# Dhirendra Nath Dubey v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 866
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-13
- **Case number:** Civil Misc. Writ Petition No. 42612 of 2009
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-nath-dubey-v-state-of-u-p-and-others-41547
- **Pages:** 8

## Text

866 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
take immediate steps in compliance of
this Court's order, failing which the
concerned Sub Divisional Magistrate or
the Assistant Collector shall be held
responsible.

9. With the above observations and
directions, the writ petition is dismissed.

10. Office is directed to send a copy
of this judgment and order to the Principal
Secretary
to
Government
of
U.P.,
Revenue Department, State of U.P. to
issue necessary directions/orders to all the
District Magistrates of the State of Uttar
Pradesh for strict compliance of the
judgment and order passed by the Court
today.

11. Office is also directed to supply
copies of this judgment and order to the
Chief Standing Counsel, State of U.P. and
Sri S.P. Misra, learned Standing Counsel,
State of U.P. for its onward transmission
to the Principal Secretary to Government
of U.P., Revenue Department, State of
U.P. for its compliance and taking
necessary action.
7.10.2009
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 42612 of 2009

Dhirendra Nath Dubey
...Petitioner
Versus
State of U.P. and others ...Respondents

Constitution
of
India
Article-30
Appointment of L.T. Grade teachercontrary to provision of Intermediate
Education
Act-illegal-protection
of
Article 30 in minority institution to
ignore the provision of 16 E(2) not
available-the method of fair selection
provided in 16 FE of the Act-went for
good administration of college-can not
be ignored-any appointment contrary to
that illegal.

Held: Para-22

Having arrived at aforesaid conclusion,
this Court may record that under Section
16E for making appointment on the post
of teachers, which applies to minority
institution also, vacancy is required to be
published in at least two newspapers,
having adequate circulation in the State.
In
the
facts
of
the
present
case,
advertisement was admittedly published
in only one newspaper, and therefore,
there has been violation of Section 16 E
(2) of Act, 1921.
Case law discussed:
AIR 1997 Alld. 44, (2001) 4 SCC 296
Paragraph-7, (2002) 8 SCC 4811, (2003) 6
SCC 697, (2004) 6 SCC 224.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Vikesh Chaudhary,
learned Senior Advocate assisted by Sri
Arvind Srivastava, learned counsel for the
petitioner, Sri M.A. Qadeer, learned
Senior Advocate assisted by Sri M.Y.
Khan, learned counsel for respondent nos.
6 and learned Standing Counsel for the
State-respondents.

2. This writ petition has been filed
for quashing of the order dated 14th July,
2009 and the advertisement dated 20th
July, 2009.

3. The facts in short giving rise to
the present writ petition are as follows:

4. Abdul Hakeem Agriculture
Intermediate College, Ujiyar, Dudhara,
Sant Kabir Nagar is a recognised and
3 All] Dhirendra Nath Dubey V. State of U.P. and others
867
aided intermediate college. The college
has been declared as a recognised
minority institution. Provisions of U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as 'Act, 1921') and
Regulations framed thereunder, as also
those
of
U.P.
High
School
and
Intermediate
Colleges
(Payment
of
Salaries to the Teachers and other
Employees) Act, 1971 (U.P. Act No. 24
of 1971) (hereinafter referred to as the
'Act, 1971') are fully applicable to the
teachers and staffs of the institution.

5. An advertisement was published
by the institution inviting applications for
appointment as L.T. Grade teachers in the
subject of Hindi and Sanskrit on 8th July,
1994. Petitioner applied in pursuance
thereof. He was selected and is stated to
have been issued an appointment letter by
the Committee of Management dated 24th
August, 1994. Petitioner joined on 1st
September, 1994. Petitioner was paid a
meagre salary of a sum of Rs. 750/- per
month. Petitioner was however restrained
from discharging his duties w.e.f. 3rd
July, 2001 by the Management of the
institution.
He
therefore,
filed
writ
petition no. 42057 of 2001, wherein an
interim mandamus was granted on 4th
December,
2001
requiring
the
respondents to allow the petitioner to
function and to pay him salary regularly
or to show cause by filing counter
affidavit. It appears that cause was shown
and after exchange of affidavits the writ
petition was decided vide order dated 28th
May, 2008 directing the petitioner to
move a representation before the Regional
Joint Director of Education, Basti Region,
Basti, who inturn was required to decide
the same within the period specified.

