# Mohd. Fahim Jamal v. State of U.P. & Ors. 216 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 4 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-21
- **Case number:** Writ A No. 15480 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-fahim-jamal-v-state-of-u-p-ors-216-indian-law-reports-allahabad-series-53105
- **Pages:** 11

## Headnote

Anand Prakash Pandey, Ashish Tripathi,
C.S.C., Ch. N.A. Khan
HELD:

We have noticed above that the President was
not attending the meetings, even before the
agenda item relating to the selection and
appointment of the teacher in the Tahtania
Section was discussed. Even if he had started
absenting from the day when the matter of
filling up the vacant post was discussed by the
Committee of Management, the fact remains
that the President admits that he was voluntarily
abstaining sitting on meetings of the Committee
of Management, of which he had notice. A
committee of management of the society or the
institution has important business to undertake
and
if
the
head
of
the
committee
of
management
voluntarily
abstains,
in
our
considered opinion, it would be a case where
bylaw 10(b) of the bylaws of the Society/
Institution would come into play, authorizing the
Vice President to take over and discharge the
duties of the President. The word 'absence'
mentioned in the bylaws does not always mean
'absence from station' or one 'due to illness', or
like matters. It would include a case of
deliberate abstention by the President. (Para 23)

If a deliberate abstention is not regarded as
'absence' contemplated under bylaw 10(b) of
the bylaws of the Institution, a recalcitrant
President, who refuses to sit on the meeting,
could hold the Institution to ransom. In the
scheme of things, for the discharge of
institutional functions of corporate bodies, like
societies, that have some affairs to manage - an
educational institution in this case - a provision
in the scheme or bylaws, governing the society,
is made for an absenting office bearer to be
filled in, in his role by another. Clauses, such as
these in the bylaws, are contemplated to keep
the wheels of whatever work the Society
undertakes moving. It is a device to overcome
individual recalcitrance, waywardness or the
disruptive behaviour of a particular office-bearer
or office-bearers. In paragraph No.9 of the
counter affidavit, the justification offered by the
President to abstain from meetings of the
Committee of Management is the illegal
selection etc. to the post of Tahtania, pursuant
to which the petitioner was appointed. If the
sixth respondent thought that the process was
illegal, he was the Chairman of the Committee
of Management and had control over its affairs.
He had at least one vote, which he could have
exercised to dissent. He could not have
dissented by abstention as he did. Once the
sixth respondent admittedly abstained from
participating in the scheduled meetings of the
Committee of Management, there is nothing
illegal about the Vice President moving in to
discharge his role and duties. Apparently, the
Inspector has not at all looked into the matter
from this vantage or examined the record in
passing the order impugned and recalling the
earlier approval to the petitioner's appointment
granted vide order dated 27.06.2013. (Para 24)

We would have thought of remanding the
matter to the Inspector, w

## Text

4 All. Mohd. Fahim Jamal Vs. State of U.P. & Ors.
215
inherent powers are powers which
are resident in all courts, especially of
superior jurisdiction and though these
powers do not spring from legislation but
from the nature and the constitution of the
tribunals or courts themselves so as to
enable them to maintain their dignity,
secure obedience to its process and rules,
protect its officers from indignity and
wrong and to punish unseemly behaviour,
such power is necessary for the orderly
administration of the justice delivery
system by the courts. In addition, we hold
that inherent power can also be exercised to
do what is just keeping in mind what the
justice of the case before the court
demands.

40. Judged on the anvil of the said
decisions, exercise of the inherent powers
of a court in a given case over which it has
jurisdiction cannot, therefore, be seen as
limited by the roster set by the Chief
Justice of the High Court."

IX. Conclusions and Directions:

119. In the wake of preceding
discussion, the following conclusions are
being
recorded
and
corresponding
directions are being issued to the State
Authorities:

 (A). The Government Orders
dated 04.09.2000 and 15.02.2013 insofar as
they relate to appointment on the posts of
teachers on compassionate grounds are held
to be ultra vires Articles 14, 16 and 21-A of
the Constitution of India.

(B). The Government Orders
dated 04.09.2000 and 15.02.2013 insofar as
they relate to appointment on the posts of
teachers on compassionate grounds are
violative of Section 3 of the Right to
Education Act, 2009 which vests the right
of free and compulsory education in
children.

(C). The Government Orders
dated 04.09.2000 and 15.02.2013 insofar as
they relate to appointment on the posts of
teachers on compassionate grounds are in
conflict with the mandate of Rule 5 of the
Dying in Harness Rules, 1999.

