Allowed

smt. shaheda bano v. State of U.P. and 5 others

Allahabad HC23 Apr 2018SPLA/265/2018

Case brief

AI extract

What is this about?

Special appeal regarding the disapproval of teacher appointments. High Court directed Special Bench to modify Director of Education's order due to failure to examine specific procedural defects in the Selection Committee constitution as per earlier directions under Section 16FF.

What did the court decide?

Order dated 25 July 2011 of the Director of Education modified; he directed to take fresh decision within three months.

smt. shaheda bano Vs State of U.P. and 5… — Public Procurement and Tenders | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL No. - 265 of 2018

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Appellant :- Smt. Shaheda Bano Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Rahul Jain Counsel for Respondent :- C.S.C.,Santosh Kumar Singh Paliwal

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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The dismissal of the writ petition filed by Smt. Shaheda Bano (Appellant) and Smt. Imtiaz Fatima (Proforma- Respondent No. 2) has led to the filing of this Special Appeal. The writ petition had been filed for quashing the order dated 25 July 2011 passed by Director of Education disapproving the appointments of Smt. Shaheda Bano and Smt. Imtiaz Fatima. This decision was taken pursuant to the directions issued by the Court on 3 March 2011 in Writ Petition No. 39888 of 2006 earlier filed by the two teachers.

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The Regional Level Committee by order dated 10 March 2006 had disapproved the two appointments and it is against this order that the earlier writ petition was filed by the two teachers. It would be useful to reproduce the judgment and order dated 3 March 2011, and it is as follows;

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“The present writ petition has been filed challenging the order dated 10.03.2006 passed by Regional Level Committee as also the order dated 17.03.2006 passed by District Inspector of Schools, Azamgarh declining approval to petitioners' appointment on the post of Teacher in Madarsa Niswan Inter College, Paharpur, Azamgarh on the ground that above selection was held illegally.

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In the counter affidavit filed by official respondents they have placed on record certain documents said to have been signed by one of the member of selection committee, namely, Hazi Barkat

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Ullah stating that entire selection claim to have been made by Manager of the College are forged and fictitious.

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In the rejoinder affidavit, the affidavit dated 02.09.2006 said to have been signed by Hazi Barkat Ullah has been filed stating that he was a member in the selection committee and actually participated therein and has never sent any letter signed by him stating that said proceedings are illegal.

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The matter involves seriously disputed questions of fact, as to whether selection committee held any selection on 13.10.2003, whether one of the member was present therein and whether a three members selection committee was a validly constituted selection committee when it ought to have five members.

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In the fitness of things I am of the view that this matter may be enquired into by Director, Secondary Education who may look into various evidence and also examine the individual concerned, if necessary and may give his findings on these factual aspects.

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In the circumstances, I dispose of this writ petition permitting the petitioners to approach the Director, Secondary Education by making representation for ventilation of their grievance and in case such a representation is made by petitioners within two weeks from today, Director, Secondary Education shall look into the matter and after giving due opportunity of hearing to all concerned parties shall pass a reasoned order within two months from the date of receipt of representation alongwith a certified copy of this order. The orders impugned in this writ petition shall be subject to order passed by Director, Secondary Education, as directed above.”

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The Director, Secondary Education by order dated 25 July 2011 disapproved the appointments of the two teachers and while doing so has noticed that the advertisement was issued in the news-papers prior to the grant of approval for making the appointments by the DIOS, Azamgarh and that the Selection Committee was not constituted in accordance with the provisions of Section 16FF of the U.P. Intermediate Education Act 1921¹ . The order also noticed that a time barred Committee of Management had made the appointments.

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1 the Act

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Learned counsel for the appellant has submitted that the directions issued by the learned Judge on 3 March 2011 have not been complied with by the Director of Education inasmuch as the Director of Education was required to examine whether the Selection Committee had held any selection on 3 October 2003 and whether one member out of the three members participating in the Selection Committee had actually participated.

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The constitution of the Selection Committee is provided for in Section 16FF of the Act and the same is as follows;

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“16FF. Minority 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 :

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

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(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;

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(b) in the case of appointment of a teacher, be the Head of the Institution concerned.

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(2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed.

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

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(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

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(b) in the case of a teacher such proposal has been approved by the Inspector.

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(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.

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(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.

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(6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final.”

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Sub-section (2) of Section 16FF provides that the procedure that has to

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be followed by the Selection Committee shall be such as may be prescribed. Sub-section (3) provides that no person selected under this section shall be appointed, unless such proposal of appointment has been approved by the Inspector. Sub-section (4) provides that 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.

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The dispute that had arisen was whether three members had participated in the Selection Committee or only two members had participated. It was this issue that was required to be examined by the Director of Education but a perusal of the impugned order indicates that this has not been examined.

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This apart, what is important to note is that when the Selection Committee is to consist of five persons then it is necessary that notices should be issued to all the five persons for the meeting of the Selection Committee. There is nothing on the record to indicate that notices had been issued to all the five members of the Selection Committee.

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Sri Ashok Khare, learned Senior Counsel appearing for Secretary of the Society has submitted that the Director of Education was also required to examine certain other issues dealing with the procedure for making the selection and was not bound by the limitations prescribed under sub-section (4) of Section 16FF of the Act.

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We do not propose to make any comment on this aspect because it is for the Director of Education to take a decision.

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The decision earlier taken by the Director of Education does not deal with the issues required to be decided in the impugned order dated 3 March 2011.

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We, accordingly, modify the order dated 25 July 2011 and direct the Director of Education to take a fresh decision expeditiously and preferably within a period of three months from the date a certified copy of the order is produced before Director of Education by either of the parties.

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The Special Appeal is, accordingly, allowed and the judgment of the learned Judge dated 25 July 2011 stands modified to the extent indicated above.

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Order Date :- 23.4.2018 Arvind

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(Dilip Gupta, J.)

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(Neeraj Tiwari, J.)

smt. shaheda bano v. State of U.P. and 5 others

Case brief

What is this about?

What did the court decide?

smt. shaheda bano v. State of U.P. and 5 others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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