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V.K. Shukla, J.—Committee of Management Smt. Sughra Begum Girls Inter College Firozabad has filed present writ petition questioning the (validity of the decision taken on 17.12.2005 passed by Regional Joint Director of Education holding therein that claim set up by Smt. Sheelmani Sharma, respondent No. 4 is liable to be accepted and for lapse of the Committee of Management action be taken under U.P. Act No. 24 of 1971 against the Committee of Management.
In the district of Firozabad there is recognized institution known as Smt. Sughra Begum Girls Inter College Firozabad. Said institution is minority institution and the affairs of the said Institution is to be run and managed strictly as per the provision as contained under U.P. Act No. II of 1921 and regulation framed thereunder. Said institution is in grant-in-aid list of the State Government the provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution, On 31.06.1995 Smt. Krishna Agrawal, Principal of the institution retired and due to retirement of Smt. Krishna Agrawal a substantive vacancy on the post of Principal came into existence. Selection proceedings were undertaken for filling up the aforesaid post of Principal of the aforesaid institution. Vacancy in question was notified and advertised and thereafter selection proceedings took place wherein one Smt. Azra Hijzab was placed at serial No. 1 and Smt. Sheelmani Sharama, respondent No. 4 was placed at serial No. 2 and one Smt. Kaneez Fatima was placed at serial No. 3. Said papers were transmitted for being accorded approval by the concerned Regional Joint Director of Education. Regional Joint Director of Education refused to accord approval to the appointment of Smt. Azra Hijab. Smt. Azra Hijab filed Civil Misc. Writ Petition No. 2412 of 1997. In the said writ petition counter affidavit was invited and interim order was passed on 20.01.2007 to the effect that respondents will not make appointment on the post wherein the petitioner was appointed until further orders. On account of said interim order being passed substantive appointment could not have been made and in this background one Smt Kaneez Fatima who was senior most teacher in the institution was appointed as Principal of the institution. Said appointment of Smt. Kaneez Fatima has been subject matter of challenge in Civil Misc. Writ Petition No. 38118 of 1998. Said matter has been kept pending before this Court. In the meantime Smt. Sheelmani Sharma retired on 30.06.2001. Smt. Sheelmani Sharma''s Civil Misc. Writ Petition 38118 of 1998 had been finally disposed of by this Court on 06.10.2004 asking the Regional Joint Director of Education to look into the matter. Pursuant to order passed by this Court impugned order has been passed accepting the claim of the Smt. Sheelmani Sharma and directing that action under U.P. Act No. 24 of 1971 is required to be taken against the Committee of Management.
Counter affidavit has been filed and therein it has been contended that Smt. Azra Hijab had submitted her resignation letter 04.01.1997 and once she has submitted her resignation and due information qua the same was given to Regional Joint Director of Education on 28.01.1997, then it was she who was entitled to be offered appointment. It has also been stated that Smt Kaneez Fatima is.not senior vis-a-viz contesting respondent No. 4 It has also been, contended that it was she who was entitled to be appointed as Principal of the institution and her right ht-s been infringed. In this background it has been contended that no interference is required and writ petition is liable to be dismissed.
Rejoinder affidavit has also been filed disputing the averments mentioned in the counter affidavit and averments , mentioned in the writ petition has been reiterated.
After pleadings mentioned above have been exchanged present writ petition has been taken up with the consenc of the parties for final hearing and disposal.
Sri Anil Bhushan, Learned Counsel for the petitioner has contended with vehemence that none of the legal right of Smt. Sheelmani Sharma has been infringed, inasmuch as she had never been offered appointment on the post of Principal and her appointment had never been approved by competent authority in this background once she has never been offered appointment and she has attained the age of superannuation, then by no stretch of imagination her claim could have been accepted and that too in minority institution, as such erroneous view taken in the matter, is liable to be quashed and writ petition deserves to be allowed.
Sri Lokendra Kumar, learned Counsel representing Smt. Sheelmani Sharma alongwith Dr. G.S.D. Mishra, Advocate contended that present writ petition is premature ani this is glaring case of maladministration of the affairs of the institution as there was no occasion for respondent No. 3 to appoint Smt. Kaneez Fatima and adopt pick and chose policy, in this background when substantial justice has been done, then no interference be made.
