# Javed Alam Khan v. M.R. Serwani Higher Secondary School and others

- **Citation:** (2007) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-15
- **Case number:** Civil Misc. Writ Petition No. 40249 of 2002
- **Bench:** Bharti Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/javed-alam-khan-v-m-r-serwani-higher-secondary-school-and-others-40722
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act, 1921Chapter II Regulation-17-Selection of
Asstt. Teacher-in minority institutionpetitioner being M.A. B.Ed.-applied well
within time-No call for interview givenrespondent no. 6 being son of the clerk
of institution in question recommended
for
appointment-D.I.O.S.
granted
approval-ignoring the objection raised
by petitioner-held-authorities failed to
discharge their statutory obligationsapproval
granted
in
violation
of
regulation 10 f and 11-deserves to be
quashed.

Held: Para 14

Having heard learned counsel for the
petitioner and the learned counsel for
the respondents, I am of the opinion that
the
respondents
authority
failed
to
perform their obligations properly as are
envisaged under Regulation 17 Chapter
II read with Regulations 10 (f), 11 and
therefore the order of approval was
granted in violation of the same. As such
the order of approval dated 17.5.2002
deserves to be quashed.

## Text

1 All] Javed Alam Khan V. M.R. Serwani Higher Secondary School and others
1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2006

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No. 40249 of 2002

Javed Alam Khan

...Petitioner
Versus
M.R. Sherwani Higher Secondary School
and others

...Respondents

Counsel for the Petitioner:
Sri Vipin Saxena

Counsel for the Respondents:
Sri Brij Raj Singh
Sri H.N. Singh
Sri B. Narain Singh
S.C.

U.P. Intermediate Education Act, 1921Chapter II Regulation-17-Selection of
Asstt. Teacher-in minority institutionpetitioner being M.A. B.Ed.-applied well
within time-No call for interview givenrespondent no. 6 being son of the clerk
of institution in question recommended
for
appointment-D.I.O.S.
granted
approval-ignoring the objection raised
by petitioner-held-authorities failed to
discharge their statutory obligationsapproval
granted
in
violation
of
regulation 10 f and 11-deserves to be
quashed.

Held: Para 14

Having heard learned counsel for the
petitioner and the learned counsel for
the respondents, I am of the opinion that
the
respondents
authority
failed
to
perform their obligations properly as are
envisaged under Regulation 17 Chapter
II read with Regulations 10 (f), 11 and
therefore the order of approval was
granted in violation of the same. As such
the order of approval dated 17.5.2002
deserves to be quashed.
(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard learned counsel for the
petitioner,
learned
counsel
for
the
respondent no.5, learned counsel for the
respondents no. 1 and 2 and respondent
no. 6.

2. The petitioner has filed this writ
petition seeking a writ of certiorari to
quash entire selection process adopted by
the respondent no. 2 for the post of
Assistant Teacher in the institution
namely M.R. Sherwani Higher Secondary
School in pursuance of the advertisement
dated 21.6.2001 and also to quash the
selection
and
advertisement
of
the
respondent no. 6 and to quash the
financial
approval
granted
by
the
respondent no. 3 to the appointment of the
respondent no. 6 granted on 17.5.2002.
The petitioner has also made a prayer for
a writ of mandamus commanding the
respondent no. 2 to make a fresh selection
on
the
post
of
Assistant
Teacher
(Sociology) in the institution in question.
The other prayers are also consequential
prayers for writ of mandamus.

3. The institution M.R. Sherwani
Higher Secondary School (hereinafter
referred to as the institution) is a minority
institution, which is governed by the U.P.
Intermediate Education Act, 1921 and as
it is a minority institution, the provision of
section 16FF of the Act, 1921 have
special application to the institution in
question. The procedures for filling up the
vacancies of the head of the institution
and teachers by direct recruitment of a
minority institution are regulated under
Chapter II of Regulation 17 of the Act.
The Regulation 17 (e) provides as under:
2 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"The provisions of clause (e) and (f)
of Regulation 10 and those Regulations
11, 12 and 16 shall mutatis mutandis
apply to selections made under this
regulation."

