r.t.
their
right
to
take
disciplinary action against their staff.
Petitioner's college is a minority college,
therefore, District Inspector of School has no
jurisdiction to pass the order dated 25.02.2021.
(Para 31, 32)

U.P. Intermediate Education Act, 1921 -
Sections 16(G)(3)(a) - Since no appropriate
guidelines have been provided for exercise of
power u/s 16G(3)(a) of the Act, such an
uncanalised power on the Inspector or the
Inspectress would tantamount to an inroad into
the power of disciplinary control of the
Managing Committee of the minority institution
over its employees; hence the said provision
would not apply to the minority institution
as it impinges the right of minority to have
disciplinary control over its employees.
(Para 23, 24, 28)

Protection is given to the minority institutions
u/Art. 30(1) of the Constitution of India for their
administration. Regulations which are framed to
ensure the standard of institution and are for
the benefit of institution are permissible, but the
moment it goes beyond a mere regulation and
may impair the right of administration of
minority institutions, Art. 30 of Constitution of
India comes into play and such regulation is hit
by Art. 30 of Constitution of India. (Para 27)

B. U.P. Secondary Education Services
Selection Board Act, 1982 - Sections 30 &
32 - It is worth to point out that after
enactment of Act, 1982, the power of approval
or disapproval as provided u/s 16(G)(3)(a) of
the Act, 1921 has been vested in the Board
under the Act No. 5 of 1982. S.32 of the Act No.
5 of 1982 which deals with the applicability of
Act, 1921 and provides that provision of Act,
1921 and regulations framed therein so far as
they are not inconsistent with the provisions of
26 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act, 1982 or rules made thereunder shall
remain in force for the purposes of selection,
appointment, promotion, dismissal, removal,
termination or reduction in the rank of a
teacher. (Para 29)

Section 30 of the Act, 1982 states that the
provisions of the said Act shall not apply
to
the
institution
established
and
administered by a minority referred to in
Clause (1) of Article 30 of Constitution of
India. Thus, reading of S.30 of the Act, 1982
clearly suggests that legislature did not want to
put any fetter upon the power of management
of minority institution in disciplinary matters
otherwise there was no reason
for the
legislature to exclude the minority institution
from the purview of Act, 1982. (Para 30)

Writ petition allowed. (E-4)

Precedent followed:

1. T.M.A. Pai Foundation & ors. Vs St.of Karn. &
ors., (2002) 8 SCC 481 (Para 24)

2.
Committee
of
Management
Clancy
Intermediate College Through Manager Vs St.
of U.P. & ors., Writ-A No. 15765 of 2016
(Para 25)

3. Committee of Management St. John Inter
College Vs Girdhari Singh & ors., 2001 (4) SCC
296 (Para 18)

4. Kumari Udyan Balika Inter College, Kanpur &
ors. Vs D.I.O.S., Kanpur Nagar & ors., Writ-A
No. 15379 of 2006, decided on 08.03.2013
(Para 18)

Precedent distinguished:

1. The State of Uttar Pradesh & ors. Vs Principal
Abhay Nandan Inter College & ors., AIR 2021
SC 4968 (Para 19, 33)

Present
petition
assails
order
dated
25.02.2021,
passed
by
the
District
Inspector of Schools, District Jaunpur,
staying
the
order
of
termination
of
respondent no. 4 (Shri Ashutosh Kumar
Singh) subject to the decision of Criminal
Case No. 141/2020 and directing the
petitioner to submit his salary bills.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri S.K. Om, learned counsel for
the petitioners, learned Standing Counsel for
respondent nos.1 to 3 and Sri Rahul Mishra,
learned counsel for the respondent no.4.

2. The petitioner by means of the present
writ petition has assailed the order dated
25.02.2021 passed by respondent no.3 by which
he has stayed the order of termination of
respondent no.4 subject to the decision of
Criminal Case No.141 of 2020, under Sections
379, 419, 420 and 506 I.P.C. and directed the
petitioner to submit salary bills of respondent no.4.

3. The petitioner is Committee of
Management of Shiraze Hind Inter College,
Murki, Kerakat, District Jaunpur (hereinafter
referred to as 'college'). The said college is
recognized and aided intermediate college
governed by the provision of U.P. Intermediate
Education Act, 1921 (hereinafter referred to as
'Act, 1921') and also U.P. Act No.24 of 1971.
The petitioner claims that the college is a
minority college and the provision of U.P.
Secondary Education Services Selection Board
Act, 1982 (hereinafter referred to as 'Act, 1982')
is not applicable to the college being minority
college.

