# State of U.P. & Ors v. Manoj Kumar Jain & Anr

- **Citation:** (2024) 5 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Special Appeal No. 537 of 2024
- **Bench:** Mahesh Chandra Tripathi, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-manoj-kumar-jain-anr-52118
- **Pages:** 27

## Headnote

A. Service Law - Constitution of India -
Article 29 & 30 - UP Intermediate
Education Act, 1921- Regulations framed
under Act, 1921 - Ch. III Reg. 101 -
Minority institution - Post of Clerk - No
prior approval of DIOS was taken - Effect -
How
far
minority
institution
enjoy
exemption - Held, Regulation 101 would
also
be
applicable
to
the
minority
institutions, which are on grant-in-aid list
of the St. Government - Article 29 and 30
(1) of the Constitution of India, which deal
with the right to establish and administer
minority institution, do not preclude the St.
to regulate the conditions of employment -
Since the selection process was initiated
without any prior approval from DIOS as
mandated in Regulation 101, the selection
process stood vitiated since its inception.
(Para 48, 50 and 53)

Special Appeal allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,972 of 92,885. This is a partial read: ask again with offset=39972 for what follows._

428 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. Amarjeet Singh and Others : 2007 (2)
SCALE 486 and it has been held, that a
person sent in a cadre outside his substantive
cadre has no right to continue in the
borrower organisation and can be repatriated
to his parent cadre at any point of time
without assigning any reason.

(48) The law also stands settled that
the authorities cannot be required to assign
any reason, whatsoever, in an order of
repatriation and such power cannot be
fettered by requiring them to record reason.
Which employee should be posted where is
absolutely within the domain of the
authority concerned and unless it is shown
that an order of transfer/repatriation is
contrary to the statutory rules or is otherwise
mala fide or has been passed by the
incompetent authority, only then the Court
may interfere and not otherwise. (See: State
of U.P. Vs. Ashok Kumar Saxena : AIR
1998 SC 925, Mohd. Masood Ahmad Vs.
State of U.P. & others : JT 2007 (12) SC
467).

(49) For all the aforesaid reasons,
this Court does not find any merits in the
appeal and as such the same is dismissed.
However, it is made clear as has also been
stated hereinabove, that dismissal of this
appeal shall not have any impediment on the
pendency of the writ petition No. 8943 (S/S)
2022, which shall be decided on its own
merits, without being influenced by passing
of this Judgment.

(50) There shall be no orders as to
Cost.

The judgment is pronounced today
in open Court in terms of Chapter VII subrule (2) of Rule (1) of the Allahabad High
Court Rules, 1952.
----------
(2024) 5 ILRA 428
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal No. 537 of 2024

State of U.P. & Ors. ...Appellants
Versus
Manoj Kumar Jain & Anr. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Hritudhwaj Pratap Sashi

A. Service Law - Constitution of India -
Article 29 & 30 - UP Intermediate
Education Act, 1921- Regulations framed
under Act, 1921 - Ch. III Reg. 101 -
Minority institution - Post of Clerk - No
prior approval of DIOS was taken - Effect -
How
far
minority
institution
enjoy
exemption - Held, Regulation 101 would
also
be
applicable
to
the
minority
institutions, which are on grant-in-aid list
of the St. Government - Article 29 and 30
(1) of the Constitution of India, which deal
with the right to establish and administer
minority institution, do not preclude the St.
to regulate the conditions of employment -
Since the selection process was initiated
without any prior approval from DIOS as
mandated in Regulation 101, the selection
process stood vitiated since its inception.
(Para 48, 50 and 53)

Special Appeal allowed. (E-1)

List of Cases cited:

1. Writ Petition No.45060 of 2015; Principal
Abhay Nandan Inter College & ors. Vs St. of U.P.
& ors. decided on 19.11.2018
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
429
2. Civil Appeal No. 865 of 2021; St. of U.P. & ors.
Vs Principal Abhay Nandan Inter College & ors.
decided on 27.09.2021

3. Udai Veer Singh & anr. Vs District Inspector of
Schools Deoria & anr.; 2001 All.L.J. 122

4. Civil Misc. Writ Petition No. 50286 of 2000;
Amit Kumar Vs District Inspector of Schools,
Jaunpur decided on 21.11.2000

5. St. of U.P. & ors. Vs Rachna Hills & ors.; 2023
(41) LCD 1291

6. Krishna Kant Vs St. of U.P. & ors.; 2018 (11)
ADJ 419

7. Committee of Management, Swami Lila Shah
Adarsh Sindhi Inter College & anr. Vs St. of U.P.
& ors.; 2017 (2) ADJ 377 (FB)

