# Mohammad Shoeb Khan & Anr v. State of U.P. & Ors

- **Citation:** Writ-A No. 9034 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** Writ-A No. 9034 of 2013
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-shoeb-khan-anr-v-state-of-u-p-ors-46285
- **Pages:** 13

## Headnote

law-
U.P.
Intermediate
Education Act, 1921- Section 16FF -
Recruitment in Minority Institution - -
minority institution cannot adopt a
selection
process
which
does
not
answer to the requirements of Article
14 and 16 of the Indian Constitution

A process of recruitment which does not
answer the rudimentary requirements of a
fair and just process can neither commend
sanction in law nor can it be preserved by
the protective umbrella of Article 30 of the
Constitution. The provisions of Section 16FF
cannot be construed as conferring an
immunity to the minority institution to claim
a right to select and appoint by adopting a
process which is neither fair or transparent.
(Para 18)

B. Constitution of India- Article 30 -
nothing can impose any restriction
upon the State to regulate the affairs
of the minority institution

Writ Petition rejected. .(E-10)

List of cases cited:

## Text

_Characters 0–39,953 of 45,315. This is a partial read: ask again with offset=39953 for what follows._

3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
979
transaction is valid and thereby obtain
some advantage to which he could only be
entitled on the footing that it is valid and
then turn round and say that it is void for
the purpose of securing some other
advantage.'

27. As per Halsbury's Laws of
England
(4th
Edition)
Vol.
16
(Paragraph
1508),
after
taking
an
advantage under an order a party may be
precluded from saying that it is invalid and
asking to set it aside.

28. In the case of Joint Action
Committee of Air Line Pilots' Association of
India (ALPAI) and others v. Director
General of Civil Aviation and others, (2001)
5 SCC 435 (Paragraph-12), Hon'ble Supreme
Court referred to its earlier judgments in the
case of Babu Ram alias Durga Prasad v.
Indra Pal Singh, 1998(6) SCC 358, P.R.
Deshpande v. Maruti Balaram Haibatti,
1998(6) SCC 507 and Mumbai International
Airport Private Limited v. Golden Chariot
Airport and another, 2010 (10) SCC 422 and
held that the doctrine of election is based on the
rule of estoppel. The doctrine of estoppel by
election is one of the species of estoppel in pais
(or equitable estoppel) which is a rule in equity.
By that rule, a person may be precluded by his
actions or conduct or silence when it is his duty
to speak, from asserting a right which he
otherwise would have had.

29. In the case of Cauvery Coffee
Traders, Mangalore v. Hornor Resources
(International Company Limited), (2011) 10
SCC 420 (Paragraph 34), Hon'ble Supreme
Court referred to its decision in the case of
Nagubai Ammal v. B. Shama Rao, AIR 1956
SC 593, CIT v. V. MR.P. Firm Muar AIR
1965 SC 1216, NTPC Ltd. v. Reshmi
constructions, Builders & Contractors,
(2004) 2 SCC 663, Ramesh Chandra Sankla
v. Vikram Cement (2008)14 SCC 58 and
Pradeep Oil Corpn. v. MCD (2011) 5 SCC
270 and held that a party cannot be permitted to
"blow hot and cold", "fast and loose" or
"approbate and reprobate". Where one
knowingly accepts the benefits of a contract
or conveyance or an order, he is estopped to
deny the validity or binding effect on him of
such contract or conveyance or order. This
rule is applied to do equity, however, it must not
be applied in a manner as to violate the
principles of right and good conscience. In the
present set of facts the petitioners have
completely failed to establish that they have any
right to claim the benefit of the abolished old
pension scheme which was abolished much
prior to their appointments or a right for
consideration of their appointment pursuant to
Section 21 E of the Act 1982 inserted on
11.12.2006.