(D). The Government Orders
dated 04.09.2000 and 15.02.2013 insofar as
they provide for appointment on the posts
of teachers on compassionate grounds are
struck down. The State Government is
accordingly directed to forthwith cease the
implementation of the Government Orders
dated 04.09.2000 and 15.02.2013.

(E). The matter is remitted to
respondents-authorities. The claim of the
petitioner shall be considered by the
respondents-authorities for appointment on
compassionate grounds to any other post as
per law and in line with the observations
made in this judgement. The decision shall be
taken by the respondents-authorities within a
period of three months from the date of
receipt of a certified copy of this order.

120. The writ petition is finally
disposed of.

121. Registry is directed to send a
copy of this order to the Principal
Secretary, Department of Basic Education,
Government of Uttar Pradesh, Lucknow.
----------
(2025) 4 ILRA 215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2025
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 15480 of 2015

Mohd. Fahim Jamal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Mansoor Ahmad

Counsel for the Respondents:
Anand Prakash Pandey, Ashish Tripathi,
C.S.C., Ch. N.A. Khan
HELD:

We have noticed above that the President was
not attending the meetings, even before the
agenda item relating to the selection and
appointment of the teacher in the Tahtania
Section was discussed. Even if he had started
absenting from the day when the matter of
filling up the vacant post was discussed by the
Committee of Management, the fact remains
that the President admits that he was voluntarily
abstaining sitting on meetings of the Committee
of Management, of which he had notice. A
committee of management of the society or the
institution has important business to undertake
and
if
the
head
of
the
committee
of
management
voluntarily
abstains,
in
our
considered opinion, it would be a case where
bylaw 10(b) of the bylaws of the Society/
Institution would come into play, authorizing the
Vice President to take over and discharge the
duties of the President. The word 'absence'
mentioned in the bylaws does not always mean
'absence from station' or one 'due to illness', or
like matters. It would include a case of
deliberate abstention by the President. (Para 23)

If a deliberate abstention is not regarded as
'absence' contemplated under bylaw 10(b) of
the bylaws of the Institution, a recalcitrant
President, who refuses to sit on the meeting,
could hold the Institution to ransom. In the
scheme of things, for the discharge of
institutional functions of corporate bodies, like
societies, that have some affairs to manage - an
educational institution in this case - a provision
in the scheme or bylaws, governing the society,
is made for an absenting office bearer to be
filled in, in his role by another. Clauses, such as
these in the bylaws, are contemplated to keep
the wheels of whatever work the Society
undertakes moving. It is a device to overcome
individual recalcitrance, waywardness or the
disruptive behaviour of a particular office-bearer
or office-bearers. In paragraph No.9 of the
counter affidavit, the justification offered by the
President to abstain from meetings of the
Committee of Management is the illegal
selection etc. to the post of Tahtania, pursuant
to which the petitioner was appointed. If the
sixth respondent thought that the process was
illegal, he was the Chairman of the Committee
of Management and had control over its affairs.
He had at least one vote, which he could have
exercised to dissent. He could not have
dissented by abstention as he did. Once the
sixth respondent admittedly abstained from
participating in the scheduled meetings of the
Committee of Management, there is nothing
illegal about the Vice President moving in to
discharge his role and duties. Apparently, the
Inspector has not at all looked into the matter
from this vantage or examined the record in
passing the order impugned and recalling the
earlier approval to the petitioner's appointment
granted vide order dated 27.06.2013. (Para 24)

We would have thought of remanding the
matter to the Inspector, who is admittedly the
competent Authority to consider the matter of
approval of appointment for the petitioner, but
that does not seem to be a valid course in this
case. The reason is that the respondents do not
take a stand that the petitioner was appointed
against a post that was not sanctioned or that
the proceedings of selection and interview,
including advertisement were in any way
vitiated. The petitioner's appointment was
approved by the Inspector by a well considered
order regarding the existence of the post and
how the vacancy arose. The conditions, subject
to which the approval was granted, said that the
District Minority Welfare Officer will ensure that
the appointment made should be one that is
against a sanctioned post and not beyond the
approved strength for the Institution. There is
no such case that the respondents have come
up with, as already noticed. The other condition
is about verification of the petitioner's eligibility
educational qualifications. No fault has been
found on that count too. Also, there is a
provision that the District Minority Welfare
Officer would verify, if the post against which
salary is to be paid, is free from dispute and no
case is pending in Court. There is also a
provision that the District Minority Welfare
Officer would ensure that the appointee is not
related to anyone on the Management as
prescribed under the Regulations, as amended
4 All. Mohd. Fahim Jamal Vs. State of U.P. & Ors.
217
in the year 1998, 2000 and 2004. None of the
conditions mentioned in notes 1 to 4 mentioned
in the approval order are indicated to be
violated in case of the petitioner's appointment.
There is a residual condition in note 5 of the
approval order passed by the Inspector on
27.06.2013, saying that if any fact has been
found to be suppressed or information wrong,
this
approval
would
stand
automatically
revoked. It is by virtue of this residual clause
that the impugned order has been passed, but
specifically based on the sole ground that the
President did not preside over the meetings of
the Committee of Management, where the
resolutions to advertise the post and appoint the
petitioner were adopted. The action of the
Committee in acting under the Vice-President
has been found to be perfectly justified by us
for reasons that we have elaborately indicated
hereinabove. (Para 25)