8. St. of U.P. Vs Principal, Abhay Nandan Inter
College & ors.; 2021 (15) SCC 600

9. Harpal Singh Vs St. of U.P.; 2015 (3) ADJ 236

10. Abhishek Tripathi Vs St. of U.P.; 2014 (4) ADJ
270

11.
Mohanlal
Goenka
Vs
Benoy
Krishna
Mukherjee; AIR 1953 SC 65 (SC)

12. St. of West Bengal Vs Hemant Kumar
Bhattacharjee; AIR 1966 SC 1061

13. St. of U.P. Vs Manager, Committee of
Management, Islamia Inter College & ors.; 2022
(2) AWC 1788

14. Sister Meera Vs St. of U.P.; 2013 (10) ADJ
310

15. Mohd. Faizan Vs St. of U.P.; 2013 (5) ADJ
471

16. Committee of Management, Swami Lila Shah
Adarsh Sindhi Inter College & Anr. Vs St. of U.P.
& ors.; 2017 (2) ADJ 377 (FB)

17. Sindhi Education Society & anr. Vs Chief
Secretary, Government of NCT of Delhi & ors.;
(2010) 8 SCC 49
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Fuzail Ahmad Ansari,
learned Standing Counsel and Shri Ashish
Mohan
Srivastava,
learned
Standing
Counsel for State-respondents-appellants
and Shri Sankalp Narain, learned counsel for
petitioner-respondent no.1.

2. This Court vide order dated
23.5.2024 has condoned the delay in filing
the appeal and has directed to accord regular
number to the appeal.

3. Present intra court appeal under
Chapter VIII Rule 5 of the High Court Rules
has been preferred assailing the validity of
the judgment and order dated 9.5.2022
passed by learned Single Judge in Manoj
Kumar Jain v. State of U.P. & Ors.1,
whereby the writ petition was allowed;
orders dated 21.5.2019 and 9.7.2019 passed
by District Inspector of Schools (DIOS),
Aligarh have been quashed; the appointment
of the petitioner on the post of Assistant
Clerk in the institution has been upheld and
the respondent no.3 was directed to grant
financial sanction to the appointment of the
petitioner on the post of Assistant Clerk and
to make payment of arrears of salary w.e.f.
3.7.2018, the date of first disapproval of
selection of the petitioner and to pay his
month to month salary forthwith. For ready
reference, the operative portion of the
judgment and order dated 9.5.2022 is
reproduced as under:-

 "The orders impugned passed by
District Inspector of Schools, Aligarh, are
hereby quashed.

The appointment of the petitioner
on the post of Assistant Clerk in the
institution is upheld and the respondent no.3
is directed by means of a positive mandamus
430 INDIAN LAW REPORTS ALLAHABAD SERIES
as per the judgement of Apex Court in case
of Comptroller And Auditor General of
India & Another Vs. K.S. Jagannathan &
Another, (1986) 2 SCC 676 to grant
financial sanction to the appointment of the
petitioner on the aforesaid post, within three
months from today and make payment of
arrears of his salary w.e.f., 3.7.2018, the
date of first disapproval of selection of the
petitioner, within same period and pay his
month to month salary forthwith.

In case arrears of salary payable
to the petitioner is not paid to him within the
time provided by this Court, the petitioner
would be entitled to get 12% interest on the
arrears of the amount due.

The State Government shall be
free to recover the amount of interest from
the public servant/servants, who is/are
found responsible for the delay.

The writ petition is allowed.

FACTS

4. Brief facts giving rise to the
present appeal is that there is an educational
institution known as 'Shri Udai Singh Jain
Kanya Inter College, Udai Singh Jain Road,
Aligarh'2, which is a minority institution
and is governed by the U.P. Intermediate
Education Act, 19213 and the various
Regulations framed thereunder from time to
time. The institution also received grant-inaid from the State Government and as such
the Payment of Salary Act, 1971 is also
applicable upon the institution. The clerical
cadre of the institution comprises one post
of Head Clerk and four posts of Asstt.
Clerks. It is claimed that the sanctioned
strength has already been determined in
view of the Government Order dated
15.6.2012, which was issued in compliance
of the direction dated 22.5.2012 passed by
this Court in the case of Dhruv Narain Singh
v. State of U.P. & Ors.4. Therefore, it is
claimed that the sanctioned strength of
teaching and non-teaching staff in the
institution has been determined. After
superannuation of one Suresh Chandra
Saxena, Head Clerk, substantive vacancy
occurred on 28.8.2017 and on the said post
promotion was accorded to one Adan
Kumar Jain. Consequently, one substantive
vacancy (direct recruitment) of Asstt. Clerk
fell vacant in the institution.

