# State of U.P v. Manager C/M Islamia Inter College & Ors

- **Citation:** (2022) 3 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-16
- **Case number:** Special Appeal Defective No. 185 of 2020
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-manager-c-m-islamia-inter-college-ors-48236
- **Pages:** 6

## Headnote

Civil Law - Constitution of India,1950 -
Article
226,
30(1)
-
Intermediate
Education Act, 1921 - Sections 16-F F, 16FF (3) (b) & 16-FF (4) - Committee of
Management of a minority Institution - issued
an
advertisement
inviting
applications
for
making appointments on post of Assistant
Teacher in four subject Mathematics, General,
Hindi and Art - Respondent no. 2 & 3 whom are
graduate in History and Political Science and
with Mathematics as a subject respectively -
both of them applied - & get selected finally
amongst the candidates for the post of Assistant
Teacher (General) and (Math) respectively in
interview held - C/M published a merit list &
sent for approval before DIOS - being receiving
complaints toward said selection, DIOS refused
758 INDIAN LAW REPORTS ALLAHABAD SERIES
to approved the said result with direction to
conduct the interviews afresh in supervision of
an observer - respondent nos. 2 & 3 filed Writ
Petition - Allowed -holding no provision in the
Act, to hold afresh interviews by DIOS - two
special Appeals - settled law that validity of any
order has to be judged on the basis of reasons
mentioned in the order itself and reasons to
support an order cannot be afterwards - no
interference warrants .(Para - 18, 21, 22)

Both Special Appeals dismissed. (E-11)

List of Cases cited: -

## Text

3 All. State of U.P. Vs. Manager C/M Islamia Inter College & Ors.
757
marks of the respondent-petitioner in her
high school examination is 89.3% and it is
this percentage which was taken into
account by the appellants-State authorities
while reckoning the quality point marks. In
such a situation it cannot be said by any
stretch of imagination that by mistakenly
indicating the High School marks in her online application form the respondentpetitioner put herself in any advantaged
position so as to make her candidature
liable for cancellation.

28. We have already observed that the
Government Orders dated 05.03.2021 and
04.12.2020 as also the guidelines contained
in the Government Order dated 01.12.2018
are to be given effect to. However, any
mindless application of the provisions
contained in the said Government Orders
has the potential of denying rightful claim
of a deserving candidate who not only
qualified in the written examination but
also was ultimately selected in the final
select list. The validity of the Government
Order dated 05.03.2021 has already been
upheld by this Court in the case of Jyoti
Yadav and another (supra) but so far as
its application is concerned, Hon'ble
Supreme Court in the case of Rahul
Kumar (supra) has made it absolute clear
that the candidature of a candidate is liable
to be cancelled only in case such a
candidate
puts
himself/herself
in
an
advantaged position by committing some
mistake while submitting the on-line
application form.

29. In the light of the discussions
made and for the reasons given above, this
Court finds itself in agreement with the
conclusion drawn by the learned Single
Judge and hence any interference in the
judgement and order under appeal herein
will be unwarranted.

30. The Special Appeal, thus, lacks
merit which is hereby dismissed.

31. However, there will be no order as
to costs.
----------
(2022)03ILR A757
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 185 of 2020
with
Special Appeal No. 340 of 2019

State of U.P. ...Appellant
Versus
Manager C/M Islamia Inter College & Ors.
 ...Respondent

Counsel for the Appellant:
C.S.C.

Counsel for the Respondent:
Dwijendra Mishra, Mohammad Danish,
Mohd. Mansoor

Civil Law - Constitution of India,1950 -
Article
226,
30(1)
-
Intermediate
Education Act, 1921 - Sections 16-F F, 16FF (3) (b) & 16-FF (4) - Committee of
Management of a minority Institution - issued
an
advertisement
inviting
applications
for
making appointments on post of Assistant
Teacher in four subject Mathematics, General,
Hindi and Art - Respondent no. 2 & 3 whom are
graduate in History and Political Science and
with Mathematics as a subject respectively -
both of them applied - & get selected finally
amongst the candidates for the post of Assistant
Teacher (General) and (Math) respectively in
interview held - C/M published a merit list &
sent for approval before DIOS - being receiving
complaints toward said selection, DIOS refused
758 INDIAN LAW REPORTS ALLAHABAD SERIES
to approved the said result with direction to
conduct the interviews afresh in supervision of
an observer - respondent nos. 2 & 3 filed Writ
Petition - Allowed -holding no provision in the
Act, to hold afresh interviews by DIOS - two
special Appeals - settled law that validity of any
order has to be judged on the basis of reasons
mentioned in the order itself and reasons to
support an order cannot be afterwards - no
interference warrants .(Para - 18, 21, 22)

