# Dr. Hemant Chaudhary & Anr v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 1299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** WRIT A No. 1821 of 2020
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-hemant-chaudhary-anr-v-state-of-u-p-ors-45771
- **Pages:** 14

## Headnote

A. Civil Law - Intermediate Education
Act, 1921 - Section 16-FF - Appointment
on the post of Lecturer or Assistant Teacher -
Approval
-
Deemed
approval
-
No
appointment on the post of Lecturer or
Assistant Teacher in L.T. Grade can be made
in the institution recognized under the Act of
1921 without approval of the District Inspector
of Schools - On submission of papers in case
the District Inspector of Schools do not pass
any order within a period of 1 month, the
selection is deemed to have been approved.
(Para 35)
Held -

## Text

_Characters 0–39,956 of 43,015. This is a partial read: ask again with offset=39956 for what follows._

6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1299
deposit made by the tenant under the
proviso to Section 17 of the Act, 1887, as
a deposit under Section 20 (4) of the Act,
1972, as also, the operative portion of the
judgment, is hereby set aside. Consequent
to this, SCC suit no. 2 of 2006 shall stand
restored before the SCC Court which
shall now proceed to consider the issue of
applicability of Section 20 (4) after
treating the deposit made by the petitioner
under the proviso to Section 17 of the
Act, 1887, as one made under Sub-section
4 of Section 20 of the Act, 1972.
Consequences shall follow accordingly as
per law.

24. The revision is allowed in
aforesaid terms.

25. The Lower Court Record which
are available shall be returned to the
District Court concerned for further
proceedings as aforesaid.

26. Considering the fact that this
revision has remained pending for almost 10
years, the parties, who are represented before
this Court, are directed to appear before the
Court below on 01.07.2020 for further
proceedings. The SCC Court is directed to
conclude the proceedings as aforesaid within
a period of 3 months subject to regular Court
proceedings resuming which are at present
affected by COVID-19 pandemic, if need be
by conducting the proceedings on day to day
basis. The issues which have already attained
finality as observed hereinabove, shall not be
open for reconsideration.
----------
(2020)06ILR A1299
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE IRSHAD ALI, J.
WRIT A No. 1821 of 2020

Dr. Hemant Chaudhary & Anr.
 ...Petitioners

Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Krishna Mohan Asthana, Sri Ashok
Khare

Counsel for the Respondents:
C.S.C.

A. Civil Law - Intermediate Education
Act, 1921 - Section 16-FF - Appointment
on the post of Lecturer or Assistant Teacher -
Approval
-
Deemed
approval
-
No
appointment on the post of Lecturer or
Assistant Teacher in L.T. Grade can be made
in the institution recognized under the Act of
1921 without approval of the District Inspector
of Schools - On submission of papers in case
the District Inspector of Schools do not pass
any order within a period of 1 month, the
selection is deemed to have been approved.
(Para 35)
Held -
36. Here, in the present case, this court issued
direction to the DIOS to examine the selection
of the petitioners in the light of the provisions
contained under Section 16-FF of the Act of
1921. The objection raised in rejecting the
claim of the petitioners for grant of approval
was taken into consideration by this court in
above referred judgment and direction was
issued to reconsider the claim of the
petitioners for grant of approval. The DIOS in
utter disregard of the orders passed by this
court has proceeded to pass the impugned
order.
37. Once, this court upon examination of
material on record issued direction to the
DIOS to consider and pass appropriate order
in the light of the observation made in the
judgment and order referred herein above, it
was incumbent upon the DIOS to take notice
of the observation made by this court and to
pass appropriate order.
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed (E-1)
(Delivered by Hon'ble Irshad Ali, J.)

1) The rejoinder affidavit filed today
may be taken on record.

2) Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri K.M.
Asthana,
learned
counsel
for
the
petitioners and Sri Dashrath Prasad,
learned standing counsel for respondent
Nos.1 to 4.

3) By means of present writ petition,
the petitioners have assailed the order
dated 11.11.2019 passed by the District
Inspector of Schools (DIOS), Mathura -
respondent No.3, whereby claim of the
petitioners for grant of approval to the
selection has been rejected.

4) Factual matrix of the case is that
Jain Inter College, Chaurasi, Mathura is a
recognized
institution
under
the
provisions of U.P. Intermediate Education
Act, 1921 and is receiving grant in aid
from the State Government. In view of
that, the provisions of U.P. Act No.24 of
1971 is applicable to the said institution.
The institution is a minority institution
recognized under the provisions of Article
30(1) of the Constitution of India. The
Committee of Management initiated a
proceeding of selection in pursuance to an
advertisement
issued
in
two
daily
newspapers; one in hindi and another in
english as per provisions contained under
Regulation 17 of the regulations framed
under Chapter II of U.P. Intermediate
Education Act, 1921 (for short, "Act of
1921").