30. For all the reasons aforestated, I do
not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------

(2020)03-05ILR A979
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ-A No. 9034 of 2013
with
Writ-A No. 31865 of 2013
with
Writ-A No. 31868 of 2013

Mohammad Shoeb Khan & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
980 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri G.K. Singh, Sri Prabhat Kumar Singh, Sri
V.K. Singh

Counsel for the Respondents:
C.S.C., Sri Gautam Baghel, Sri Ambuj
Mishra

A.
Civil
law-
U.P.
Intermediate
Education Act, 1921- Section 16FF -
Recruitment in Minority Institution - -
minority institution cannot adopt a
selection
process
which
does
not
answer to the requirements of Article
14 and 16 of the Indian Constitution

A process of recruitment which does not
answer the rudimentary requirements of a
fair and just process can neither commend
sanction in law nor can it be preserved by
the protective umbrella of Article 30 of the
Constitution. The provisions of Section 16FF
cannot be construed as conferring an
immunity to the minority institution to claim
a right to select and appoint by adopting a
process which is neither fair or transparent.
(Para 18)

B. Constitution of India- Article 30 -
nothing can impose any restriction
upon the State to regulate the affairs
of the minority institution

Writ Petition rejected. .(E-10)

List of cases cited:

1. Ajay Singh & anr. Vs. St. of U.P. & ors.
Civil Misc. Writ Petition No. 32932 of 2004

2.
Sanjay
Kumar
Singh
Vs.
District
Inspector of Schools, Jaunpur & ors. Civil
Misc. Writ Petition No. 9738 of
2009

3. Prashant Kumar Jaiswal & ors. Vs. St. of
UP. & ors. 2018 (2) ADJ 633 (followed)

4. Mukul Kumar Tyagi Vs. St. of U.P. 2019
SCC Online SC 1646 (followed)

5. TMA Pai Foundation Vs. St. of Karnataka
(2002) 8 SCC 481(followed)

6. Sk. Md. Rafique Vs. Managing Committee
Contai Rahamania High Madrasah & ors. 2020
SCC Online SC 4
(followed)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Vijay Kumar Singh,
learned Senior Counsel assisted by Sri
Prabhat Kumar Singh, learned counsel for
the petitioner, Sri Ankur Tandon, the
learned Standing Counsel and Sri Ambuj
Mishra, learned counsel holding brief of Sri
Gautam Baghel, learned counsel for the
respondents.

2. These three petitions with the
consent of parties are taken up for hearing
together and shall stand disposed of by this
common judgment.

3. Writ A No.9034 assails the validity
of an order dated 17 November 2011
passed by the Joint Director of Education
and consequential order of 14 December
2012 passed by the District Inspector of
Schools. The order of Joint Director dated
17 November 2011 itself has come to be
made pursuant to the directions issued by
the Court on Writ A No.20463 of 2011.
The order directed the District Inspector of
Schools to undertake a detailed enquiry in
respect of the alleged irregularities in
connection of the selection of two Assistant
Teachers in the respondent minority
institution. The two Assistant Teachers are
the petitioners in the writ petitions which
are also being disposed of by this common
judgement.

4. The petitioners claim to have been
selected and appointed in the Institution as
Assistant Teachers in the LT Grade on 10
April 2003. On a petition filed at their
behest, directions were issued to the
District Inspector of Schools to pass
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
981
appropriate orders in relation to the
approval which was sought. The District
Inspector of Schools by its order of 22
February 2005 accorded approval to the
appointment of the petitioners. While
matters could have rested there, it appears
from the record that a complaint was made
in 2010 to the District Inspector of Schools
by certain members claiming affiliation to a
new Committee of Management which had
come
to
hold
office.
One
of
the
complainants approached the Court by
filing Writ Petition No.20463 of 2011
which came to be disposed of with a
direction to the Joint Director of Education
to enquire into the complaint and take
appropriate decision. It is pursuant to those
directions that the impugned order of 17
November 2011 came to be passed.
Pursuant to the directions made by the Joint
Director in that order, an enquiry is stated
to have been initiated whereafter the
Committee of Management passed the
order
terminating
the
services
of
petitioners. The orders of termination are
assailed by the individual petitioners in the
connected writ petitions.

5. As is evident from the findings
which are recorded in the order of the Joint
Director of Education of 17 November
2011, it has been found that there were
gross
illegalities
and
irregularities
committed in the entire selection process.
The enquiry which was undertaken by the
educational authorities established that
most of the members of the Selection
Committee had subsequently stated that
their signatures had been forged on the
papers relating to selection which were
forwarded
by
the
Management.
The
respondents have also found serious
discrepancies and lack of particulars in the
advertisements which were issued. They
have
noted
that
in
none
of
the
advertisements
were
the
subject
or
disciplines
in
respect
of
which
appointments were sought to be made find
mention. The Joint Director in its order has
also noted that Mohd. Saleem Khan
[petitioner in Writ A No.31865 of 2013]
came to be appointed on the post of
Assistant Teacher LT Grade even though
he possessed the qualifications of B.Sc.,
B.Ed. whereas the advertised qualification
was of B.A., B.Ed. Insofar as Mohd. Shoeb
Khan [petitioner in Writ A No.31868 of
2013] is concerned, it has come to be noted
in the impugned order that the said
candidate admittedly held the qualifications
of B.A. and testimonials establishing
having
passed
the
Drawing
Grade
Examination. The order essentially holds
that the said petitioners did not hold the
B.Ed. degree at all. It is these gross
illegalities
which
according
to
the
respondents constrained them to command
the Management to terminate the services
of the two Assistant Teachers.

