Mohd. Saleem vs Madarsa Rafiqul, Islam, Gaura Badshahpur and Others

C.K. Prasad, C.J. and Arun Tandon, J.—Respondent No. 5 - appellant, aggrieved by the order dated 9th of December, 2009 passed by the learned Single Judge in Civil Misc. Writ Petition No. 42759 of 2006 has preferred this Appeal under Rule 5 Chapter VIII of the High Court Rules. Short facts giving rise to the present appeal are:-

Respondent No. 5 - appellant herein (hereinafter referred to as the appellant), was employed as Assistant Teacher in Madarsa Rafiqul Islam at village Gaura, Badshahpur in the district of Jaunpur. A charge sheet was submitted against him and after an enquiry, the Committee of Management, respondent No. 1 herein, passed an order terminating his service dated 14th of October, 2004. The appellant made complaint before the Inspector, Arabi & Farsi Madarsa in terms of Clause 34 of the Uttar Pradesh Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987 enforced under Government Order dated 22nd of August, 1987. His complaint was examined by the Inspector who vide order dated 30th of January, 2006 held that the order of termination of service was vitiated on account of the fact that it had been passed without following the principle of natural justice required to be observed. In the light of the aforesaid order, the District Minority Welfare Officer, Jaunpur vide order dated 5th of June, 2006 directed the Committee of Management to pay the appellant the salary of Assistant Teacher treating him to have continued in service.

The Committee of Management assailed the aforesaid order dated 30th of January, 2006 passed by the Inspector and the order dated 5th of June, 2006 passed by the District Minority Welfare Officer, Jaunpur. Inter alia it was contended that the Inspector as also the District Minority Welfare Officer have no jurisdiction to pass the aforesaid orders.

Aforesaid submission found favour with learned Single Judge and he quashed the aforesaid orders inter alia on the ground that the Inspector as well as the District Minority Welfare Officer had no statutory power to interfere in the matter.

Mr. Krishna Ji Khare appearing on behalf of the appellant submits that in terms of Clause 34 of the Government Order dated 22nd of August, 1987 referred to above, the Committee of Management had to report the fact of termination of service of an Assistant Teacher to the Inspector and the Inspector in turn has been conferred a power to remit the matter to the Committee of Management along with its opinion. He submits that in that view of the matter the order passed by the Inspector dated 30th of January, 2006 cannot be said to be without jurisdiction.

Mr. Y.K. Saxena appearing on behalf of respondents No. 1 and 2 however submits that the Inspector may possess the power to remit the matter back to the Committee of Management but before doing so it was incumbent to hear the respondents i.e. the Committee of Management.

Having appreciated the rival submissions, we find substance in the submission of Mr. Khare. Clause 34 of the Government Order referred to above, clearly obliges the Committee of Management to report the termination of an Assistant Teacher to the Inspector and the Inspector in turn has been conferred a power to remit the matter to the Committee of Management with his opinion. Therefore, to say that the Inspector has no jurisdiction at all, is erroneous.

As the Inspector had passed the order without hearing the Committee of Management, the order dated 30th of January, 2006 suffers from the vice of procedural ultra vires and not on account of lack of jurisdiction.

In the facts and circumstances of the case, we deem it expedient to provide that the Inspector may pass a fresh order after hearing the appellant and respondents No. 1 and 2, within six weeks from today. Appellant as also respondents No. 1 and 2 state that they shall appear before the Inspector within one week from today, along with certified copy of this order.

So long the final decision is not taken by the Inspector; the post held by the appellant shall not be filled by fresh recruitment.

In the result, the Appeal is allowed, with the directions as aforesaid. Impugned order of the learned Single Judge is set aside.