6. Petitioner accordingly made his
representations dated 16/26th August,
2008 and dated 26th June, 2009. The
Regional Joint Director of Education vide
order dated 14th July, 2009 rejected the
representation made by the petitioner. The
Committee of Management advertised the
vacancies of L.T. Grade teachers again on
1st October, 1997 and lastly on 20th July,
2009. Petitioner has also approached the
Secretary, Secondary Education, U.P.
Lucknow against the order of the
Regional Joint Director of Education.

7. The order passed by the Regional
Joint Director of Education dated 14th
July, 2009 is being challenged on the
ground that it is in violation of principles
of natural justice, inasmuch as no
opportunity of personal hearing was
afforded and that case set up by the
Management was considered behind the
back
of
the
petitioner.
Written
submissions have also submitted in
support of contentions raised.

8. I have considered the submissions
made by the learned counsel for the
parties and have gone through the records
of the present writ petition.

9. From the order of the Regional
Joint Director of Education dated 14th
July, 2009 impugned, following facts
emerge:

10. Institution in question was
granted recognition initially as a High
School under Section 7A of Act, U.P.
Intermediate Education Act, 1921 . The
State Government vide order dated 13th
March, 1995 declared the institution as
minority institution with reference to the
provisions of the U.P. Intermediate
Education Act, 1921 w.e.f. 13th March,
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
1995. From the said date the provisions
pertaining to appointment of teachers in a
minority institution, i.e. Section 16FF of
Act, 1921 stood attracted to the said
institution.
Prior
to
the
said
date
provisions of U.P. Secondary Education
Services Selection Board Act, 1982
(hereinafter referred to as the 'Act, 1982')
and the rules framed thereunder were
applicable. The institution in question was
granted
recognition/affiliation
as
an
Intermediate College under Section 7AA
of Act, 1921 i.e. 'Under Self Finance'.

11. According to the petitioner, he
was offered appointment under letter of
the Management of the institution dated
24th August, 1994 and in pursuance
thereof he joined on 1st September, 1994
as Assistant Teacher (Hindi) (i.e. much
prior to the institution being declared as a
minority institution).

12. The Regional Joint Director of
Education after referring to the factual
issues has recorded a categorically finding
that on 1st September, 1994, no post of
assistant teacher in Hindi subject in L.T.
Grade was vacant in the institution. Even
otherwise, from 14th July, 1992, (in view
of the amendments made and applicable
on the date in the Act, 1982), appointment
on the post of assistant teachers in
recognised highs schools even on ad hoc
basis could be made by Selection
committee of which the District Inspector
of Schools was to be the Chairman. Since
the institution was declared a minority
institution on 13th March, 1995, the
provisions of Act, 1982 will seize to be
applicable only from the said date. Lastly
it has been recorded that even assuming
without admitting that the institution in
question was a minority institution,
appointment on the post of assistant
teacher in minority institution has to be
made on the recommendation of a
Selection Committee as per Section 16FF
of Act, 1921 , which is to comprise of a
nominee appointed by the Department. It
has therefore, been held that on both
grounds claim set up for appointment
cannot be accepted.

13. On behalf of the petitioner the
impugned order dated 14th July, 2009 is
being challenged basically on five points,
which are being tabulated as under:

(a) provisions of Section 16FF of
Act,
1921
are
not
applicable
qua
appointment of teaches in recognised and
aided minority intermediate colleges in
view of the enforcement of U.P. Act No.
5 of 1982,
(b) the procedure infact applicable
under Section 16FF had been followed
and therefore, the order which records
otherwise is factually incorrect,
(c) full and fair opportunity of
hearing to controvert the allegations made
by the Management had not been afforded
to the petitioner and therefore, the order is
in violation of principles of natural
justice,
(d) If Section 16FF of Act, 1921 is
taken to be applicable qua appointment of
L.T. Grade teachers, the appointment of
other teachers is also liable to be struck
down on the same ground.
(e) factual findings recorded by the
Regional Joint Director of Education qua
working of the petitioner are perverse.