6. Sri V.K. Singh learned Senior
Counsel has firstly submitted that the Joint
Director of Education clearly had no
jurisdiction or authority to pass directions
to the District Inspector of Schools to
undertake any enquiry. Referring to the
provisions made in Section 16FF of the
Intermediate Education Act, 19211, it
was contended that the power to interfere
with the choice made by the Management
stands vested only in the Regional Deputy
Director of Education or the Inspector as
the case may be. It was consequently
submitted that the Joint Director had no
power to recommend or command the
Management to terminate the services of
the petitioners. It was further submitted that
the respondents could not have interfered
with the selection made only if they found
that the persons selected did not possess the
982 INDIAN LAW REPORTS ALLAHABAD SERIES
minimum qualifications as prescribed or
were otherwise ineligible. This submission
is addressed in light of the provisions made
in Section 16FF(4). Turning then to the
issue of the record as maintained by the
Selection Committee, it was submitted that
there was no legal requirement obliging the
Selection Committee to award quality point
marks under different heads or fields. It
was also submitted that it was not open for
the respondents to take cognizance of the
complaints many years after approval had
been accorded to the appointment of the
petitioners by the District Inspector of
Schools.

7. Sri Tandon learned Standing
Counsel has on the other hand submitted
that bearing in mind the gross illegalities
which were noticed in the course of enquiry
and from which the selection proceedings
undisputedly suffered, the respondents
were fully justified in interfering with the
entire process and command the respondent
Management to terminate those illegal
appointments. It was submitted that while a
minority institution may be empowered to
select appropriate and eligible persons in
light of the provisions made under Section
16FF, the State cannot be said to be totally
deprived or denuded of authority especially
when the burden of salaries of such
teachers would ultimately fall on public
exchequer. Sri Tandon learned Standing
Counsel submitted that despite the nature
of disclosures which are carried in the order
of Joint Director, the petitioners have failed
to establish that the selection process was
in fact carried forth in accordance with law
or for that matter was imbued with at least
the minimal attributes of fairness as the
Constitution otherwise commands.

8. Sri Mishra learned counsel
appearing for the Management submits that
the entire selection process was mired and
tainted by fundamental illegalities and
clearly did not commend acceptance by the
respondents. He has while referring to the
advertisements
which
were
issued
submitted that while the advertisement in
Hindustan Times made no reference to the
number of posts for which the recruitment
process was being undertaken, the second
advertisement
published
in
Hindustan
referred to two posts of trained L.T. Grade
Teachers being the subject matter of the
recruitment. He highlighted the fact that
neither of the two advertisements set forth
the disciplines for which applications were
being invited for the purposes of selection.
It
was
further
contended
that
the
advertisement mentions that the dates of
interview would be intimated to the
applicants by registered post and yet no
material have been brought forth to
establish that even this stipulation was
adhered to or that it was pursuant to the
intimation so received that the petitioners
here ultimately participated in the alleged
interview. Insofar as the validity of the
proceedings
drawn
by
the
Selection
Committee is concerned, Sri Mishra
learned counsel refers to the judgment
rendered by a learned Judge in Ajay Singh
And Another v. State of U.P. And
Others2 where the position has been taken
that the provisions made in Appendix -C
contained in Chapter II of the Regulations
framed under the 1921 Act would ipso
facto apply to minority institutions also and
in view thereof it was incumbent upon the
Selection Committee to award quality point
marks upon the evaluation of individual
candidates. In Ajay Singh the legal
position was enunciated thus:-