5) In the advertisement, 11 posts of
Lt. Grade teachers were advertised. The
petitioners applied in pursuance to the
advertisement issued on 24.08.2015 and
the
Selection
Committee
made
recommendation for appointment to the
Committee of Management.

6) In view of the provisions
contained under Section 16-FF of U.P.
Intermediate Education Act, 1921, before
making appointment, prior approval of
the DIOS is required for issuance of
appointment letter.

7) Accordingly, the Committee of
Management submitted papers to the
DIOS
for
grant
of
approval
on
21.07.2016. The DIOS, Mathura raised
objection that in view of the provisions
contained under Regulation 20 of Chapter
II of the Act of 1921, approval cannot be
granted as no sanction was obtained for
revival of the posts.

8) The Manager of the institution
forwarded all the papers to the Director
of Education (Secondary) and a letter
was also sent to the DIOS in this regard
on 31.08.2016, whereupon order was
passed by the Director of Education
(Secondary) and the posts were revived
as per norms provided under the
government order for sanction of post.
After passing the order by the Director
of
Education
(Secondary),
the
Committee of Management requested to
accord approval to the selection on 11
posts.

9) The DIOS passed an order on
19.04.2017 and 03.05.2017, whereby
direction was issued to initiate fresh
proceeding of selection in pursuance to
the order passed by the Director of
Education (Secondary) for revival of
posts.
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1301

10) The petitioners preferred Writ-A
No.26088/2018, which was decided vide
judgment and order dated 11.12.2018,
whereby direction was issued to the
DIOS,
Mathura
to
accord
fresh
consideration
to
the
claim
of
the
petitioners in the light of the judgment of
Hon'ble Supreme Court taking into
consideration the provisions contained
under Section 16-FF of the Act of 1921.

11) In pursuance to the direction
issued by this Court, an order was passed
by the DIOS on 13.02.2019, whereby the
selection
of
the
petitioners
was
disapproved. The order of the disapproval
dated 13.02.2019 was again challenged
before
this
Court
in
Writ
-A
No.8069/2019 and the similar order
passed by the DIOS was subject matter of
challenge in Writ-A No.4791/2019; Smt.
Shweta Tiwari Vs. State of U.P. and
others, which was allowed and the
impugned order of the same date was
quashed and the matter was remanded
back to the DIOS, Mathura to pass fresh
order.

12) The writ petition filed by the
petitioners
was
also
allowed
vide
judgment and order dated 20.05.2019,
whereby the DIOS was directed to pass
fresh order in the light of the observation
made in the judgment. The DIOS taking
the
same
view,
disapproved
the
appointment of the petitioners. The same
date order was under challenge before this
Court in Writ-A No.18983/2019; Smt.
Babita and others Vs. State of U.P. and
others, wherein after noticing the entire
facts of the case this Court passed the
following order :

"Be that as it may, this Court
while rendering judgement in the case of
petitioners in Writ Petition No.7856 of
2019 has already rejected the objection
taken by the respondent no.3 regarding
non-compliance
of
the
procedure
provided in the Government Order dated
12.03.2018 in making selection and the
selection of the petitioners on the nonexistent post, therefore, the said objection
taken
by
the
respondent
no.3
is
misconceived as judgement of this Court
in Writ Petition No.7856 of 2019 has
become
final
between
the
parties.
Further, this Court while deciding the
issue in Writ Petition No.7856 of 2019
has granted liberty to the respondent no.3
to examine the documents in respect of
election of committee of management and
this Court finds that respondent no.3
while passing the impugned order has not
adverted to any of the documents filed by
the petitioners to verify the validity of the
Committee of Management, who initiated
the selection procedure. The respondent
no.3 has placed reliance upon the letter
dated 08.12.2017 of the then District
Inspector of School in paragraph 9 of the
order which nowhere mentions about the
validity of committee of management, and
thus, facts of the case clearly establishes
that respondent no.3 has completely
ignored the orders of this Court while
passing the impugned order, and thus,
has wilfully flouted the orders of this
Court. In this view of the fact, this Court
finds substance in the argument of
learned
Senior
Counsel
for
the
petitioners.