5. It is claimed that the advertisement
of the said post was published in the
newspaper 'Amar Ujala' on 10.12.2017
inviting
applications
from
eligible
candidates for the post of Clerk. The
petitioner-respondent claiming to be fully
qualified and eligible applied in pursuance
of the said advertisement. He had also
participated in the interview, which was
scheduled on 15.1.2018 and he was selected
as best suited candidate. Consequently, the
Committee of Management passed a
resolution on 19.1.2018 for granting
appointment to the petitioner-respondent.
The Manager of College had also issued an
appointment letter dated 22.1.2018 to the
petitioner. Pursuant to the said appointment
letter, the petitioner also joined the
institution on 27.1.2018 and it is claimed
that since then he has been continuously
working.

6. Thereafter, all relevant papers
pertaining to the selection of the petitioner
has been forwarded to DIOS for according
financial sanction. On the paper so
submitted the DIOS by communication
dated 17.2.2018 made certain queries from
the management. The query so raised was
forthwith replied by the Manager of the
institution on 27.3.2018. Eventually on
3.7.2018 reiterated on 11.9.2018 the DIOS
has declined to accord financial sanction
upon an allegation of the contravention of
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
431
Regulation 101 of Chapter III of the
Regulations framed under the Act, 1921.

7. The said orders dated 3.7.2018 and
11.9.2018 were challenged by the petitioner
in Manoj Kumar Jain v. State of U.P. &
Ors.5, which was allowed by learned Single
Judge
on
26.3.2019
with
following
observations:-

 "Heard learned counsel for the
petitioner, Sri K. M. Asthana, learned
counsel for the Managing Committee and
learned Standing Counsel for the State
authorities.

Petitioner claims to have been
appointed as a Class III employee in Shri
Udai Singh Jain Kanya Inter College,
Aligarh, which is a recognized intermediate
institution under the provisions of U.P.
Intermediate Education Act, 1921 and the
provisions of U.P. Act No.24 of 1972 are
also applicable. The institution also is a
minority institution.

It is alleged that appointment of
petitioner has been made after the vacancy
was duly advertised in newspaper 'Amar
Ujala'. Learned senior counsel for the
petitioner states that vacancy was also
advertised in newspaper 'Times of India'
which meets the requirement of a valid
publication of vacancy itself. It is also stated
that there exists a vacancy and a fair
procedure has been followed, and therefore,
mere non obtaining of prior permission from
the Director in terms of regulation 101
would not be fatal. Reliance is placed upon
a judgment of this Court in Abhishek
Tripathi v.s State of U.P. and others, 2016
(1) ADJ 603 to contend that claim of
appointment ought to have been examined
on merits by the authority concerned.

Although time was allowed to
learned Standing Counsel to file a counter
affidavit way back on 25.9.2018, but no
counter affidavit has been filed as yet.
Considering the nature of order proposed to
be passed, no further opportunity is liable to
be granted to learned Standing Counsel to
file a counter affidavit.

The order impugned in the present
writ petition would go to show that there is
no conscious determination by the authority
concerned with regard to legality of
petitioner's appointment in terms of the
applicable
provisions
of
law.
The
authorities were expected to determine as to
whether there existed any vacancy; a fair
procedure for recruitment was followed
and;
petitioner
possessed
requisite
qualification etc. Since this has not been
done, the order of the authority concerned
refusing to grant approval to petitioner's
appointment cannot be sustained.

Writ
petition,
accordingly,
succeeds and is allowed. Orders dated
3.7.2018 and 11.9.2018 stands quashed. The
matter is remitted to respondent no.3 for
passing a fresh order, keeping in view the
observations made in the case of Abhishek
Tripathi (supra), after affording opportunity
of hearing to the parties concerned, within a
period of three months from the date of
presentation of certified copy of this order."

8. The aforesaid order was served
upon the DIOS, who in turn issued notices
upon the Manager of the institution on
9.4.2019
fixing date
of hearing
on
16.4.2019. Consequently, the order dated
21.5.2019 was passed by the DIOS rejecting
the claim of the petitioner for grant of
financial sanction on the post of Asstt. Clerk
in the institution. Thereafter, the Manager of
the institution moved a representation before
the DIOS on 27.5.2019 requesting therein to
reconsider the decision with regard to grant
of approval to the appointment of the
petitioner. However, the same was also
432 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected by the DIOS vide order dated
9.7.2019.

9. The petitioner challenged the
orders passed by the DIOS on 21.5.2019 and
9.7.2019 by means of Writ Petition
No.13182 of 2019. The DIOS has rejected
the claim of the petitioner mainly on four
grounds, which are averred in para 28 of the
writ petition as under:-

I. No prior permission in terms of
Chapter -III Regulation 101 was taken by
the Principal of the Institution before
initiating the selection proceedings which
culminated in the appointment of the
petitioners.

