COMMITTEE OF MANAGEMENT MADARSA DAIRATUL ISHLAH CHIRAGH EULOOM Vs. DISTRICT MINORITY WELFARE OFFICER VARANASI

JUDGEMENT

(1.) This special appeal by Committee of Management, Madarsa Dairatul Ishlah Chiragah-E-Uloom, Rasoolpura. Varanasi, is directed against the judgment and order dated May 15, 1998 passed by the learned single Judge in Civil Misc. Writ Petition No. 33983 of 1996. Walliullah v. District Minority Welfare Officer. Varanasi and others. Walliullah, the petitioner arrayed herein as party respondent No. 3 approached this Court for issue of a writ of certiorari quashing the appointment of Mohd. Sabir Ansari, party respondent No. 4, to the post of Principal, Madarsa Dairalul Ishlah Chiragh-E-Uloom, Rasoolpura, Varanasi, inter alia on the ground that though he was duly appointed to the post of Principal vide appointment letter dated 29.6.1994 which was approved by the District Basic Shiksha Adhikari, Varanasi on 2.8.1995 yet the post was later on readvertised pursuant to which the fourth respondent Mohd. Sabir Ansari was selected and appointed as Principal of the institution. The petitioner was opposed by the appellant. Committee of Management as well as the fourth respondent Mohd. Sabir Ansari, inter alia, on the ground that the petitioner Walliullah was simply authorised to work as officiating Principal being the seniormost teacher of the institution and was never duly appointed to the post of Principal. The learned single Judge being of the opinion that the petition involved the disputed questions of fact, disposed it of with the direction to the Director Minority Welfare to examine the matter on a representation being submitted by the petitioner and dispose of the same by a reasoned order after affording opportunity to the concerned parties.

(2.) The judgment of the learned single Judge has been assailed by Shri R. N. Singh, learned Senior Advocate appearing for the appellant basically on two grounds, firstly, that the direction issued by the learned single Judge is tantamount to creating an adjudicatory forum which being a legislative function ought not to be exercised by the Courts ; secondly, that the institution being a minority institution the direction given by the learned single Judge conferring adjudicatory power upon Director, Minority Welfare would violate Article SO (1) of the Constitution. Shri Ashok Khare, learned counsel appearing for the petitioner-respondent Walliullah urged that by virtue of various administrative powers vested in the Director of Minority Welfare in relation to Arbi and Farsi Madarsas, an implied power to decide the dispute as to who amongst two rival claimants is the Principal of institution may be culled out in the Director Minority Welfare for administrative convenience and desirability. As to the argument of Sri R. N. Singh that the direction given by the learned single Judge to the Director of Minority Welfare to decide the dispute contravenes Article 30 (1) of the Constitution. Sri Ashok Khare urged that conferment of adjudicatory power with regard to employees of minority institutions upon outside agency would not contravene Article 30 (1) of the Constitution.

(3.) We have given our anxious consideration to the submissions made across the Bar. Concededly, there is no express provision of law conferring any adjudicatory power in the Director of Minority Welfare in respect of any dispute regarding appointment of teaching and non-teaching staff of Arbi and Farsi Madarsas. The institution in question is on the grant in aid list of the State Government. The question is whether the Director of Minority Welfare has any implied adjudicatory power. Pursuant to Government Orders dated January 31, 1996 being Annexure-S.C.A. 2 to the Supplementary counter-affidavit, the functions of Education Department of the Government in relation to minority institutions stood transferred to Minority Welfare Department and with a view to ensuring timely payment of monthly salaries to teaching and non-teaching staff of Arbi and Farsi Madarsas, the Government issued another Government Order, it being G.O. No. 664/52-3-96-4/10/96 Alp Sankhyak Kalyan Evarn Muslim Waqf Anubhag-3. Lucknow dated 27.6.1996 thereby modifying the earlier Government Order dated 12.7.1990 in respect of timely payment of monthly salary to teaching and non-teaching staff of Arbi and Farsi Madarsas by providing that in place of expression "Shiksha Nideshak (Basic) Uttar Pradesh, Lucknow" the expression "Nideshak, Alp Sankhyak Kalyan Vibhag, Uttar Pradesh" and in place of "Zila Baste Shlksha Adhikart", the expression "Zila Alp Sankhyak Kalyan Adhikari" be read in the Government Order dated 12.7.1990. Zila Alpsankhyak Kalyan Adhikari has been vested power to scrutinise the salary bills get the salary bills scrutinised through Lekha Adhikari posted in the office of District Basic Education Officer and to ensure disbursement and payment of salaries to teachers and non-teaching Staff of the Arbi and Farsi Madarsas and furnish information in this regard to the Director Minority Welfare Department, Uttar Pradesh and Secretary, Alpsankhyak Kalyan Evam Muslim Waqf Vibhag Uttar Pradesh, Lucknow. The head of a minority institution has to interact with the Inspector and Zila Alpsankhyak Kalyan Adhikari or the Director Minority Welfare Uttar Pradesh. Lucknow. Sri Ashok Khare invited the attention of the Court to Manyata Evam Seva Niyamawali known as "Uttar Pradesh Ashaskiy Arbi Tatha Farsi Madarason. Ki Manyata Niyamawali" which was approved by the Governor vide Government Order No. 3367/15-17-87-53 (5J-86 Shiksha (17) Anubhag, Lucknow dated August 22. 1987 in support of his contention that the Director Minority Welfare has implied power to see as to whether a teacher appointed in such Madarsas has been duly appointed and working in the institution. The said Niyamawali though a non-statutory one lays down the qualifications for appointment of teachers including Head Master/Principal as well as the procedure to be adopted in respect of disciplinary actions against such teachers/Head Masters. The Niymawali provides for in respect of the institution by the competent authority the power to issue appropriate direction for removal of defects, if any, found during inspection as visualised by Rule 37 of the Niymawali Rule 39 of the Niymawali lays down in no uncertain terms that in the event of maintenance grant being misused or misappropriated or in the event of committing any grave irregularity, the maintenance may be suspended. It further provides that in such eventuality, the Basic Shiksha Adhikari may himself withdraw the reimbursement and maintenance grant and pay directly to duly appointed teachers working in the institution. The Rule 39 being relevant is quoted below : "Kisi bhi prakar ke shaskiy anudan ke liye keval sthayi manyata prapt madrase hi ahar honge. Anudan suchi par aane ke ilye sarnstha dwara aavedan karte samay yeh dekha Jayega ki manyata ki sharton ka pura palan ho raha hai. Pradatt anudan ka durupayog ya duruiniyog karne athua koi anya gambhir truti karn par anudan ka nilamban kiya ja sakega aur anudan ki dhanrashi sambandhtt basic shiksha adhikari dwara aahrtt karke sidhe sanstha ke vidhivat niyukt va karyarat adhyapakon ko unke vetanadi ke ley ke roop mein banti Ja sakegi." (Emphasis is ours).