# Mukesh Singh Chauhan and others v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 751
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-27
- **Case number:** Civil Misc. Writ Petition No. 6663 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-singh-chauhan-and-others-v-state-of-u-p-and-others-40652
- **Pages:** 5

## Headnote

Sri Ravi Ranjan
Sri P.K. Prajapati
Sri Rajesh Kumar
Sri S.N. Singh
S.C.

Intermediate
Education
Act,
1921Chapter II Regulation 20, Regulation
17(a) to (g) read with section 16 FF-
(4)(5)-
Appointment
of
L.T.
grade
teacher in minority institution after
retirement of Regular L.T. grade teachers
on 30.6.99 vacancy aroser on 2.9.99
management
sought
permission
and
granted by DIOS on 25.9.99 in 29.9.99
vacancy advertised in Amar Ujala as well
as
in
statement
on
6.10.2000
appointment and the intimation send
DIOS for financial approval DIOS raised
objection regarding post ought to have
advertised on subject wise and not on
category wise proceeding of selection
not placed before DIOS the appointment
was prior to the approval held the
regulation 17 of chapter II are simply
guidelines-an irregularity by selection
committee such appointment can not be
invalid provided the candidate otherwise
eligible
as
per
section
16-FF(u)
consideration of DIOS during approval
confined with minimum qualification and
not otherwise order refusing approval
quashed.
Case law discussed:
W.P. No. 35525 of 04
1994 AWC- 1108

## Text

2 All] Mukesh Singh Chauhan and others V. State of U.P. and others
751
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 6663 of 2005

Mukesh Singh Chauhan and others

...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioners:
Sri Y.K. Saxena

Counsel for the Respondents:
Sri Ravi Ranjan
Sri P.K. Prajapati
Sri Rajesh Kumar
Sri S.N. Singh
S.C.

Intermediate
Education
Act,
1921Chapter II Regulation 20, Regulation
17(a) to (g) read with section 16 FF-
(4)(5)-
Appointment
of
L.T.
grade
teacher in minority institution after
retirement of Regular L.T. grade teachers
on 30.6.99 vacancy aroser on 2.9.99
management
sought
permission
and
granted by DIOS on 25.9.99 in 29.9.99
vacancy advertised in Amar Ujala as well
as
in
statement
on
6.10.2000
appointment and the intimation send
DIOS for financial approval DIOS raised
objection regarding post ought to have
advertised on subject wise and not on
category wise proceeding of selection
not placed before DIOS the appointment
was prior to the approval held the
regulation 17 of chapter II are simply
guidelines-an irregularity by selection
committee such appointment can not be
invalid provided the candidate otherwise
eligible
as
per
section
16-FF(u)
consideration of DIOS during approval
confined with minimum qualification and
not otherwise order refusing approval
quashed.
Case law discussed:
W.P. No. 35525 of 04
1994 AWC- 1108

(Delivered by Hon'ble Tarun Agarwala. J.)

1. Heard Sri Yogesh Kumar Saxena,
the learned counsel for the petitioners, Sri
Ravi
Ranjan,
the
learned
Standing
Counsel
appearing
on
behalf
of
respondent Nos. 1,2 and 3 and Sri Rajesh
Kumar, Advocate holding the brief of Sri
P.K.Prajapati,
the
learned
counsel
appearing for the respondent no.4.

2. Three teachers in L.T. Grade
retired
on
reaching
the
age
of
superannuation on 30.6.99 in a minority
institution known as Christian Inter
College, Mainpuri. The vacancy arose on
1.7.1999.The Committee of Management
vide
letter
dated
2.9.1999
sought
permission from the District Inspector of
Schools to advertise three posts in general
subject. The District Inspector of Schools
vide an order dated 25.9.19099 granted
permission for advertising the posts and
for the initiation of the selection process
for the appointment of Assistant Teachers
in L.T. Grade.

3. It transpires that an advertisement
were issued in the Hindi Newspaper
'Amar Ujala' dated· 29.9.1999 and in the
English
newspaper
'Statesman'
on
5.10.1999.
Further,
a
Selection
Committee was duly constituted and the
said committee recommended the names
of the petitioners for appointment as
Assistant Teachers. The committee of
management
issued
the
appointment
letters dated 6.10.2000 in favour of the
petitioners and simultaneously sent the
papers: to the District Inspector of
Schools for financial approval.
752 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
4. It transpires that the District
Inspector of Schools by an order dated
29.3.2003 refused to accord approval to
the appointment of the petitioners on the
ground that the advertisement was made
after three months from the date of the
occurrence of the vacancy and, therefore
held that the selection was violative of
Regulation 20 of Chapter the Regulations
framed under the Intermediate Education
Act 1921. The petitioners challenged the s
'0 order of the District Inspector of
Schools in Civil Misc. Writ Petition
No.1940l of 2003, which was allowed by
a judgment dated 4.10.2003 holding that
the advertisement were made within the
stipulated period of three months and
remitted the matter back to the District
Inspector of Schools to decide the matter
afresh. The District Inspector of Schools
by an order dated 19.1.2005 again
rejected the claim of the petitioners on a
variety of reasons. Consequently, the
present writ petition.

