Siftey Hasan vs State of U.P. and Others

Heard Shri N.A. Khan, learned Counsel for the appellant, learned Standing Counsel for respondents 1 and 2, Shri S.C. Dwivedi for respondent No. 3, and Shri Irshad Ali for respondent No. 4 Management.

The appellant claims to have been appointed as a Teacher in L.T. Grade on ad hoc basis in the institution, namely, Muslim Inter College, Thakurdwara, Moradabad. (hereinafter referred to as the ''institution''). His appointment was processed and the papers were forwarded to the District Inspectors of Schools, Moradabad for approval, who refused to grant approval vide order dated 03.03.1993 on the ground that since the academic session of the institution was coming to an end, therefore, the approval was being declined.

Assailing the aforesaid order, the appellant filed a writ petition, which has given rise to the present special appeal.

Counter affidavits on behalf of the State as also the Management were filed contesting the allegations contained in the writ petition with regard to the minority status of the institution. The writ petition was filed in the year 1993. Subsequent thereto, it appears that the institution was acknowledged as a minority institution under the orders of the State Government dated 12th September, 1995.

Learned Counsel for the Committee of Management of the institution has admitted this position that the aforesaid fact was stated in the counter affidavit filed on behalf of the Management and, therefore, the question as to whether the institution was a minority institution or not, should not have arisen and the claim of the appellant ought to have been considered treating the institution to be a minority institution. He, however, opposes the claim of the appellant on the ground that his appointment has not been made in accordance with the Regulations framed under the U.P. Intermediate Education Act, 1921, which provides for appointment of teachers in a minority institution.

Learned Counsel for the appellant submits that the learned Single Judge, in view of the averments made in paragraph 2 of the writ petition, proceeded on the assumption that the institution was not a minority institution in spite of the fact that the document pertaining to declaration and acknowledgment of the institution as a minority institution was very much on record. Learned Counsel, therefore, submits that this averment in the writ petition has resulted in passing of the impugned order on an erroneous assumption.

We have considered the submissions of the learned Counsel for the parties and have gone through the pleadings.

From the records, it is apparent that by order dated 12th September, 1995, the institution was acknowledged as a minority institution. The learned Single Judge has proceeded on the basis of the contents of paragraph 2 of the writ petition to conclude that the appellant himself has admitted that the institution is not a minority institution.

The question as to whether the institution was a minority institution or not, in our opinion, ought to have been considered on the strength of the pleadings and documents on record including the order dated 12th September,1995 of the State Government and this having not been done, the impugned judgment of the learned Single Judge dated 7th October, 2010 cannot be sustained. Even otherwise, the averment in para 1 of the petition states that it is a minority institution and in para 2 the petitioner-appellant has stated that the department has not recognised the institution as a minority institution. But then, as noted above, the department had subsequently acknowledged the same which appears to have escaped the notice of the learned Judge.

The averment of the learned Counsel for the respondent management that when the appointment of the appellant is alleged to have been made, there was no such declaration of the minority status which aspect has also not been discussed by the learned Single Judge.

We, accordingly, set aside the impugned judgment dated 7th October, 2010 and remit the matter back to the learned Single Judge for decision afresh in the light of the observations made herein above, as expeditiously as possible.