II. The selection committee did not
comprise of one nominee of the District
Magistrate and one nominee from the
reserved category.

III. Applications were to be
received from the candidates via registered
speed post but on the contrary in the
selection proceedings which culminated into
the appointment of the petitioners, the
applications were not received by registered
speed post and no further information has
been given so as to how the petitioners were
served with the appointment letters.

IV. In the selection process rather
than awarding quality points marks grading
system was adopted by the Appointing
Authority and further no waiting list was
prepared,
consequently
the
selection
proceedings were not carried out in
accordance with law.

10. The above writ petition was allowed by
learned Single Judge by the order impugned
dated 9.5.2022, which has been assailed in the
present intra Court appeal. Learned Single Judge
had considered the aforementioned four grounds
taken by the DIOS while rejecting the financial
approval and answered the aforesaid objections.
Learned Single Judge has answered the first
objection with following observation:-

 Regarding the first ground of lack of
permission before initiation of selection
proceedings of the petitioner as per Chapter III,
Regulation 101 of the Act of 1921, this Court
finds that in the earlier round of litigation before
this Court in Writ-A No. 20601 of 2018 decided
on 26.3.2019, this Court examined the issues
and found that mere non-obtaining of
permission from the District Inspector of
Schools in terms of Regulation 101 would not be
fatal. This Court directed the District Inspector
of Schools to pass a fresh order after affording
opportunity of hearing to the parties. District
Inspector
of
Schools
has
ignored
the
observations of this Court dated 26.3.2019.
District Inspector of Schools has simply
reiterated his earlier stand, which was turned
down by this Court in the earlier ground of
litigation. In the case of Mohd. Faizan and
others (supra) this Court has clearly held that
there is no specific provisions for applying
Regulation 101, Chapter III of the Intermediate
Education Act to the minority institution. Even
assuming that it is regulatory in nature, it does
not means prior approval as explained by the
Division Bench of this Court in the case of
Jagdish Singh vs. State of U.P. and others,
(2006) 2 UPLBEC 1851. Hence it is reiterated
that prior permission for conducting the
selection process of the petitioners in the
minority institution was not required in terms of
Regulation 101, Chapter III of the Intermediate
Education Act.

11. Learned Single Judge has also
answered the second objection with following
observations:-

 The second ground for rejecting
the claim of the petitioner is that one
nominee of the District Magistrate and one
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
433
nominee from reserved category concerned
was not included in the selection Committee.
In minority institution, there was no such
requirement as held by the Full Bench of this
Court in the case of Harpal Singh Vs. State
of U.P., reported in 2015 (3) ADJ Pg. 236.
Such procedure was applicable for non
minority institution. The constitutional
Bench of the Apex Court in the case of
T.M.A. Pal Foundation Vs. State of
Karnataka, reported in 2002 (8) SCC Pg.
481
and
another
constitution
Bench
Judgement in the case of P.A. Inamdar Vs.
State of Maharastra, reported in 2005 VolVI SCC Pg. 537 has laid down certain
guidelines with regard to the functioning of
a minority institution. A perusal of the
aforesaid pronouncement of the Hon'ble
Apex Court would indicate the fact that inter
alia it has explicitly been held that the State
Government is not empowered to interfere
with the functioning of the minority
institution in the matters relating to
appointment of teaching staff and also non
teaching staff.

The State Authority cannot under
the garb of adopting regulatory measure
destroy the administrative autonomy of a
minority educational institution or start
interfering with the administration and the
management of the institution so as to
render the right of administration of the
institution concerned nugatory or illusory.
The State Government cannot regulate the
method or procedure for appointment of
teachers
of
a
minority
educational
institution. Once the teacher possessing the
requisite qualification prescribed by the
State or the University has been selected by
the management of the minority education
institution by adopting the procedure of
selection, the State Government or the
University would have no right to vitiate the
selection of such teacher.

Even
the
U.P.
Secondary
Education Service Section Board Act, 1982
is also not applicable upon a minority
institution in terms of Section 30 of the said
Act.

In view of the aforementioned
examples it can be concluded that the the
Staff Rules of 1985 with regard to the
procedure for appointment of Class -III and
IV employees in a recognized intermediate
institution even though would apply on a
non-minority institution in terms of the Full
Bench pronouncement of this Court in the
case of Harpal Singh (supra) but would not
apply upon a minority institution which
enjoys certain privileges in terms of Articles
29 & 30 of the Constitution of India.

Even otherwise the position of law
is that as to whether any order or statutory
provision would apply in a particular set of
institution, there has to be a specific mention
in the Statute itself that it shall apply upon a
minority institution and that a provision ipso
facto shall not be deemed to apply upon a
minority institution in terms of Article 29
and 30 of the Constitution. Thus it can be
held that the District Inspector of Schools
has manifestly erred in returning a finding
that there was no nominee of the District
Magistrate from the reserved category in the
selection committee which proceeded to
appoint the petitioner on Class-III post in
the institution.

