# Misra v. District Inspector of Schools [1982

- **Citation:** (2013) 2 ILRA 851
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-02
- **Case number:** Civil Misc. Writ Petition No. 25871 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/misra-v-district-inspector-of-schools-1982-42630
- **Pages:** 5

## Headnote

852 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
U.P. Madarsa Board Act, 2004- Section 23
and 24-termination of teacher-questioned in
absence of Rule, regulations governing
appointment and other service conditionspetitioner can not be thrown at mercy of
management-parties to complete pleadingsmanagement restrained from creating third
party right during pendancy of writ petition.

Held: Para-14
The State Government for the past 9 years,
inspite of the Act having been framed has
not carried out its duty and obligations as
cast under Section 23 and 24 read with
Section 32 of the 2004 Act.The State can
frame
regulations
to
prevent
the
oppression of the employees of an aided
Madarasa without offending Article 30 of
the Constitution as held in Para 21 of
2007(1)SCC386 and in Paras 90 to 114 of
2010(8)SCC page 49. In the instant case
the State itself has framed the Act of 2004.
There is no reason as to why rules have
not been framed so far. The Act cannot be
allowed to suffer desuetude and frustrate
its object. The apathy of the State for no
valid reason is embarrassing to the law
framed and failure of a constitutional as
well as a statutory obligation. The Court
therefore has to step in and the petition
would be maintainable.

Case Law discussed:
2007(1) SCC 386; 2010(8) SCC

## Text

2 All] Amar Nath Chaubey Vs. State of U.P. and Ors.
851
rejected the claim of the petitioner on the
ground that the Management failed to
requisition the post after the death of Sri
Chandresh Tiwari and in the absence of
any such requisition, the provisions of
Section 18 of the 1982 Act are not
attracted for the purpose of payment of
salary to the petitioner.

5. The finding recorded is that since
there was no intimation of vacancy of the
post of Principal to the Board, the adhoc
Principal cannot get salary in the said
grade as no selection process commenced
for the purpose of posting a permanent
principal in the institution. The reason
appears to be that unless there is an
intimation for the process of selection to
commence with due intimation to the
Board, the provisions of Section 18 for
payment of salary are not attracted.

6. The reasoning given for attracting
Section 18 may be correct, but in the facts
of this case the reasoning appears to have
been incorrectly applied, inasmuch as in
the instant case the post had been duly
notified and the selection process by the
Board for filling up the post was under
taken against which Dr. Chandresh Tiwari
had been selected and placed for
appointment in the institution. It is
unfortunate that Dr. Chandresh Tiwari
died before he could join, as a result
whereof, the petitioner continued to work
as Adhoc Principal of the institution till
his retirement on 30.06.2011.

7. Thus, this is not a case of no
intimation at all. Subsequent information
after the death of Sri Chandresh Tiwari
will not be relevant for the present
purpose as the petitioner had been
appointed when the earlier vacancy had
arisen and the process of selection had
also been undertaken by the Board.

8. Thus, in view of the aforesaid
circumstances, the impugned order dated
02.02.2013, proceeds on an erroneous
assumption of fact to apply the law
wrongly and cannot be sustained. If the
petitioner was working as an ad-hoc
Principal and his signatures were attested
then he would be entitled for payment of
salary in the Principal's grade in view of
the law as declared by this Court in the
case
of
Narbedeshwar
Misra
Vs.
District Inspector of Schools [1982
UPLBEC 171].

9. The writ petition is allowed, the order
dated 02.02.2013 is set aside. The respondent
District Inspector of Schools is directed to
calculate the salary of the petitioner in the
Principal's Grade and release the same within
eight weeks from the date of production of
certified copy of this order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.

Civil Misc. Writ Petition No. 25871 of 2013

Alauddin

...Petitioner
Versus
The State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Ojha, Sri K.K. Rao.

Counsel for the Respondents:
C.S.C., Sri C.P. Mishra
Sri B.D. Pandey
852 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
U.P. Madarsa Board Act, 2004- Section 23
and 24-termination of teacher-questioned in
absence of Rule, regulations governing
appointment and other service conditionspetitioner can not be thrown at mercy of
management-parties to complete pleadingsmanagement restrained from creating third
party right during pendancy of writ petition.

Held: Para-14
The State Government for the past 9 years,
inspite of the Act having been framed has
not carried out its duty and obligations as
cast under Section 23 and 24 read with
Section 32 of the 2004 Act.The State can
frame
regulations
to
prevent
the
oppression of the employees of an aided
Madarasa without offending Article 30 of
the Constitution as held in Para 21 of
2007(1)SCC386 and in Paras 90 to 114 of
2010(8)SCC page 49. In the instant case
the State itself has framed the Act of 2004.
There is no reason as to why rules have
not been framed so far. The Act cannot be
allowed to suffer desuetude and frustrate
its object. The apathy of the State for no
valid reason is embarrassing to the law
framed and failure of a constitutional as
well as a statutory obligation. The Court
therefore has to step in and the petition
would be maintainable.