"In
view
of
the
aforesaid
provisions, Appendix 'C' attached to
Chapter-II becomes applicable in respect of
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
983
selections made on the post of Lecturers in
minority
institutions
automatically.
Appendix 'C' regulates the manner in which
quality point marks and interview marks
ought to be provided as well as bifurcation
of the same. Proceedings of selection are
necessary to be submitted in Appendix 'C',
referred to above. It is only on such
proceedings submitted in Appendix 'C', that
the educational authorities can act upon and
take decision for grant of approval to
selected candidate. Appendix 'C' reads as
follows:"

From the affidavit filed by the
Regional Joint Director of Education,
noticed herein above, it is apparent that the
proceedings of selection, as required, have
not been intimated as required in Appendix
'C' nor there is any other record available to
educational authorities on the basis whereof
Appendix 'C' could be prepared for taking
decision that the selection on the post in
question is in accordance with law. Even
otherwise none of the respondents being
able to demonstrate as to what was the
maximum marks fixed for interview, the
entire documents submitted for selection
are rendered mere paper transaction. This
Court is also not able to ascertain what was
the maximum marks fixed for interview.

In view of the aforesaid, the
entire papers pertaining to the selection of
Sri Desh Deepak Srivastava do not inspire
confidence and therefore the selection of
Sri Desh Deepak Srivastava cannot be said
to have taken place in accordance with the
provisions applicable."

9. Sri Mishra then placed reliance
upon a judgment rendered by a learned
Judge in Sanjay Kumar Singh v. District
Inspector of Schools, Jaunpur and
Others3 to submit that consequent to the
promulgation of the Government Order
dated 19 December 2000 and constitution
of the Regional Level Committee in terms
thereof, the District Inspector of Schools
had clearly no jurisdiction to accord
approval since that power stood taken away
and
conferred
on
the
Committee.
According to Sri Mishra where the entire
selection process was tainted by such gross
illegalities, the petitioners could not have
been permitted to draw salaries from State
exchequer and that the Management was
fully justified in terminating their services.
In Sanjay Singh the position as would
prevail
after
the
issuance
of
the
Government Order of 19 December 2000
was explained as under:-

"In the present case, it has been
sought to be contended that once approval
had been accorded by the District Inspector
of Schools in exercise of authority vested
under Section 16FF of U.P. Act No. 2 of
1921, then salary has to be ensured ipso
facto automatically. Such question is being
looked into and answered accordingly.

Section 16FF and the provisions
as contained in Chapter II Regulation 17
quoted above would go to show that
approval
is
required
before
making
appointment. After approval has been
accorded, the same is followed by exercise
to be undertaken by the committee of
management of the institution in terms of
Chapter II Regulation 18, wherein the
committee
of
management
has
been
obliged under the resolution to issue an
order of appointment by registered post to
the candidate in the form given in
Appendix- 'B', requiring the candidate to
join the duty within ten days of receipt of
such order, failing which appointment of
candidate would be liable to cancellation. It
is only when appointment letter is issued
after approval has been accorded in terms
of Chapter II Regulation 18 of the
Regulations framed under .P. Act No. 2 of
984 INDIAN LAW REPORTS ALLAHABAD SERIES
1921,
and
incumbent
accepts
the
appointment and joins then situation arises
for ensuring payment of salary. In cases
where institution is not at all in grant-in-aid
list of State Government, there is no issue
as salary has to be ensured by Management
from its own resources, and State has no
role to play in the same. In case institution
is on the grant-in-aid list of the State
Government and the provisions of U.P. Act
No. 24 of 1971 are applicable, and papers
are received for ensuring payment of
salary, then at the said point of time, salary
can be refused to an incumbent in case it is
found that the appointment has been made
in contravention of the statutory provisions
or against any other post other than the
sanctioned post. Chapter II Regulation 19,
thus, gives the District Inspector of Schools
one
more
opportunity
vis-a-vis
the
provisions of U.P. Act No.24 of 1971 to reexamine the matter, as U.P. Act No. 24 of
1971 provides for ensuring salary for the
post against which maintenance grant is
paid by the State Government, and the
District Inspector of Schools has also to see
and ensure that the salary is paid
accordingly. "Shall decline to pay salary
and other allowances" though couched in
negative manner, casts mandatory duty on
the District Inspector of Schools, while
exercising authority under the provisions of
U.P. Act No. 24 of 1971, to see and ensure
that no incumbent, whose appointment is in
contravention of the provisions of Chapter
II of U.P. Act No. 24 of 1971 or an
incumbent who has not been appointed
against sanctioned post, gets salary. There
are two stages of examination; (i) Preappointment stage, in accordance with
Section 16FF of U.P. Act No. 24 of 1971
read with Chapter II Regulation 17; (ii)
Post-appointment stage in terms of Chapter
II Regulation 18 of U.P. Act No. 24 of
1971, after appointment letter is issued.
Qua pre-appointment examination, District
Inspector of Schools under Section 16FF of
U.P. Act No.2 of 1921 has no authority to
withhold the approval of selection where
the incumbent possesses the minimum
qualifications prescribed and is otherwise
eligible whereas once approval has been
accorded in terms of Section 16FF of U.P.
Act No. 2 of 1921, and incumbent has been
issued appointment letter, and has joined
and claim of salary is covered under U.P.
Act No. 24 of 1971, then before release of
salary, District Inspector of Schools has to
see that the incumbent has not been
appointed in contravention of Chapter II of
U.P. Act No. 2of 1921 and has not been
appointed against non sanctioned post.
District Inspector of Schools has to satisfy
himself
on
these
two
counts
while
undertaking exercise under the provisions
of U.P. Act No. 24 of 1971 read with
Chapter II Regulation 19. Both the
provisions operate in different field and
deals with different stages; i. e. (i) Preappointment and (ii) Post appointment
state, as such to say that once appointment
has been approved under Section 16FF of
U.P. Act No. 2 of 1921, grant of salary is
automatic, cannot be accepted and District
Inspector of Schools has to undertake
requisite exercise before release of salary."