Thus, in view of above, let
notice be issued to respondent no.3,
District Inspector of Schools, District
Mathura, to show cause as to why the
matter should not be referred to the
contempt Court for initiating contempt
proceedings against him and why his
personal responsibility in the matter be
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
not fixed. He shall remain present
personally on the next date alongwith his
reply.

Put up on 20.01.2020 in the
additional cause list."

13) In pursuance to the order, the
DIOS appeared before this Court on the
date fixed and assured that the order
impugned of the writ petition of Writ-A
No.18983/2019 shall be recalled, in case
short time is granted to him.

14) Accordingly, the order of
disapproval of the appointment of the
petitioners of the aforesaid writ petition
was recalled vide order dated 23.01.2020
and appointment of the petitioners of the
above referred writ petition was accorded
approval. The said order was placed
before
this
Court
in
Writ-A
No.18983/2019 and the petition has been
dismissed as rendered infructuous.

15) The controversy involved in the
present writ petition also pertains to the
same selection and similar order of DIOS
is under challenge.

16) Assailing the order impugned,
submission of learned senior counsel for
the petitioners is that the DIOS while
passing the impugned order ignored the
specific reasons assigned in the order
dated 20.05.2019 passed in Writ-A
No.8069/2019.

17) His next submission is that the
DIOS while exercising the power under
Section 16-FF of Act of 1921 is confined
and restricted to the scope of inquiry and
the said aspect of the matter was duly
considered in Writ-A No.26088/2018
decided on 11.12.2018, whereby the writ
petition was disposed of in terms of the
judgment and order dated 28.11.2018
passed in Writ Petition No.25087/2018.

18) He further submitted that the
DIOS has proceeded beyond the scope of
inquiry and illegally disapproved the
selection
and
appointment
of
the
petitioners on erroneous consideration,
thus, the order impugned cannot sustain
in law.

19) In regard to the objection taken
in the impugned order that the committee
of management is not validly elected
committee of management, submission of
learned senior counsel for the petitioners
is that the election of the committee of
management was held on 16.06.2013 and
the salary of the teachers and other
employees of the institution have been
disbursed under the signature of the
signature
of
the
manager
of
the
institution, who made the selection,
therefore, the objection in this regard is
absolutely perverse and vitiated in law.

20) He next submitted that the
committee of management with Sri
Munish Kumar Jain was elected in earlier
election also and continued to discharge
duties and functions without any dispute,
who held the next election and no dispute
of rival claim of election was raised at
any stage.

21) His further submission is that the
post against which the petitioners have been
granted appointment are duly sanctioned
posts and the selection has been made by
following the procedure prescribed under
Section 16-FF and Regulation 17 of
Chapter 2 of the regulations framed under
the Act of 1921, therefore, the order passed
by the DIOS is illegal and legally not
sustainable
in
the
eyes
of
law.
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1303

22) His last submission is that in
compliance of the judgment and order
passed in Writ Petition No.18983/2019;
Smt. Babita and others Vs State of U.P.
and
others
and
Writ
Petition
No.7856/2019 decided vide judgment and
order dated 17.05.2019, the same date
order dated 11.11.2019 was recalled and
order of approval was granted to the
selection made by the same committee of
management, therefore, the petitioners are
also entitled to get the same relief in the
present writ petition.

23) On the other hand, learned
standing counsel submitted that the
impugned order dated 11.11.2019 is just
and valid and does not suffer from any
infirmity or illegality but he does not
dispute the fact that in compliance of the
order passed by this court, the DIOS has
recalled the order dated 11.11.2019 in
regard to same selection proceeding and
accorded approval to the selection of
petitioners
of
Writ
Petition
Nos.18983/2019
and
7856/2019.
He
further invited attention of this court on
certain paragraphs of the counter affidavit
in regard to proceeding of selection and
dispute in the committee of management.

24) I have considered the rival
contentions advanced by learned counsel
for the parties and perused the material on
record and the judgments relied upon by
learned counsel for the parties.

