MOHD ZISHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition has been filed under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to pay entire arrears of salary to the petitioner w.e.f. May, 1996 till date with interest at the rate of 25% (compound) and continue to pay his future salary one by one with all perks, privileges and allowances etc. The facts in brief giving rise to the present dispute are that Madarsa Quraniya Zama Maszid, Jaunpur (hereinafter referred to as the "Madarsa") is an Institution recognised by the educational authorities and is also receiving grant-in-aid from the State exchequer and the liability of salary is upon the State. The Institution is a Muslim Minority Institution within the meaning of Article 30 of the Constitution. It is said that a post of English Teacher fell vacant in Madarsa whereupon the vacancy was advertised and the petitioner was appointed as Assistant Teacher (English) vide appointment letter dated 30.01.1994 (Annexure-1 to the writ petition). The said appointment letter was communicated to District Basic Education Officer who granted his approval vide order dated 11.05.1994 (Annexure-2 to the writ petition) but despite thereon payment of salary to the petitioner has not been made, hence this writ petition. The respondents no. 1 and 2 have filed counter affidavit stating that there was no vacant post of Assistant Teacher (Faukania) and, therefore, there was no question of appointment of petitioner on the said post. It is also said that appointment letter has been issued by the In-charge Principal of the Institution though the power of appointment is possessed by Management and, therefore, there being no valid appointment in the eyes of law, the petitioner is not entitled for payment of salary from the respondents. It is also said that since there was no valid appointment order having been issued in favour of petitioner it is not necessary for the respondents to pass any termination order also. The petitioner has filed rejoinder affidavit wherein it has not been disputed that the petitioner was not appointed by the Management of Madarsa but he has tried to justify the reason whereupon the appointment was made. I have heard Sri Neeraj Tripathi, assisted by Sri Yanendra Pandey for the petitioner and Sri J.N. Maurya, learned Standing Counsel for the respondents. It is not disputed by the parties that the terms and conditions of service of teachers in non-Government Arbi and Farsi Madarsas is governed by U.P. Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987 (in short "1987 Niyamawali") which though a non-statutory Regulation but govern the matter of recognition for the said Madarsas. Regulation 20 provides the authority who can make appointment on the post of teachers and reads as under:

(2.) 20- izcU/krU= }kjk] xfBr p;u lfefr }kjk 'kSf{kd l= izkjEHk gksus ds ,d ekg iwoZ f'k{kdksa dk pquko dj fjDr LFkkuksa dh iwfrZ dj ysuk vko';d gksxkA l= ds e/; esa fjDr LFkkuksa ij fu;qfDr;kWa izcU/kkf/kdj.k }kjk rnFkZ vkpkj ij nks ekl ds vUnj dj yh tk;saxhA lgk;d v/;kid ds p;u esa iz/kkuk/;kid@iz/kkukpk;Z Hkh p;u lfefr ds lnL; gksaxsA** Regulation 22 provides that for appointment by direct recruitment the vacancy shall be advertised at least in two daily newspapers, one is of regional level and another of provincial level. Sri Neeraj Tripathi could not show as to how and in what manner the Principal of Institution could make appointment of a teacher. Moreover, in the case in hand, it is not even regular Principal who has appointed the petitioner but the appointment letter (Annexure-1 to the writ petition) has been issued by In-charge Principal. It is evident from 1987 Niyamawali which admittedly are applicable to the Institution in question that the petitioner has not been appointed by the Management of Madarsa and the procedure prescribed under Regulation 20 and 22 has not been followed. If that being so, the alleged appointment of petitioner is non-est being wholly illegal and that will not confer any right upon the petitioner to claim salary from the respondents. It is not necessary for this Court to go into the question about the internal dispute between the Management on account whereof the Madarsa was suffering at that moment for the reason that in any case the power of appointment cannot be assumed by an In-charge Principal of Madarsa for appointing a teacher and, therefore, the alleged appointment of the petitioner, in my view, is void ab initio and a nullity. In the result, I do not find any justification for directing the respondents to pay salary to the petitioner. The writ petition is wholly devoid of merit. Dismissed. No order as to costs.