In order to appreciate respective arguments, Section 16FF of U.P. Intermediate Education Act 1921 and Regulations 17 to 19 of Chapter II of U.P. Intermediate Education Act 1921 are being quoted below:
Section 16 FF:- Saving as to minority institutions (1) Notwithstanding anything in Sub-section (4) of Section i6-E and Section 16-P, 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 of 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 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 or appointment has 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 k otherwise eligible.
(5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of candidate selected under, this section, the Committee o Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director it the case of 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.
Regulations 17 to 19 of Chapter II are being quoted below:
Regulation 17: The procedure for filling up the vacancy of the head of the Institution and teachers by direct recruitment in any recognized institution referred to in Section 16-FF shall be as follows;
(a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shah be advertised by the manager of the institution in at least one-Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e. whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principle or Headmaster, Lecture or L.T., C.T, or J.T.C.B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale of pay and other allowances, experience required, minimum qualification and age prescribed, if any for the post and prescribing a date which should ordinarily be less than two ''weeks form the date of advertisement by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned.
Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised. (2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management.
(a) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies, of all the necessary certificates and testimonials. The management may charge cost of tl a application form not exceeding the amount referred 10 in Clause (2) of the Regulation 10.
(b) An application by a person employed in an institution and applying for a post elsewhere or in tie same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately.
(c) All applications received form the candidates shell be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns, The Candidates to be called for interview shall be sever for each post (with the prior permission of the head of the institution). The Manager shall intimate by registered post all the members of the Selection Committee as well as such candidates as are called fir interview, the date, time and place of selection at lea-it ten days before it is held. The Selection Committee will hold the selection accordingly.
If on account of any unavoidable reason the expert selected by the Committee of Management under Clause (a) of the proviso to Sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed, the meeting of the Selection Committee shall , a postponed.
(d) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12, and 16 shall mutatis mutandis apply to selections made under this regulation.
(e) A panel of experts consisting of fifteen or more persons selected form category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned. The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in sealed cover to the management through its manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one.
(f) Chairman of the Selection Committee after conducting interview of all the candidates for any post will get a note prepared in two copies on the proceedings of the selection which will mention the names of the selected candidates and names of two more candidates of waiting list. Chairman and other members of Selection Committee will sign on notes, so prepared, and mention their full name, designation arid address. Chairman would immediately forward a copy of this note and a copy of statement referred to in Clause (f) of Regulation 10 to the Regional Dy. Director of the Inspector, as the case may be, for approval as required under Selection 16FF.Regional Dy. Director or Inspector, as the case may be, within one month of the date of receipt of concerned records, will give his. decision thereon and, failing to do so, it will be deemed to be approved].
Regulation 18: (1) Within fifteen days of the receipt of-the recommendation of the Selection Committee constituted under Sub-section (1) or (2) of Section 16-F, and in case of an institution referred to iii Section 16-FF, the approval of the authority specified therein, the Manager shall, on authorization under resolution of the Committee of Management, issue an order of appointment by registered post to the candidate in the form given in Appendix ''B'' requiring the candidate to join duty within ten days of the receipt of such order failing which the appointment of the candidate will be liable to cancellation.
(2) In case of promotions and ad hoc appointments also forma-order of promotion or appointment in the form as near a\\ possible to the form referred to in Clause (1) shall be issued to the person concerned under the signature of the Manager.
(3) A copy of every order referred to in Clauses (1) aid (2 shall be sent to the Inspector and in case of appointment of the head of institution a copy thereof shall also be sent to the Regional Deputy Director of Education.
Regulation 19: Where any person is appointed as, or any promotion is made on any post of head of institution or ; teacher in contravention of the provisions of this chapter or against any post other Khan a sanctioned post the Inspector shall decline to pay salary and other allowance, if any, to such person where the institution is covered by the provisions of the V.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person.
Thus, as per provision quoted above it is fully reflected that appointment to the post of Principal or teacher in Minority Institution has to be made in consonance to the provisions as mentioned above. At the point of time when approval is to be accorded, it has to be seen that person who has been selected possesses, minimum qualification prescribed and is otherwise eligible. However, as far as payment of salary is concerned, under ''Regulation 19 of Chapter II of U.P. Intermediate Education Act 1921, payment of salary can be declined where any person is appointed in contravention of the provisions of- Chapter II or against any post other than a sanctioned post.