Case Law discussed:
2007(1) SCC 386; 2010(8) SCC

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri R.K. Ojha, learned
counsel for the petitioner. He submitted that
this is a case that reflects the repression by a
State - aided Minority Institution of its own
employees of the Minority Community.

2. The petitioner has come up before
this Court questioning the correctness of
his termination order on the ground that it
is not only in violation of the principles of
natural justice but is also in violation of
the Constitutional provisions and the law
which has already been framed by the
State Legislature in this regard.

3. Learned counsel for the petitioner
contends that it is correct that the institution is a
Madarasa and is a minority institution protected
under Article 30 of the Constitution of India.
The conditions of service of the employees of
the said Madarasa is to be regulated under the
law that has been framed for that purpose and if
the Rule making authority has failed to perform
his duty then this Court can step in and exercise
its jurisdiction under Article 226 of the
Constitution of India for the purpose of
compliance of any such mandate that might be
required to be pressed into service for framing
the regular service conditions of such
employees.

4. Sri Ojha submits that there is no
dispute with regard to the fact that
Madarasa where the petitioner is working
as a Teacher is an Institution which falls
within the definition of a Madarasa under
the Uttar Pradesh Board of Madarasa
Education Act, 2004. The said Act has
been framed by the State Legislature
under Entry 25 of List 3 of the Seventh
Schedule of the Constitution of India. The
Act was accordingly framed and notified
pursuant to the provisions of Clause 3 of
Article 348 of the Constitution of India
and has been promulgated for being
enforced. The Act has come into force
with effect from 3rd of September, 2004,
as per Section 1 thereof.

5. Section 23 and 24 authorize the
framing of the procedure for appointment
of teachers and other employees and
provide for the conditions of service of
such employees of Madarasa. Thus, the
Act empowers the authority prescribed
thereunder to lay down conditions of
service
of
the
teachers
and
other
employees of the institution. Prior to the
2 All] Alauddin Vs.The State of U.P. and Ors.
853
said act, there were non-statutory rules
known as Madarsa Niyamawali, 1987
under which jurisdiction is still exercised
by the Inspector Arbi, Pharsi Madarasas.

6. On a perusal of these two
Sections it appears that the service
conditions
shall
be
governed
by
regulations or any agreement between the
Management and the Head of such
institution with regard to teachers or other
employees as the case may be. It further
provides that such terms and conditions if
inconsistent with the provisions of the Act
shall be void. Thus, there is a peremptory
nature of mandate contained in the
aforesaid Sections to prescribe conditions
of service.

7. Sri Ojha therefore submits that the
State is obliged to prescribe such rules
and regulations, once the Act has been
enforced in the year 2004. The obligation
of the State to frame rules therefore is
mandatory and the State cannot sit tight
and thereby pretend to protect the fate of
such employees as is presently involved
inasmuch as in the event of any action
being taken, the employees of such
institutions are left in the merciless hands
of Managements to find out any way and
means for the redressal of their grievance.

8. It is also submitted that before the
the commencement of the Act in the State
of Uttar Pradesh had framed non statutory
rules known as Uttar Pradesh Arbi and
Farsi Madarasa Niyamawali, 1987, but
the same are also practically ineffective
insofar as the employees of Madarsas are
concerned as the rules have not been
given a statutory status.

9. Sri Ojha has invited the attention
of this Court to Sections 31 and 32 of the
2004 Act to contend that the State has the
power to remove difficulties and also has
the power to frame rules. This also
includes
the
power
for
framing
regulations
for
the
purpose
of
implementation. He therefore, contends
that in view of the absence of any rules or
regulation
to
regulate
the
service
conditions this petition can be pressed
into service. He contends that principles
of natural justice which form part of
Article 14 as declared by the Supreme
Court time and again can also be pressed
into service, as the employer cannot act in
a hire and fire manner by bypassing the
service conditions of the employees of a
Madarasa. Such requirement has to be
observed and if the Management fails to
comply with these basic principles, then
the law deserves to be enforced by this
Court
under
Article
226
of
the
constitution of India.

10. Sri Ojha contends that the State
Government cannot abdicate or absolve
itself of its duty to frame such rules as it
has already framed the Act in order to
prescribe conditions of service of such
employees
of
Madarasa.
Sri
Ojha
therefore prays, that this Court may issue
a writ for the said purpose and may issue
necessary directions in this regard.

11. Countering the said submissions
Sri B.D.Pandey, who has put in appearance
on behalf of the respondent no. 4,
Committee of Management contends that
this writ petition is not maintainable as this
Court cannot exercise its jurisdiction under
Article 226 of the Constitution of India
against any order of termination passed by
the Management which even otherwise has
been done after complying with the
principles of natural justice. He submits that
in absence of any rule or regulation, no such
public duty is cast that was to be performed.
854 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
The writ petition is not maintainable for
which he relies on the judgment in the case
of Taj Mohammad Vs. State of U.P. passed
in Writ Petition No. 69539 of 2011.

12. Learned Standing Counsel submits
that this writ petition would also involve the
question of the minority status of a Madarasa
and therefore in view of the provisions under
Article 30 of the Constitution of India it will
be required to be seen that whether this Court
can enforce any regulations which have not
been framed as yet in the shape of general
principles, unless such action is taken by the
State Government.