4. The respondent no.4- Ashutosh Kumar
Singh was appointed as Assistant Teacher on
04.08.2010 in the college. The respondent no.4
failed to discharge his duties properly as he was
involved in groupism, politics and also trying to
control the management of the college which
effected the study of the students and future of
the students of the college was at stake.

5. The respondent no.4 was issued a
show cause notice by the petitioner which
6 All. C/M Shiraze Hind Inter College, Jaunpur & Anr. Vs. State of U.P. & Ors.
27
was replied by the respondent no.4 on
10.02.2020. The reply of respondent no.4
was placed before the petitioner for
consideration. The petitioner found the
reply of respondent no.4 to the show cause
notice unsatisfactory and consequently,
suspension order dated 17.02.2020 was
issued against respondent no.4.

6. Thereafter, disciplinary committee
on 05.05.2020 issued charge sheet against
the respondent no.4 levelling six charges,
which reads as under;-

"अतः आपके विरूद्ध ज ांच उपर न्त आरोप
पत्र विम्नविखित विन्दुओां पर वदय ज त है।

(1) आपके क ययक ि में विद्य िय (शीर जे
वहन्द इण्टर क िेज मुकी, केर कत, जोिपुर) की
स ि सम ज में विरी एिां विद्य िय, विद्य िय ि
रहकर र जिीवत क अड्ड और एक अन्य स०अ० मो०
र फे के स थ आपक धिोप जयि क अड्ड ििकर
रह िय ।

(2) आपके और अन्य स०अ० मो० र फे द्व र
छ त्रोां को कोवचांि और ट्यूशि पढ िे के विए
उत्प्रेररत वकय ज त है और इसको िेकर छ त्रोां को
म र पीट भी ज त है। आपके इस विय कि प से
विद्य िय से छ त्रोां क पि यि तेजी से हो रह है।

(3) आपके विय कि प एिां स०अ० मो० र फे
के स थ िुटि जी करके विद्य िय की व्यिस्थ पर
अवधक र जम िे हेतु प्रिन्ध सवमवत के स थ िूर
कुश्ती करिे में व्यस्थ रहते हैं।

(4) आपको वदि ांक 04.02.2020 को क रण
ित ओ िोवटस क जि ि कमेटी को ि देकर आपिे
उल्टे कमेटी से ही सि ि पूछ विये इससे प्रतीत
होत है वक आप दिांि, अिुश सिहीि और सरकश
वकस्म के व्यखि हैं और आपक अस म वजक तत्ोां
से भी िठजोड़ है।

(5) आप द्व र ि र-ि र श सि-प्रश सि को
िुमर ह करिे क प्रय स वकय िय वजससे विद्य िय
को क फी आवथयक ि स म वजक िुकस ि उठ ि
पड़ ।

(6) विद्य िय में पठि प ठि क यय में रूवच िहीां
देते है। मोि इि पर 'पिजी' िेम में व्यस्त रहते हैं।"

7. The respondent no.4 submitted
reply to the aforesaid charge sheet on
09.05.2020. The respondent no.4 was
aware of the fact that college was minority
college and Section 16(G)(7) of the Act,
1921 is not applicable yet he wrote a letter
dated 11.05.2020 to respondent no.3District Inspector of Schools, Jaunpur.

8. On receiving the letter of
respondent no.4, the respondent no.3District Inspector of School passed an order
dated 11.05.2020 directing the petitioner to
submit salary bills of respondent no.4 as
the suspension order became inoperative on
expiry of 60 days in absence of approval of
respondent no.3 in view of Section 16 (G)
(7) of the Act, 1921.

9. In the reply to the charge sheet, the
respondent no.4 denied all the charges
levelled against him. However, disciplinary
committee did not find the reply of
respondent
no.4
satisfactory
and
accordingly,
petitioner
committee
of
management
passed
an
order
dated
18.05.2020 terminating the service of
respondent no.4.

10. Further case of the petitioner is
that
respondent
no.4
submitted
a
representation
against
the
order
of
dismissal dated 18.05.2020 on 04.06.2020
before the respondent no.3 levelling false
and
frivolous
allegation
against
the
petitioner. The respondent no.3 took
cognizance of the representation of the
respondent no.4 in exercise of power
conferred upon him under Section 16-FF of
the Act, 1921 and issued a notice to
petitioner
to
appear
before
him
on
22.06.2020. The petitioner showed their
28 INDIAN LAW REPORTS ALLAHABAD SERIES
inability to appear on 22.06.2020 due to
pandemic COVID-19.