On the touchstone of the provisions quoted above, factual position which is emerging in the present case is that selection proceedings for the post of Principal of minority institution had been undertaken and papers were submitted to the Regional Joint Director of Education for the purposes of according approval in terms of Section 16-FF of U.P. Act No. II of 1921. The Regional Joint Director of Education refused to accord approval to the selection against which Smt. Azra Hijzab filed writ petition before this Court wherein categorical interim order was passed that respondents will not make appointment on the post of Principal wherein petitioner of said writ petition was appointed until further order. Further it has been stated that Smt. Azra Hijzab tendered her resignation on 04.01.1997 as she was aware of the fact that her documents are suspicious. Institution in question thereafter has never proceeded to make substantive selection on the post of Principal as matter was pending before this Court and as some one has to function as Principal of institution as institution cannot be run without Principal the Committee of Management has proceeded to handover the charge of officiating Principal to Smt. Kaneez Fatima who was senior most teacher in term of Chaoter-II Regulation 3 of U.P. Act No. II of 1921. Entire emphasis of Smt. Sheelmani Sharma is that panel which was prepared therein her name was placed below Smt. Azra Hijzab and one her candidature has been non-suited then it was she who was to be appointed as Principal. There is complete misconception on the part of Smt. Sheelmani Sharma on this front for the simple reason that as far as substantive appointment is concerned qua the same dispute has been raised and there was an interim order passed by this Court consequently in the direction of making substantive appointment no further steps had been undertaken, hut as stopgap arrangement Smt Kaneez Fatima was given charge of Officiating Principal of the institution. Merely because Smt. Sheelmani Sharma was shown at serial No. 2 in the panel which has been prepared by the selection committee that automatically did not make her senior vis-a-viz Smt. Kaneez Fatima. Post of Principal is to be filled up by way of direct recruitment and therein the selection is merit based and same gets life when it is approved. In this background panel which was prepared merely indicated merit status and till said selection is not approved the said selection is of no consequence. As far as seniority is concerned same has to be seen in context of Chapter-Il Regulation 3 of U.P. Act No. II of 1921 wherein seniority is determined grade wise based on substantive appointment. Smt. Kaneez Fatima was appointed on 02.02.1986 in the institution, whereas Smt. Sheelmani Sharma was appointed on 09.07.1986 and on account of seniority, as substantive appointment was under cloud, senior teacher was made officiating Principal qua which no fault could be found.
In respect of minority institution, minority institution has right to choose Principal of their choice as per parameter provided for by the Hon''ble Apex Court in the case of R. Sulochana Devi Vs. D.M. Sujatha and Others, , and Court has no authority to interfere with discretionary power Vested with the management to appoint the Principal of their choice.
Hon''ble Apex Court in the case of The Secretary, Malankara Syrian Catholic College Vs. T. Jose and Others, has taken the view that right to choose Principal is one of the integral components of right of administration guaranteed to minority institution keeping in view the key role to be played by the Principal in carrying out aims and objects of the institution for which said institution has been established,
As far as regular selection is concerned, said recruitment would get sanction of law only when approval is accorded to the same under Sub-section (3) (a) of Section 16-FF of U.P. Act No. II of 1921. Undisputedly selection of Smt. Sheelmani Sharma as Principal had never been accorded approval by the Regional Joint Director of Education till she continued in service and ultimately attained the age of superannuation. Once there was no approval during continuance of her contract of service then after attaining her age of superannuation her claim could not have been accepted as mere selection does not confer indefeasible right. In this background once there was no approval then her claim on the post of Principal could not have been accepted during this interregnum period when admittedly senior most teacher had been given charge of Officiating Principal. In this background and circumstance of the case, case in hand would not at all fall within the scope and ambit of maladministration rather officiating arrangement of Principal of the institution has been made in exercise of its authority to run the administration of the minority institution, which is integral part of Article 30(1) of Constitution of India.
Consequently view which has been taken by Regions Level Committee is incorrect and unsustainable view. It is also equally incorrect to say that writ petition is premature specially when claim, has been accepted and it has been mentioned that proceedings under U.P. Act No. 24 of 1971 are essential.
Consequently, order dated 17.12.2005 passed Regional Joint Director of Education is hereby quashed and set aside. Writ petition in term of observations made above is flowed and disposed of.