......

"The validity of Government
Order dated 19.12.2000 had been subject
matter of challenge in Special Appeal
No.1394
of
2004,
Committee
of
Management vs. Regional Joint Director
of Education and another as well as in
Special Appeal No.1078 of 2005, Munna
Lal Singh and another vs. State of U.P.
and others. This Court in both the cases
has not at all found transgression or
overstepping of jurisdiction in constitution
of Regional Committee, rather constitution
of Regional Committee under the aforesaid
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
985
Government Order has been seen in the
context of extending assistance in favour of
lawful incumbent. In respect of payment of
salary also, Regional Level Committee
assists the District Inspector of Schools. As
already noted and discussed above, at no
place and in no way Government Order
dated 19.12.2000 proceeds to encroach
upon or is in conflict with the provisions of
U.P. Act No.2 of 1921 or U.P. Act No. 24
of 1971, inclusive of Constitution of India.
Hon'ble Apex Court in the case of
Kolawana Gram Vikas Kendra vs. State
of Gujrat and others, J.T. 2009 (13) SC
581, vis-a-vis minority institution has taken
the view that such exercise is valid exercise
and in no way circular issued in the said
direction
amounts
to
unconstitutional
interference in the internal working of
minority institution, and has approved the
action of the State Government vis-a-vis
issuance of such Government Order in
respect of ensuring payment of salary in
following terms:

"6. In our considered view this to be
the interference in the selection process. It
would be perfectly all right for a minority
institution to select the candidates without any
interference from the Government. However,
the requirement of this prior approval is
necessitated because it is for the Government to
see as to whether there was actually posts
available in the said institution as per the
strength of students and secondly; whether the
candidates, who were sought to be appointed,
were having the requisite qualifications in terms
of the rules and regulations of the Education
Department. That is precisely the stand taken by
the State of Gujrat before us in its counter
affidavit. Para 3 of the said affidavit reads as
under:

"Minority institutions are free to
select their teaching and non-teaching staff. No
Government Officer or the representative of the
Board was appointed in the selection committee
of the minority institution. There is no
interference by the government in the
administration of schools. However, N.O.C. Is
required to be obtained to verify whether there
is a vacancy of a teach of a particular subject as
per the workload fixed by the Gujrat Secondary
and Higher Secondary Education Board
specially when government is providing grantin-aid and that he possesses minimum required
qualification for the post he is appointed"

7.
From
the
reading
of
aforementioned para 3, it is clear that all that the
Government wants to examine is as to whether
the proposed appointments were within the
framework of the rules considering the
workload and the availability of the post in that
institution and, secondly; whether the selected
candidate had the necessary qualification for the
subjects in which the said teachers were
appointed. The same applies to the nonteaching staff also.