11. When respondent no.4 failed in
his attempt to get reinstated, he in collusion
with respondent no.3 got issued a show
cause notice to petitioner calling upon him
to show cause as to why the college may
not put under authorised controller.

12. The aforesaid notice was replied
by the petitioner on 29.10.2020. However,
respondent no.2 by order dated 28.12.2020
put the college under authorised controller.

13. Being aggrieved by the order of
appointment
of
authorised
controller,
petitioner preferred Civil Misc. Writ
Petition No.586 of 2021 and Contempt
Application (Civil) No.1296 of 2021.
However,
the
respondent
no.2
after
receiving
notice
of
the
contempt
application,
recalled
the
order
dated
28.12.2020.

14. Further case of the petitioner is
that they came to know in the first week of
March that respondent no.3 has reinstated
the respondent no.4 by order dated
25.02.2021 which order could be obtained
by
the
petitioner
under
Right
to
Information
Act.
The
order
dated
25.02.2021 passed by respondent no.3 is
impugned in the writ petition.

15. The respondent no.4 has filed
counter affidavit denying the averments
made in the writ petition. The respondent
no.4 stated in the counter affidavit that
enquiry against him was conducted dehors
the principle of natural justice. It is stated
that petitioner has neither supplied any
evidence/material alongwith charge sheet
based on which charge sheet was issued nor
any oral evidence of any of the witness was
recorded. Thus, respondent no.4 was not
given any opportunity to rebut the charges
levelled against him nor was given
opportunity to cross examine any of the
witnesses, who supported the charges. It is
stated that Section 16(G) to Section 16(I) of
the Act, 1921 which provides condition for
service of Head Master or Teacher is
applicable to the minority institutions. On
the strength of aforesaid pleadings, it is
stated in the counter affidavit that approval
of the District Inspector of School is
necessary before termination order is
issued.

16. In the rejoinder affidavit filed by
the petitioners, they denied the averments
contained in the counter affidavit of
respondent no.4.

17. The only contention which has
been advanced by the learned counsel for
the petitioner is that the order dated
25.02.2021
of
respondent
no.3
disapproving the termination order of
respondent no.4 is without jurisdiction
since the provision of Section 16(G)(3)(a)
to Section 16 (I) of the Act, 1921 is not
applicable
in
the
case
of
minority
institution. In other words, it is contended
that District Inspector of Schools has
exercised the power not vested in him
under the statue in passing the order dated
25.02.2021 by which he has stayed the
termination order of respondent no.4 and
directed the petitioner to submit salary bills
of respondent no.4 which shall be subject
to decision of Criminal Case No.141 of
2020, under Sections 379, 419, 420 and
506 I.P.C. against respondent no.4.

18. In support of his case, learned
counsel for the petitioner has placed
reliance upon the judgement of Apex Court
in the case of Committee of Management
6 All. C/M Shiraze Hind Inter College, Jaunpur & Anr. Vs. State of U.P. & Ors.
29
St. John Inter College Vs. Girdhari Singh
and Others 2001 (4) SCC 296, and
judgement of this Court in the case in the
case of (Kumari Udyan Balika Inter
College, Kanpur and Others Vs. D.I.O.S.,
Kanpur Nagar and Others) passed in WritA No.15379 of 2006.

19. Per contra, learned counsel for the
respondents would contend that provision
of Section 16(G)(3)(a) to Section 16 (I) of
the Act, 1921 is applicable in the present
case in view of the judgement of Apex
Court in the case of The State of Uttar
Pradesh and Others Vs. Principal Abhay
Nandan Inter College and Others AIR
2021 SC 4968.

20. I have considered the rival
submissions of learned counsel for the
parties and perused the record.

21. In the instant case, it is not in
dispute that the college is a minority
college established under Article 30 of the
Constitution of India.

22. Now, before appreciating the
controversy on facts, it would be apt to
refer to the judgement of Apex Court relied
upon by the learned counsel for the
petitioner.