In these circumstances, there was absolutely no
reason for the Inspector to have revoked his
order dated 27.06.2013, granting approval to
the petitioner's appointment, which, in our
opinion, must be restored. (Para 26)

Petition allowed. (E-14)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order of the Registrar, Arbi and
Farsi Education Board, U.P., Lucknow
dated 02.12.2014, revoking the approval
granted to the petitioner's appointment as
an Assistant Teacher (Tahtania).

2. The facts briefly said are that the
Al-Jamaiatul Islamia Mambaul Maarif,
Village
Sumbhi,
Post
Gambheerban,
District Azamgarh is a Society registered
under the Societies Registration Act, 1860,
bearing Registration No.929/1992-93. It
was registered with the Registrar of
Societies on 12.12.1993. Hereinafter, it
shall be referred to as 'the Society'. The
Society has its bylaws, also registered. In
keeping with the objects of the Society, to
promote learning of Arabic and Persian
language and also Islamic religious ethics,
it established an institution, known as
Madarsa Al-Jamaiatul Islamia Mambaul
Maarif,
Village
Sumbhi,
Post
Gambheerban, District Azamgarh (for
short, 'the Institution'). The Institution was
recognized by the competent Authority way
back in the year 1996. A maintenance grant
was extended to it in the year 2005 by the
Government. The affairs of the Institution
are
managed
by
a
Committee
of
Management of the Society/ Institution.
According to the bylaws of the Society, this
Committee of Management comprises a
President, called a Sadar, a Vice President
(Naib Sadar), one Manager, one Deputy
Manager, a Cashier and an Auditor. These
are all office bearers of the Society as well
as its maintained Institution.

3. The time to which this matter
relates, the recognition of Madarsa as well
as appointment of its teachers were
governed by the Manyata Evam Sewa
Niyamavali, Arbi Tatha Farsi Madarse,
U.P. (for short, 'the Regulations'). These
Regulations were approved and circulated
by the State Government vide Government
Order dated 22.08.1987. These were
amended from time to time. Regulation 20
of the Regulations provides that the
Management would constitute a selection
committee,
a
month
before
commencement of the academic session,
in order that suitable candidates are
selected and appointed against vacancies of
teachers. In cases where a mid-session
vacancy occured, the Management of the
Institution would be entitled to appoint on
ad hoc basis for two months, a suitable
teacher. In the matter of selection of
assistant
teachers,
the
Principal/
Headmaster would also be a member of the
selection committee.
218 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Regulation 22 of the Regulations
provides that in order to fill up a vacancy in
the Madarsa, whether newly created,
temporary or permanent, it would be
necessary to advertise it in at least two
daily newspapers, one of which should
have regional circulation and the other a
State level newspaper. The advertisement
would indicate the qualifications, age limit,
the pay-scale etc. The Regulations mandate
that no appointment shall be made against a
post, which is not approved by the
Department of Minority Welfare of the
State Government.

5. There were five sanctioned posts
of Assistant Teachers (Tahtania) with the
Institution.
The
Tahtania
Section
is
equivalent to Primary Section of an
institution,
imparting
conventional
education. One post of an Assistant
Teacher (Tahtania) fell vacant on account
of the death of one Mohd. Raees, an
Assistant Teacher, on 23.08.2009. The
Committee
of
Management
of
the
Institution, after securing permission from
the competent Authority, advertised the
post in two daily newspapers, to wit,
Awaze Mulk, issue dated 17.04.2012 and
Devbrat, issue dated 20.04.2012. The
petitioner applied in response to the
advertisement and was called for an
interview by the Selection Committee
constituted for the purpose. The Selection
Committee found the petitioner most
suitable for appointment out of a total of
six
candidates,
who
appeared.
The
recommendations
of
the
Selection
Committee
were
placed
before
the
Committee
of
Management
of
the
Institution in a meeting held on 28.10.2012.