Both Special Appeals dismissed. (E-11)

List of Cases cited: -

1. Writ Petition No. 4972/2009 (Mueez Ahmad &
anr.Vs St. of UP & Another) decided on Dated.
28.05.2019.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Since both the aforesaid appeals
have been filed challenging the order
dated 28.05.2019 passed by the Hon'ble
Single Judge allowing Writ Petition
No.4972 (S/S) of 2009 (Mueez Ahmad
and another vs. State of U.P. and
another), they have been heard together
and are being decided by a common
judgment and order, which is being
passed in Special Appeal Defective No.
185 of 2020, treating it as the leading
case.

2. Briefly stated, facts of the case
are that Islamia Inter College, Lakhimpur
Kheri
is
a
minority
educational
institution. On 14.01.2009, the Appellant
- Committee Of Management Islamia
Inter College, Lakhimpur Kheri, had
issued
an
advertisement
inviting
applications for making appointments on
the post of Assistant Teacher in four
subjects i.e. Mathematics, General, Hindi
and Art. The respondent no.2 - Mueez
Ahmad was a graduate in History and
Political Science and the respondent no.3
- Mohd. Suhaib Hasan is a graduate with
Mathematics as a subject and they were
eligible for applying for the posts
advertised. Both of them applied in
response to the aforesaid advertisement.
Several candidates participated in the
interview held on 28.07.2009 including
the respondents no. 2 and 3 and
afterwards the Appellant published a
merit list of the candidates, in which the
respondent no. 2 was shown at serial no.
1 amongst the candidates for the post of
Assistant Teacher (General) and the
respondent no. 3 was shown at serial no.
1 amongst the candidates for the post of
Assistant Teacher (Maths).

3. The list of selected candidates
was sent to the District Inspector of
Schools
(hereinafter
referred
to
as
"D.I.O.S.")
for
his
approval
under
Section
16-FF
of
the
Intermediate
Education Act, 1921 (hereinafter referred
to as "the Act of 1921").

4. On 07.08.2009, the D.I.O.S.
wrote a letter to the Appellant returning
the files relating to selection proceedings
directing the Appellant to conduct the
interviews afresh in supervision of an
Observer appointed by the D.I.O.S.

5. The respondents no. 2 and 3 filed
Writ Petition No.4972 (S/S) of 2009
challenging the aforesaid order dated
07.08.2009 passed by the D.I.O.S.
mainly on the ground that there is no
provision in the Act of 1921 or any other
law to hold the selection/interview under
supervision of any Observer and that the
D.I.O.S. had no power to pass an order
for
holding
interviews
afresh
in
supervision of an Observer appointed by
him.
3 All. State of U.P. Vs. Manager C/M Islamia Inter College & Ors.
759

6. The D.I.O.S., Lakhimpur Kheri
filed a counter affidavit in reply to the Writ
Petition, stating that the Institution in
question, namely, Islamia Inter College,
Lakhimpur Kheri is a minority institution
and is recognized and aided up to the level
of High School and recognized and unaided
at the Intermediate level. Salary of the
teaching staff of the institution up to the
level of High School is paid from the State
exchequer. Four posts of Assistant Teachers
in LT grade were lying vacant in the
institution. The Manager of the institution
sought
permission
to
issue
an
advertisement to fill up the vacancies and
the D.I.O.S. granted the permission vide
order dated 12.01.2009. Thereafter the
Committee of Management held interviews
on 28.07.2009, selected three candidates
and sent the requisite papers to the D.I.O.S.
for approval of their appointment vide
letter dated 29.07.2009. Thereafter, various
complaints were received in the office of
the D.I.O.S. alleging various irregularities
and illegalities in the selection process and
certain newspapers published reports to this
effect. Keeping in view the seriousness of
the complaints, the file was returned to the
institution for holding interviews afresh in
supervision of an Observer appointed by
the D.I.O.S.

7. A counter affidavit was filed on
behalf of the private respondents no.4 and 5
stating that the selection process adopted
by the Committee of Management was not
in accordance with the provisions of the
regulations framed under the Act of 1921
and in the event of any illegality committed
during the selection, the D.I.O.S. has a
power to withhold the approval to the said
illegal selections.