25) On perusal of the material on
record, it is evident that the petitioners
filed
Writ
Petition
No.26088/2018
challenging the order of DIOS dated
03.05.2017 and 19.04.2017, wherein after
examining the material on record, the writ
petition was finally disposed of vide
judgment and order dated 11.12.2018 in
terms of order dated 28.11.2018 passed in
Writ Petition No.25087/2018. Relevant
portion of the judgment is being quoted
below:

"One of the other similarly
placed person, as the petitioners in this
petition, had approached this Court
against the same impugned order by filing
Writ Petition No. 25087 of 2018, wherein
following orders have been passed on
28.11.2018:-

"Jain Inter College, Chaurasi
Mathura
is
a
recognized
minority
institution
situated
at
Mathura.
Provisions of Payment of Salaries Act,
1971 are also applicable upon the
institution. It appears that a post of
Assistant Teacher in L.T. Grade had
fallen vacant in the institution concerned,
upon which the committee of management
proceeded to appoint the petitioner and
papers were transmitted to the District
Inspector of Schools for according
approval to it. The District Inspector of
Schools vide its order dated 3.5.2017 has
rejected the proposal on the ground that
the post itself had lapsed by virtue of
Regulation -20 of Chapter-II, framed
under the U.P. Intermediate Education
Act, 1921. The order records that since
the post itself was not available and the
revival of post has been allowed granted
by the authorities after making of the
appointment itself, the Committee of
Management would have to initiate fresh
process for appointment in the institution
concerned.

Learned counsel for the submits
that the limited scope of scrutiny
available with the Inspector in a minority
institution would be as per Section 16-FF
of the Act of 1921. Submission is that the
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner has been duly appointed and he
possess the requisite qualification and,
therefore, the direction of the concerned
authority
for
recruitment
to
be
undertaken afresh would result in an
exercise which would serve no purpose. It
is also stated that a Division Bench of this
Court in Tariq Maqbool and others Vs.
State of U.P. and others, reported in
2015(1) ADJ, 650 had taken a view that
even in a minority institution the
institution would not be competent to
make an appointment once the post itself
stood lapsed by virtue of Regulation-20.
This judgment was assailed before the
Hon'ble Supreme Court in Special Leave
to Appeal No. 5871-5872 of 2015 in
which the Special Leave to Appeal has
been disposed of vide following orders:-

"After haring the matter at
length, learned counsel appearing for the
parties agree that the matter may be
resolved in the following way;

The common respondent no. 5College shall, in pursuance of the
directions given by the High Court vide
the impugned order dated11.12.2014 in
Special Appeal Nos. 1359 of 2013, make
an application to the competent maturity
for fresh sanction of posts and to retify
the posts according to the selection of the
petitioners already made. The competent
authority shall consider granting sanction
for the vacant posts either retrospectively
or with effect from the date the
application is made. We find there is
dispute that the petitioners are either
unqualified or otherwise not suitable.

We
Ravindra
Shrivastava,
learned Senior Counsel appearing for the
petitioners, states that the petitioners
would not claim any arrears of their
salaries even if their appointment is
ratified from the retrospective date.

We order accordingly.

The
instant
special
leave
petitions stand disposed of in the above
terms.

As a sequel to the above,
pending interlocutory applications, if any,
stand disposed of."

Learned
counsel
for
the
petitioner submits that the petitioner,
herein, also undertakes to give up her
claim for salary from the retrospective
date and that the authority be directed to
consider the petitioner's for appointment
in accordance with law.

Learned Addl. Chief Standing
Counsel for the respondents, although
disputes the submission, but does not
dispute that the post has already been
revived in the institution concerned and
that the limited scope for examination to
the Inspector would be confined to the
parameters laid down in Section 16-FF of
the Act of 1921.

Considering
the
facts
and
circumstances, noticed above, it would be
appropriate
to
direct
the
District
Inspector of Schools, Mathura to accord
consideration to petitioner's claim in light
of the orders passed by Hon'ble Supreme
Court, extracted above, within a period of
three
months
from
the
date
of
presentation of certified copy of this
order, after affording an opportunity of
hearing to respondent no. 5.The Inspector
shall be at liberty to examine the
qualification of petitioner and his scope
of inquiry would be confined to Section
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1305
16-FF of the Act of 1921. No useful
purpose would be served in directing a
fresh exercise to be undertaken inasmuch
as the scope of inquiry by the Inspector,
otherwise, would be restricted to Section
16-FF of the Act of 1921.

The
order
impugned
dated
3.5.2017 and 19.4.2017 shall remain
subject to the fresh orders to be passed by
the Inspector, as intimated above".

Learned Standing Counsel does
not dispute
that
same
orders
are
challenged in the present writ petition
also and the controversy raised is
identical.

In that view of the matter, this
petition is also disposed of in terms of the
order dated 28.11.2018 passed in Writ
Petition No. 25087 of 2018."

26) The DIOS again passed an order
on 13.02.2019, whereby the claim of the
petitioners for payment of salary was
rejected
without
considering
the
parameters of Section 16-FF of the Act of
1921 as directed by this court in earlier
litigation came before this court.

