# Committee of Management v. District Minority Officer and others

- **Citation:** (2000) 2 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-06-30
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-v-district-minority-officer-and-others-39016
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

58
the aforesaid post and claim reserved quota
for the Scheduled Tribe candidates.

17. The petitioner, therefore, has been
able to prove all the facts of his belonging to
Scheduled Tribe of the State of Nagaland.
Simultaneously, the law and the relevant
provisions quoted above did not bar the
extending of the benefit of the reservation of
2% in public services to Scheduled Tribe
candidates of other State.. it is not a question
that the petitioner's joining, if accepted would
increase the list of Scheduled Tribes as
prevalent in the State of U.P. but it is a
question whether a citizen of India may be
belonging to a different State, can rightly
claim the reservation which is available to the
Scheduled Tribe candidate of the State where
he is present living. There is no law and no
provision has been brought to the notice of the
court which will limit the said reservation
quota to be extended only to citizen of the
State of U.P. The petitioner has claimed that
he should be extended the said benefit being a
candidate of Scheduled Tribe of the State of
Nagaland. That claim has to be upheld and
sustained so long as there is no such
Government Order or circular as has been
issued by the Government of Maharashtra
which have been noticed in the decisions cited
above.

18. In this view of the matter it is hereby
held that the petitioner was rightly permitted
to
appear
at
the
P.C.S.(Preliminary)
Examination 1994, he was rightly permitted to
appear in the main examination, rightly
permitted to participate in the interview and
being successful was rightly declared as
having passed the P.C.S. examination, 1994.
Therefore, the commission erred in cancelling
the result of the petitioner and the said order
suffers from an error apparent on the face of
the record. Hence, the impugned order has to
be quashed.

19. In view of the aforesaid discussions,
the wait petition succeeds and is allowed. The
order of the commission dated 30.6.1997/
1.7.1997(Annexure-15 to the writ petition) is
hereby quashed. The petitioner shall be taken
as
having
passed
the
P.C.S.
main
examination, 1994. The State of U.P. is
hereby commanded to afford appointment to
the petitioner forthwith in accordance with
law. However, parties will bear their own
costs.
Petition Allowed.

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By the Court

1. This Special Appeal by Committee of
Management,
Madarsa
Dairatul
Ishlah
Chiragh-E-Uloom, Rasoolpura, Varanasi is
directed against the judgment and order dated
May 15 1998 passed by the learned Single
Judge in Civil Misc. Writ petition no. 33983
of 1996 (Walliullah Versus District Minority
Welfare
Officer,
Varanasi
and
others).
Walliullah, the petitioner arrayed herein as
party respondent no. 3 approached this Court
for issue of a writ of certiorari quashing the
appointment of Mohd. Sabir Ansari, party
respondent no. 4, to the post of Principal,
Madarsa Dairatul Ishlah Chiragh-E-Uloom,
Rasoolpura, Varanasi inter alias on the ground
that though he was duly appointed to the post
of Principal vide appointment letter dated
29.06.1994 which was approved by the
District Basic Shiksha Adhikari, Varanasi on
02.08.1995 yet the post was later on
readvertised
pursuant
which
the
fourth
respondent Mohd. Sabir Ansari was selected
and appointed as principal of the institution.
The petition was opposed by the appellant,
Comm. of Management as well as the fourth
respondent Mohd. Sabir Ansari, inter alias on
the ground that the petitioner Walliullah was
simply authorised to work as officiating
principal being the senior most teacher of the
institution and was never duly appointed tot
he post of principal. The learned Single Judge
being of the opinion that the petition involved
the disputed questions of fact, disposed it of
with the direction tot he Director Minority
Welfare
to
examine the matter on a
representation
being
submitted
by
the
petitioner and dispose of the same by a
reasoned order after affording opportunity tot
he concerned parties.