12. Learned Single Judge has
considered and answered third objection
with following observations:-

Coming to the third ground taken
in the impugned order in regard to receiving
of the application, it is held that the said
ground is hyper-technial and that no
prejudice was caused to any other
candidates who took part in the selection
proceedings due to the fact that the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
application of the petitioner was not
received
vide
registered
post.
Many
candidates
applied
pursuant
to
the
advertisement published in news paper and
after due consideration of merit by the duly
constituted selection committee, a decision
was taken to appoint the petitioner on Class
III post.

13. Learned Single Judge has
answered fourth objection with following
observations:-

 Regarding the fourth and final
ground, with regard to the fact whether
quality points were allotted in the selection
proceedings or not, it is appears that the
selection would not be vitiated on the face of
it as the job of the selection committee was
of consideration the merits of all the eligible
candidates and that no prejudice was
caused to any candidate in the way in which
the selection proceedings were carried out
by the selection committee.

SUBMISSIONS
OF
STATEAPPELLANTS

14. Shri Fuzail Ahmad Ansari,
learned counsel for State-respondentsappellants has vehemently urged that the
provisions of Regulation 101 and other
Regulations framed under the Act, 1921 are
for regulating appointments and conditions
of service and disciplinary proceeding
framed for non-teaching staff and are
applicable to all aided and recognised
institutions including minority institutions.
The institution in question is admittedly
aided and recognised minority institution.
He submits that the object of the Act, 1921
is to regulate and supervise the High School
and Intermediate institutions. Sub-section 4
of Section 9 of the Act, 1921 empowers the
State Government to pass appropriate orders
or to take adequate action consistent with the
provisions of the Act. He has also placed
reliance upon Section 16G of the Act, 1921,
which deals with the conditions of service of
the head of the institutions, teachers and
other employees. For ready reference,
Section 16G is reproduced as under:-

 "Section 16G- Conditions of
Service of Head of Institutions, teachers and
other employees (1) Every person employed
in a recognized institution shall be governed
by such conditions of service as may be
prescribed by regulations and any agreement
between
the
management
and
such
employee insofar as it is inconsistent with
the provisions of this Act or with the
regulations shall be void.
 (2) Without prejudice to the
generality of the powers conferred by subsection (1), regulations may provide for-
 (a) the period of probation, the
conditions
of
confirmation
and
the
procedure and conditions for promotion and
punishment
2[(including
suspension
pending or in contemplation of inquiry or
during the pendency of investigation,
inquiry or trial in any criminal case for an
offence involving moral turpitude)] and the
emoluments for the period of suspension
and termination of service with notice;

(b) the scales of pay and payment
of salaries;

(c) transfer of service from one
recognized institution to another;

(d) grant of leave and Provident
Fund and other benefits; and

(e) maintenance of record of work
and service."

15. He submits that Regulation 101
was inserted on 28.8.1992 and the same was
notified by the State Government on
30.7.1992, which provides, "Appointing
Authority except with prior approval of
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
435
Inspector shall not fill up any vacancy of
non-teaching post of any recognized aided
institution." The subsequent notification
was issued on 2.2.1995, which provides as
under:-

 "Appointing
Authority
except
with prior approval of Inspector shall not fill
up any vacancy of non-teaching post of any
recognized aided institution:

Provided that filling of the
vacancy on the post of Jamadar may be
granted by the Inspector."

16. He submits that later on there
was again an amendment in Regulation 101
made on 31.12.2009, which reads as under:-

 "The appointing authority shall
not fill any vacancy of the non- teaching
staff of recognised aided institutions, except
with the approval of Inspector, subject to a
restriction that District Inspector of Schools
shall make available total number of
vacancies
to
Director
of
Education
(Secondary Education), and showing the
number of students put forth justification for
the filling of the vacancies. On receipt of
order from the Director of Education
(Secondary
Education),
the
District
Inspector of Schools shall, for filling said
vacancies, give permission to the appointing
authority; and while giving such permission
he shall ensure to follow the reservation
rules specified by the government and the
prescribed norms in justification for the
posts.
 The aforesaid amendment in the
Regulation shall come into force immediate
effect."