23. In the case of Committee of
Management St. John Inter College
(supra), the Apex Court has reversed the
judgement of High Court holding that in
case of a minority institution, approval
under Section 16(G)(3)(a) of the Act, 1921
is necessary. Paragraph 6 of the said
judgement is reproduced herein below:-

"6. Let us now notice some of the
decisions
of
this
Court.
In
Kerala
Education Bill, 1957, AIR 1958 SC 956,
this Court had observed the constitutional
right
to
administer
an
educational
institution by the minority of their choice
does not necessarily militate against the
claim of the State to insist that it may
prescribe reasonable regulations to ensure
the excellence of the institutions. In
Sidhajbhai Sabbai vs. State of Gujarat AIR
1963 SC 540, a Constitution Bench
observed that Regulations made in the true
interests
of
efficiency
of
instruction,
discipline, health, sanitation, morality,
public order and the like may undoubtedly
be imposed and such regulations are not
restrictions on the substance of the right
which is guaranteed; they secure the
proper functioning of the institution, in the
matters educational. In State of Kerala vs.
Very Rev. Mother Provincial, (1970) 2 SCC
417, it had been stated that the right of
management in respect of a minority
institution cannot be taken away and vested
with somebody else, as that would be
encroachment upon the guaranteed right
but that right is not an absolute one and it
is open to the State to regulate the syllabus
of the examination and discipline for the
efficiency of the institution and the right of
the State to regulate the education or
educational standards and allied matters
cannot be denied. In St. Xavier's College
Society vs. State of Gujarat (1974) 1 SCC
717, this Court had observed:

"31. Regulations which will serve the
interest of the students, regulations which
will serve the interests of the teachers are
of
paramount
importance
in
good
administration. Regulations in the interest
of efficiency of teachers, discipline and
fairness in administration are necessary for
preserving
harmony
among
affiliated
institutions.

In Lilly Kurian vs. Sr. Lewina (1979) 2
SCC 124, the Court had observed:
"36. Protection of the minorities is an
30 INDIAN LAW REPORTS ALLAHABAD SERIES
article of faith in the Constitution of India.
The
right
to
the
administration
of
institutions of minority's choice enshrined
in Article 30(1) means 'management of
affairs' of the institution. This right is,
however, subject to the regulatory power of
the State. Article 30(1) is not a charter for
mal-administration; regulation, so that the
right to administer may be better exercised
for the benefit of the institution, is
permissible; but the moment one goes
beyond that and imposes, what is in truth,
not a mere regulation but an impairment of
the right to administer, the Article comes
into play and the interference cannot be
justified by pleading the interests of the
general public; the interests justifying
interference can only be the interests of the
minority concerned."

In Frank Anthony Public School
Employees Association vs. Union of India
(1986) 4 SCC 707, the Court was
examining the validity of Section 12 of the
Delhi School Education Act. Sections 8(1),
8(3), 8(4) and 8(5) were held not to have
encroached upon any right of the minority
to administer their educational institutions.
But Section 8(2) which stipulated that no
employee of a recognised private school
shall be dismissed, removed or reduced in
rank nor will his services be terminated
except with the prior approval of the
Director was held to have interfered with
the right of the minority, and therefore, the
said provision was held to be inapplicable
to the minority institutions. The aforesaid
dictum, no doubt, was in respect of an
unaided
minority
institution.
The
conspectus of the aforesaid decision would
indicate that there would be no bar for the
Government to have regulatory measures
for ensuring a standard of excellence of the
institutions and such a measure would not
in any way affect the right of the minority
to administer its institutions engrafted in
Article
30
of
the
Constitution.
But
notwithstanding the same, if the so called
regulatory measures confer power on any
specified authority, without indicating any
guidelines for exercise of that power, then
exercise of such power by the appropriate
authority would offend the provisions of
Article 14 and would not be allowed to be
retained, as that would amount to an
arbitrary inroad into the right of the
minority, in the matter of administering its
institutions. In another words, if the
regulatory provision conferring power on
the educational authority is uncanalised
and unguided and does not indicate any
guidelines under which the educational
authority could exercise the said power,
then in such a case, the conferment of a
blanket power on the educational authority
would interfere with the right of control of
the employer-minority institution in the
matter of exercising disciplinary control
over the employees of the institution. So
adjudged, we are unable to find any
guideline in Section 16G(3)(a) of the Uttar
Pradesh Intermediate Education Act to be
followed by the Inspector in the matter of
approving or disapproving the order of
termination of service of an employee of the
aided educational institution. We are
unable to accept the reasoning of the
majority judgment of the Full Bench of the
Allahabad High Court that Regulation 44
provides
the
guidelines.
The
said
Regulation 44 merely prescribes the period
within which the Inspector or Regional
Inspectress is required to communicate
his/her decision to the Management and
further in a case where all the papers have
not been received from the Management,
the said Inspector/Inspectress could call for
the papers from the Management. But that
by no stretch of imagination can be held to
be providing the guidelines for exercise of
power in the matter of approval or
6 All. C/M Shiraze Hind Inter College, Jaunpur & Anr. Vs. State of U.P. & Ors.
31
disapproval of the order of termination
passed by the Management. Since no
appropriate guidelines have been provided
for exercise of power under Section
16G(3)(a) of the Act, it must be held that
such
an
uncanalised
power
on
the
Inspector
or
the
Inspectress
would
tantamount to an inroad into the power of
disciplinary control of the Managing
Committee of the minority institution over
its employees and as such the said
provision would not apply to the minority
institution, as was held by this Court in
Frank Anthonys case. In this view of the
matter, the majority view in the Full Bench
Judgment of Allahabad High Court must be
held to be erroneous and cannot be
sustained."

