High Court
Case Details
Court No. - 33 Case :- WRIT - A No. - 13412 of 2022 Petitioner :- Irshad Ahmad Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Irfan Raza Khan,Sr. Advocate Counsel for Respondent :- C.S.C.
Legal Reasoning
Hon'ble Ashutosh Srivastava,J. Heard Shri N. A. Khan, learned Senior Advocate assisted by Shri Irfan Raza Khan, learned counsel for petitioner, learned State Counsel for the Respondent Nos.1, 2 and 3 and Shri V. K. Singh learned Senior Advocate assisted by Sri M. A. Ausaf, learned counsel for the Respondent Nos.4 & 5. The present writ petition has been filed challenging the order dated 26.10.2019 passed by the Respondent No.4, Committee of Management,Madarsa Muhammadiya Faiz-e-Rasool, Pipra Kanak, Bada Tola, Kushi Nagar, terminating the petitioner's services from the post of Principal. Considering the fact that the factual situation is undisputed and it is only application of the legal provisions that filing of counter affidavit is being dispensed with and the petition is being adjudicated upon at the admission stage itself. Learned counsel for petitioner submits that at the relevant time, petitioner was working on the post of Principal in the Institution concerned. It is submitted that upon certain complaints having been made, an Enquiry Committee was constituted and it submitted its report dated 4.10.2019 whereafter the impugned order has been passed on 26.10.2019. Learned counsel for petitioner has challenged the impugned order primarily on the ground of lack of inherent jurisdiction as well as non compliance with principles of natural justice. It has been submitted that the provisions of U.P. Madarsa Shiksha Parishad Act, 2004 and the consequent Uttar Pradesh Non Governmental Arbic and Persian Madarsa Recognition, Administration and Services Regulation, 2016 are applicable in the present case. He has drawn attention to Regulation 16 of Regulations of 2016 to submit that disciplinary proceedings can be initiated against a member of the Teaching Staff of a Madarsa only in accordance with the approved Scheme of Administration. It has been further submitted that by means of order dated 7th January, 2022, the State Government has clearly reiterated that disciplinary proceeding against a member of the teaching staff of a Madarsa can be held only in terms of an approved Scheme of Administration. The order further provides that any disciplinary proceedings in the absence of Scheme of Administration being approved, would be void. He has also drawn attention to the subsequent letter dated 10th January, 2022 issued by the Registrar, U.P. Madarsa, Shikhsa Parishad reiterating the provisions of the aforesaid Government Order. It is submitted that the scheme of administration of the answering madarsa has been formulated and has been sent for approval, which has not yet been approved and therefore the impugned order has been passed against the statutory provisions of Regulation 16 of Regulations of 2016. Learned counsel appearing on behalf of the Respondent No.4 & 5 has opposed the submissions advanced by learned counsel for petitioner with the submission that the impugned order was disapproved by the Registrar vide order dated 29.10.2020 which was challenged by the Management in Writ (A) No.13753 of 2020 on the ground that the same was without jurisdiction since there is no provision for the Registrar either to approve or disapprove the disciplinary proceedings of punishment order passed by the Committee of Management of Madarsa. It is submitted that the aforesaid writ petition has been allowed on 26.8.2021. The order passed by the Registrar has been set aside on the ground of lack of jurisdiction. It has been further submitted that since the Committee of Management has ample powers to appoint teachers and other non teaching staff of the madarsa, power to discipline them or to initiate disciplinary proceedings against them culminating in passing of termination order would very well be within the inherent rights of Committee of Management. It has been further submitted that even otherwise once petitioner has been appointed by the management of the madarsa he is estopped from challenging the punishment order passed by his appointing authority. As such it is submitted that approval or pendency thereof with the State Government pertaining to the Scheme of Administration is completely irrelevant. It has however been submitted upon instructions that the Scheme of Administration of the concerned madarsa has not yet been approved by the State Government. With regard to aforesaid factum pertaining to jurisdiction of management of a madarsa to initiate disciplinary proceedings or to pass punishment orders pertaining to teaching staff, the admitted position is that U.P. Madarasa Shiksha Parishad Adhiniyam 2004 and the Regulations of 2016 are applicable. However learned counsel for respondents has drawn attention to the model Scheme of Administration whereby it is the management of a madarsa which has been conferred power to take disciplinary action pertaining to teachers of a madarsa. As such it is submitted that even otherwise, the management of madarsa has inherent powers to conduct disciplinary proceedings and to pass order pertaining to punishment of such teachers. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is apparent that the only dispute required to be adjudicated in the present writ petition pertains to power and authority of a Committee of Management of a madarasa pertaining to disciplinary action to be taken against teaching staff of the madarsa in terms of the Act of 2004 and regulations framed thereunder. Section 22 of the Act of 2004 pertains to a Scheme of Administration and stipulates with a non obstante clause that there shall be a Scheme of Administration for every Institution which shall amongst other matters provide for constitution of Committee of Management vested with an authority to manage and conduct affairs of the institution. Section 24 of the Act of 2004 pertains to conditions of service of head of the institution, teachers and other employees and confers power upon the Committee of Management to govern the head of institution, teachers and other employees of the institution by such conditions of service as may be prescribed by regulations. It further stipulates that any agreement between the Committee of Management and head of institution, teachers or employees, insofar as it is inconsistent with the provisions of the Act or the regulations would be void. The section also confers power that the regulations may provide for conditions pertaining to disciplinary action being taken against teaching or non teaching staff of a madarsa. The provisions of Section 24 of the Act, 2004 are as follows:- "24. Conditions of service of head of institution, teachers and other employees.