17. Taking into consideration the
recommendations made by the Sixth Central
Pay Commission, Government Orders were
passed on 8.9.2010 and 6.1.2011 making it
applicable to all Government Departments
and aided schools, thus, deciding not to go
for fresh recruitment of Class-IV employees
and further directing that any arrangement
concerning the post to be vacated may be
made only through 'Outsourcing'. The
communications, in this regard, were sent to
all the stakeholders intimating them of the
decision taken. Following the said decision,
Regulation 101 was once again amended by
Government Order dated 4.9.2013, which
was accordingly notified on 24.4.2014. The
effect of the said amendment is to make the
post of Class-IV employees, which was
hitherto supposed to be filled up by the
institutions
through
'Outsourcing'.
Therefore, the permanent posts were
accordingly abolished, thereby, replacing
the method of appointment by way of
'Outsourcing'. An exception has been
carved out only for the dependents of those
employees
died
in
harness
during
employment. The amended Regulation 101
(as applicable on date) is reproduced
hereunder:-

AMENDED REGULATION:

"101. The appointing authority,
except for the prior approval of the
inspector, shall not fill any vacant post of
non-teaching staff (clerical cadre) in any
recognised, aided institution; with the
restriction that the District Inspector of
Schools shall make available the total
number of vacancies to the Director of
Education (Secondary Education) and
also put forth justification for filling of
the posts, showing the strength of the
students in the institution. On receipt of
the order from Director of Education
(Secondary
Education),
the
District
Inspector of Schools shall give permission
to the appointing authority for filling the
said vacancies (except the vacancies of
436 INDIAN LAW REPORTS ALLAHABAD SERIES
Class-IV posts) and while giving the
permission, he shall ensure compliance of
the reservation rules specified by the
government as also of the prescribed
norms in justification for the posts.

With respect to the Class-IV
vacancies, arrangements shall be made by
way of outsourcing only; but the relevant
rules, 1981, as amended from time to
time, for recruitment of dependants of
teaching or non-teaching staff of the
nongovernment aided institutions dying
in harness shall be applicable in relation
to the appointments to be made on the
vacant posts of Class-IV category."

18. Shri Fuzail Ahmad Ansari, learned
Standing Counsel invited attention of this
Court to the terms 'any recognised, aided
institution' used in Regulation 101. He
submits that the term 'recognition' has been
defined in Section 2 (d) of the Act. The term
'institution' has been defined in Section 2
(b) of the Act. He submits that there is no
exception carved out in the Regulation 101
regarding its non-applicability upon a
minority institution in as much as the term
used in Regulation 101 is 'any recognised,
aided institution'. And all the institutions
recognised and/ or aided will come under the
ambit of Regulation 101.

19. He further submitted that the
term 'minority institution' although used in
Section 16FF of the Act, has not been
defined anywhere in the Act. He, therefore,
submitted that the savings available to
minority institutions are referable to Article
30 (1) of the Constitution of India.

20. To elaborate his submissions, Shri
Ansari, learned Standing Counsel next
submitted that Article 30 (1) of the
Constitution of India only deals with right to
establish
and
administer
minority
institutions and in no way preclude them
from the regulatory measures undertaken by
the State Government to efficiently regulate
the abovesaid rights.

21. Learned Standing Counsel also
drawn our attention to the following
Regulations 102, 103 and 104 of the Chapter
III of the Act, which all contains the same
terminology i.e. 'दक ी मान्यता प्राप्त, हायता प्राप्त िंस्था'
i.e. 'any recognised, aided institution'. He
further drawn our attention to Regulation
110, which starts from 'अल्प िंख्यक िंस्थाओिं को
छोडकर' i.e. 'apart from the minority
institution'. Hence he submits that wherever
the applicability of the regulations are saved
upon the minority institution, it has been
expressly given in the Act. For example
Section 16FF and Regulation 110.

22. Shri Fuzail Ahmad Ansari,
learned
Standing
Counsel,
therefore,
submitted that once it is apparent from the
plain reading of Regulation 101 read with
Section 16FF and Regulation 110, there is
no scope of doubt that Regulation 101 does
apply upon the minority institutions and the
procedure given therein has to be strictly
adhered to without any classification or
distinction as to minority or non-minority
institutions.

23. Learned Standing Counsel has
vehemently submitted that in the instant
case there is no such material on record to
show that the alleged appointment was made
by the appointing authority after obtaining
prior approval from the DIOS. He submitted
that the amendment in Regulation 101 dated
24.4.2014 was held as unconstitutional by
the Division Bench of this Court in
Principal Abhay Nandan Inter College &
Ors. v. State of U.P. & Ors.6 vide order
dated 19.11.2018. The same was subjected
to challenge by the State Government before
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
437
Hon'ble the Apex Court in State of U.P. &
Ors. v. Principal Abhay Nandan Inter
College & Ors.7. Hon'ble the Apex Court
vide
judgment
dated
27.9.2021
had
approved the entire Regulation 101.