8. By means of the judgment and
order dated 28.05.2019, Hon'ble Single
Judge of this Court has allowed the Writ
Petition holding that the process of
selection and grant of approval would be
governed by Section 16-FF of the Act of
1921 and there is no provision in the Act
for returning the select list with a direction
to hold interviews afresh in supervision of
an Observer appointed by the D.I.O.S. The
order dated 07.08.2009 has been passed
without holding an enquiry into the
complaints of the alleged bungling and
without giving an opportunity of hearing, in
an ex parte and arbitrary manner, without
recording any reason with regard to any
bungling alleged to have taken place.
Therefore, the order dated 07.08.2009 was
found to be unsustainable.

9. The Hon'ble Single Judge also took
note of the fact that vide order dated
19.02.2010, the Director had approved
selection of Sri. Moddassir Khan who was
selected along with the respondents no. 2
and 3 in the selections held in the year
2009. The order dated 19.02.2010 indicates
that the Director accorded approval to the
entire select list and not merely to the
appointment of Sri. Moddassir Khan. The
selections
having
taken
place
in
a
combined
manner,
the
doctrine
of
severability would be inapplicable in such a
case and it can be said that the entire
selections held in the year 2009 had been
approved by the Director. The Hon'ble
Single Judge rejected the contention of the
Committee
of
Management
that
the
selections were not held in accordance with
Regulation-20 and Section 16-FF (3) (b) of
the Act of 1921.

10. On the aforesaid reasoning, the
Hon'ble Single Judge allowed the Writ
Petition and quashed the order dated
07.08.2009 passed by the D.I.O.S. directing
to hold interviews afresh in supervision of
760 INDIAN LAW REPORTS ALLAHABAD SERIES
an Observer appointed by him and the
opposite parties were directed to consider
the petitioners (the respondent nos. 2 and 3
in the Special Appeal) as regularly selected
Assistant Teachers for the subject of
Mathematics and General in the institution
in question, with consequential service
benefits. The Committee of Management of
the Institution has challenged the aforesaid
order through Special Appeal No. 340 of
2019 and the State of U.P. has also
challenged the aforesaid order by filing
Special Appeal No. 185 of 2020.

11. We have heard the submissions of
Sri Dwijendra Mishra, the learned counsel
for the Appellant in Special Appeal No. 340
of 2019, Sri Anil Kumar Singh Vishen, the
learned Standing Counsel appearing for the
Appellant-State of U.P. in Special Appeal
No. 185 of 2020 and Sri. Mohd. Mansoor,
Advocate
appearing
for
the
private
respondents.

12. The undisputed facts which
appear from the records, are that on
19.11.2008, the Committee of Management
of the Institution had sent a letter to the
D.I.O.S. seeking permission for issuing an
advertisement for making selectionsfor
appointments on four vacant posts of
Assistant Teachers in the institution. By
means of a letter dated 12.01.2009, the
D.I.O.S. Lakhimpur Kheri called for a
report regarding existence of the vacancies
from the Assistant Accounts Officer and
after examining the report submitted by
him, the D.I.O.S. granted permission for
issuing an advertisement for making
appointments to the aforesaid four posts of
Assistant Teachers.

13. In furtherance of the aforesaid
permission granted by the D.I.O.S., the
Committee of Management held interviews
of candidates on 28.07.2009, in which
various candidates appeared. In the subject
Mathematics, the respondent no. 2 was
placed at serial no. 1 of the merit list prepared
after interviews and in subject General, the
respondent no. 3 was placed at serial no. 1 of
the merit list. Thereafter, the Committee of
Management sent the requisite papers to the
D.I.O.S. for approval of their appointment
vide letter dated 29.07.2009.

14. Selection to the posts of Assistant
Teachers in minority instituions/colleges
are governed by Section 16-FF of the Act
of 1921, which provides as follows:

"16FF. 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 (1) of Article 30 of the Constitution
shall consist of five members (including its
Chairman) nominated by the Committee of
Management : Provided 'hat 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
3 All. State of U.P. Vs. Manager C/M Islamia Inter College & Ors.
761
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
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
sub-section (5) shall be final."

15. A perusal of Sub-section (4) of
Section 16-FF of the Act of 1921 indicates
that the Inspector is prohibited from
withholding approval of selection made
under Section 16-FF where the persons
selected possess the minimum qualification
prescribed and are otherwise eligible. Thus
the only ground on which the Inspector
could withheld the approval for the
selection, is that the person selected does
not possess the minimum qualification
prescribed or is otherwise ineligible.