6. The President of the Society and
the
President
of
the
Committee
of
Management, a fortiori, did not seem to
take interest in the societal affairs. He was
abstaining
from
participating
in
the
meetings
of
the
Committee
of
Management. In his absence, the meeting
was presided over by the Vice President of
the Society and by means of a unanimous
resolution, the Manager was authorized to
issue an appointment letter to the petitioner
and take steps for securing financial
approval. The petitioner was issued with an
appointment letter dated 28.10.2012 by the
Manager of the Institution. He joined
service submitting his report to the
Principal on 03.11.2012. According to the
petitioner, he is discharging his duties ever
since to the entire satisfaction of his
superiors. The petitioner says that he was
appointed strictly in accordance with Rules
as prescribed under the Regulations. The
Manager of the Institution forwarded the
papers relating to his appointment to the
Registrar/ Inspector, Arbi, Farsi Madarsa
Education Board, U.P., Lucknow, seeking
approval for the petitioner's appointment.

7. The Registrar/ Inspector, Arbi,
Farsi Madarsa Education Board, U.P.,
Lucknow (for short, 'the Inspector') granted
approval to the petitioner's appointment
vide
his
letter
dated
27.06.2013.
Notwithstanding grant of approval to the
petitioner's appointment by the Inspector
and the petitioner continuously rendering
services, he was not paid his salary. He
submitted a detailed representation dated
26.10.2013
to
the
Manager
of
the
Institution. The petitioner, through a letter
of the Manager dated 15.02.2014, came to
know that an ex parte order dated
19.11.2013 had been passed by this Court
in Writ-A No.60862 of 2013 filed by
respondent No.6, the President of the
Committee of Management, purporting to
act for the Committee, challenging the
petitioner's appointment. In consequence of
4 All. Mohd. Fahim Jamal Vs. State of U.P. & Ors.
219
the orders of this Court dated 19.11.2013,
whatever
these
were,
which
the
petitioner
says
he
was
given
to
understand by the Management, were
interim orders, the petitioner's salary
was withheld.

8. The Manager further informed
the petitioner that the Director, Minority
Welfare, U.P. had passed an order dated
26.12.2013, forbidding payment of the
petitioner's salary. The Manager also
informed the petitioner that against the
order dated 19.11.2013, the Committee of
Management had filed Special Appeal
Defective No.84 of 2014, which was
disposed of vide order dated 29.01.2014,
leaving it open to the aggrieved person, to
wit, the petitioner, to challenge the order
dated 26.12.2013 passed by the Director,
Minority Welfare, U.P. The petitioner also
says that according to Bylaw No.14 of the
registered bylaws of the Society, it is the
Manager of the Society, who alone is
competent
to
institute
or
defend
proceedings in Court with regard to the
affairs of the Society. It is the petitioner's
case that Writ-A No.60862 of 2013 filed by
the President of the Society, without a
resolution
by
the
Committee
of
Management, was not maintainable. He
also says that by a resolution of the
Committee
of
Management
dated
25.12.2012, the President was removed
from office. He had absolutely no locus
standi to challenge the order dated
27.06.2013
passed
by
the
Inspector,
granting
approval
to
the
petitioner's
appointment.
Nevertheless,
since
the
petitioner
was
not
afforded
any
opportunity, to place his version, the
correct facts could not be brought to the
notice of the learned Judge, who heard the
writ petition and passed the order dated
19.11.2013.
9. It is also the petitioner's case that
under the provisions of the Regulations, it
is the Inspector alone, who is vested with
the power to take a decision in regard to
approval of a teacher or employee's
appointment in an institution. Therefore,
the order passed by the Director, Minority
Welfare dated 26.12.2013, holding the
petitioner's appointment to be illegal and
stopping payment of his salary, was itself
without jurisdiction and illegal. It is also
pointed
out
that
the
Director,
notwithstanding the lack of jurisdiction,
ought have heard the petitioner before
passing the order dated 26.12.2013, which
he did not do. This order again was passed
without opportunity to the petitioner and in
violation of the principles of natural justice.
The petitioner challenged the order dated
26.12.2013 before this Court by instituting
Writ-A No.20572 of 2014, which this
Court decided in terms of the following
order:

"Accordingly, the observation
and finding recorded by the Director,
Minority Welfare in the impugned order
which are adverse to the petitioner are
expunged and the Registrar / Inspector,
U.P. Madarsa Education Board is directed
to take an appropriate decision strictly in
accordance to law totally uninfluenced by
any observation or finding made by the
Director in the order dated 26.12.2013.
 Writ petition stands disposed of
as above."