8. In view of this clear stand
taken by the State Government, we cannot
pursue
ourselve
to
hold
that
the
aforementioned circular amounts to any
unconstitutional interference in the internal
working of the minority institution. In that
view, we would choose to dismiss these
appeals. However, Mr. Ahmadi raised
another point saying that if the prior
approval or the no objection certificate, as
the case may be, is not awarded within
seven days without any reason, then it
would be hazardous for the minority
institution to run itself. We do expect the
competent authority to issue the no
objection
certificate
within
the
time
provided in the said circular which is of
seven days. Of course, if there are any
objections, the authority will be justified to
take some more time within the reasonable
limits."

Consequently, for the reasons
discussed above, and in the facts of the
case, as till date in consonance with the
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order dated 19.12.2000, the
Regional Committee has not at all vetted
the claim of petitioner in respect of release
of salary under U.P. Act No. 24 of 1971;
consequently, no orders have been passed
by the District Inspector of Schools, as
such Regional Committee constituted under
Government Order dated 19.12.2000 is
directed to examine the claim of petitioner
in accordance with the parameters as
provided for under Chapter II Regulation
19 of U.P. Act No. 2 of 1921 and take
appropriate decision, within two months
from the date of receipt of a certified copy
of this judgment, and along with necessary
recommendations, papers be transmitted to
the District Inspector of Schools for further
follow-up action."

10.

Having
noticed
the
rival
submissions the stage is now set to deal
with the issues that arise. At the very outset
it may be noted that the selection and
appointment of teachers in a minority
institution and the right of the respondents
to review or scrutinise an appointment
made is governed by the provisions made
in Section 16FF. The provision firstly lays
down the composition of the Selection
Committee. In case selection is for the
Head of the institution, it must comprise of
an expert selected out of a panel prepared
by the Director. In case of appointment of a
Teacher, the Selection Committee must
also include the Head of the Institution as a
member. Section 16FF (2) then provides
that the Selection Committee shall follow
such procedure "as may be prescribed".
Regulation 17 falling in Chapter II which
admittedly governs selections undertaken
by a minority institution, attracts the
procedure prescribed by Regulation 10
clauses (e) and (f) to such selections. It is in
that backdrop that Ajay Singh [and in the
considered view of this Court correctly]
holds that it is incumbent upon the
Selection Committee to draw a chart
evidencing a comparitive analysis of the
respective merit of candidates and the
award of quality point marks. Undisputedly
in the present case not only was no such
exercise undertaken, the members who
were shown as constituting the Selection
Committee have not only denied having
participated in any such exercise, they have
gone to the extent of asserting that their
signatures as stated to appear on the record
of selection have been forged. This aspect
amounts to a flagrant violation of the
procedure prescribed by statute.

11. The Court then notices that the
advertisements which were issued failed to
disclose the disciplines/subjects in respect
of which applications were being invited.
One of the advertisements did not even
mention the number of posts for which the
selection was sought to be undertaken. It
would be preposterous to countenance or
uphold advertisements like the ones which
form subject matter of the instant writ
petition as being constitutionally valid. The
Court
is
constrained
to
enter
these
observations bearing in mind that the
selectees were entering public employment
and whose salaries were to be borne out of
public exchequer.

12. Insofar as Mohd. Shoeb Khan
[the petitioner in Writ A No.31868 of
2013] is concerned, it is not disputed that
he did not possess the qualifications as
prescribed. His appointment was thus
clearly untenable and the respondents were
clearly empowered not only to direct but
also to ensure that the Management brought
that illegality to an end. Regard must be
had to the fact that Section 16FF does
empower the State respondents to enquire
whether the candidate selected holds the
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
987
prescribed qualifications and "is otherwise
eligible". Before this Court it was not
disputed that the writ petitioner did not
possess the prescribed qualification. In
view thereof the respondents must be held
to have acted within their jurisdiction in
commanding the Management to annul that
appointment.
That
writ
petition
consequently merits dismissal on this score
alone.

13. That then takes the Court to
consider the principal submission which is
addressed, namely, the extent of the
jurisdiction which the respondents could
have validly exercised in light of the
provisions of Section 16FF. But before
proceeding to do so, it would be apposite to
articulate two fundamental precepts which
necessarily must be borne in mind while
evaluating
the
correctness
of
the
submission advanced.