27) The order dated 13.02.2019 was
assailed by the petitioners in Writ-A
No.8069/2019; Dr. Hemant Chaudhary
and others Vs State of U.P. and others.
The same date order was also challenged
by Smt. Shweta Tiwari in Writ-A
No.4791/2019, which was allowed vide
judgment and order dated 11.04.2019
considering each and every aspect of the
matter and the order dated 13.02.2019
was set aside with the direction to accord
fresh consideration to the claim of
petitioners for grant of approval to the
selection vide judgment and order dated
11.04.2019. Relevant portion of the
judgment is being quoted below:

"In
pursuance
thereof,
instructions have been furnished to
learned standing counsel, which is taken
on record. According to it, the term of the
last validly elected Committee came to an
end on 3.7.2009 and thereafter no valid
election was held. It has also been stated
that the selection made by the Committee
whose term had expired would not be
valid. When the said fact came to the
knowledge of the District Inspector of
Schools, he, by letter dated 23.12.2017,
required
the
Management
to
hold
elections within one month. Thereafter,
fresh election was held on 21.1.2018 and
which was recognised on 11.7.2018. It is
also stated in paragraph 11 of the
instructions furnished to learned standing
counsel that out of eleven posts, only
seven posts were revived.

The first objection that only
seven posts were revived by order dated
14.12.2017 does not appear to be correct.
The petitioner has brought on record the
order dated 16.3.2018 passed by Director
of Education, Madhyamik, Uttar Pradesh,
Lucknow, whereby four more posts of
assistant teachers was revived.

It is noteworthy that the validity
of Regulation 20 of Chapter II, which
provided that in case a post remains
unadvertised for three months, it would
lapse unless fresh approval for its revival
is obtained, was subjected to challenge
before the Supreme Court in Special
Leave to Appeal No.5871 - 5872 of 2015
and which was disposed of by the
Supreme Court by the following order:-

"After hearing the matter at
length, learned counsel appearing for the
parties agree that the matter may be
resolved in the following way:
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

The common respondent no. 5College shall, in pursuance of the
directions given by the High Court vide
the impugned order dated 11.12.2014 in
Special Appeal Nos. 1359 and 1360 of
2013, make an application to the
competent maturity for fresh sanction of
posts and to ratify the posts according to
the selection of the petitioners already
made. The competent authority shall
consider granting sanction for the vacant
posts either retrospectively or with effect
from the date the application is made. We
find there is no dispute that the
petitioners are either unqualified or
otherwise not suitable.

Mr. Ravindra Shrivastava, learned
Senior Counsel appearing for the petitioners,
states that the petitioners would not claim any
arrears of their salaries even if their
appointment is ratified from the retrospective
date.

We order accordingly.

The instant special leave petitions
stand disposed of in the above terms.

As a sequel to the above, pending
interlocutory applications, if any, stand
disposed of."

It has also not been disputed before
this Court that when on a previous occasion
the District Inspector of Schools declined to
grant approval to the appointments in
question, the petitioner alongwith other
selected candidates filed Writ-A No.26403 of
2018 and Writ-A No.25087 of 2018. These
writ petitions were disposed of by this Court
with the following directions:-

"Considering the facts and
circumstances, noticed above, it would be
appropriate
to
direct
the
District
Inspector of Schools, Mathura to accord
consideration to petitioner's claim in light
of the orders passed by Hon'ble Supreme
Court, extracted above, within a period of
three
months
from
the
date
of
presentation of certified copy of this
order, after affording an opportunity of
hearing to respondent no. 5.The Inspector
shall be at liberty to examine the
qualification of petitioner and his scope
of inquiry would be confined to Section
16-FF of the Act of 1921. No useful
purpose would be served in directing a
fresh exercise to be undertaken inasmuch
as the scope of inquiry by the Inspector,
otherwise, would be restricted to Section
16-FF of the Act of 1921.

The
order
impugned
dated
3.5.2017 and 19.4.2017 shall remain
subject to the fresh orders to be passed by
the Inspector, as intimated above".