10.
In
compliance
with
the
aforesaid
judgment
and
order
dated
15.04.2014, the petitioner submitted a
representation dated 06.05.2014 before the
Inspector with a certified copy of this
Court's order. A reminder had to be sent on
27.05.2014, when no action was taken. The
petitioner was asked to appear before the
220 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspector by a letter dated 11.06.2014 on
25.06.2014
along
with
all
original
documents, for orders to be made in
compliance with the judgment and order
dated 15.04.2014 passed by this Court in
Writ-A No.20572 of 2014. The petitioner
appeared
before
the
Inspector
on
25.06.2014
along
with
all
relevant
documents.

11. The petitioner says that he was
shocked to find that an antedated order had
been passed on 03.01.2014, again behind
his back, showing him to be absent on that
day. The order passed by the Inspector
recalled the order dated 27.06.2013,
granting approval to his appointment. The
case of the petitioner is that the order dated
03.01.2014 was neither communicated to
the Director, Minority Welfare or the
Manager of the Institution. It was an
antedated order. If it was an order made in
the exercise of jurisdiction validly, there
was nothing to be done by the Inspector.
However, when a copy of the order dated
15.04.2014 passed in Writ-A No.20572 of
2014 was lodged before the Inspector, he
commenced proceedings to examine the
validity of approval granted to the
petitioner's appointment on 27.06.2013. It
was during the hearing, that was done
again, that the antedated order passed
behind his back on 03.01.2014 came to the
petitioner's notice. The petitioner also says
that the said order was ignored and
proceedings
re-commenced,
that
culminated in the impugned order dated
02.12.2014. Therefore, there is not much to
the order dated 03.01.2014, which is no
longer in issue.

12. Aggrieved by the order dated
02.12.2014 passed by the Inspector, the
petitioner has instituted the present writ
petition.
13. Notice of motion was issued on
24.03.2015 and in course of time, parties
exchanged affidavits. By an order dated
10.01.2013, the entire record relating to the
petitioner's appointment was summoned by
this Court from the custody of respondent
Nos.3 and 4. This order was not complied
with and when the matter came up on
07.10.2023, this Court ordered the District
Minority Welfare, Azamgarh, respondent
No.4, to pay costs in the sum of Rs.5000/-,
which were deposited. The costs being
deposited, was a fact noticed by this Court
in the order dated 15.10.2023. When the
petition came up on 02.11.2023, it was
admitted to hearing, heard forthwith and
judgment
reserved.
Later
on,
while
dictating judgment, it was noticed that
records were still missing, though costs had
been deposited. The matter was, therefore,
posted for further hearing and orders
passed on 24.04.2024 to produce records.
Some records were produced before the
Court on 30.04.2024 and directed to be
placed in a sealed cover in the safe custody
of the Registrar General. The minute-book
of the meeting of the Committee of
Management
written
in
Urdu
was,
therefore, directed to be transliterated to
Hindi vide order dated 02.05.2024.

14. Heard Mr. Mansoor Ahmad,
learned Counsel for the petitioner, Mr.
Roopesh Tiwari, learned Standing Counsel
appearing on behalf of respondent Nos. 1 to
4, Mr. Ashish Tripathi, learned Counsel for
respondent No. 5 and Mr. Anand Prakash
Pandey, learned Counsel appearing for
respondent No. 6.

15. Upon hearing learned Counsel
for the parties and perusing the record,
including the impugned order, what this
Court finds is that there is no quarrel about
the fact that there are five posts of Assistant
4 All. Mohd. Fahim Jamal Vs. State of U.P. & Ors.
221
Teachers in the Tahtania Section of the
Institution,
duly
sanctioned
by
the
Government
and
the
petitioner
was
appointed against a vacancy in relation to a
sanctioned post. There is no cavil either
that this vacancy arose on account of the
demise of the incumbent teacher. The
Inspector in the order impugned has also
not
criticized
the
procedure
of
advertisement for holding the selection, but
has gone by the fact that the authority to
make an appointment vested with the
President under bylaw No.10 (a) (3) of the
bylaws of the Society/ Institution and that
the Vice President gets authority to act as
the President and exercise his powers under
bylaw No.10(b) in the absence of the
President. The Inspector has recorded a
finding that the Manager of the Institution
has not produced any document or
evidence to show that the meeting of the
managing committee was called or the
selection
committee
constituted
after
presentation of a proposal to the President
and after his approval.