14. Article 14 is undisputedly the soul
of the Constitution and embodies the
quintessence
of
constitutionalism
as
evolved by our Courts. The doctrine of
equality and fairness, which forms its
fundamental core, must inform all actions
in a constitutional democracy. This Article
also guides and fortifies the guarantee
immortalised
in
Article
16
of
the
Constitution. The pledge of equality as
incorporated in these two Articles must
guide all actions taken in connection with
public employment. An essential facet of
employment under the State is a fair and
impartial recruitment process. Explaining
this vital precept this Court in Prashant
Kumar Jaiswal And Others Vs. State of
U.P. And Others4 observed:-

65. The Court additionally bears
in mind that the selections in question were
for recruitment to a public service, a
service in and under a corporation of the
State. Certificates and diplomas issued by
organisations which this Court chooses to
describe as "sweatshop centers" which have
no recognition or approval cannot be
accepted as rendering a holder thereof
eligible for employment in public service.
An incumbent aspiring to enter public
service or a corporation of the State must
possess qualifications which are recognised
or capable of being recognised in law. This
because of the very nature of the
employment being sought. After all, the
incumbent and others like him in public
service are the sinews of the organ which
we call the State. On them is placed the
burden and obligation to ensure the well
being of the citizen, to secure the welfare of
the people. A member of such a service
must necessarily be possessed of certain
core qualifications of a particular standard.
Dealing with the issue of public service and
employment in the context of appointments
having been obtained on the basis of false
caste certificates, the Supreme Court in
Chairman and Managing Director FCI &
others Vs. Jagdish Balaram Bahira 2017
SCC Online 715 and others made the
following
significant
and
eloquent
observations which would ring true even in
the present case and guide the Court in
dealing with such issues. The Supreme
Court noted:

"77. Service under the Union and
the States, or for that matter under the
instrumentalities of the State subserves a
public
purpose.
These
services
are
instruments of governance. Where the State
embarks upon public employment, it is
under the mandate of Articles 14 and 16 to
follow the principle of equal opportunity.
Affirmative action in our Constitution is
part of the quest for substantive equality.
Available resources and the opportunities
provided in the form of public employment
988 INDIAN LAW REPORTS ALLAHABAD SERIES
are in contemporary times short of
demands and needs. Hence the procedure
for selection, and the prescription of
eligibility criteria has a significant public
element in enabling the State to make a
choice amongst competing claims. The
selection
of
ineligible
persons
is
a
manifestation of a systemic failure and has
a deleterious effect on good governance.
Firstly, selection of a person who is not
eligible allows someone who is ineligible
to gain access to scarce public resources.
Secondly, the rights of eligible persons are
violated since a person who is not eligible
for the post is selected. Thirdly, an
illegality is perpetrated by bestowing
benefits upon an imposter undeservingly.
These effects upon good governance find a
similar echo when a person who does not
belong to a reserved category passes of as a
member of that category and obtains
admission to an educational institution.
Those for whom the Constitution has made
special provisions are as a result ousted
when an imposter who does not belong to a
reserved category is selected. The fraud on
the constitution precisely lies in this. Such
a consequence must be avoided and
stringent steps be taken by the Court to
ensure that unjust claims of imposters are
not protected in the exercise of the
jurisdiction under Article 142. The nation
cannot live on a lie. Courts play a vital
institutional role in preserving the rule of
law. The judicial process should not be
allowed to be utilised to protect the
unscrupulous and to preserve the benefits
which have accrued to an imposter on the
specious
plea
of
equity.
Once
the
legislature has stepped in, by enacting
Maharashtra Act XXIII of 2001, the power
under Article 142 should not be exercised
to defeat legislative prescription. The
Constitution Bench in Milind spoke on 28
November 2000. The state law has been
enforced from 18 October 2001. Judicial
directions must be consistent with law.
Several decisions of two judge benches
noticed earlier, failed to take note of
Maharashtra Act XXIII of 2001. The
directions which were issued under Article
142 were on the erroneous inarticulate
premise that the area was unregulated by
statute. Shalini noted the statute but
misconstrued it.