13. Having heard learned counsel
for
the
parties,
the
petitioner
has
definitely raised his voice with regard to
the protection which he claims under
Article 14 of the Constitution of India.
This would further involve the individual
right of the petitioner as against the
protection
of
Article
30
of
the
Constitution of India granted to the
respondent institution. Even otherwise,
the issue relating to Madarasa being fully
a State aided institution would raise the
question
as
to
whether
regulatory
provisions can be made applicable which
do not any way impinge the right to
administer a minority institution.

14. The State Government for the
past 9 years, inspite of the Act having
been framed has not carried out its duty
and obligations as cast under Section 23
and 24 read with Section 32 of the 2004
Act.The State can frame regulations to
prevent the oppression of the employees
of an aided Madarasa without offending
Article 30 of the Constitution as held in
Para 21 of 2007(1)SCC386 and in Paras
90 to 114 of 2010(8)SCC page 49. In the
instant case the State itself has framed the
Act of 2004. There is no reason as to why
rules have not been framed so far. The
Act cannot be allowed to suffer desuetude
and frustrate its object. The apathy of the
State for no valid reason is embarrassing
to the law framed and failure of a
constitutional as well as a statutory
obligation. The Court therefore has to step
in and the petition would be maintainable.

15. A vast multitude of Madarasa
employees cannot be abandoned like a
rudderless ship by the deliberate inaction
of the State. Rule framing is an executive
act though in the form of a subordinate
legislation or delegated authority. The
legal compulsion, where the attitude is
unreasonably indifferent, can be enforced
as it directly involves the protection of
fundamental rights and discharge of legal
and constitutional obligations.

16. In the aforesaid circumstances,
an Ad-interim-Mandamus is issued to
respondent no. 1 to inform the Court as to
why the rules and regulations have not
been framed so far inspite of a statutory
duty have been cast upon the State of U.P.
for framing such rules in order to govern
service conditions of such employees of
Madarasa or to get the rules framed and
place it before the Court.

17. The respondent no. 1 who is
represented by the learned Standing
Counsel has accepted notice and will file
a counter affidavit enclosing the entire
material by 30th May, 2013. Respondent
no. 5 shall also file a counter affidavit by
the next date fixed.

18. Untill further orders of this
Court, the respondent institution shall not
create any third party rights in respect of
2 All] Yogendra Pratap Singh Vs. State of U.P. and Ors.
855
the post that was occupied by the
petitioner.

19. List on 30.05.2013.

20. Copy of this order be provided
to the learned Standing Counsel Sri
Upendra Singh or Sri J.S. Tomar or to Sri
A.K. Yadav, within three days.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2013

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

Civil Misc. Writ Petition No. 25990 of 2013

Yogendra Pratap Singh
.. .Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Shri Ashwani Kujmar Mishra
Sri Bramhanand Tripathi

Counsel for the Respondents:
C.S.C., Sri Mahendra Singh

U.P. Intermediate Education Act, 1921-
Chapter III Regulation 105, 106-Senioritypetitioner as well as private respondent were
appointed on compassionate ground on
supernumerary
post-petitioner
got
appointed on 17.07.1998 while Respondent
no. 6 on 18.11.2002-both were absorbed on
16.02.2006-for promotion on class III post
respondent no. 6 claimed to be senior as one
month prior to the petitioner had joined-in
absence of specific provision fortuous joining
can not be taken into account-petitioner
being senior in age-entitled to be promoted
stay granted-accordingly

Held: Para-35
In view of what has been indicated
above and the fact that the petitioner is
senior in age and there is no material to
indicate that he had himself defaulted by
not joining the institution, the petitioner
is also entitled for an interim relief.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Ashwani Kumar
Mishra, learned counsel for the petitioner
and
Sri
Mahendra
Singh
for
the
respondent no. 6. Learned Standing
Counsel has accepted notice for the
respondent Nos. 1, 2 and 3.

2. Issue notice to the respondent nos.
4 and 5, returnable at an early date.

3. All the respondents shall file a
counter affidavit by the next date fixed.
The matter shall be taken up again on
30th of May, 2013.

4. The dispute in the present writ
petition relates to the inter-se seniority
between the petitioner and the respondent
no.
6
who
were
appointed
on
compassionate
basis
in
different
institutions against a supernumerary post.
It is undisputed that the petitioner was
appointed on 27th July, 1998 and the
respondent no. 6 was appointed on 18th
November, 2002.

5. It is also undisputed that the date
of birth of the petitioner is 19th January,
1970 and that of the respondent no. 6 is
7th July, 1981.

6. Thus the petitioner was appointed
earlier to the respondent no. 6 on
compassionate basis and he is also senior in
age. Both of them continued to work against
supernumerary
posts
awaiting
their
absorption against a permanent substantive
vacancy in any institution as per Regulations
105 and 106 of the Regulations framed under
the U.P. Intermediate Education Act, 1921
under Chapter III thereof.