14. This Court may at the very
outset record that in the present writ
petition, neither the learned counsel for
the petitioner disputed the correctness of
the statement of fact recorded in the
impugned order qua institution being
3 All] Dhirendra Nath Dubey V. State of U.P. and others
869
granted minority status under notification
of the State Government dated 13th
March, 1995 nor it has been disputed that
prior to 13th March, 1995, the provisions
of Act, 1982 were applicable qua
appointment on the post of assistant
teachers in a recognised and aided
intermediate college. It is not in dispute
that on the date the petitioner claims
selection/appointment in the institution
i.e. 1st September, 1994, the Committee
of Management of the institution had no
power to make any ad hoc appointment
against substantive vacancy existing in
the institution. Power in that regard vested
in Selection Committee to be presided
over by the District Inspector of Schools,
as has been noticed in the impugned order
of Regional Joint Director of Education.
As a matter of fact vide notification dated
16th July, 1992 published in official
gazette of the State of Uttar Pradesh dated
4th September, 1993, Section 9A was
added to the U.P. Secondary Education
Services
Commission
Rules,
1983
(hereinafter referred to as the 'Rules,
1983'),
which
laid
down
a
detail
procedure for appointment on Ad-hoc
basis by direct recruitment on the post of
L.T. Grade teachers in a recognised
intermediate college. The power in that
regard was directly vested in the District
Inspector
of
Schools.
The
District
Inspector of Schools is required to publish
an
advertisement,
after
receiving
information of the number of vacancies
existing in the institutions, under his
control. After receipt of the applications
along with full particulars, selection
committee comprising of the officers of
the State has to process the same and
prepare a select panel for appointment in
various institutions. Name of the selected
candidate is to be transmitted to the
Committee of Management for offering
appointment under its resolution. It is
admitted in the facts of the present case
that the statutory procedures as was
applicable on the date, the petitioner
claims appointment in the institution i.e.
1st September, 1994, under Rule 9A (as
added in the year 1992 to Rules, 1983)
had not been followed. In view of the
aforesaid reasons alone, entire case set up
by the petitioner has to fall, more so when
the aforesaid findings of the Regional
Joint Director of Education have not been
challenged in the present writ petition.
Normally this Court would have closed
the chapter at this stage itself, however,
since other issues have been raised, it
would be worthwhile to deal with the
same also.

15. In support of the first contention,
the Senior Advocate on behalf of
petitioner submitted that a Full Bench of
this Court in the case of Smt. J.K. Kalra
vs.
Regional
Inspectress
of
Girls
Schools, Meerut & Ors. reported in AIR
1997 Alld. 44, had held that since the
provisions of U.P. Act No. 5 of 1982 will
not be applicable to minority institution,
provisions of Section 16FF of Act, 1921
would become applicable. The law so
declared stands overruled under judgment
and order of the Hon'ble Supreme Court
of India in the case of Committee of
Management, St. John Inter College vs.
Girdhari Singh & Ors. reported in
(2001) 4 SCC 296 Paragraph-7, wherein it
has been held as follows:

"7. The second submission of Mr.
Rao on the basis of the coming into force
of the U.P. Secondary Education Services
Commission and Selection Board Act,
1982, is also of great force. The Statement
of Objects and Reasons of the aforesaid
U.P. Act No. 5 of 1982, unequivocally
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
indicates that the earlier provisions
contained under Section 16-G(3) (a) of
the Intermediate Education Act, 1921
were found to be inadequate, where the
Management proposed to impose the
punishment of dismissal, removal or
reduction in rank. In other words, the
legislature though that the power of
approval or disapproval to an order of
punishment imposed by the management
should not be vested with a lower
educational authority like the District
Inspector of Schools but should be vested
with an independent commission or board
which could function as an independent
and impartial body. With the aforesaid
objective in view, the legislature having
enacted the U.P. Secondary Education
Services Commission and Selection Board
Act, 1982 and the Services Selection
board having been brought into existence
in exercise of power under Section of the
aforesaid
Act,
the
power
of
the
Inspector/Inspectress under Section 16G(3) (a) of the Intermediate Education
Act, 1921 no longer could be exercised,
as it would be inconsistent with the
provisions of U.P. Act 5 of 1982 and
would frustrate the very object for which
the legislation has been enacted. Section
32 of U.P. Act 5 of 1982 provides:
"32. Applicability of U.P. Act 2 of 1921.--
-The provisions of the Intermediate
Education Act, 1921 and the Regulations
made thereunder insofar as they are not
inconsistent with the provisions of this Act
or the Rules or Regulations made
hereunder shall continue to be in force for
the purposes of selection, appointment,
promotion,
dismissal,
removal
termination or reduction in rank of a
teacher."
Mr. Sharma, appearing for the
respondents, vehementally urged before
us that though for all other institutions,
the power of approval or disapproval
against an order of termination of an
employee
of
an
aided
educational
institution had been vested with the
Selection Board under U.P. Act 5 of 1982,
but in respect of the minority institution, it
must be held to have been vested with the
Inspector/Inspectress and that power still
vested
with
those
authorities
notwithstanding the coming into force of
U.P. Act 5 of 1982. We are unable to
accept this submission, as in our view,
there cannot be any rationale for
conferring the power of approval or
disapproval of an order of termination of
an employee of a minority institution
with the Inspector/Inspectress and for all
other institutions with the Services
Selection Board. Having conferred the
power of approval/disapproval with the
Selection Board under U.P. Act 5 of
1982, the legislature made it crystal clear
by inserting Section 30 therein which
states:
"30. Nothing in this Act shall apply
to
an
institution
established
and
administered by a minority referred to in
clause
(1)
of
Article
30
of
the
Constitution of India."
The
legislature
intent
is
thus
apparent that the legislature never
intended
to
subject
the
order
of
termination of an employee of a minority
institution to the approval/disapproval of
the Selection Board. In this view of the
matter, it is difficult for us to hold that
an order of termination of an employee
of a minority institution cannot be given
effect to, unless approved by either the
Inspector/Inspectress, as provided in
Section 16-G(3)(a) or by the Selection
Board, as provided under U.P. Act 5 of
1982. Under the provisions, as they stand,
the conclusion is irresistible that the
question of prior approval of the
3 All] Dhirendra Nath Dubey V. State of U.P. and others
871
competent authority in case of an order of
termination of an employee of a minority
institution does not arise. In the aforesaid
premises, the majority view in the Full
Bench judgment of the Allahabad High
Court is set aside and this appeal is
allowed. The writ petition filed, stands
dismissed."