2. The judgment of the learned Single
Judge has been assailed by Shri R.N. Singh
learned Senior Advocate appearing for the
appellant basically on two grounds, firstly,
that the direction issued by the learned Single
Judge is tantamount to creating an adjudicator
forum which being a legislative function
ought not to be exercised by the courts;
secondly that the institution being a minority
institution the direction given by the learned
Single Judge conferring adjudicator power
upon Director Minority welfare would violate
Article 30 (1) of the Constitution. Shri Ashok
Khare learned counsel appearing for the
petitioner respondent Walliullah urged that by
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

60
virtue of various administrative powers vested
in the Director of Minority Welfare in relation
to Arbi and Farsi Madarsas, an implied power
to decide the dispute as to who amongst two
rival claimants is the Principal of institution
may be culled out in the Director Minority
Welfare for administrative convenience and
desirability. As the argument of Sri R.N.
Singh that the direction given by the learned
Single Judge to the Director of Minority
Welfare to decide the dispute contravenes
article 30 (1) of the Constitution, Sri Ashok
Khare urged that conferment of adjudicator
power with regard to employees of minority
institutions upon outside agency would not
contravene Article (30) 1 of the Constitution.

3. We have given our consideration tot he
submissions made across the Bar Concededly
there is no express provision of law conferring
any adjudicator power in the Director of
Minority Welfare in respect of any dispute
regarding appointment of teaching and non
teaching staff or Arbi and Farsi Madarsas.
The institution in question is on the grant in
aid list of the State Government. The question
is whether the Director of Minority Welfare
has any implied adjudicator power. Pursuant
to Govt. Order dated January 31, 1996 being
Annexure no. SCA-2 to the Supplementary
Counter Affidavit, the functions of Education
Department of the Govt. in relation to
minority institutions stood transferred to
Minority Welfare Department and with a view
to ensuring timely of monthly salaries to
teaching and non teaching staff of Arbi and
Farsi Madarsas, the Government issued
another Government Order, it being G.O. No.
664/52-3 96-4/4/10/96 Alp Sankhyak Kalyan
Evam Muslim Waqf Anubhag-3 Lucknow
dated 27.06.1996 thereby modifying the
earlier Govt. Order dated 12.07.1990 in
respect of timely payment of monthly salary
to teaching and non teaching staff of Arbi and
Farsi Madarsas by providing that in place of
expression "Shiksha Nideshak (Basic) U.P.
Lucknow" the expression "Nideshak, Alp
Sankhyak Kalyan Vibhag U.P." and in place
of
"Zila
Basic
Shiksha
Adhikari"
the
expression
"Zila
Alpsankhyak
Kalyan
Adhikari" be read in the govt. Order dated
12.07.1990.
Zila
Alpsankhyak
Kalyan
Adhikari has been vested power to scrutinize
the salary bills get the salary bills scrutinised
through Lekha Adhikari posted in the office
of District Basic Education Officer and to
ensure disbursement and payment of salaries
to teachers and non teaching staff of the Arbi
and Farsi Madarsas and furnish information in
this regard to the Director Minority Welfare
Department,
U.P.
and
Secretary,
Alpsankhayak Kalyan Evam Muslim Waqf
Vibhag U.P., Lucknow. The head of a
minority institution has to interact with the
Inspector and Zila Alpsankhyak Kalyan
Adhikari or the Director Minority Welfare
U.P., Lucknow. Shri Ashok Khare invited the
attention of the Court to Manyata Evam Seva
Niymawali known as "U.P. Ashaskiy Arbi
Tatha
Farsi
Madrason
Ki
Manyata
Niyamawali" which was approved by the
Governor vide Govt. Order No. 3367/15-1787-53(5)-86 Shiksha (17) Anubhag, Lucknow
dated August 22, 1987 in support of his
contention that the Director Minority Welfare
has implied power to see as to whether a
teacher appointed in such Madrasas has been
duly appointed and working in the institution.
The said niyamawali though a non statutory
one
lays
down
the
qualifications
for
appointment of teachers including Head
Master/Principal as well as the procedure to
be adopted in respect of disciplinary actions
against such teachers/Head Masters. The
Niymawali provides for in respect of the
institution by the competent authority the
power to issue appropriate direction for
removal of defects, if any, found during
inspection as visualized by Rule 37 of the
Niymawali. Rule 39 of the Niymawali lays
down in no uncertain terms that in the event
of maintenance grant being misused or
misappropriated or in the event of committing
any grave irregularity the maintenance may be
suspended. It further provides that in such
eventuality the basic Shiksha Adhikari may
2All] Committee of Management V. District Minority Officer and others
61
himself withdraw the reimbursement and
maintenance grant and pay directly to duly
appointment
teachers
working
in
the
institution the rule 39 being relevant in quoted
below:

"KISI
BHI
PRAKAR
KE
SHASKIY
ANUDAN KE LIYE KEVAL STHAYI
MANYATA PRAPT MADRASE HE AHAR
HONGE. ANUDAN SUCHI PAR AANE KE
LIYE
SANSTHA
DWARA
AAVEDAN
KARTE SAMAY YEH DEKHA JAYEGA
KE MANYATA KI SHARTON KA PURA
PALAN
HO
RAHA
HAI.
PRADATT
ANUDAN
KA
DURUPAYOG
YA
DURVINIYOG
KARNE
ATHVA
KOI
ANYA GAMBHIR TRUTI KARNE PAR
ANUDAN KA NILAMBAN KIYA JA
SAKEGA
AUR
ANUDAN
KE
DHANRASHI
SAMBANDHIT
BASIC
SHIKSHA ADHIKARI DWARA AAHRIT
KARKE SIDHE SANSTHA KE VIDHIVAT
NIYJUKT
VA
KARYARAT
ADHYAPAKON KO UNKE VETANADI
KE DAY KE ROOP MEIN BANTI JA
SAKEGI" (Emphasis is ours).

4. The underlined portion of Rule 39 of
the Niyamawali aforestated clearly suggests
an implied power in the Basic Shiksha
Adhikari to decide at the administrative level
as to whether the salary is being paid by the
management to a lawfully appointed teacher
working in the institution. But for such power
it would not be feasible to ensure that the
maintenance in being utilized lawfully. The
power of the Basic Shiksha Adhikari has since
been delegated to the Minority Welfare
Department with the Director of the Minority
Welfare at the Headquarter at Lucknow. In
such view of the matter it cannot be said that
the direction issued by the learned Single
Judge to the Director Minority Welfare to
decide
the
controversy
in
question
in
tantamount to creation of a forum which is a
legislative function. In our considered opinion
where there exists an express or implied
power in an authority to traverse upon a
controversy, the argument that the court has
created a forum and has thereby usurp
legislative function does not arise.

5. In Committee of Management versus
District Inspector of School Meerut1 a
Division Bench of this Court was called upon
to decide the question as to whether the
District Inspector of School has been vested
with the power to adjudicate upon claims of
rival contending managing committees. The
division bench held that though there was
express provision conferring such power on
the District Inspector of School, the latter did
have
an implied power to decide on
administrative level as to who according to
him were validly elected office bearers of the
institution. The same view was reiterated in
Jaswant Singh and another versus District
Inspector of School and another2 wherein it
has been clearly held that since the District
Inspector of School has to perform various
administrative function under the provisions
of the U.P. Intermediate Act, 1921 and the
U.P. High School and Intermediate Colleges
(Payment of Salaries of teachers and other
Employees) Act, 1971 and since these duties
cannot be discharged by him unless he is in a
position to find out an administrative level as
to who are the real office bearers of the
college, he for this limited purpose must of
necessity satisfy as to who according to him
are the validly elected office bearers of the
institution.

6. Sri R.N. Singh placed reliable on
Supreme Court decision in Chiranjilal Srilal
Goenka versus Jasjit Singh and others3
wherein it has been held that power to create
or enlarge the jurisdiction is legislative in
character. This legal proposition has not been
disputed by Sri Ashok Khare, learned counsel
appearing for the third respondent. The
decision
aforestated,
however,
does not
support the contention of the learned counsel

1 1978 AWC 124
2 1980 U.P.L.B.E.C.43.
3 J.T. 1993(2)S.C. 341.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

62
appearing for the appellant and that the
Director Minority Welfare does not have the
implied
power
to
satisfy
himself,
for
administrative purposes and /or for the
purposes of payment of salary, as to who is
the Principal of the institution. Upon regard
being had to the administrative control that
the Director of Minority Welfare, U.P.
Exercises
over
the
minority
institution,
Particularly the provisions contained in Rule
39 of the Niymawali approved by the Govt.
vide Govt. Order dated 22.08.1987, we are of
the view that in case a dispute arise between
two rival claimants to the post of principal of
minority institution, the District Minority
Welfare Officer and/or the Director Minority
welfare U.P., Lucknow has the power to
decide, on administrative level, as to who
amongst the two rival claimants has been duly
appointed head of the institution by the
Management at least for the purpose of
disbursement of salary.