24. Shri Ansari, learned Standing
Counsel emphatically submitted that while
approving the amendment in Regulation
101, Hon'ble the Apex Court has held that
in case institution is aided, there is no need
for any sub-classification by separating
them
as
minority
and
non-minority
institutions and held that the Regulation is
sought to be enforced against all aided
institutions. Learned Standing Counsel has
placed reliance upon para 53 of the said
judgment, which is reproduced as under:-

 "53.The counsel appearing for the
respondents did place reliance upon few
decisions of this Court. Having gone
through the said decisions and in the light of
our discussion, we do not find any help
flowing from them, strengthening the
contentions raised by them. Reliance has
been made on the decision rendered by
this Court in Matankara Syrian Catholic
College vs. T. Jose, (2007) 1 SCC 386.
Having gone through the said judgment,
we do not find that the same has got any
application to the case at hand. The said
decision deals with the right of the minor
institutions to choose the Principal of its
choice. We have already held that we are
dealing
with
the
case
of
aided
institutions and, therefore, there is no
need for any sub-classification by
separating them as minority and nonminority institutions. The impugned
regulation is sought to be enforced
against all the aided institutions. It is
also to be noted that this decision was
taken into consideration by this Court in
S.K. Md. Rafique's case (supra)."
25. Learned Standing Counsel
submitted that the Regulation 101 of
Chapter-III of the Act, 1921, therefore,
applies with full force on minority
institutions as well. The framers have not
carved out any distinction or classification
between
minority
and
non-minority
institution under the Act, 1921.

26. He has also placed reliance
upon Section 16FF of the Act, 1921, which
for ready reference is quoted as under:-

 16-FF. Savings as to minority
institutions-

(1) Notwithstanding anything in
sub-section (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
administered by a minority referred to in
clause (I) 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
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
sub-section (1) shall be such as may be
prescribed.

(3) No person selected under this
section shall be appointed, unless -

(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
438 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
Director 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.

"16-चच- अल्पसंख्यक संस्थाओं के प्रति
अपवाद

(1) धारा 16-ङ की उपधारा (4) में और 16-च
में दक ी बात के होते ह ए भी, िंदवधान के अनुच्छेि 30 के खण्ड
(1) में दनदिवष्ट अल्प िंख्यक द्वारा स्थादपत और प्रशाद त िंस्था के
प्रधान या अध्यापक की दनयुदक्त के दलये चयन दमदत में प्रबन्ध दमदत
द्वारा नाम-दनदिवष्ट ( भापदत को दममदलत करते ह ये) पााँच िस्य
होंगेः

प्रदतबन्ध यह है दक चयन दमदत के िस्यों में े एक-

(क) िंस्था के प्रधान की दनयुदक्त के मामले में दनिेशक
द्वारा दवशेिज्ञों की तैयार की गई नादमका में े प्रबन्ध दमदत के द्वारा
चुना गया दवशेिज्ञ होगा;

(ख) अध्यापक की दनयुदक्त के मामले में मबद्ध िंस्था
का प्रधान होगा।

(2) उपधारा (1) में दनदिवष्ट चयन दमदत के द्वारा
अनु रणीय प्रदिया वह होगी जो दवदहत की जाय।

(3) इ धारा के अधीन चुने गये दक ी व्यदक्त को तब
तक दनयुक्त नहीं दकया जायगा, जब तक-

(क) िंस्था के प्रधान के मामले में मभागीय दशक्षा
उपदनिेशक ने दनयुदक्त के प्रस्ताव का अनुमोिन न कर दिया हो; और

(ख) अध्यापक के मामले में दनरीक्षक ने ऐ े प्रस्ताव
का अनुमोिन न कर दिया हो।

(4) मभागीय दशक्षा उप-दनिेशक या दनिेशक,
यथादस्थदत, इ धारा के अधीन चयन का अनुमोिन नहीं रोकेगा
जबदक चुना गया व्यदक्त दवदहत न्यूनतम अहवताओिं े युक्त और अन्यथा
पाि हो।

(5) जहााँ मभागीय दशक्षा उप-दनिेशक या दनरीक्षक,
यथादस्थदत, इ धारा के अधीन चुने गये अभ्यथी का अनुमोिन नहीं
करता है वहािं प्रबन्ध दमदत ऐ े अनुमोिन की प्रादप्त के दिनािंक े तीन
 प्ताह के भीतर िंस्था के प्रधान के मामले में दनिेशक को और
अध्यापक के मामले में मभागीय दशक्षा उप दनिेशक को अभ्यावेिन
कर कती है।

(6) उपधारा (5) के अधीन अभ्यावेिन पर दनिेशक
या मभागीय दशक्षा उपदनिेशक द्वारा पाररत आिेश अदन्तम होगा।"

27. He submitted that the framers
have consciously nowhere made any
distinction in the entire Act qua minority and
non-minority institutions but only provided
savings clause as to Minority Institution in
Section 16FF of the Act, 1921. He also
vehemently
submitted
that
various
regulatory provisions are contained in
Chapter-III of the Regulations safeguarding
the interest of teachers/ employees against
the arbitrary actions of the management. The
Regulation clearly demonstrates that there
are sufficient guidelines to the DIOS for
according or refusing to grant approval in
the matter of appointment. Even the
regulatory provision of termination is also
provided under Section 16 G (3) (a) of the
Act, which applies to the minority institution
as well.