16. In the opinion of the Court the
contention raised on behalf of the
petitioner is totally misconceived. The
Hon'ble Supreme Court of India in the
case of Committee of Management, St.
John
Inter
College
(Supra)
was
considering the matter with regard to
grant of prior approval to the punishment
proposed to be inflicted by a minority
institution
on
its
employee.
Such
provisions of seeking prior approval was
held to be hit by Article 30 of the
Constitution of India and it is in that
background only that the Court held that
once
legislature
declared
that
the
provisions of Act No. 5 of 1982 will not
apply to a minority institution, falling
back upon the provisions of Act, 1921,
i.e. Section 16-G(3)(a) for the same
purpose was not called for.

17. The facts before this Court are
clearly distinguishable. The issue up for
consideration is as to what procedure is to
be applied qua appointment of teachers in
minority intermediate college. In view of
Section 30 of Act, 1982, the provisions of
Commission/Board Act will not apply qua
appointment of teachers in minority high
school/ intermediate college. No change
has been made vis-a-vis the provisions
which were applicable under Act, 1921
prior to the enforcement of U.P. Act No. 5
of 1982 qua the minority institutions. The
procedure for appointment of teachers in
minority intermediate college continues to
be regulated by Section 16E read with
Section 16FF of Act, 1921. Such
provisions and procedures prescribed
thereunder have continued in operation
for decades together and at no point of
time such provisions which regulates the
mode and manner of selection and
appointment of teachers in a minority
institution have been found to be hit by
Article 30 of the Constitution of India.

18. I am of the considered opinion
that procedures prescribed under Section
16E read with Section 16FF of Act, 1921
have the effect of laying down a fair and
reasonable method of selection which
leads
to
good
administration
of
intermediate college and has the effect of
avoiding mal- administration because of
wrongful
selection
of
undeserving
candidates as teachers. Therefore, such
procedure cannot be said to be hit by
Article 30 of the Constitution of India.
The Hon'ble Supreme Court of India in
the case of T.M.A. Pai Foundation v.
State of Karnataka reported in (2002) 8
SCC 481I as well as in the case of Islamic
Academic of Education & Anr. vs.
State of Karnatka & Ors. reported in
(2003) 6 SCC 697 has repeatedly held that
any provision, which helps in better
administration of minority institution and
has
the
effect
of
avoiding
mall
administration will not be voilative of
Article 30 of the Constitution of India.

In the opinion of the Court, if the
contention raised on behalf of the
petitioner is accepted, i.e. because of
Section 30 of the U.P. Act No. 5 of 1982,
none of the provisions of the Act, U.P.
Intermediate Education Act, 1921, qua
their appointment as assistant teachers in
minority institution will apply, it will lead
to serious consequences. The essential
872 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
minimum qualification prescribed for
appointment of assistant teachers. In
intermediate colleges, under Appendix-A
of Chapter-II of the Regulations framed
under Act, 1921 would also cease to be
applicable for the same reason and
therefore, anybody can be appointed in
minority institution, irrespective of the
qualification being possessed by him. The
contention raised on behalf of the
petitioner is too broadly stated to be
accepted by any Court of law. It is held
that provisions of Section 16E read with
Section 16FF, which lays down the
procedure for appointment of assistant
teachers in a minority institution hold
good and apply with full force qua
appointment of assistant teachers in a
minority institution irrespective of the
enforcement of U.P. Act No. 5 of 1982.