16. It is then remarked that this fact
affirms the position that the President of the
Society/ Institution was not unavailable to
chair the meetings of the managing
committee. It is again remarked by the
Inspector that the Vice President gets
powers to discharge the functions of the
President or exercise his authority, if the
former is absent. The conclusion drawn is
that the meeting of the Committee of
Management and the selection committee
are
both
prima
facie
suspect.
The
expression employed is 'karyavahi pratham
drishtaya sandigdha hai'. The further
remark, that is there, is to the effect that the
Manager, Zafar Ahmad Siddiqui, in order
to fulfill his objects, trenching upon the
lawful authority of the President, held
selections according to his wish, which is
contrary to law. There is then a repetition
of the fact that in the presence of the
President, the Vice President could not
have held a meeting of the Committee of
Management, which is contrary to the
bylaws.

17. The finding of the Inspector is
apparently based upon an affidavit dated
17.10.2013 submitted by the President,
Sayyad
Abdulla,
before
the
District
Minority Welfare Officer, Azamgarh. In
this affidavit, as would appear from a
perusal of the order impugned, the
President had said that the appointment
made on the post of the Assistant Teacher
(Tahtania) was done in a meeting that was
not held with him presiding. He also said
that if the resolution, accepting the
appointment,
bore
the
President's
signatures, the same are absolutely false
and forged. According to the bylaws of the
Institution, it was said in the affidavit, the
power to dismiss or appoint, vests in the
President
and,
therefore,
the
appointment made in his absence is
flawed
and
illegal.
As
already
remarked, the appointment is against a
sanctioned post and the Inspector has
not recalled the approval on the ground
that the post was not validly advertised
or that the petitioner did not hold the
essential qualifications, entitling him to
be appointed; or, that the selection
committee was not competent etc. The
process has been held vitiated because
the Committee of Management, which
resolved, apparently to initiate the
selection process and then appoint, did
not do so under the stewardship of the
President. The Inspector has inferred
that it was not the case that the
President
was
not
available
and,
therefore, under the bylaws, the Vice
President could act in his stead.
222 INDIAN LAW REPORTS ALLAHABAD SERIES
18. In the counter affidavit filed on
behalf of respondent Nos.1, 2, 3 and 4, the
order is preponderantly defended on the
ground indicated in the order to the effect
that the petitioner's appointment was made
in proceedings conducted that were not
presided over by the President of the
Society/ Institution. There is another plea
urged in paragraph No.2(a) to the effect
that after the petitioner was appointed by
the
Committee
of
Management
on
28.10.2012, the Committee of Management
sent the papers directly to the Inspector and
without the recommendation of the District
Minority Welfare Officer. The first ground
has to be tested for its worth, but the
ground that the recommendations by the
Committee of Management to appoint the
petitioner were not routed through the
District Minority Welfare Officer, is no
longer open to the respondents to urge,
inasmuch as, that is not at all a ground, on
the foot of which the impugned order has
been passed.

19. It is a well recognized principle
of the law that an order under challenge or
the order impugned cannot be supported on
a ground extraneous to what has been said
in the order. In other words, the impugned
order cannot be supplemented by additional
grounds to buttress it through an affidavit.
So far as the question of absence of the
President from the meetings of the
Committee of Management, entitling the
Vice President to act in his stead under
bylaw No.10(b) is concerned, the counter
affidavit filed by respondent No.6, Abdulla,
the
President,
is
most
relevant.
In
paragraph No.9 of the aforesaid counter
affidavit, it is averred:

"9. That the contents of paragraph
no.16 of the writ petition are not admitted,
hence denied. The correct act are that the
deponent had refused to participate in the
proceedings of Committee of Management
of the institution and in this regard he had
also sent a letter dated 21.04.2011 and the
meeting of the Committee of Management
was presided over by the Vice President of
the Committee of Management of the
Institution, but the deponent refused to sign
on the notice/ agenda circulated by the
Committee
of
Management
of
the
institution and in all the meetings he had
voluntarily refused to participate in the
proceeding of Committee of Management
of the Institution on the ground that the
selection
process
was
illegal
hence
advertisement,
interview
and
entire
selection process conducted in the absence
of the deponent is illegal and unjustified in
the eye of law."
(emphasis by Court)

20. A perusal of the transliterated
copy of a book, called the Suchana
Register, shows that the President of the
Society/ Institution last signed it taking
notice of a meeting, scheduled to be held
on 21.04.2011, but not thereafter. He did
not sign it for the meeting held on
18.05.2011. His signatures do not occur
after page 3 on the Notice Register. These
are absent on pages 5, 6, 9 and 11. The next
document in the records, which has been
transliterated is the other book, called the
Register of Proceedings or the Karyavahi
Register.
The
proceedings
held
on
21.04.2011 show that these were presided
over by the Vice President, Vajiuddin, and
not the President, Abdulla, respondent
No.6.