4. Learned counsel for the petitioner
has argued that in the present case, the
provisions of Regulation 10 (f) and
Regulation 11 have been violated.

5. The facts of the case are that an
advertisement was made on 26.1.2001 by
which the respondent institution inviting
applications for the post of Assistant
Teachers for teaching subject of the
Sociology.
The
advertisement
also
mentions that the candidate should apply
at least for two subjects from Geography,
History, Political Science and Economics
in B.A. and should be trained.

6. The petitioner who is M.A., B.Ed.
also applied and made an application for
the post on 29.6.2001. According to the
petitioner, an interview took place on
26.7.2001 but the petitioner was not given
an interview call. It is the allegation of the
petitioner that the respondent no. 6 was
the son of one of the clerks of the
institution and simply in order to
accommodate him, the application of the
petitioner was not even considered even
though he had the requisite qualifications.
The petitioner did not get an interview
call. The respondent no. 6 was appointed
on 1.8.2001 and he joined the post on
1.8.2001. When the petitioner came to
know all this, he sent a detailed
representation to the District Inspector of
Schools, Etah stating his grievance and
saying that the respondent no. 6 was not
even a proper candidate and yet he was
being
accommodated
whereas
the
petitioner who was fully qualified has not
been even called for interview.

7. It is the petitioner's contention
that the petitioner's objection dated
3.8.2001 was sent to the District Inspector
of Schools but no orders were passed on
the said objection and in fact when the
committee of management sent papers of
the respondent no. 6 for approval, the
petitioner's
objections
were
not
considered rather they were ignored.

8. The approval was granted by the
Joint Director of Education to the
appointment of the respondent no. 6 on
17.5.2002 as has been stated earlier. It is
the argument of the learned counsel for
the petitioner that this approval dated
17.5.2002 was made in violation of the
provision of Regulation 10 (f) Chapter II
which enjoins that while supplying
information
in
Appendix
''C',
the
committee of management shall mention
all applications including those of the
candidates who have not been called for
interview and the same shall be placed
before the selection committee.

9. Learned counsel for the petitioner
also relied on Chapter II Regulation 11,
which qualifies that it will be bounden
duty of the experts attending the selection
of head of the institution and the teachers
to scrutinize all papers and in particular to
examine that the candidates who had been
called for interview, had been rightly
called as per the provisions of the Act and
Regulations and no candidate has been
deprived of the opportunity of interview,
which should rightly have given to him. A
certificate in this behalf is to be made by
the
experts
attending
the
selection
committee.
1 All] Javed Alam Khan V. M.R. Serwani Higher Secondary School and others
3
10. Learned counsel for the
petitioner has argued that in absence of
the filing of such certificate, entire
proceedings of the interview would stand
vitiated.

11. The third limb of the argument
of the learned counsel for the petitioner is
that if approval is granted to the
appointment
of
any
teacher
in
contravention of the provision of Chapter
II, the District Inspector of Schools can
decline to pay the salary and allowances
to such a person and therefore he has
argued that Regulation 19 Chapter II
should be invoked in this particular case
and the salary of the respondent no. 6
must be ceased.

12. The State has filed counter
affidavit in this matter and in para 5 of the
said counter affidavit, it has not denied
that the petitioner has filed representation
dated 3.8.2001 but has not stated as to
how they have dealt with the said
objection. The objection as raised by the
petitioner was a valid one. Para 8 of the
counter affidavit also does not disclose
that as to how the objection of the
petitioner was disposed of or dealt with.

13. In view of the averment made in
the counter affidavit, it appears that the
contention of the petitioner is fully
justified and the respondent District
Inspector of Schools as well as the Joint
Director of Education failed to comply
with the provisions of Regulation 17
Chapter II and Regulations 10 (f) and 11.
It was bounded duty of the respondent
District Inspector of Schools and Joint
Director to go into this as the institution in
question is receiving grant-in-aid from the
State and therefore before releasing salary
of any incumbent, it is expected that the
State will make a proper consideration of
the issues which are placed before them,
so that only worthy candidates are
selected and even though a minority
institution may have a right to manage
itself and to administer itself, that in itself
does not give to minority institution a
right to give a go bye to the Statutes and
Regulations, which govern their very
existence particularly in cases where the
minority institution is receiving grant-inaid from the State.