19. At this stage, this Court may
also refer to the judgment of the Hon'ble
Supreme Court of India in the case of
Brahmo Samaj Education Society &
Ors. vs. State of W.B. & Ors., reported
in (2004) 6 SCC 224, specifically
paragraphs-5 and 6 relied upon by the
learned counsel for the petitioner. I am of
the considered opinion that said judgment
of the Hon'ble Supreme Court of India is
clearly distinguishable on facts, inasmuch
as in the said case power of the
Committee of Management of a minority
institution to appoint a teacher of its
choice was withdrawn and conferred upon
the Selection Board/Commission. Such
provision was struck down as being
voilative of fundamental right guaranteed
under Article 30 of the Constitution of
India, on the ground that authority to
administer a minority institution cannot
be totally restricted and the institution
cannot be treated as a government-owned
one, merely because aid is provided by
the Government.

20. In the case of Brahmo Samaj
Education Society (Supra) itself it has
been held that "Of course the State can
impose such conditions as are necessary
for the proper maintenance of standards
of
education
and
to
check
maladministration."

21. The aforesaid judgement only
takes forward the law laid down by the
Constitution
Bench
of
the
Hon'ble
Supreme Court of India in the case of
T.M.A. Pai Foundation (Supra), and
therefore, in paragraph-7 of its judgment
in the case of Brahmo Samaj Education
Society (Supra), the Apex Court has
stated as follows:

"7. But that control cannot extend to
the day-to-day administration of the
institution. It is categorically stated in
T.M.A. Pai (SCC at p. 551, para 72) that
the State can regulate the method of
selection and appointment of teachers
after prescribing requisite qualification
for the same. Independence for the
selection of teachers among the qualified
candidates
is
fundamental
to
the
maintenance of the academic and
administrative autonomy of an aided
institution. ....."

22. Having arrived at aforesaid
conclusion, this Court may record that
under
Section
16E
for
making
appointment on the post of teachers,
which applies to minority institution also,
vacancy is required to be published in at
least two newspapers, having adequate
circulation in the State. In the facts of the
present
case,
advertisement
was
admittedly
published
in
only
one
3 All] Ajai Kumar Mishra V. D.M., Fatehpur and others
873
newspaper, and therefore, there has been
violation of Section 16 E (2) of Act, 1921.

23. So far as the plea of the
petitioner qua the impugned order being
in violation of principles of natural
justice, is concerned, this Court is of the
considered opinion that for the facts and
reasons recorded and for the legal
principles as noticed herein above, only
one view is possible in the facts of the
present case. The factual issue raised by
the Committee of Management need not
be gone into any further. This Court is of
the considered opinion that the plea of
violation of principles justice as raised by
the learned counsel for the petitioner is
futile, inasmuch as non-compliance of the
statutory provisions qua appointment
claimed are admitted on records.

24. So far as the last but one plea
raised by the learned counsel for the
petitioner, is concerned, this Court may
only provide that if any other appointment
has been made contrary to the statutory
provisions applicable, it is left open for
the petitioner to make a representation,
ventilating all his grievances, supported
by such documents, as he may be advised
before the Director, Secondary Education,
U.P. Lucknow qua such appointees along
with a certified copy this judgement. On
such representation being made the
Director shall call for the records and
after affording opportunity of hearing to
the parties concerned, shall pass a
reasoned speaking order, within 8 weeks
thereafter.

25. It is needless to emphasise that
petitioner cannot claim any negative
equality, inasmuch as if appointment as
alleged by the petitioner qua other
teachers are illegal, he cannot be
permitted to obtain an order from this
Court
that
the
same
illegality
be
perpetuated by granting relief prayed for
by the petitioner.

26. So far as the last point issue on
behalf of the petitioner is concerned, this
Court feels that the issue has become
more or less infructuous, in view of the
conclusions arrived at on admitted facts
on issues nos. a to c.

27. The present writ petition is
therefore, dismissed. No orders as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2009

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

Civil Misc. Writ Petition No.52816 of 2009

Ajai Kumar Mishra

...Petitioner
Versus
District Magistrate, Fatehpur and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Mishra
Sri Indra Raj Singh

Counsel for the Respondents:
Sri Ravi Shankar Prasad
S.C.

Constitution
of
India
Article
226
Cancellation of appointment of Shiksha
Mitra-petitioner
passed
High
School
Examination in the year 1988-again
appeared in High School Examination
1995 and the Intermediate examination
in 2005-on aggregate of marks of High
School
88,
and
Intermediate
examinations got selected- once the
petitioner himself forgo 88 examination-