21. The next resolution at page
No.7 of the Register of Proceedings dated
18.05.2011 shows that the meeting was
once again presided over by the Vice
President and not respondent No.6. The
4 All. Mohd. Fahim Jamal Vs. State of U.P. & Ors.
223
next Register of Proceedings is dated
25.12.2011. This too shows that the
meeting of the Committee of Management
was presided over by the Vice President
and not respondent No.6. In all these
meetings, apparently there was no agenda
item regarding appointment of the Assistant
Teacher in the Tahtania Section. A meeting
of the Committee of Management was then
held on 01.05.2012, where the item relating
to appointment of Assistant Teacher
(Tahtania) in the Institution was discussed
and the post resolved to be advertised. This
meeting too, like the earlier ones, was
presided over by the Vice President. The
next meeting, where the choice of the
selection committee was discussed and
resolved was held on 12.04.2012, again not
presided over by the President, but the Vice
President. The next resolution, that was
passed,
related
to
accepting
the
recommendations
of
the
selection
committee that selected the petitioner for
the post after an interview. This meeting of
the Committee of Management was held on
28.10.2012. This meeting too was not
president over by the President, but the
Vice President.

22. In this scheme of things, if the
stand taken by respondent No.6 is seen, it is
apparent that the President had refused to
participate in the proceedings of the
Committee
of
Management,
and
admittedly, sent a letter too in this regard
dated 21.04.2011. It is not indicated in
paragraph No.9 of the counter affidavit by
the sixth respondent, to whom the letter
was addressed, but what is clear is that
respondent No.6 refused to sign on the
notice/ agenda circulated for meetings of
the Committee of Management and he has
specifically averred that in all meetings, he
had voluntarily refused to participate on
ground that the selection process was
illegal, including the advertisement and the
interview, apparently bearing reference to
the
petitioner's
selection,
interview,
advertisement and appointment.

23. We have noticed above that the
President was not attending the meetings,
even before the agenda item relating to the
selection and appointment of the teacher in
the Tahtania Section was discussed. Even
if he had started absenting from the day
when the matter of filling up the vacant
post was discussed by the Committee of
Management, the fact remains that the
President admits that he was voluntarily
abstaining sitting on meetings of the
Committee of Management, of which he
had notice. A committee of management of
the society or the institution has important
business to undertake and if the head of the
committee of management voluntarily
abstains, in our considered opinion, it
would be a case where bylaw 10(b) of the
bylaws of the Society/ Institution would
come into play, authorizing the Vice
President to take over and discharge the
duties of the President. The word 'absence'
mentioned in the bylaws does not always
mean 'absence from station' or one 'due to
illness', or like matters. It would include a
case of deliberate abstention by the
President.

24. If a deliberate abstention is not
regarded as 'absence' contemplated under
bylaw 10(b) of the bylaws of the
Institution, a recalcitrant President, who
refuses to sit on the meeting, could hold the
Institution to ransom. In the scheme of
things, for the discharge of institutional
functions
of
corporate
bodies,
like
societies, that have some affairs to manage
- an educational institution in this case - a
provision in the scheme or bylaws,
governing the society, is made for an
224 INDIAN LAW REPORTS ALLAHABAD SERIES
absenting office bearer to be filled in, in his
role by another. Clauses, such as these in
the bylaws, are contemplated to keep the
wheels of whatever work the Society
undertakes moving. It is a device to
overcome
individual
recalcitrance,
waywardness or the disruptive behaviour of
a particular office-bearer or office-bearers.
In paragraph No.9 of the counter affidavit,
the justification offered by the President to
abstain from meetings of the Committee of
Management is the illegal selection etc. to
the post of Tahtania, pursuant to which the
petitioner was appointed. If the sixth
respondent thought that the process was
illegal, he was the Chairman of the
Committee of Management and had control
over its affairs. He had at least one vote,
which he could have exercised to dissent.
He could not have dissented by abstention
as he did. Once the sixth respondent
admittedly abstained from participating in
the scheduled meetings of the Committee
of Management, there is nothing illegal
about the Vice President moving in to
discharge his role and duties. Apparently,
the Inspector has not at all looked into the
matter from this vantage or examined the
record in passing the order impugned and
recalling the earlier approval to the
petitioner's appointment granted vide order
dated 27.06.2013.