It is also not disputed by
learned
standing
counsel
that
the
combined effect of the above orders
would be that even if the selection was
made prior to revival of the posts, but
once the selection is approved having
regard to the factors stipulated under
Section 16-F, the selected candidates
would become entitled for payment of
salary atleast from the date of revial of
the posts. The orders dated 13.12.2018
and 18.11.2018 in Writ-A No.26403 of
2018 and Writ-A No.25087 of 2018
directing the District Inspector of Schools
to confine the scope of enquiry to Section
16-FF has attained finality. In such view
of the matter, the District Inspector of
Schools was not justified in declining to
grant approval to the selection of the
petitioner on the same ground that the
post came to be revived later on, a
dispute which stood settled by the orders
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1307
passed in earlier writ petitions. All that he
could have done was to impose a
condition that the salary would become
payable from the date post was revived in
case the appointment is otherwise found
to be valid. In fact, learned counsel for
the petitioner has fairly conceded to the
said legal position and has stated that the
petitioner would not claim salary for the
earlier period.

Coming to the second objection
regarding selection having been made by
the
Committee
which
is
not
duly
recognised, it is noteworthy that in the
instructions
furnished,
the
District
Inspector of Schools has not said a word
as to how salary bills were being passed
under signatures of Munish Kumar Jain,
the Manager of the Committee of
Management, which held the selection in
question. This is despite a specific
direction by this Court vide order dated
30.3.2019. The petitioner has come up
with the case that the election was duly
held on 16.6.2013 in which Munish
Kumar Jain was re-elected. Although no
document has been brought on record to
show that the election was communicated
to the educational authorities but the fact
which remains undisputed is that the
salary bills for the period in question
were duly passed under signatures of
Munish
Kumar
Jain.
The
District
Inspector of Schools, while raising the
objection in question, has not alluded to
the said aspect, therefore, the objection
taken
in
this
regard
requires
reconsideration at his end, being a dispute
of factual nature.

The third objection that the
procedure prescribed by Government
Order dated 12.3.2018 has not been
followed, does not survive in view of the
discussion made above while dealing with
the first objection.

In consequence and as a result
of discussion made above, the impugned
order dated 13.2.2019 is quashed. The
matter is remitted back to the District
Inspector of Schools, the third respondent
to accord fresh consideration to the claim
of the petitioner for grant of approval to
her selection having regard to the
observations made above. It is desirable
that before passing any fresh order, in
case any additional representation or
document is filed before the District
Inspector of Schools by the petitioner or
by Committee of Management of the
institution, the same shall be duly
considered. The decision in this regard
shall be taken expeditiously, preferably
within a period of eight weeks from the
date of receipt of a certified copy of this
order.

The writ petition stands allowed
to the extent indicated above."

28) The writ petition of the
petitioners which was numbered as Writ
Petition No.8069/2019 was also allowed
and the order dated 13.02.2019 was
quashed in the same terms as was decided
in Writ-A No.4791/2019 vide judgment
and order dated 11.04.2019.

29) Now, again the DIOS on the
same set of facts and grounds has
proceeded to pass the impugned order
dated 11.11.2019. The said order was also
assailed by the teachers of the same
selection
proceeding
in
Writ-A
No.18983/2019, wherein this court after
examining the material on record issued
notice to the DIOS that why the order
passed at earlier point of time by this
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
court in writ petitions have not been
followed and why the matter may not be
placed before the contempt court in
compliance of the order passed by this
court. Thereafter, the DIOS recalled the
order dated 11.11.2019 and accorded
approval to the petitioners of Writ-A
No.18983/2019.

30) To decide the merit of the
selection of the petitioner, it is relevant to
look into the provisions governing the
initiation of selection proceeding in a
recognized minority institution under the
Act of 1921. The provisions of Section
16-FF of U.P. Intermediate Education
Act, 1921 and Regulation 17 of ChapterII of the Regulations framed under U.P.
Intermediate Education Act, 1921 are
relevant provision to be taken into
consideration in making selection and
appointment on the post of Principal,
Lecturer and Assistant Teacher in a
recognized
institution
under
U.P.
Intermediate Education A

31) To resolve the controversy
involved in the present writ petition, the
provision of Regulation 17 of Chapter-II
of the Regulations framed under U.P.
Intermediate Education Act, 1921 is
quoted below:

"17. The procedure for filling
up the vacancy of the head of institution
and teachers by direct recruitment in any
recognised institution referred to in
Section 16-FF, shall be as follows:

(a) After the management has
determined the number of vacancies to be
filled up by direct recruitment, the posts
shall be advertised by the manager of the
institution in at least one Hindi and one
English
newspaper
having
adequate
circulation in the State giving particulars
as
to
the
nature
(i.e.,
whether
temporary/permanent) and number of
vacancies, descriptions of post (i.e.,
Principal or Headmaster, Lecturer or
L.T., C.T. or J.T.C./B.T.C. grade teacher
including the subject or subjects in which
the lecturer or teacher is required), scale
or pay and other allowances, experience
required minimum qualification and age
prescribed, if any, for the post and
prescribing a date which should not
ordinarily be less than two weeks from
the date of advertisement) by which the
applications shall be received by the
Manager. A copy of the advertisement
shall be simultaneously sent to the
Inspector concerned.