91. Medical education is what
middle-class parents across the length and
breadth of the county aspire for their
children (whether this will continue to be
so in future is a moot question). There is
intense competition for a limited number of
under-graduate, post-graduate and superspeciality seats. This can furnish no
justification for recourse to unfair means
including adopting a false claim to belong
to the reserved category. The fault - lines of
our system, be it in education, health or
law, are that its lethargy and indolence
furnish incentives for the few who choose
to break the rules to gain an unfair
advantage. In such a situation, the court as
a vital institution of democratic governance
must be firm in sending out a principled
message that there is no incentive other
than for behaviour compliant with rules and
deviance will meet severe reprimands of
the law." (emphasis supplied)

66. The views expressed by the
Supreme
Court
in
Jagdish
Balaram
highlighting the concepts of "substantive
equality", the recognition of "limited
opportunities" all bid us to hold that in
matters of public employment the processes
undertaken must be strictly tested on the
principles enshrined in Articles 14 and 16
of the Constitution. The Supreme Court has
aptly
described
public
services
as
"instruments of governance". This clearly
underpins the conclusion arrived at by this
Court that there can be no entry in public
3-5 All. Mohammad Shoeab Khan & Anr. Vs. State of U.P. & Ors.
989
services on the strength of unrecognised
qualifications. This Court therefore finds
itself unable to accept the submission that
an unrecognised qualification or for that
matter
a
certificate
issued
by
an
organisation which is not recognised or
acknowledged by law can be accepted in
recruitment to a public service or in an
organisation which is State as understood
in terms of Article 12 of the Constitution.

15. The aforesaid decision has since been
affirmed by the Supreme Court in MUKUL
KUMAR TYAGI VS. STATE OF UTTAR
PRADESH5.

16. It is equally important to remember
that Article 30 standing in Part III of the
Constitution like all other rights is not absolute
or
untramelled.
The
Constitution
while
recognising and preserving the right of
minorities
to
establish
and
administer
educational institutions does not envisage it to
be a carte blanche to maladminister or to ignore
basic concepts of fairness which must infuse
any recruitment exercise. While undertaking a
process of selection, the administrators of a
minority institution cannot claim immunity
from the rigours of Articles 14 and 16 of the
Constitution. It would be appropriate to
recollect the following caveat enunciated in
TMA
Pai
Foundation
Vs.
State
of
Karnataka6 by the Constitution Bench:-

"135.We agree with the contention
of the learned Solicitor-General that the
Constitution in Part III does not contain or give
any absolute right. All rights conferred in Part
III of the Constitution are subject to at least
other provisions of the said Part. It is difficult to
comprehend that the framers of the Constitution
would have given such an absolute right to the
religious or linguistic minorities, which would
enable them to establish and administer
educational institutions in a manner so as to be
in conflict with the other Parts of the
Constitution. We find it difficult to accept that
in the establishment and administration of
educational institutions by the religious and
linguistic minorities, no law of the land, even
the Constitution, is to apply to them.

136.Decisions of this Court have
held that the right to administer does not include
the right to maladminister. It has also been held
that the right to administer is not absolute, but
must be subject to reasonable regulations for the
benefit of the institutions as the vehicle of
education, consistent with national interest.
General laws of the land applicable to all
persons have been held to be applicable to the
minority institutions also -- for example, laws
relating to taxation, sanitation, social welfare,
economic regulation, public order and morality.

137.It follows from the aforesaid
decisions that even though the words of
Article 30(1) are unqualified, this Court has
held that at least certain other laws of the
land pertaining to health, morality and
standards of education apply. The right
under Article 30(1) has, therefore, not been
held to be absolute or above other
provisions of the law, and we reiterate the
same. By the same analogy, there is no
reason why regulations or conditions
concerning, generally, the welfare of
students and teachers should not be made
applicable in order to provide a proper
academic atmosphere, as such provisions
do not in any way interfere with the right of
administration
or
management
under
Article 30(1).

17. Reiterating the legal position the
Supreme Court in a recent decision in Sk.
Md. Rafique Vs. Managing Committee
Contai Rahamania High Madrasah and
others7 held:-

106.The decision inTMA Pai
Foundation8, rendered by Eleven Judges of
990 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court, thus put the matter beyond any
doubt and clarified that the right under
Article 30(1) is not absolute or above the
law and that conditions concerning the
welfare of the students and teachers must
apply in order to provide proper academic
atmosphere, so long as the conditions did
not interfere with the right of the
administration or management. What was
accepted as correct approach was the test
laid down by Khanna, J. inAhmedabad St.
Xavier's College5case that a balance be
kept between two objectives - one to ensure
the standard of excellence of the institution
and the other preserving the right of the
minorities to establish and administer their
educational institutions. The essence of
Article 30(1) was also stated - "to ensure
equal treatment between the majority and
the minority institutions" and that rules and
regulations would apply equally to the
majority institutions as well as to the
minority institutions.

18.