14. Having heard learned counsel
for the petitioner and the learned counsel
for the respondents, I am of the opinion
that the respondents authority failed to
perform their obligations properly as are
envisaged under Regulation 17 Chapter II
read with Regulations 10 (f), 11 and
therefore the order of approval was
granted in violation of the same. As such
the order of approval dated 17.5.2002
deserves to be quashed.

15. Since the impugned order of
approval dated 17.5.2002 was granted in
violation of Regulation 17 Chapter II read
with Regulations 10 (f), 11, it is expedient
in the interest of justice that the matter is
remanded to the respondent no. 3 Joint
Director of Education to reconsider and
decide the matter afresh after taking into
consideration
the
objection
of
the
petitioner dated 3.8.2001. It is needless to
say that the respondents no. 1 and 2 and
respondent no. 6 will also be given an
opportunity of hearing. The respondent
no. 3 will give a notice for the date of the
hearing to all parties concerned within a
week from the date of issuance of a
certified copy of this order and thereafter
he will decide the matter within a period
of next three months. The authority
concerned is also directed to invoke the
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provisions of Regulation 19 Chapter II of
the U.P. Intermediate Education Act,
1921 with immediate effect.

The writ petition is allowed as above.
The impugned order of approval dated
17.5.2002 is quashed. There will be no
order as to costs. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2006

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 35795 of 1991

Thakur Ram Chandra Ji Mahraj

...Petitioner
Versus
Board of Revenue & others ...Respondents

Connected with
Civil Misc. Writ Petition No. 2499 of 1992
Thakur Ram Chandra Ji Mahraj Vs. Board
of Revenue and others.

Counsel for the Petitioner:
Sri O.P. Kulshrestha
Sri R. Asthana
Sri S.S. Upadhyaya
Smt. Sadhna Upadhyaya
Sri H.N. Sharma
Sri V.K. Singh
Sri R.S. Misra
Sr. G. Bhatt
Sri B.N. Upadhyaya
Sri R.P. Goyal

Counsel for the Respondents:
Sri Satya Prakash
Sri R.N. Sharma
Sri G.N. Verma
Sri Anoop Trivedi
Sri Gajendra Pratap
Sri A. Srivastava
S.C.
(A) U.P. Zamindari Abolition and Land
Reform Act-Section 331 (4) read with
Code of Civil Procedure 1908 Section100-Second Appeal decided by Board of
Revenue-without
framing
substantial
Question of law-whether the amended
provision of Civil Procedure applicable in
the
pending
second
appeal
under
U.P.Z.A. & L.R. Act also? Held-'yes'.

Held: Para 7

The
question
whether
a
particular
enactment, which refers to a previous
enactment, is legislation by reference or
legislation by incorporation is often a
difficult one. To remove as far as
possible any uncertainty on this count it
appears the legislature has introduced
Sub Section 30 by amendment in the
definition
clause
Section
3.
The
definition clause has to be applied unless
there is anything repugnant in the
context. It is plain that the burden of
showing contrary context lies upon him
who
asserts
that
the
definition
is
inapplicable. There is nothing in Sub
Section 4 of Section 331 on the basis of
which an interpretation different from
that given in Sub Section 30 of Section 3
be adopted. Taking it that the reference
made in Section 331 (4) to Section 100
Civil Procedure Code is by way of
legislation
by
incorporation
the
reference would be deemed to be to the
amended Section 100 Civil Procedure
Code in view of the definition clause
Section 3 (30) of the U.P. Zamindari
Abolition and Land Reforms Act. That
definition
expresses
the
legislative
intendment
to
apply
the
amended
provision and carves out an exception to
the rule about the effect of legislation by
incorporation similar to one of the
exceptions carved out by the Supreme
Court in Narsimhan's case (supra). The
other exception carved out by the
Supreme Court, which we have noticed is
where both the Acts are supplemental to
each other. While it is true that the U.P.
Zamindari Abolition and Land Reforms
Act does not supplement the Civil
Procedure Code and the two Acts are