Notes-(1) All vacancies in the
posts of teachers and the head of
institution
existing
at
the
time
of
advertisement shall be advertised.

(2) No new post shall be
advertised
unless
sanction
of
the
appropriate authority for the creation
thereof
has
been
received
by
the
management.

(b) All applications shall be
made in the form prescribed by the
management
and
shall
contain
all
necessary
particulars
about
qualifications, teaching experience and
other activities and be accompanied by
certified copies of all the necessary
certificates
and
testimonials.
The
management may charge cost of the
application form not exceeding the
amount referred to in Clause (2) of
Regulation 10.

(c) An application by a person
employed in an institution and applying
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1309
for a post elsewhere or in the same
institution shall not be withheld by his
employer but shall be forwarded to the
authority concerned immediately.

(d) All applications received
from the candidates shall be serially
numbered and entered in a register and
particulars of the candidates noted under
appropriate columns. The candidates to
be called for interview shall be seven for
each post (the number of applicants,
permitting). The Manager shall intimate
by registered post all the members of the
Selection Committee as well as all such
candidates as are called for interview, the
date, time and place of selection at least
ten days before it is held. The Selection
Committee
will
hold
the
selection
accordingly. If on account of any
unavoidable reason, the expert selected
by the Committee of Management under
Clause (a) of the proviso to sub-section
(1) of Section 16-FF is unable to attend
the selection on the date fixed the meeting
of the Selection Committee shall be
postponed.

(e) The provisions of Clauses
(e) and (f) of Regulation 10 and those of
Regulations 11, 12 and 16 shall mutatis
mutandis apply to selections made under
this regulation.

(f) A panel of experts consisting
of fifteen or more persons selected from
category (a) referred to in Regulation 14
shall be drawn by the Director for each
region and be sent to the Regional Deputy
Director of Education concerned, The
Regional Deputy Director of Education
shall out of the said panel communicate
the names of three experts in a sealed
cover to the management through its
Manager as soon as he receives any
request for supply of names of experts
from him. The regional panel of experts
shall, however, remain valid until it is
replaced by a new one.

(g) किसी पद िे किए समस्त
अभ्यकथिय ों िा साक्षात्कार िर किए जाने िे
पश्चात् चयन सकमकत िा सभापकत किये गए
चयन िी िायिवाकिय ों पर द प्रकतय ों में एि
किपण्णी तैयार िराएगा कजसमे चुने गए
अभ्यथी िा नाम तथा प्रतीक्षा सूची िे द अन्य
अभ्यकथिय ों िे नाम उल्लिल्लित किये जायेंगे,
इस प्रिार तैयार िे गई किप्पणी पर चयन
सकमकत िे सभापकत तथा अन्य सदस्य
िस्ताक्छर िरेंगे और अपना अपना पूणि नाम,
पद नाम और पता तथा कदनाोंि उल्लिल्लित
िरेंगे, सभापकत इस किपण्णी िी एि प्रकत तथा
कवकनयम 10 िे िोंड (च) में कनकदिष्ट कववरण िी
एि प्रकत धारा 16 - चच िे अधीन यथा
अपेकक्षत अनुम दन िे किए, यथाल्लस्तकथ,
सोंभागीय उप-किक्षा कनदेिि या कनरीक्षि ि
तुरोंत अग्रसाररत िरेगा, सम्बोंकधत अकभिेि ों िे
प्राप्त ि ने िे कदनाोंि िे एि माि िे भीतर
यथाल्लस्तकथ सोंभागीय उप किक्षा कनदेिि या
कनरीक्षि, उन पर अपना कनणिय दे देंगे और
ऐसा न िरने पर अनुम दन प्रदान िर कदया
गया समझा जाएगा।''

32) On perusal of the provisions
contained under the aforesaid regulation,
the existing vacancy is to be advertised in
two newspapers one in Hindi and other in
English.

33) In the present case, the vacancy
was advertised in daily newspapers; one
in hindi and other in english, which are
widely circulated newspapers.