24. This Court also in the case of
Kumari Udyan Balika Inter College
(supra) after noticing various paragraphs of
the judgement of Apex Court in the case of
T.M.A. Pai Foundation and Others Vs.
State of Karnataka and Others (2002) 8
SCC 481 and in the case of Committee of
Management St. John Inter College
(supra) has held that District Inspector of
Schools had no jurisdiction to revoke the
order of dismissal of a teacher of a minority
institution.
Relevant
extract
of
the
judgement of this Court is extracted herein
below:-

"A similar matter came up before a
Division Bench of this Court in Special
Appeal no.1059 of 2001, Mohammad
Shafiquzzama
vs.
Committee
of
Management, Daulat Hussain Muslim Indian
Intermediate College, Allahabad & others
and the Division Bench of this Court has held
as follows:-

"Counsel for the parties stated that no
Educational Tribunal has yet been set up by
the State Government as observed by the
Apex Court in the said judgement nor any
notification has been issued by the State
Government authorizing the District Judge or
the Additional District Judge to hear the cases
of employees of minority institutions. The
appellant who is challenging the disciplinary
proceedings and the consequential dismissal
order, has remedy of filing a civil suit
challenging the dismissal order and the
provision. Section 9 of the Code of Civil
Procedure is wide engouth to provide remedy
to the appellant. Till the Educational Tribunal
is constituted by the State Government as
observed by the Apex Court, it is open to the
appellant to file a civil suit in competent court
challenging the dismissal order. In view of
the fact that the appellant is not alleging
violation of any statutory provision in
conduct of enquiry, no relief can be granted
to appellant in the writ proceedings.
However, we observe that in case the
appellant challenges the dismissal order in a
civil suit, the observations made by the
learned Judge of this Court while dismissing
the writ petition on merits of the case, shall
not come in the way of the appellant and the
suit proceedings be decided independently on
the basis of the materials before the
competent court and the said court will not in
any manner feel itself bound by the
observations made by the learned Single
Judge in dismissing the writ petition. In view
of the nature of the disputed which has been
raised by the appellant we further observe
that if civil suit is filed by the appellant the
same may be disposed of expeditiously. We
do not find any good ground to interfere with
the order of the learned single Judge
dismissing the writ petition.

This special Appeal is dismissed with
the observations as made above."

25. Similar view has been taken by
this Court in the case of Committee of
Management Clancy Intermediate College
32 INDIAN LAW REPORTS ALLAHABAD SERIES
Through Manager Vs. State of U.P. and
Others passed in Writ-A No.15765 of
2016.

26. A scant analysis of the judgement
of Apex Court in the case of Committee of
Management St. John Inter College
(supra) shows that Apex Court has
considered
the
issue
as
to
what
restrictions/regulations would not interfere
with the right to run minority institution
under Article 30 of the Constitution of
India.

27. The Apex Court emphasized that
the protection given to the minority
institutions under Article 30(1) of the
Constitution
of
India
for
mal
administration,
regulations
which
are
framed to ensure the standard of institution
and are for the benefit of institution are
permissible, but the moment it goes beyond
a mere regulation but may impair the right
of administration of minority institutions,
Article 30 of Constitution of India comes
into play and such regulation is hit by
Article 30 of Constitution of India.

28. The Court found that as Section
16(G)(3)(a) of the Act, 1921 provides no
appropriate guidelines to the District
Inspector of School the manner in which
the power conferred on it is to be exercised,
that would tantamount to an inroad into the
power of disciplinary control of managing
committee of minority institution over its
employees; hence the said provision would
not apply to the minority institution as it
impinges the right of minority to have
disciplinary control over its employees.