25. We would have thought of
remanding the matter to the Inspector, who
is admittedly the competent Authority to
consider
the matter
of
approval
of
appointment for the petitioner, but that does
not seem to be a valid course in this case.
The reason is that the respondents do not
take a stand that the petitioner was
appointed against a post that was not
sanctioned or that the proceedings of
selection
and
interview,
including
advertisement were in any way vitiated.
The petitioner's appointment was approved
by the Inspector by a well considered order
regarding the existence of the post and how
the vacancy arose. The conditions, subject
to which the approval was granted, said
that the District Minority Welfare Officer
will ensure that the appointment made
should be one that is against a sanctioned
post and not beyond the approved strength
for the Institution. There is no such case
that the respondents have come up with, as
already noticed. The other condition is
about
verification
of
the
petitioner's
eligibility educational qualifications. No
fault has been found on that count too.
Also, there is a provision that the District
Minority Welfare Officer would verify, if
the post against which salary is to be paid,
is free from dispute and no case is pending
in Court. There is also a provision that the
District Minority Welfare Officer would
ensure that the appointee is not related to
anyone
on
the
Management
as
prescribed under the Regulations, as
amended in the year 1998, 2000 and
2004. None of the conditions mentioned
in notes 1 to 4 mentioned in the
approval order are indicated to be
violated in case of the petitioner's
appointment.
There
is
a
residual
condition in note 5 of the approval
order passed by the Inspector on
27.06.2013, saying that if any fact has
been
found
to
be
suppressed
or
information wrong, this approval would
stand automatically revoked. It is by
virtue of this residual clause that the
impugned order has been passed, but
specifically based on the sole ground
that the President did not preside over
the meetings of the Committee of
Management, where the resolutions to
advertise the post and appoint the
petitioner were adopted. The action of
the Committee in acting under the Vice-
4 All. Sarvesh Kumar Vs. General Manager, Punjab National Bank & Anr.
225
President has been found to be
perfectly justified by us for reasons that we
have elaborately indicated hereinabove.

26. In these circumstances, there
was absolutely no reason for the Inspector
to have revoked his order dated 27.06.2013,
granting
approval
to
the
petitioner's
appointment, which, in our opinion, must
be restored.

27. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 02.12.2014 passed by the
Inspector is hereby quashed and the order
dated 27.06.2013, granting approval to the
petitioner's appointment, restored. The
petitioner shall be entitled to salary
together
with
arrears
and
other
consequential
benefits,
which
the
respondents shall ensure within the time
period of two months of the date of receipt
of a copy of this order.

28. There shall be no order as to
costs.

29. Let the original record be
handed over to Mr. Ashish Tripathi,
learned Counsel appearing on behalf of the
Management of the Institution forthwith for
its onward and safe transmission to
respondent No. 5.

30. Let a copy of this order be
communicated to the Registrar/ Inspector,
Arbi, Farsi Madarsa Education Board, U.P.,
Lucknow, the District Minority Welfare
Officer, Azamgarh and the Manager,
Madarsa Al-Jamaiatul Islamia Mambaul
Maarif,
Village
Sumbhi,
Post
Gambheerban, District Azamgarh by the
Registrar (Compliance).
----------
(2025) 4 ILRA.225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2025
BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 15751 of 2023

Sarvesh Kumar ...Petitioner
Versus
General Manager, Punjab National Bank &
Anr. ...Respondents

Counsel for the Petitioner:
Ashok Kumar Nigam, Rekha Singh, Satya
Niwas Prasad

Counsel for the Respondents:
Sanjai Singh

Service
Law
-
Compassionate
appointment - Financial destitution -
Family income threshold - Scheme for
Compassionate Appointment in Banks -
Rule 8.1 - Monthly income exceeding
60% of notional gross salary (net of tax) -
Family
pension
and
interest
income
considered
-
No
vested
right
to
appointment
-
Appointment
only
if
indigent
condition
is
established
-
Petitioner's
family
not
in
penury
-
Determination in accordance with Scheme
upheld - Petition dismissed. (Paras 4, 5, 6
to 11, 16 to 23)

HELD:

Appointments to public posts, government
services and to various instrumentalities of the
St. within the meaning of Article 12 of the
Constitution
of
India
are
governed
and
regulated
by
comprehensive
provisions
contained in the Constitution. The constitutional
scheme envisages an open recruitment and a
transparent procedure which enables maximum
participation from all the eligible segments of
the citizenry at large. The final appointments
are made after a fair selection based on
competitive merit. While making the said
appointments
the
reservation
policy
or