34) The candidates, eligible and
qualified,
including
the
petitioners,
applied for and a selection committee
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
constituted under the Act of 1921 on the
basis of quality point marks, selected the
petitioners and recommended for the
appointment. Papers were duly submitted
to the District Inspector of Schools for the
grant of approval as required under
Section 16-FF, which is being quoted
below:

""16-FF. Savings as to minority
institutions.-(1) Notwithstanding anything
in sub-section (4) of Section 16-E, and
Section 16-F, the Selection Committee for
the appointment of a Head of Institution
or a teacher of an institution established
and administered by a minority referred
to in Clause (1) of Article 30 of the
Constitution shall consist of five members
(including its Chairman) nominated by
the Committee of Management :

Provided
that
one
of
the
members of the Selection Committee
shall-

(a) in the case of appointment of
the Head of an institution, be an expert
selected
by
the
Committee
of
Management from a panel of experts
prepared by the Director;

(b) in the case of appointment of
a teacher, be the Head of the Institution
concerned.

(2)
The
procedure
to
be
followed by the Selection Committee
referred to in sub-section (1) shall be
such as may be prescribed.

(3) No person selected under
this section shall be appointed, unless-

(a) in the case of the Head of
Institution the proposal of appointment
has been approved by the Regional
Deputy Director of Education; and

(b) in the case of a teacher such
proposal has been approved by the
Inspector.

(4)
The
Regional
Deputy
Director of Education or the Inspector, as
the case may be, shall not withhold
approval for the selection made under
this section where the person selected
possesses the minimum qualification
prescribed and is otherwise eligible.

(5) Where the Regional Deputy
Director of Education or the Inspector, as
the case may be, does not approve of a
candidate selected under this section the
Committee of Management may, within
three weeks from the date of receipt of
such disapproval, make a representation
to the Director in the case of the Head of
Institution, and to the Regional Deputy
Director of Education in the case of
teacher.

(6) Every order passed by the
Director or the Regional Deputy Director
of Education on a representation under
sub-section (5) shall be final.""

35) On perusal of Section 16-FF,
it is evident on the face of it that
without
approval
of
the
District
Inspector of Schools, no appointment
on the post of Lecturer or Assistant
Teacher in L.T. Grade can be made in
the institution recognized under the
Act of 1921. It is further clarified that
on submission of papers in case the
District Inspector of Schools do not
pass any order within a period of 1
month, then the selection is deemed to
have
been
approved.
"
6 All. Dr. Hemant Chaudhary & Anr. Vs. State of U.P. & Ors. 1311

36) Here, in the present case, this
court issued direction to the DIOS to
examine the selection of the petitioners in
the light of the provisions contained under
Section 16-FF of the Act of 1921. The
objection raised in rejecting the claim of
the petitioners for grant of approval was
taken into consideration by this court in
above referred judgment and direction
was issued to reconsider the claim of the
petitioners for grant of approval. The
DIOS in utter disregard of the orders
passed by this court has proceeded to pass
the impugned order.

37)

Once,
this
court
upon
examination of material on record issued
direction to the DIOS to consider and
pass appropriate order in the light of the
observation made in the judgment and
order referred herein above, it was
incumbent upon the DIOS to take notice
of the observation made by this court and
to pass appropriate order.

38) On perusal of the judgment and
order dated 11.12.2018 passed in Writ-A
No.26088/2018, judgment and order dated
11.04.2019 passed in Writ-A No.4791/2019
as well as judgment and order dated
20.05.2019 passed in Writ-A No.8069/2019,
it is evident that while passing the impugned
order, the DIOS has not applied his mind and
on
wholly
erroneous
assumption
has
proceeded to pass the impugned order.

39) In the judgment and order
dated 11.04.2019, the objection in
regard to order passed by the Director
of Education Secondary, U.P. at
Lucknow dated 16.03.2018, this court
found the post to be revived and the
DIOS was confined to the scope of
inquiry to Section 16-FF of the Act of
1921 and nothing beyond that.

40) Due to non consideration of
aforesaid aspect of the matter, the
DIOS has totally failed to decide the
actual controversy involved in the
matter.

41) The objection raised by
learned
standing
counsel
was
considered in earlier litigation, which
came into existence before this court
in regard to same selection proceeding
and by recording finding on the point,
the matter was re-delegated to the
DIOS for reconsideration.

42) In regard to initiation of
proceeding
of
selection
by
a
committee of management, this court
while examining the material has
recorded finding by holding that once
the salary of the teachers and other
employees has been disbursed under
the signature of Sri Manish Kumar
Jain, therefore, the objection in this
regard cannot be sustained.