29. It is worth to point out that after
enactment of Act, 1982, the power of
approval or disapproval as provided under
Section 16(G)(3)(a) of the Act, 1921 has
been vested in the Board under the Act
No.5 of 1982. Section 32 of the Act No.5
of 1982 which deals with the applicability
of Act, 1921 provides that provision of Act,
1921 and regulations framed therein so far
as they are not inconsistent with the
provisions of the Act, 1982 or rules made
thereunder shall remain in force for the
purposes
of
selection,
appointment,
promotion, dismissal, removal, termination
or reduction in the rank of a teacher.

30. Further, Section 30 of the Act,
1982 states that the provisions of the said
Act shall not apply to the institution
established and administered by a minority
referred to in Clause (1) of Article 30 of
Constitution of India. Thus, reading of
Section 30 of the Act, 1982 clearly
suggests that legislature did not want to put
any fetter upon the power of management
of minority institution in disciplinary
matters otherwise there was no reason for
the legislature to exclude the minority
institution from the purview of Act, 1982.

31. Thus, in view of the judgemen of
Apex Court, the District Inspector of
School has no jurisdiction to interfere with
the power of administration with respect to
their right to take disciplinary action
against their staff.

32. In view of the aforesaid fact, this
Court finds that as admittedly, petitioner's
college is a minority college, therefore,
District Inspector of School has no
jurisdiction to pass the order dated
25.02.2021.

33. Now, coming to the judgement
relied upon by the learned counsel for the
respondents in the case of Principal Abhay
Nandan Inter College (supra). Perusal of
paragraphs 32 to 35 of the said judgement
6 All. Kalyan Singh Vs. Union of India & Ors.
33
on which reliance has been placed by the
learned counsel for the respondents does
not indicate that Apex Court has held that
District Inspector of School has jurisdiction
to interfere with the power of management
of a minority institution to take disciplinary
action against their staff. Perusal of the
aforesaid paragraphs further indicates that
Apex Court has elaborated that the
regulations framed for the benefit of public
at large and for minority institution don't
impinge the right of minority to run
minority institution under Article 30 of
Constitution of India, but it does not deal
with a situation as in the present case.

34. Thus, judgement of the Apex
Court relied upon by the learned counsel
for the respondents is not applicable in the
facts of the present case.

35. Accordingly, order impugned
dated 25.02.2021 is quashed with liberty to
respondent no.4 to pursue his remedy
available to him under the law.

36. For the reasons given above, the
writ petition is allowed with no order as to
costs.
----------
(2022)06ILR A33
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 10502 of 2019

Kalyan Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Rai, Sri Prateek Rai
Counsel for the Respondents:
A.S.G.I., Sri Ankush Tandon, C.S.C., Sri Ishan
Shishu, Sri Anoop Trivedi (Senior Adv.)

A. Service Law - Dismissal - Disciplinary
proceeding - Industrial Disputes Act, 1946
- Section 10 - The competence of an
authority to hold an enquiry against an
employee who has retired, depends upon
the statutory rules which govern the
terms and conditions of his service. No
disciplinary proceedings can be continued
against the employee after retirement unless
and until rules governing such proceedings
provided for the same. (Para 10, 12, 15)

The relevant rules governing the service
conditions of an employee are the determining
factors as to whether and in what manner the
domestic enquiry can be held against an
employee who stood retired after reaching the
age of superannuation. Generally, if the
enquiry has been initiated while the
delinquent employee was in service, it
would continue even after his retirement,
but nature of punishment would change.
The
punishment
of
dismissal/removal
from service would not be imposed. (Para
10)

B. Maintainability - There is no factual
controversy involved in the case that may require
any reference inasmuch as it also not being a case
where enforcement of any provision of standing
orders is sought. It would be a futile exercise
to ask for the petitioner to raise reference
because the legal issue involved can be
answered in this petition itself and the
establishment being an authority within the
meaning of Art. 12 of the Constitution of
India, this petition can be decided on merits.
(Para 6, 11)

C. Appointments made long back pursuant
to a selection need not be disturbed. A
three decade old issue of entry into the
service of establishment should not have
been reopened at the fag end of service
career of an employee. (Para 8, 15)

While it may be true that furnishing a forged
document would not justify the appointment
obtained on the said basis but for that