5. The District Inspector of Schools
in the impugned order has held that the
advertisement was not issued as per the
procedure contemplated under Regulation
l7 [a] of Chapter II of the Regulations
framed under the Intermediate Education
Act and that the post ought to have been
advertised
subject
wise
instead
of
category wise. The District Inspector of
Schools further held that the selection
proceedings were against the provisions
of Section 16-FF of the Intermediate
Education Act read with Rule 17 [a] to 17
[g]
of
e
Regulations
under
the
Intermediate Education Act, and further
held that the proceedings of the Selection
Committee were not placed before the
District Inspector of Schools. The District
Inspector of Schools further found that the
appointment given to the petitioners was
prior to the approval sought from the
District
Inspector
of
Schools
and
therefore, the Committee of Management
had committed a gross irregularity.

6. In my view, the District Inspector
of Schools has proceeded on erroneous
grounds and has gone on a witch hunt
with the sole purpose of rejecting the
claim of the petitioner for ulterior reasons
best known to him. Initially, the District
Inspector of Schools had refused to
approve
the
appointments
of
the
petitioners on the ground that the
advertisement was made in violation of
Chapter of the Regulations framed under
the Intermediate Education Act and, now
by the impugned order, has taken out new
grounds, which were not available to him
when the initial order was passed by him.
In the opinion of the Court, the order
passed by the District Inspector of
Schools appears to be malafide.

7. Section 16-FF 0 f the Intermediate
Education Act 1921 reads as follows:
"l6-FF. Savings as to minority
institutions-

[1] Notwithstanding anything in subsection [4] of Section 16-E, and Section
16-F, the Selection Committee for the
appointment of a Head of Institution or a
teacher of an institution established and
adstered by a minority referred to in
clause
[1]
of
Article
30
of
the
Constitution shall consist of five members
(including its Chairman) nominated by
the Committee of Management:

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

a] in the case of appointment of the
Head of an Institution, be an expert
2 All] Mukesh Singh Chauhan and others V. State of U.P. and others
753
selected by the committee of Management
from a panel of experts prepared by the
Director;

b] in the case of appointment of a
teacher, be the Head of the institution
concerned.

[2] The procedure to be followed by the
Selection Committee referred to in subsection (1) shall be such as may be
prescribed.

3] No person selected under this section
shall be appointed, uncles--

[a] in the case of the Head of an
Institution the proposal of appointment
has been approved by the Regional
Deputy Director of Education ; and
[b] in the case of a teacher such proposal
has been approved by the Inspector.

4] The Regional Deputy director of
Education or the Inspector, as the case
may be, shall not withhold approval for
the selection made under this section
where the person selected possesses the
minimum qualifications prescribed and is
otherwise eligible.
5]. Where the Regional Deputy Director
of education or the Inspector, as, the case
may be, does not approve of a candidate
selected under this section, the committee
of Management may, within three weeks
from the date of receipt of such
disapproval, make a representation to the
directory in the case of the Head of
Institution, and to the Regional Deputy
Director of Education in the case of a
teacher.

6] Every order passed by the Director or
the
Regional
Deputy
Director
of
Education on a representation under subsection [5] shall be final."

Clause (4) of Section 16-FF indicates
that the authority could not withhold the
approval for the selection made where the
persons selected possesses the minimum
qualifications
prescribed
and
was
otherwise eligible. The impugned order
does not speak about. The qualifications
of the petitioners nor does it indicate that
the petitioners did not possess the
requisite qualifications. In the absence of
a finding in t his regard, the District
Inspector of Schools was therefore
required to grant the approval of the
appointments of the petitioners and could
not go into the intricacies or irregularities
alleged to have been made in the selection
process, which otherwise did not exist, as
would be clear hereinafter. In my opinion,
the
provision
contemplated
under
Regulation 17 of Chapter II of the
Regulations
framed
under
the
Intermediate
Education
Act;
in
my
opinion, could not override Sub clause(4)
of Section 16-FF of the Intermediate
Education Act. In the opinion of the
Court, Regulation 17 is only a guideline
and any irregularity committed would not
make a candidate ineligible when he was
other wise eligible and qualified for an
appointment as contemplated under Sub
section [4] of Section 16-FF of the Act.

8. In Karunesh Kumar Singh V s.
State of U.P. and others in Writ Petition
No.35525 of 2004, decided on 27.5.2005,
a learned Single Judge of this Court held-

"The
scheme
of
the
U.P.
Intermediate Education Act, 1921 and the
Regulations
framed
thereunder
for
minority educational institutions provide
for qualifications, eligibility and a method
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of selection. Once these tests are satisfied,
the approval of a teacher who is qualified
and eligible cannot be withheld. Section
16FF (4) secures the guarantee under
Article 30 (i) of the Constitution of India,
and is in consonance with the rights of the
minority to be established and administer
educational institution. The Regulations
are made under the Act. These cannot
override or be inconsistent with the
mandatory provisions of the Act. At best
it may be said that the Regulation for
minority institution are by way of
guidelines to be followed for the benefit
of the selection committee. Any further
restriction namely, the assessment of
comparative merit and to give reasons for
selection from amongst those who are
qualified and eligible will effect the
choice of the selection committee and will
infringe the freedom guaranteed under
Article 30[i] of the Constitution of India."