28. Shri Ansari, learned Standing
Counsel, in support of his submissions, has
placed reliance upon paragraphs 5, 6 and 8
of the judgment in Udai Veer Singh & Anr.
v. District Inspector of Schools Deoria &
Anr.8, wherein the Court has held that the
5 All. State of U.P. & Ors. Vs. Manoj Kumar Jain & Anr.
439
regulatory provisions under Section 16G of
the Act and Chapter III of the Regulations,
Regulation 2 (1), 21, 31, 32, 33, 35, 36, 37,
39 (2), 40, 41, 44, 44-A, 45, 46, 47, 48, 49,
50, 51, 52, 68, 99, 100 and other regulation
applied by it, 101 and 102 would apply to
non-teaching staff of a minority institution.
The Court also held that as per Regulation
101 prior approval of the DIOS for
appointment of non-teaching staff in the
aided minority institution is mandatory.
Merely obtaining prior approval from DIOS
for making appointment does not infringe
the minority status of the institution.

29. He submits that nowhere the
framers have made any such provisions
under the Act or its Regulations to curtail the
liberty to appoint any suitable employee by
the management in the minority institution.
Even after appointment of non-teaching
staff (Class-III), papers have
to be
forwarded to the DIOS for according
financial approval, if the post is sanctioned
and the candidate possesses essential
qualifications and the appointment has been
made in accordance with law. He submitted
that in absence of any financial approval
accorded by DIOS, no salary can be
disbursed. It is not in doubt that the DIOS
does
not
control
the
selection
and
appointment made by appointing authority
or the management of a minority institution
and the management is absolutely free to
select and find out best suitable person and
appoint him in the institution but the
regulatory measures provided in Regulation
101 has to be followed.

30. He has also drawn our attention
to the alleged publication made in 'Amar
Ujala'
dated
10.12.2017.
For
ready
reference, the same is reproduced as under:-

" माचार पि "अमर उजाला"
दिनािंक 10.12.2017
श्री उिय द िंह जैन कन्या इिंटर कालेज
उिय द िंह जैन रोड, अलीगढ़।
आवश्यकता है।
 हायक दलदपक पुरुि (कम्यूटर एविं पिाचार में िक्ष) पि 01 योग्यता
व वेतनमान उ०प्र० शा न द्वारा दनधावररत तथा उ०प्र० माध्यदमक दशक्षा
पररिि दशक्षा अदधदनयम-1921 में वदणवत दनयमों के अनु ार
अहवताधारी अभ्यथी स्वदलदखत, आवेिन पि एविं वेतनमान रिंगीन
पा पोटव ाइज फोटोग्राफ व बैंक शुल्क रुपये िो ौ (बैंक ड्राफ्ट)
आवेिन पि प्रबिंधक पि के नाम उपरोक्त पते पर दवज्ञापन दतदथ े 20
दिन दिनािंक 29.12.2007 तक के अिंिर भेजें। आवेिन पि पिंजीकृत
डाक द्वारा ही स्वीकार दकया जायेगा।

प्रबिंधक
श्री उिय द िंह जैन कन्या इिंटर कालेज
उिय द िंह जैन रोड, अलीगढ़।"

31. Reliance has also been placed
on the alleged appointment letter dated
22.1.2018, which for ready reference, is
reproduced as under:-

"श्री उियद िंह जैन कन्या इण्टर कादलज
उिय द िंह जैन रोड, अलीगढ़-202001
दिनािंक 22.01.2018
पिािंक-360-64/2017-18
 ेवा में,
श्री मनोज कुमार जैन
पुि श्री दवनोि कुमार जैन
दन० बाजार .... (आदशयन)
जले र, (एटा)
संदर्भः सहायक तितपक पद पर तियुति।
आपको हिव ूदचत दकया जाता है दक चयन दमदत
द्वारा आपका चयन हायक दलदपक के पि पर गया है। िंस्था की
प्रबिंध दमदत ने अपना िंकल्प िंख्या-02 दिनािंक 19.01.2018
द्वारा आपको 24,500/- रुपये के मानिम में 5200-20200
रुपये के प्रारिंदभक वेतन तथा दनयमावली के अधीन तथा अनुमन्य
महिंगाई भत्ते पर एक विव की पररवीक्षा पर ......