- (1) The head of institution, teachers and other employees of an institution shall be governed by such conditions of service as, may be prescribed by regulations and any agreement between the Committee of Management and such head of institution, teachers or employees, as the case may be, in so far as it is inconsistent, with the provisions of this Act or the regulations, shall be void. (2) Without prejudice to the generality of the powers conferred by sub-section (1) the regulations may provide for,- (a) the code of conduct, the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude and the allowances for the period of suspension and termination of service with notice; (b) the scales of pay and payment of salaries; (c) grant of leave and provident fund and other benefits, and (d) maintenance of record of work and service." In terms of Section 24 of the Act, 2004, regulations of 2016 have been notified vide notification dated 22nd July, 2016 which specifically pertained to the madarsas such as the present respondent. Regulation 16 of the Regulations, 2016 are as follows:- "Disciplinary proceeding.- Investigation and trial of disciplinary proceedings, suspension, punishment and any crime under moral incapability and misconduct against Principal, teaching and non-teaching staff will be according to the approved, by Board of Madarsas, scheme of service and administration." From a conjoint reading of the Act of 2004 with Regulation 16 of the Regulations of 2016, it is evident that disciplinary action can be taken and punishment orders passed as a consequence against teaching and non teaching staff of a madarsa only in accordance with the duly approved Scheme of Administration. The government orders dated 7th January, 2022 and 10th January, 2022 have been issued in pursuance to the aforesaid provisions and clearly stipulate that any disciplinary action taken against teaching and non teaching staff of a madarsa without approval of the Scheme of Administration would be void. It is the admitted case that the aforesaid Government Orders are still holding the field. In view of stringent provisions of Section 24 of the Act of 2004 and Section 16 of Regulations 2016 read with the Government Orders dated 7th January, 2022 and 10th January, 2022, it is evident that the respondent madarsa could not have initiated disciplinary proceedings pertaining to petitioner without due approval of the scheme of administration particularly when it is the Scheme of Administration of a madarsda which confers power upon the management to discipline the teaching and non teaching staff. The mere pendency of earlier writ petition in the considered opinion of this court would have no bearing since it only pertains to the disapproval accorded by the Registrar to the termination order. The issue in question in the present writ petition is not subject matter of aforesaid writ petition. It has been submitted by learned counsel for respondent that even otherwise the Committee of Management has inherent power to hold disciplinary proceedings against its employees including teachers in terms of the powers conferred by model Scheme of Administration which are a part and parcel of Regulation 2016. With regard to aforesaid submission, it is apparent that the Scheme of Administration annexed to the Regulations of 2016 is only model Scheme of Administration which is a guideline to be followed by the Management of a Madarsa while formulating its own Scheme of Administration. Although the model Scheme of Administration clearly confers power upon the Management of an Institution to hold disciplinary proceedings pertaining to their Teaching Staff but in the considered opinion of this Court, the same necessarily requires compliance with Section 24 of the Act of 2004 read with Section 16 of Regulations of 2016. As such the mere inclusion or conferment of power upon the Management of Madarsa to hold disciplinary proceedings against its employees can not override the specific statutory provisions and is merely in the nature of a guideline until and unless approved by the State Government in terms of statutory provisions. Another submission raised by learned counsel for respondent that once a punishment order is passed by the committee of management which is undisputedly the appointing authority of a delinquent employee, the said employee would be estopped from challenging the termination order. With regard to aforesaid submission, it is also apparent that the same could have been considered in the absence of specific statutory provisions of Section 24 of the Act of 2004 and Regulation 16 of the Regulations of 2016 but with the advent of the aforesaid provisions, such a plea of estoppel can not be taken into account particularly in view of settled proposition of law that there can not be any estoppel against law. Considering the facts and the law that disciplinary action and the punishment order consequent thereupon can be passed by a committee of management only in accordance with the provisions indicated herein above and in the present case the impugned termination order has been passed in infringement thereof, the same clearly is void and as such the impugned termination order dated 26.10.2019 is quashed by issuance of writ in the nature of certiorari. Consequences to follow.
Decision
Resultantly, the writ petition succeeds and is allowed. Parties to bear their own costs. Order Date :- 1.12.2022 Ravi Prakash Digitally signed by RAVI PRAKASH Date: 2022.12.02 17:43:10 IST Reason: Location: High Court of Judicature at Allahabad