9. I am in complete agreement with
the aforesaid decision.
The District inspector of Schools
further held that previous approval was
not sought by the Committee before
issuing the appointment letter. In Smt.
Ranjana
Agrawal
Vs.
Regional
lnspectress of Girls Schools, 1994 Awe -
1108 it was held that from a reading of
the Regulations, it could not be inferred
that no appointment could be made before
an approval was granted by the District
Inspector of Schools and that a candidate
could be appointed in anticipation of the
approval being granted by the District
inspector of Schools.

10. From the aforesaid, it is clear
that Regulation 17 of Chapter II of the
Regulations
framed
under
the
Intermediate Education Act, are by way
of guidelines to be followed by the
Selection Committee and an irregularity
committed by the Selection Committee
could not make the appointments invalid,
if the candidate was otherwise eligible as
per section 16-FF [4] of the Intermediate
Education Act 1921.

11. In case, the ground alleged by
the District Inspector of Schools to the
effect that the procedure evolved under
Section 17 has been violated is patently
erroneous. The impugned order indicates
that the proceedings of the Selection
Committee was not placed before the
District
Inspector
of
Schools.
The
petitioners in paragraph-8 of the writ
petition had categorically stated that all
the papers were sent to the District
Inspector of Schools. This paragraph has
not been denied by the respondent in
paragraph-8 of the counter affidavit. The
stand taken by the petitioners has also
been supported by the committee of
Management. In view of the aforesaid, the
contention of the respondents that the
proceedings of the Selection Committee
were not sent to the District Inspector of
Schools is patently erroneous.

12. In view of the aforesaid and in
view of Sub-clause [4] of Section .16FF
of the Act, which contemplates that the
Power of the Regional Deputy Director of
Education or the District inspector of
Schools is restricted to withhold the
approval of the selection made only when
a
candidate
does
not
possess
the
prescribed minimum qualifications and is
not eligible an In the absence of any
finding of this aspect by the authority, the
Court is of the opinion, that the impugned
order cannot be sustained, and is,
therefore quashed. The writ petition
stands allowed.
2 All] Smt. Saroj Gupta and another V. State of U.P. and another
755
13. It is pointless to send the matter
back to the District inspector of Schools
for reconsideration, as on two occasions
the District inspector of Schools has gone
on a witch hunt and rejected the claim of
the petitioner. Consequently, a mandamus
is issued to the District Inspector of
Schools, Mainpuri, respondent no.3 to
grant approval to the appointment of the
petitioners within one month from 'the
date of production of a certified copy of
this order
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2005

BEFORE
THE HON'BLE MRS. POONAM
SRIVASTAVA, J.

Criminal Misc. Application No.15530 of
2005

Smt. Saroj Gupta & another ...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri B.B. Jauhari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 256not appearance of complainant-after
filing the protest application-through
counsel-the complainant died-presence
of complainant not mandatory-complaint
can not be dismissed out rightly.

Held: Para 8

In the circumstances, merely because
the complainant is dead, the complaint
can
not
be
dismissed
outright.
Admittedly the complainant is being
represented by a pleader and it is for the
Magistrate
to
decide
whether
the
attendance
of
the
complainant
is
necessary,
it
is
discretion
of
the
Magistrate
to
dispense
with
his
attendance and proceed in the case.
Case law discussed:
AIR 1967 SC-983
2005 (1) ACR-478 SC

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri B.B. Jauhari, learned
counsel for the applicant and learned
A.G.A. for the State.

2. Inherent power of this Court has
been invoked challenging the proceedings
in criminal case No.3674 of 2004, Ram
Ratan Vs. Dev Nath Gupta and others,
under Section 420, 467, 468, 471, 406
I.P.C. Police Station Sadar Bazar, District
Shahjahanpur
and
also
order
dted
4.8.2005 passed by Additional Chief
Judicial
Magistrate,
Shahjahanpur
summoning the applicants.

3. The brief of the case are that one
Sri
Ram
Ratan
Gupta
moved
an
application under Section 156 93) Cr.P.C.
and an order was passed on 28.2.2003 for
registration of the first information report
and to investigate the matter. In pursuance
to the order of the Magistrate, the police
investigated and submitted a final report
stating therein that no case is made out
against the accused on 19.4.2003. A
protest
petition
was
filed
by
the
complainant Ram Ratan Gupta but the
proceedings on the basis of protest
petition was being considerably lingered
as such Sri Ram Ratan Gupta approached
this Court for an expeditious disposal of
the protest petition. A direction was given
by this Court on 5.10.2004 to the Chief
Judicial
Magistrate,
Shahjahanpur to
decide the protest petition within a period
of three months. Thereafter the case was