7. The nest question that arises for
consideration is as to whether such implied
power in the District Welfare Officer or
Director Minority Welfare, U.P. offends
Article 30 (1) of the Constitution. In re : Kerla
Education Bill, 1957: AIIR 1958 SC 956 and
in Ahemdabad ST. Xavier's College Society
versus State of Gujrat4 it has been held that
minority institutions have a right to establish
and administer educational institutions of their
choice but at the same time if has been
propounded that the right to administer connot
include the right to mal administration.
Regulatory measures, it has been held therein,
do not abridge, the right guaranteed by Article
30 (1) of the Constitution. Mathew, J.
discussing the type of avocation State would
amount guaranteed by Article 30 (1) of the
Constitution observed thus:

" The application of the term 'abridge' may
not be difficult in certain types of situations.
The important ones are where a law is not a
direct restriction of the right but is designed to

4 AIR 1974 S.C. 1389
accomplish another objective and the impact
upon the right is secondary or indirect.
Measures which are directed at other forms of
activities but which has a secondary or direct
of incidental effect upon the right do not
generally abridge a right unless the content of
the right is regulated....".

In Christian Medical College Hospital
Employees'
Union
and
another
versus
Christian
Medical
College
Vellore
Association and others5 the Supreme Court
was faced with the question as to whether the
Industrial Disputes Act offends Article 30 (1)
of the Constitution. It has been held that the
Industrial Disputes Act which is a general law
for prevention and settlement of industrial
disputes cannot be said to interfere with the
right of the minorities to establish and
administer
educational
institutions.
The
argument
that
the
application
of
the
provisions of the Act will result in the
abridgement of the right of the Management
of the Minority educational institution to
administer such institutions was repelled by
the Supreme Court not with standing the
power of the Industrial Tribunal/Labour Court
to set orders of the Management in respect of
their employees at naught.

8. In St. Xavier's case (Supra) the
permission with respect to "selecting method
of arbitration for setting major dispute
connected with service of staff of education
institutions" was held not objectionable. What
was held objectionable in that case was giving
of power to the Vice Chancellor to nominate
an umpire. Same principle has been reiterated
in Lily Kurian versus Sr. Lewina and others6.
The decision of the Director Minority Welfare
in the present case on the dispute as to who
had been duly appointed head of the
institution being an administrative decision is
open to judicial review by this court under
article 226 of the Constitution of India and
can also be assailed by the aggrieved party by

5 AIR 1988 S.C. 37
6 (1979) S.C.C. 124
2All] Committee of Management V. District Minority Officer and others
63
means of a civil suit. Such adjudicator power,
in our opinion, does not offend Article 30 (1)
of the Constitution.

9. Yunus Ali Sha Versus Mohd. Abdul
Kalam7 reliance on which has been placed by
Shri R.N. Singh has no application to the facts
of the present case. In that case Section 10 of
the Orissa Education Act, 1969 which
required prior approval of the Director before
termination of the service of a teacher of an
aided institution was held inapplicable to
minority institution. The Supreme Court in
that case has clearly held that while Director
of Education, Orissa may have power to
supervise the functioning of the said school in
order to ensure that it does not malfunction or
mal administer in view of Article 30(1) of the
Constitution of India, he will have no control
over the actual management of the school
including hiring or terminating of service of
service of a teacher'. In the instant case, the
Director Minority Welfare, Uttar Pradesh has
been called upon to decide the controversy
between the two rival claimants to the post of
head of the institution. This does not involve

7 1999(3) SCC 676
conferral power to approve or disapprove
appointment or termination of service of any
teacher of the minority institution. Such
implied power in the Director would not
violate Article 30(1) of the Constitution of
India.

10. Before parting with the case, we may
observe that the Director Minority Welfare,
Uttar Pradesh took a decision in the matter
vide order dated 11.9.1998 pursuant to the
impugned directions given by the learned
Single Judge but we refrain from expressing
any opinion regarding legality or otherwise of
the said order for that is the subject matter of
a separate writ petition pending consideration
before appropriate Single Judge Bench.

In the conspectus of the above discussion
we are not inclined to interfere with the order
passed by the learned Single Judge. The
appeal fails and is dismissed without any
order as to costs.

Petition Dismissed.