Comtt.of Management,Daulat Husain Muslim Indian Inter College,Alld. and Ors. vs Joint Director of Education JVJtegion,Alld.& Ors.

M. Quddusi, J.—Heard the learned Counsel for the petitioner institution, Sri S.M.A Kazmi and the learned standing Counsel at quite length.

By means of this petition the petitioner namely Committee of Manage , ment, Daulat Husain Muslim Indian Intei College, Allahabad and its Manager have prayed for a writ in the nature ofcertiorari quashing the impugned orders dated 16998, 71098 and 281298 passed by the District Inspector of Schools and Joint Director of Education respectively be issued to the respondents.

Further, for a writ in the nature of mandamus commanding the respondents be issued to make the payment of salary to the newly appointed four teachers to be fully approved teachers in LT Grade,in the institution in question.

The institution in question namely Daulat Husain Muslim Indian Inter College, Allahabad is recognised minority institution under Article 30 of the Constitution and the same is on the grantinlist of theState Government upto High School level. There are Inter College also in the institution, but they are not on grantinaid list. It is averred in the writ petition that two teachers namely Mohammad Yusuf Isfahani, LT Grade Teacher, who was teaching English subject and Mohd. Nazir Ahmad, LT Grade Teacher, who was teaching Hindi subject, on retirement. On attaining the age of superannuation on 30693, another teacher of LT Grade namely Sahtiquzzaman, who was working in LT Grade teacher and was teaching Geography subject was selected on the post of Principal of the Institution and as such he resigned from the post of Assistant Teacher and joined as Principal.

Another post of Assistant Teacher in the LT Grade in Arts subject also fell vacant on account of retirement of Sri Shiv Lai Singh. Other 3 LT grade teachers were retired and one LT grade teacher had resigned and hence 4 posts in LT grade fell vacant. All these 4 LT grade teacher had resigned and hence 4 posts in LT grade fell vacant. All these 4 persons were getting their salary through the said fund under the Payment of Salaries Act. Out of four vacancies the Committee of Management took up three vacancies and made appointment of three persons in LT grade and sent the same for approval of the District Inspector of Schools. The District Inspector of Schools withheld the approval and the persons, who were appointed had got employment elsewhere in the meantime and as such they did not join. Thereafter the Management of the Institution got vacancies published again as the students were suffering due to shortage of teachers. Thereafter the selection was held and the Selection Committee recommended the name of Mohd. Ashfaque Khan, Mohd. Iqbal Khan and Faneendra Kumar Rai for the post of Hindi and the name of Mohd. Ali AusaC, Khushbunnisa and Hari Prasad Sharma for the post of English and the name of Tasnim Ahmad Khan, Sarwar Khan and Naveduddin Siddiqui Tor the post of Geography and Mohd. Shahnawaz Khan, Qadir Khan and Pappu Kumar Gupta were recommended for the post of Arts subject.

On the basis of the recommendations of the Selection Committee the Committee of Management made appointment of Mohd. Ashfaque Khan for Hindi, Mohd. Ali Yusuf for English Mohd. Tasnim Khan for Geography and Mohd. Shahnawaz Khan for Arts subject. Subsequently the persons joined their respective posts of L.T Grade teacher. Then the Committee of Management submitted papers for grant of financial approval to the appointments of these teachers before the District Inspector of Schools. The District Inspector of Schools rejected the approval vide letter dated 16998 and 71098 on the ground that the services of earlier appointed persons namely Mujibul Hasan Khan, Javed Rashid Gauri and Mushtaq Ahmad were terminated without prior approval of the District Inspector of Schools and the advertisement in two Newspapers was not in accordance with the decision of the Full Bench in the case of Radha Raizada v. Committee of Management, reported in 1994 (3) UPLBEC1551. Thirdly the copies of the receipts of the registered post for issuing interview letters were not supplied and the subjects History, Civics, Geography and Economics were abolished in High School Standard. Further in the order dated 71098 it was indicated that the candidate did not possess requisite qualifications for teaching Arts subject.

Thereafter the services of Mohd. Ashfaque Khan were terminated and the appointment letter was issued to Faneendra Kumar Rai, who was also recommended by the Selection Committee, who joined his post in the Institution on 26998 and then an appeal was filed, but the same was rejected vide order dated 281298.

The District Inspector of Schools has filed a counter affidavit in which it has been stated that norms fixed in the case of Radha Raizada \\. Committee of Management (supra), haye not been followed while making advertisement. It is also stated that no prior approval was obtained before terminating the services of the teachers, who were selected earlier and also that only 12 teachers and one Principal could have been posted as there were only 13 sanctioned posts in all and earlier the excess teachers, who were being paid salary were to be accommodated elsewhere according to Government order, but teachers were retired, However, in place of retired teachers no new appointment was liable to the made.

First of all the matter of consideration in that Maxim of Radha Raizada v. Committee of Management (supra), is applicable to the minority institution or not. In this regard the provision of Section 30 of U.P. Secondary Education Service Commission Act, 1982 is liable to be produced, which is quoted as under:

"Section 30Exemption lo minority InstitutionNothing in this Act shall apply to an institution established and administered by a minority referred to iri Clause (1) of Article 30of the Constitution of India."

In view of this, the case law laid down in Radha Raizada case would not be applicable to the institution in question as the same is minority institution.

With regard to the approval of the termination of the teachers, who did not join and got appointment elsewhere is concerned, this CoUrt thinks that since the order of termination was made before joining of the teachers in fact the same was cancellation of appointment and hence it cannot be termed as termination. Termination of service operates only after the joining and not before the joining. Hence there was no need to get the approval of the District Inspector of Schools in cancelling of appointment or terminating of service before joining of the incumbent on the post.

The last question is that whether the appointment could have been made in place of the persons, who had retired and were already in excess. Accordingly the District Inspector of Schools permissibility was only upto 13 teachers including the Head Master. There was only 16 teachers including the Head Master working earlier only 4 teachers had either retired or resigned. Thus, only one person could have been appointed as LT grade teacher as 12 teachers including the Head Master had left.

Considering the facts and circumstances of the case, the writ petition is liable to be disposed of with the direction to the District Inspector of Schools to reconsider the matter and take a decision as to how many teachers were infact working at the time of the approval on the appointment of new teachers was sought and how many could be appointed and in each subject. He will pass a reasoned order within a period of one month from the date of production of a certified copy of this order and in case it is found that one or more than one teacher could be appointed then he will accord approval accordingly. But in case it is found thai the teachers appointed by the institution were in excess of the strength already sanctioned, the District Inspector of Schools would make a finding in this regard and pass a reasoned order accordingly and in case it is found that approval on the appointment one person or more than one person is liable to be granted.

In the light of the observation made above, the orders passed earlier by the District Inspector of Schools and the Joint Director of Education shall stand superseded.

The writ petition is disposed of accordingly,