16. Both the respondents no. 2 and 3
had categorically pleaded in the Writ
Petition that they possess the requisite
qualification and they are otherwise also
eligible for appointment on the posts in
question and this fact has not been disputed
by any party. In view of this factual
backdrop and the statutory provision
contained
in
Section
16-FF(4),
the
Inspector
is
clearly
forbidden
from
withholding approval of their selections.
The Hon'ble Single Judge has rightly
recorded a finding that there is no provision
for passing a direction to hold interviews
again in supervision of an Observer
appointed by him. The aforesaid order
dated 07.08.2009 has been passed on the
basis of some allegations of bungling in the
selection process but neither any enquiry
was conducted in the said allegations of
bungling nor was any categorical finding
recorded by the D.I.O.S. that any bungling
had actually taken place in the selection
process. Any selection held in accordance
with law cannot be interfered with on mere
allegations of bungling in absence of any
proof.

17. The learned counsel for the
appellant has pressed another ground of
challenge to the judgment of the Hon'ble
Single Judge, that the posts in question
were lying vacant since long and as per the
provision contained in Regulation 20 in
Chapter-II of the Regulations under the Act
of 1921, that the post shall be deemed to
have been surrendered and it could not be
filled up unless its creation was sanctioned
by the Director.

18. The D.I.O.S. had passed the order
dated 07.08.2009 returning the files of selection
files of selection of candidates on the ground
that he had received complaints regarding
irregularities committed in the selection process
and newspapers have published news against
the selection process due to which the
candidates are dissatisfied. The D.I.O.S. has not
passed the order dated 07.08.2009 on the
762 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that the posts in question were lying
vacant since long and had to be deemed to have
been surrendered under Regulation-20 in
Chapter-II of the Regulations under the Act of
1921. It is well settled law that the validity of
any order has to be judged on the basis of the
reasons mentioned in the order itself and
reasons to support an order cannot be
afterwards. As the order dated 07.08.2009 does
not make any mention of the posts in question
not being available to be filled up as per the
provision contained in Regulation-20 in
Chapter-II of Regulations under the Act of
1921, the aforesaid provision cannot be pressed
into service for validity of the order dated
07.08.2009.

19. The Hon'ble Single Judge has dealt
with this ground and has held that an
unsuccessful candidate Mohd. Nazeem Khan
had given a representation to the Director and in
the order dated 19.02.2010 passed on the
representation of Sri. Nazeem Khan, the
Director has recorded his satisfaction that the
selections were held by a duly constituted
selection committee after due approval of the
competent authority, and he accorded approval
to the selection of Sri. Nazeem Khan.

20. Along with the counter affidavit filed
by the D.I.O.S. Copy of a letter dated
12.01.2009 issued by the D.I.O.S. has been
annexed which states that he had got an enquiry
conducted by the Assistants Accounts Officer
regarding the existence of the aforesaid vacant
posts and after obtaining a report from him
regarding
availability
of
vacant
posts,
permission was granted to publish an
advertisement for conducting selection for
appointment to the aforesaid posts. Therefore,
from the record produced by the D.I.O.S.
himself, it appears that he had recorded
satisfaction about existence of the vacant post
after getting an enquiry conducted in this
regard. Morever, the order dated 19.02.2010
passed by the Director puts a seal of approval
upon the entire selection process.

21. In these circumstances, refusal of the
D.I.O.S. to accord approval to the selection of
respondent nos. 2 and 3 namely, Sri. Mueez
Ahmad and Sri. Mohd. Suhaib Hasan who
were also selected in the same selection process,
is apparently arbitrary and unreasonable.

22. We find that the judgment and order
dated 28.05.2019 passed by the Hon'ble Single
Judge is based on an appropriate appreciation of
facts of case as well as the law applicable to it
and there is no error or illegality in it so as to
warrant any interference with the same in this
intra-Court Appeal.

23. Both the appeals bearing Special
Appeal No. 185 of 2020 and Special Appeal
No. 340 of 2019 challenging the aforesaid
judgment and order dated 28.05.2019 passed by
the Hon'ble Single Judge in Writ Petition No.
4972 (S/S) of 2009 (Mueez Ahmad and another
vs. State of U.P. and another), lack merit and
are. accordingly, dismissed.

24. No order as to costs.
----------
(2022)03ILR A762
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal Defective No. 23 of 2019
(In Writ Petition No. 1966 (Writ-A) of 2017)

State of U.P. & Ors. ...Appellants
Versus
Harikesh Singh ...Respondent

Counsel for the Appellants: