Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Rule 11 Of 1987 Rules For Madarsa Will Also Apply To Earlier Recognised Madarsas.
JUDGEMENT TITLE : C/M, Madarsa Quraniya Adampur Akbar Thru' Manaer & Others Vs. State Of U.P. Thru' Chief Secretary Govt. Of U.P. & Others On 11/29/2010 By Allahabad High Court
CASE NO : WRIT - C NO. 37695 OF 2010
CORAM : Hon'ble Dilip Gupta,J

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.


Civil Misc. Writ Petition No. 37695 Of 2010
Madarsa Qurania Adampur Akbar, District Jaunpur & Ors.
Vs.
State Of U.P. & Ors.
********

Petitioners Counsel :- Sri Ashok Khare, Senior Counsel And
Sri Amit Sthalekar
Respondents Counsel :- Sri G.K. Singh, Sri V.K. Singh, Sri K.C. Kishan Srivastava And Standing Counsel


Hon'ble Dilip Gupta, J.

This Petition Has Been Filed By The Committee Of Management Of Madarsa Qurania Adampur Akbar, District Jaunpur With Ansar Ahmad As The Manager And Abdul Waheed As The Principal Of The Madarsa For Quashing The Order Dated 13th April, 2010 Passed By The Special Secretary, Government Of Uttar Pradesh, By Which The Registrar, U.P. Madarsa Shiksha Parishad, Lucknow (hereinafter Referred To As The 'Registrar') Has Been Informed Of The Decision Taken By The Government To Cancel Its Earlier Order Dated 9th July, 1999 And For Placing The Matter Before The 'Manyata Samiti' Of The Madarsa Shiksha Parishad For Taking A Decision In The Light Of The Decision Taken By The Government. The Petitioners Have Also Sought The Quashing Of The Order Dated 12th May, 2010 Passed By The Registrar By Which, On The Basis Of The Decision Taken By The Manyata Samiti On 10th May, 2010, Permission Has Been Given To The Madarsa Qurania To Run From Its Original Place In Jama Masjid And Consequently The Decision Earlier Taken On 27th February, 1993 For Shifting Of Madarsa Qurania From Jama Masjid To Adampur Akbar Has Been Cancelled.
It Is Stated That The Madarsa Qurania, Which Was Recognised On 10th August, 1943 By The Inspector, Arabi Madarsa, U.P. And Which Was Brought On The Grant-in-aid List In 1960, Was Previously Run In A Mosque Known As Jama Masjid, Jaunpur. In 1987, The State Government Framed The "Uttar Pradesh Ashaskiya Arabi Tatha Farsi Madarson Ki Manyata Evan Sewa Niyamawali" (hereinafter Referred To As The '1987 Rules') Which Were Approved By The Governor On 27th August, 1987 And The Rules Came Into Force With Immediate Effect.
The Said 1987 Rules Were Framed For Ensuring Good Administration Of The Non-Government Arabi And Persian Madarsas And For Timely Payment Of Salary To The Teachers And Other Employees And For Providing Security To Their Service. Rule 2 Provides That On Coming Into Force Of The 1987 Rules, All The Government Orders Earlier Issued In This Regard Shall Stand Cancelled. Amongst Others, The Rule Provides That The Madarsa Should Have Its Own Building And The Number Of Rooms And The Sizes Of The Rooms Have Also Been Provided. It Also Provides That If The Madarsa Is Not Being Run From Its Own Building, Some Relaxation Can Be Provided But The Madarsa Must Construct Its Own Building Within Five Years. Power Has Also Been Given To The Officers To Carry Out Inspection And If It Is Found That Some Deficiencies Regarding The Terms And Conditions For Granting Recognition Exist, Then Directions Can Be Issued For Removing The Deficiencies And If The Directions Are Not Complied, The Registrar, Arabic And Persian Examinations, U.P., Allahabad Can Issue A Notice Whereafter The Recognition Can Be Cancelled If A Proper Reply Is Not Submitted.
It Is Further Stated That Since The Madarsa Was Being Run In The Mosque Known As Jama Masjid, The Committee Of Management Constructed Its Own Building At Adampur Akbar, Jaunpur For The Madarsa And Submitted An Application Seeking Permission For Shifting The Madarsa To Its Own Building But As No Order Was Passed On The Application, Writ Petition No.363 Of 1993 Was Filed By The Committee Of Management. The Court By The Order Dated 11th January, 1993 Directed The Inspector, Arabi Madarsa, Uttar Pradesh To Either Accord Permission To Run The Madarsa From Adampur Akbar, Jaunpur Or Show Cause By Filing A Counter Affidavit. In Compliance Of The Aforesaid Order Passed By The Court, The Inspector, Arabi Madarsa, U.P., By The Order Dated 27th February, 1993, Granted Permission To The Committee Of Management To Shift The Madarsa To Its Own Building At Adampur Akbar, Jaunpur By 31st March, 1993. Consequently, Madarsa Qurania Was Shifted To Its Building At Adampur Akbar, Jaunpur On 30th March, 1993 And A Compliance Report Was Also Submitted To The Inspector, Arabi Madarsa By The Letter Dated 30th March, 1993.
However, Writ Petition No.17057 Of 1993 Was Filed By One Mohd. Moonis Khan, Claiming Himself To Be The Manager Of The Madarsa Qurania Jama Masjid, Jaunpur, To Challenge The Permission Granted By The Inspector On 27th February, 1993. This Petition Was Dismissed By The Order Dated 13th January, 1994 And It Will Be Appropriate To Quote The Judgment And Order Dated 13th January, 1994 Which Is As Follows:-
"Heard Learned Counsel For The Parties And Perused The Impugned Order Dated 27.2.1993 Passed By Inspector, Arbi Madarsa, U.P. Allahabad Regarding Shifting Of Madarsa From Mosque To A Newly Constructed Building. Learned Counsel For The Petitioner Urged That The Newly Constructed Building Is A Disputed One And The Madarsa Has Wrongly Been Ordered To Be Shifted To The Newly Constructed Building. Learned Counsel Has Placed Reliance Upon An Order Dated 2.11.1991 Passed By The Director (Urdu) U.P. Lucknow (Annexure-4 To The Writ Petition) And The Report Dated 21.6.1991 (Annexure-2 To The Writ Petition). Learned Counsel Appearing For The Contesting Respondent Urged That The Appropriate Authority Was The Inspector Arbi Madarsa, U.P. Allahabad And That The Director (Urdu) U.P. Lucknow Had No Jurisdiction In Regard To Shifting Of The Madarsa From Mosque To Newly Constructed Building. He Also Urged That The Petitioner Have No Locus To Challenge The Order Inasmuch As The Petitioners Committee Of Management Is Not Recognised By Any Authority.
Having Heard The Learned Counsel For The Parties, I Am Of The View That Since The Petitioner Committee Of Management Is Not Recognised By The Department And Has Not Filed Any Document That It Has Any Right To Manage The Affairs Of The Madarsa, It Would Not Be Proper To Interfere With The Order Dated 27.2.1993 Passed By The Inspector, Arbi Madarsa, U.P. Allahabad. Sri H.N. Pandey, Learned Counsel For The Petitioners Urged That New Committee Of Management Has Now Been Constituted And The Dispute In Respect Thereof Is Pending Before The Registrar, Societies. It Is Not Necessary For Me To Express Any Opinion As To The Validity Or Otherwise Of The Election Allegedly Held During The Pendency Of The Writ Petition. It Is For The Assistant Registrar, Societies, Before Whom The Matter Is Pending, Either To Decide The Dispute Or To Refer It To The Prescribed Authority. Since The Petitioners Have No Right To Challenge The Impugned Order, The Writ Petition Is Liable To Be Dismissed On This Ground Alone. It May Be Observed That The Niyamawali Which Governs The Institution Provides That The Madarsa Should Have Its Own Building. The Order Impugned In This Petition Purports To Transfer The Madarsa From The Mosque To Its Own Building. The Order Contained In Letter Dated 2.11.1991 Of The Director (Urdu) U.P. (Annexure-4 To The Writ Petition) Seems To Have Been Issued In The Backdrop Of The Report Dated 21.6.1991 Of The Basic Shiksha Adhikari, Jaunpur Whereas The Impugned Order Has Been Passed On27.2.1993. Situation May Have Undergone Change In The Meantime. If The Petitioners Feel Aggrieved, They May File Civil Suit Or Approach The Director (Urdu) U.P. Lucknow For Such Directions As May Be Deemed Fit And Proper To Be Given To The Inspector, Arbi Madarsa, U.P. Allahabad Who Has Passed The Impugned Order.
The Writ Petition Is Dismissed Subject To The Observations Aforesaid. The Interim Order Dated 20.5.1993 Is Vacated."
(emphasis Supplied)

Writ Petition No.363 Of 1993 Was Also Dismissed As Having Become Infructuous Because Of The Judgment And Order Dated 13th January, 1994 Passed In Writ Petition No.17057 Of 1993.
The Petitioners Of Writ Petition No.17057 Of 1993 Did Not File Any Civil Suit But Original Suit No.1138 Of 1995 Was Filed By Mohd. Moonis Khan To Assail The Permission Granted On 27th February, 1993. This Suit Was Dismissed On 30th April, 2002 In The Absence Of The Plaintiff.
It Is Further Stated In The Writ Petition That After Shifting Of The Madarsa To Its Building At Admapur Akbar, Jaunpur, The Payment Of Salary Of Teaching And Non-teaching Staff Was Made From The State Exchequer Upto 1997 But Was Thereafter Stopped At The Behest Of The Rival Committee Of Management As Well As Some Teaching And Non-teaching Staff Who Still Claimed To Be Working In The Madarsa At The Mosque. Writ Petition No.44614 Of 1998 Was, Therefore, Filed By The Committee Of Management, Madarsa Qurania Adampur Akbar Since Despite The Submission Of The Report Dated 26th October, 1998 By The Director, Minority Welfare Officer, The Salary To The Staff Of The Madarsa At Adampur Akbar Was Not Paid And This Petition Was Disposed Of By The Judgment And Order Dated 18th January, 1999 With A Direction To The State Government To Decide The Issue Taking Into Consideration The Report Submitted By The Director, Minority Welfare Officer. The State Government Then Sought A Report From The Registrar, Arabic And Persian Examinations, U.P. Who Submitted The Report Dated 8th June, 1999 Mentioning Therein That Madarsa Qurania Had Been Shifted Earlier And Was Running From Its Own Building At Adampur Akbar, Jaunpur. The State Government, Thereafter, Taking Into Consideration The Report Dated 26th October, 1998 Submitted By The Director, Minority Welfare Department And The Report Dated 8th June, 1999 Submitted By The Registrar, Arabic And Persian Examinations, U.P., Passed A Detailed Order Dated 9th July, 1999 For Payment Of Salary To The Teaching And Non-teaching Staff Working In The Madarsa Qurania At Adampur Akbar, Jaunpur. In The Said Order, The State Government Noticed That The Madarsa Had Shifted To Its Own Building At Adampur Akbar, Jaunpur And That The Madarsa Qurania Adampur Akbar Is A Legally Recognised Madarsa.
This Order Dated 9th July, 1999 Of The State Government Was Assailed By The Staff Claiming To Be Working At Madarsa Qurania Jama Masjid, Jaunpur In Writ Petition No.13092 Of 2000 Which Was Decided On 23rd September, 2001 Along With Certain Other Petitions. Writ Petition No.13092 Of 2000 Was Dismissed With The Following Observations :-
"In Civil Misc. Writ Petition No.13092 Of 2000, The Grievance Of The Petitioner Firdaus Ahmad And 15 Others Who Claim Themselves To Be Teachers Of Madarsa Qurania Jama Masjid Jaunpur Is That Vide Order Dated 09.007.1999 Passed By The Special Secretary, Government Of U.P., Lucknow By Which A Direction Has Been Issued To The Director, Minority Welfare, U.P., Lucknow That Madarsa Which Is Being Run At Adampur Akbar, Jaunpur Is To Be Treated As The Only Recognised Madarsa And Salary To The Teachers And Employees As Certified By The Additional Director Education (Basic) Should Be Paid And Consequential Order Dated 23.9.1999 Issued By The Director, Minority Welfare Lucknow To The District Minority Welfare Officer, Jaunpur Are Wholly Illegal And Void. In Civil Misc. Writ Petition No.17057 Of 1993, Decided On 13.1.1993 This Court Has Negatived The Claim Of Monis Khjan Regarding The Challenges To The Order Dated 27.2.1993 Passed By The Inspector Arbi Madarsa, U.P. Allahabad By Which The Madarsa Had Been Shifted On The Ground Of Locus Standi. Same Principle Would Be Applicable Here Also In The Case Of The Petitioners Who Claims Themselves To Be Teachers And Employees Of The Madarsa. This Petition At Their Instance Is Not Maintainable. They Are Only Concerned With Their Salary For Which Necessary Direction Has Already Been Issued By This Court In Civil Misc. Writ Petition No.14222 Of 1997 Filed By Some Of The Teachers. This Petition Is Misconceived And Dismissed As Such."
(emphasis Supplied)


It Needs To Be Mentioned That In Writ Petition No.14222 Of 1997, Which Was Also Decided On 23rd September, 2001 And Of Which Reference Has Been Made In The Aforesaid Judgment, The Following Observations Were Made:-
"In Civil Misc. Writ Petition No.14222 Of 1997, The Grievance Of Mohd. Swaleyeh And 11 Others Who Claim Themselves To Be Teacher And Employees Of Madarsa Qurania, Jama Masjid, Jaunpur Is That They Are Not Being Paid Their Salary Since September, 1996 Without Any Rhyme Or Reason.
By Interim Order Passed By This Court On 12.05.1997, The Respondents Were Directed To Pay Salary Since September 1997 Or To Show Cause. In The Counter Affidavit Filed By Dr. R.K. Singh, District Minority Welfare Officer, Jaunpur, It Has Been Stated That The Petitioners Had Been Marked Absent In The Attendance Register, And, Therefore, Their Salary Bill Has Not Been Passed.
It Appears That These Petitioners Are Teaching At Madarsa Qurania Jama Masjid, Jaunpur And Not At Madarsa Qurania, Adampur Akbar Jaunpur Where The Madarsa Has Been Shifted. In The Interim Order Passed By This Court On 21.09.1995 In Civil Misc. Writ Petition No.32259 Of 1995, The Status Quo Was Directed To Be Maintained. The Said Writ Petition Was Finally Decided On 21.04.1997 By This Court Wherein The Status Quo Granted Earlier By This Court Were Directed To Be Maintained Till The Disposal Of The Reference Pending Before Waqf Tribunal. It Appears That On 21.11.1995 When This Court Had Passed The Order Of Maintaining Status Quo, The Madarsa Was Being Run At Both Places Viz. At Jama Masjid, Jaunpur And At Adampur Akbar, Jaunpur. Thus Running Of The Madarsa At Two Places Was Maintained. In This View Of The Matter, The Petitioners Who Were Working At Madarsa Qurania, Jama Masjid, Jaunpur, Are Entitled For Payment Of Salary Provided That They Regularly Attended And Taught In The Madarsa Which Fact Is To Be Verified By The District Minority Welfare Officer.
In View Of The Foregoing Discussions, The Writ Petition Succeeds And Is Allowed And The District Minority Welfare Officer Is Directed To Verify The Fact As To Whether The Petitioners Have Regularly Attend Madarsa Qurania At Jama Masjid Jaunpur And Are Teaching The Students Or Not. If They Are Found Teaching Then They Are Entitled For Payment Of Salary."
(emphasis Supplied)

It Transpires That Thereafter One Dr. Mumtaz Ahmad Claiming To Be The Manager Of The Madarsa Qurania Jama Masjid, Jaunpur Filed An Application Before The Registrar For Granting Five Years' Time To The Madarsa For Constructing Its Own Building And A Prayer Was Also Made That Permission Be Granted To The Madarsa To Continue To Function In The Mosque Till The Construction Is Made. This Application Was Rejected By The Order Dated 26th August, 2000 Holding That The Madarsa Qurania Had Already Shifted To Its Own Building At Adampur Akbar. However, The Registrar Subsequently Passed An Order On 2nd December, 2000 Cancelling The Order For Shifting Of The Madarsa To Its Building At Adampur Akbar, Jaunpur And Five Years' Time Was Allowed For Construction Of Its Building.
This Order Dated 2nd December, 2000 Was Challenged By The Petitioners In Writ Petition No.279 Of 2001 But During The Pendency Of The Said Petition, The State Government Itself, By The Order Dated 8th February, 2001, Directed The Director, Minority Welfare Officer, Jaunpur To Cancel The Order Dated 2nd December, 2000 Forthwith And Take Punitive Action Against Such Persons Found Responsible For Passing Of The Order Dated 2nd December, 2000. In Compliance Of The Said Order, The Registrar, By The Order Dated 22nd March, 2001, Cancelled The Earlier Order Dated 2nd December, 2000.
It Is Further Stated That Thereafter Petitioner No.3-Abdul Waheed, The Principal Of The Madarsa Submitted A Representation Dated 14th October, 2008 Before The State Government For Stopping Of The Illegal Payment Of Salary To The Persons Claiming To Be Working In Madarsa Qurania At Jama Masjid. This Representation Was Forwarded To The Registrar For Comments And The Registrar Submitted A Report Dated 29th September, 2009 To The State Government That The Order Dated 2nd December, 2000 Issued By The Registrar/Inspector, Arabi Madarsa Was Correct And, Therefore, It Was Necessary To Review The Orders Earlier Passed By The State Government On 9th July, 1999 And 8th February, 2001. Recommendation Was, Therefore, Made That Not Only The Representation Dated 14th October, 2008 Submitted By Petitioner No.3 Should Be Rejected But A Decision Should Be Taken On The Proposal Submitted By The Committee Of Management Of The Madarsa Qurania, Jama Masjid, Jaunpur On 24th January, 1999 And 15th April, 2000 As Also The Decision Taken By The General Body Of The Society On 19th March, 2001.
In View Of The Aforesaid Report Dated 29th September, 2009, The State Government, By The Order Dated 13th April, 2010, Reviewed Its Earlier Order 9th July, 1999 And Directed The Registrar To Recall The Order Dated 27th February, 1993. Pursuant To The Direction Issued By The State Government, The Registrar, By The Order Dated 12th May, 2010, Recalled The Order Dated 27th February, 1993.
The Petitioners Have, Accordingly, Sought The Quashing Of The Order Dated 13th April, 2010 Passed By The State Government, The Order Dated 12th May, 2010 Passed By The Registrar And The Report Dated 29th September, 2009 Submitted By The Registrar.
It Will Be Useful To Refer To The Report Dated 29th September, 2009 Submitted By The Registrar To The State Government Since It Is On The Basis Of The Said Report That The Decisions Have Been Taken.
The Report Of The Registrar Notices That The Decision Has To Be Taken On Three Important Issues Namely-
(i) Which Society Is Running The Madarsa Qurania Jama Masjid, Jaunpur And Which Is, At Present, The Valid Committee Of Management And From Which Place The Madarsa Should Run.
(ii) How Many Posts Of Teaching/non-teaching Staff Have Been Approved For The Madarsa And How Many Teaching/non-teaching Staff Are Working In The Madarsa.
(iii) Whether The Appointments Of Teaching/non-teaching Staff Have Been Made In Accordance With The 1987 Rules As Amended In 1988, 2000 And 2004.

The Registrar Pointed Out That The Decision On The Aforesaid Issue No.1 Will Finally Resolve The Dispute That Has Arisen From The Order Dated 27th February, 1993 Passed By The Inspector, Arabi Madarsa. The Report Mentions That The Society Which Established The Madarsa Qurania Jama Masjid, Jaunpur Was Registered On 25th February, 1947 Which Registration Was Renewed From Time To Time. The Committee Of Management Of This Society, Of Which Mohd. Tahir Husain Was The President And Ayub Khan Was The Manager/Secretary, Had Submitted The Application To The Inspector, Arabi Madarsa, Allahabad For Shifting The Madarsa Qurania Jama Masjid To Adampur Akbar And The Inspector Had Passed The Order Dated 27th February, 1993 On The Said Application. The Registrar, Firms, Societies And Chits, Varanasi Informed That According To The Registered List Of Office Bearers And Members Of The Year 2008-09, The Manager/Secretary Of The Society Is Janab Afzal Ahmad. Thus, Ansar Ahmad Claiming Himself To Be The Manager Did Not Have Any Locus-standi To Submit The Representation Dated 14th October, 2008 And Nor Did The Principal Abdul Waheed, Who Submitted The Affidavit Dated 31st October, 2008, Had Any Locus-standi As His Matter As To Whether He Should Be Treated As The Principal Or Not Has Been Referred To The State Government. The Registrar Then Referred To The Rules Of Recognition Of Arabi And Persian Madarsas, Uttar Pradesh Which Were Framed By The Government Order Dated 18th June, 1969 And Pointed Out That Recognition Could Be Granted To The Madarsas By The Registrar, Arabic And Persian Examinations, U.P. Prior To The Coming Into Force Of The 1987 Rules. The Registrar Has Also Observed That Since Madarsa Qurania Jama Masjid, Jaunpur Was Recognised In 1943, The Subsequent Rules Made In 1987 For Granting Recognition Will Not Be Applicable And That After The Coming Into Force Of The 1987 Rules, The Decision To Shift Any Madarsa Vests With The Committee Constituted Under The Rules And, Therefore, The Inspector, Arabi Madarsa, U.P. Had No Jurisdiction To Pass The Order For Shifting Of The Madarsa. The Registrar Has, Therefore, Concluded That The Order Dated 27th February, 1993 Passed By The Inspector, Arabi Madarsa, For Shifting Of The Madarsa To Adampur Akbar Is Against The 1987 Rules And Beyond His Jurisdiction. The Registrar Has Also Brought To The Notice Of The State Government That In The Office Of The Registrar, Arabic And Persian Examinations, U.P. There Were Two Separate Posts Of The Registrar And Inspector And Different Duties Were Assigned To Them In The 1969 Rules And 1987 Rules.
It Will Also Be Useful To Refer To The Order Dated 12th May, 2010 Passed By The Registrar Pursuant To The Decision Taken By The State Government On 13th April, 2010. The Said Order Mentions That Manyata Samiti Held Its Meeting On 10th May, 2010 To Examine The Matter And Noticed That There Was Only One Recognised Madarsa Qurania Which Was Running At Two Places And Looking To The Facts And Circumstances It Was Appropriate That The Madarsa Qurania, Which Had Been Approved And Recognised By The Government To Run From Jama Masjid, Should Continue To Run From This Place Only And Directed The Registrar To Pass Appropriate Orders.
The Registrar, On Examination Of Legal Position And The Rules, Then Made The Following Observations :-
1. Madarsa Qurania Jama Masjid Jaunpur Is Run By A Society Which Was Registered On 25th May, 1947 And The Registration Of The Society Has Been Renewed With Effect From 10th October, 2005 For A Period Of Five Years. Earlier, The Committee Of Management With Mohd. Tayar Husain As The President And Mohd. Ayub Khan As The Manager/Secretary Had Submitted The Application To The Inspector, Arabi Madarsa, Allahabad For Shifting Of The Madarsa To Adampur Akbar From The Mosque And The Inspector Passed An Order On 27th February, 1993 For Shifting Of The Madarsa To The Said Place.
2. At Present, The Assistant Registrar In His Letter Dated 16th September, 2009 Has Stated That Afzal Ahmad Is The Secretary.
3. Rule 4 Of The Rules Of Recognition Of Arabic And Persian Madarsas Uttar Pradesh, Approved By The Education Department, Government Of U.P. In 1969 (hereinafter Referred To As The 1969 Rules'), Provides As Follows :-
"4. Building - The Managing Committee Should State Whether The Madarsa Possesses A Building Of Its Own Or Is Held In A Rented One Or Is A Mosque:-
(i)If It Is Its Own Or Is Held In A Rented One Number Of Class Rooms And Other Rooms, Their Size And Other Particulars Should Be Given In Details.
(ii)If It Is Held In A Mosque Permission From Mutwalli Thereof To Allow The Running Of The Madarsa Therein Should Be Produced In Writing."

It Is, Therefore, Clear That There Was A Provision In The 1969 Rules For Running The Madarsa From A Mosque.
4. Madarsa Qurania Is An Old Madarsa Which, According To The Records Available In The Office Of The Registrar, Arabic And Persian Examinations U.P., Was Granted Recognition In 1943. Thus, Rules Subsequently Framed For Grant Of Recognition To The Madarsas Will Not Be Applicable To The Madarsas Recognised Earlier. Rule 18 Of The 1987 Rules Provides That The Order For Granting Recognition Shall Be Given By The Registrar, Arabic And Persian Examination, U.P. On The Basis Of The Recommendation By The Manyata Samiti, The Constitution Of Which Is As Follows:-
(i) Director Of Education (Urdu) President
(ii) Two Persons Nominated By The Government Members
(iii) Deputy Director Of Education (Science), Member
Directorate Of Education, Uttar Pradesh

(iv) Registrar, Arabic And Persian Examinations, U.P. Member

5. Thus, According To The 1987 Rules, Initial Examination Has To Be Done By The Manyata Samiti, But The Inspector, Arabi Madarsa, U.P., At Allahabad On His Own By His Order Dated 27th February, 1993 Had Granted Permission To The Manager, Madarsa Qurania Jama Masjid To Shift The Madarsa To Adampur Akbar. Such Permission, Being Contrary To The Rules, Is Without Jurisdiction And Of No Consequence.
6. At Present, Under The Provisions Of The U.P. Board Of Madarsa Education Act, 2004 (hereinafter Referred To As The '2004 Act') The Power To Grant Recognition To The Madarsas Vests With The Manyata Samiti Of The Parishad And As Such It Is This Committee Which Has To Decide The Place From Where The Madarsa Should Run.
7. Afzal Ahmad Manager Of The Madarsa In His Application Dated 12th February, 2009, On The Basis Of The Resolution Of The Committee Of Management And The General Body, Has Made A Request For Cancellation Of The Permission Granted By The Inspector, Arabi Madarsa U.P. On 27th February, 1993 For Shifting The Madarsa From Jama Masjid To Adampur Akbar. This Request Should Be Accepted And, Therefore, The Permission Earlier Granted On 27th February, 1993 Should Be Withdrawn.
8. Accordingly, The Permission Earlier Granted By The Inspector, Arabi Madarsa, U.P. By His Letter Dated 27th February, 1993 For Shifting The Madarsa To Adampur Akbar Is Withdrawn With Immediate Effect And Consequently Pursuant To The Decision Taken By The Manyata Samiti On 10th May, 2010, Permission To Run The Madarsa From Jama Masjid Is Granted.
I Have Heard Sri Ashok Khare, Learned Senior Counsel For The Petitioners Assisted By Sri Amit Sthalekar, Advocate. Learned Standing Counsel For The State And Sri G.K. Singh, Learned Counsel For Respondent No. 7 Have Made Submissions On Behalf Of The Respondents.
Sri Ashok Khare, Learned Senior Counsel For The Petitioners Has Made The Following Submissions :-
1. The Decision Taken By The State Government On 13th April, 2010 For Cancellation Of Its Earlier Order Dated 9th July, 1999 Is Illegal And Deserves To Be Set Aside For The Reason That The Madarsa Qurania Had Been Validly Shifted To Adampur Akbar Pursuant To The Permission Granted By The Inspector, Arabi Madarsa U.P. On 27th February, 1993. There Was, Therefore, No Occasion For The State Government To Direct The Registrar, U.P. Madarsa Shiksha Parishad, Lucknow To Place The Matter Before The Manyata Samiti Of The Parishad For Taking A Decision.
2. The Report Dated 29th September, 2009 Submitted By The Registrar/Inspector, U.P. Madarsa Shiksha Parishad, Lucknow To The State Government, On The Basis Of Which The State Government Took The Decision On 13th April, 2010, Is Not Correct For The Reason That The 1987 Rules Will Also Apply To The Madarsa Recognised Prior To The Coming Into Force Of The Rules And So There Is No Illegality In The Order Dated 27th February, 1993 Passed By The Inspector, Arabi Madarsa, U.P. Granting Permission To The Committee Of Management To Shift The Madarsa To Its Own Building At Adampur Akbar.
3. The Stand Taken By The Registrar That After The Coming Into Force Of The 1987 Rules, The Decision To Grant Permission For Shifting Of The Madarsa Could Have Been Taken By The Registrar, Arabic And Persian Examinations, U.P. On The Basis Of The Recommendation Made By The Manyata Samiti Is Not Correct Since Rule 18 Will Apply To Grant Of Fresh Recognition And Not To Such Cases Where Only Permission For Shifting Of An Existing Recognised Madarsa Is Required To Be Given.
4. In Any Case, The Order Dated 27th February, 1993 Passed By The Inspector, Arabi Madarsa Was Assailed In Writ Petition No.17057 Of 1993 Which Was Dismissed By The Court On 13th January, 1994 And The State Government Also Took A Conscious Decision On 9th July, 1999, On The Basis Of The Report Submitted By The Director, Minority Welfare Department And The Registrar, Arabic And Persian Examinations, U.P., Which Decision Could Not Have Been Subsequently Reviewed By The State Government On 13th April, 2010, Particularly When Challenge To The Said Decision Taken On 9th July, 1999 In Writ Petition No.13092 Of 2000 Failed.
5. The Inspector, Arabi Madarsa, U.P. Was Competent To Grant Permission For Shifting The Madarsa From The Jama Masjid Mosque To Adampur Akbar On 27th February, 1993 Since He Is Also The Ex-Officio Registrar Of The Arabic And Persian Examinations, U.P. And Observations To The Contrary Made In The Impugned Order, Which Are Based On The Provisions Of The 2004 Act, Are Not Correct.
6. In Any Case, When The Permission To Shift The Madarsa To Adampur Akbar Had Been Granted In 1993 In View Of The Provisions Of The 1987 Rules And When The Madarsa Had Also Shifted From The Jama Masjid To Adampur Akbar On The Basis Of The Permission, Such Permission Could Not Have Been Cancelled After A Period Of 17 Years.
7. The Permission To Run The Madarsa From Jama Masjid Granted By The Registrar By The Order Dated 12th May, 2010 Is Clearly Contrary To The Provisions Of 1987 Rules Under Which The Madarsa Can Only Run From Its Own Building And So The Order Passed By The Registrar Deserves To Be Set Aside.
Sri G.K. Singh, Learned Counsel Appearing For Respondent No.7, Who Has Supported The Impugned Order, Has Made The Following Submissions:-
1. The 1987 Rules Are Prospective In Nature And, Therefore, Will Not Be Applicable To Such Cases Where Recognition Had Been Granted To The Madarsas Prior To The Coming Into Force Of The Said Rules And Under The 1969 Rules It Was Permissible To Grant Recognition To The Madarsa, Even If The Madarsa Were Running From The Mosque.
2. Even If The 1987 Rules Are To Apply, Then Too The Permission To Shift The Madarsa From Its Existing Location At Jama Masjid Could Have Been Granted In Accordance With Rule 18 Of The 1987 Rules By The Registrar, Arabic And Persian Examinations, U.P. On The Basis Of The Recommendation Made By The Manyata Samiti But Since Such Decision Was Taken Without Any Recommendation Of The Manyata Samiti By The Inspector, Arabi Madarsa, The Order Dated 27th February, 1993 Is Patently Illegal And Without Jurisdiction And Has Rightly Been Cancelled And Decision Was Consequently Taken By The Registrar To Run The Madarsa From The Mosque Itself On The Basis Of The Recommendation Made By The Manyata Samiti.
3. The Decision Taken By The Inspector, Arabi Madarsa, U.P. On 27th February, 1993 Was Assailed In Writ Petition No.17057 Of 1993 Which Was Dismissed On The Ground That The Committee Of Management Which Had Assailed The Order Was Not Recognised By The Department But Now The Recognised Committee Of Management Has Taken A Decision To Run The Madarsa From The Mosque Itself And For The Same Reason The Petitioner-Committee Of Management Which Is Not Recognised Does Not Have A Right To Assail The Order Passed By The Registrar Granting Permission To Run The Madarsa From The Mosque.
4. In Any Case, Power Under Rule 18 Of The 1987 Rules Is Given To The Registrar, Arabic And Persian Examinations, U.P., To Pass An Order But In The Present Case The Order Was Passed By The Inspector, Arabi Madarsa U.P. Who Had No Jurisdiction To Pass The Order And, Therefore, The Registrar Had Rightly Cancelled The Order Dated 27th February, 1993. Reliance Placed By The Petitioners On The Education Code In Support Of The Submission That The Inspector Was Ex-Officio Registrar, U.P. Madarsa Shiksa Parishad Lucknow Is Misplaced Since After The Enforcement Of The 1969 Rules And The 1987 Rules, The Registrar And The Inspector Are Two Different Authorities Dealing With Different Matters. The Inspector Deals With The Appointment Of Teachers And Employees Whereas The Registrar Looks After The Recognition.
5. The Duly Elected Committee Of Management Had Passed A Resolution On 24th January, 1999 That The Madarsa Should Be Run At Jama Masjid And The General Body Also Passed A Resolution On 19th March, 2000 To This Effect. Subsequently, The Committee Of Management Also Resolved On 15th April, 2002 That The Madarsa Should Be Run From The Mosque. The Order Passed By The Registrar That The Madarsa Should Run From The Mosque, Therefore, Does Not Suffer From Any Infirmity.
6. The Assistant Registrar, By The Order Dated 11th July, 2003, Had Rejected The Proposal Submitted By Mohd. Ayub Khan On 2nd January, 2002 For Changing The Name Of The Society For Removing The Word "Jama Masjid" And Replacing It By "Adampur Akbar" And After Having Failed In This Attempt Ansar Ahmad, Successor In Interest Of Mohd. Ayub Khan, Got A New Society Registered In The Name Of Madarsa Qurania Admapur Akbar, Sadar, Jaunpur On 15th July, 2008 And The Petitioners Cannot Claim Control Over The Institution By Setting Up A New Society.

I Have Carefully Considered The Submissions Advanced By Learned Counsel For The Parties.
The Foremost Issue That Arises For Consideration In This Petition Is Whether The 1987 Rules Will Also Apply To Such Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The Said Rules.
It Is Not In Dispute That Madarsa Qurania Jama Masjid Shahi, Jaunpur Was Granted Recognition By The Inspector, Arabi Madarsa, United Provinces On 10th August, 1943. It Is Also Not In Dispute That Under The Rules Of Recognition Of Arabic And Persian Madarsas, U.P., Approved By The Education Department In 1969, The Madarsa Could Run From The Mosque. Part -I Of The Said Rules Deals With The Procedure For Applying For Recognition. Under Rule 3, It Was Necessary For A Managing Committee To Resolve That It Will Be Abide By The Education Code. Rule 4 Deals With The Building And It Provides That The Managing Committee Should State Whether Madarsa Possesses Of A Building Of Its Own Or It Is Held In A Rented Accommodation Or In A Mosque. It Also Provides That If The Madarsa Is In A Mosque, Then Permission From The Mutawalli Allowing To Run The Madarsa Therein Should Be Produced.
In 1987, The State Government Framed The 1987 Rules. Rule 2 Provides That On Coming Into Force Of The Said Rules All Previous Orders Issued By The Government In This Regard Shall Stand Cancelled. Rule 3 Provides For Ensuring Good Administration Of The Non-Gazetted And Persian Madarsas, For Timely Payment Of Salary To The Teaching And Non-teaching Staff And For Providing Security To The Services. Rule 4 Provides That The Application In The Prescribed Form For Grant Of Recognition Should Be Submitted In The Office Of The Registrar, Arabic And Persian Examinations, U.P. By 31st March. Rule 11 Provides That The Madarsas Should Have Their Own Building. Relaxation Can, However, Be Given In Case They Did Not Have Their Own Building But They Must Construct Their Own Building Within Five Years. Rule 18 Provides That The Order To Grant Recognition Shall Be Given By The Registrar, Arabic And Persian Examinations, U.P. But Before That The Manyata Samiti Shall Consider The Applications And The Constitution Of The Manyata Samiti Has Also Been Provided In Rule 18. Rule 37 Provides That Any Officer Of The Education Department Can Inspect The Madarsa Which Shall Provide The Documents Required And If During The Inspection It Is Found That Conditions For Grant Of Recognition Have Not Been Followed, Then Directions Can Be Given In Writing For Removal Of The Defects. Rule 38 Provides That If Despite Such Instructions, The Deficiencies Are Not Removed Then The Manyata Samiti Can Take Steps For Withdrawal Of Recognition.
The Issue In This Petition Is Whether Rule 11 Will Also Apply To The Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The 1987 Rules.
It Is The Contention Of Sri Ashok Khare, Learned Senior Counsel For The Petitioners That There Is Nothing In The Said Rules Which Prevents The Applicability Of This Rule To The Existing Madarsas And According To Him Rule 2 Which Provides That All Previous Government Orders Regarding Grant Of Recognition Shall Stand Cancelled Makes It Explicit That The Said Rules Will Also Apply To The Existing Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The Said Rules. In Support Of This Contention He Has Also Placed Reliance On Rules 37 And 38 Which Provide For Inspection To Find Out Whether The Conditions For Grant Of Recognition Have Been Complied With Or Not And In The Event It Is Found That They Have Not Been Complied With, The Recognition Can Be Withdrawn. It Is His Submission That The Rule Cannot Be Said To Be Retrospective Merely Because It Will Also Apply To Such Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The Rules 1987.
The Contention Of Sri G.K. Singh, Learned Counsel For Respondent No.7 Is That The 1987 Rules Will Not Apply To Such Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The Said Rules. It Is His Contention That Merely Because Time Gap Of Five Years Has Been Given Under Rule 11 For The Madaras To Construct Their Own Building, Cannot Mean That The Rule Will Also Apply To The Madarsas Which Have Been Granted Recognition Prior To The Coming Into Force Of The 1987 Rules Since There Can Be A Situation Where A Madarsa Seeking Recognition After The Coming Into Force Of The 1987 Rules May Not Have Its Own Building And It Is In Such A Situation That Recognition Can Be Granted Provided The Madarsa Ensures That It Will Have Its Own Building Within Five Years.
It Is Not Possible To Interpret Rule 11 In The Manner Suggested By Sri G.K. Singh, Learned Counsel For The Respondents As There Is Nothing In The Rule Which Would Restrict Its Applicability Only To The Madarsa Seeking Recognition After 1987 And Not To The Existing Madarsas. The Time Gap Of Five Years Will Apply To Both The Categories Of Madarsas Namely The Madarsas Recognised Prior To The Coming Into Force Of 1987 Rules And Also The Madarsas Recognised After The Commencement Of 1987 Rules.
On The Other Hand, Emphasis On Rule 2 Of The 1987 Rules Placed By The Learned Senior Counsel For The Petitioners Is Justified. The Said Rule 2 Provides That All Previous Orders Issued By The Government Shall Stand Cancelled. The Existing 1987 Rules Provide For A Detailed Procedure For Grant Of Recognition And Rule 11 Makes It Explicit That The Existing Madarsas Have To Conform To The Requirement Though A Time Gap Of Five Years Has Been Given To A Madarsa To Construct Its Own Building, If The Madarsa Is Not Being Run From Its Own Building. Indeed, It Is For This Reason That The Committee Of Management Constructed Its Own Building At Adampur Akbar And Sought Permission In 1993 To Shift To Its Own Building Which Permission Was Granted On 27th February, 1993 And Even Since Then The Madarsa Is Being Run From Adampur Akbar. This Was Also Noticed By The Court In Its Judgment And Order Dated 13th January, 1994 Passed In Writ Petition No.17057 Of 1993 In Which The Order Dated 27th February, 1993 Was Assailed. The Shifting Of The Madarsa To Its Own Building At Adampur Akbar Was Also Examined In Detail By The Director, Minority Welfare Department In His Report Dated 26th October, 1998 And Also By The Registrar, Arabic And Persian Examinations In The Report Dated 8th June, 1999. Subsequently, On The Basis Of These Two Reports, The State Government Passed A Detailed Order Dated 9th July, 1999 For Payment Of Salary To The Teaching And Non-teaching Staff Working In The Madarsa At Adampur Akbar.
It Also Needs To Be Mentioned That An Attempt Was Also Made By The Manager Of The Madarsa Jama Masjid To Seek Five Years' Time To Construct Its Own Building Under The Provisions Of Rule 11 Of The 1987 Rules, But The Application Was Rejected By The Order Dated 26th August, 2000 As The Madarsa Had Already Shifted To Its Own Building In March, 1993. What Is Important To Be Noted Is That Subsequently The Registrar On 2nd December, 2000 Cancelled The Earlier Order Granting Permission To Shift The Madarsa But Soon Thereafter The Sate Government Issued Direction For Taking Punitive Action Against The Persons Found Responsible For Passing The Order Dated 2nd December, 2000 And Ultimately The Registrar Withdrew The Order Dated 2nd December, 2000 On 22nd March, 2001. The Controversy Should Have Then Ended But It Appears That It Was Re-opened When An Application Was Filed On 14th October, 2008 By The Principal Of The Madarsa For Stopping The Payment Of Salary To The Persons Claiming To Be Working In The Madarsa At Jama Masjid Since The Madarsa Had Shifted To Adampur Akbar In 1993.
The Main Reason Assigned For Re-opening The Matter Is That The Condition Contained In Rule 11 Of The 1987 Rules For A Madarsa To Have Its Own Building In Five Years' Will Only Be Applicable To The Madarsas Seeking Recognition After The Coming Into Force Of 1987 Rules. It Is The Contention Of Learned Counsel For The Respondents That The 1987 Rules Are Not Retrospective And, Therefore, Rule 11 Cannot Be Applied To The Madarsa Which Was Granted Recognition Under The Earlier Rules.
The Courts Have Always Drawn A Distinction Between An Existing Right And A Vested Right And It Is Said That The Rule Against Retrospective Construction Is To Apply Only To Save Vested Rights And Not The Existing Rights.
In This Connection, Reference Needs To Be Made To The Decision Of The Supreme Court In Trimbak Damodhar Rajpurkar Vs. Assaram Hiraman Patil & Ors. AIR 1966 SC 1758. In This Case, A Contractual Tenancy Created In 1943 For Five Years Was Converted Into A Statutory Tenancy For Ten Years Ending On 31st March, 1953 As A Result Of Application Of The Bombay Tenancy Act, 1939 To The East Khandesh. Subsequently, Bombay Act 67 Of 1948 Came Into Force And On 11th March,1952 The Landlord Gave Notice To The Tenant Under Section 14(2) Of The Act, Informing Him That The Lease Would Expire On 31st March, 1953 And Asked Him To Deliver Possession Of The Lands To Him Immediately Thereafter. In The Meanwhile The Amending Act 33 Of 1952 Came Into Force On 12th January, 1953. On 4th April, 1953, The Landlord Instituted Proceedings For Obtaining Possession Of The Lands. The Question Was Whether The Landlord Was Entitled To Eject The Tenant Even Without Complying With The Statutory Requirements Of The Notice Prescribed By The Amending Act Of 1952.
It Was The Common Case Of The Parties That The Appellant Would Not Be Entitled To Claim Ejectment Of The Respondent If The Provisions Of The Amending Act Of 1952 Were Applicable Because He Had Not Given Any Notice As Prescribed By The Relevant Provisions Of The Amending Act. It Was Contended On Behalf Of The Landlord That The Provisions Of The Amending Act Were Not Retrospective In Operation As According To Him He Had Already Given Notice To The Respondents On 11th March, 1952 Intimating His Intention To Eject Them. The Supreme Court, After Making A Distinction Between An Existing Right And A Vested Right, Made The Following Observations :-
"In This Connection It Is Relevant To Distinguish Between An Existing Right And A Vested Right. Where A Statute Operates In Future It Cannot Be Said To Be Retrospective Merely Because Within The Sweep Of Its Operation All Existing Rights Are Included. As Observed By Buckley, L. J. In West V. Gwynne Retrospective Operation Is One Matter And Interference With Existing Rights Is Another.
"If An Act Provides That As At A Past Date The Law Shall Be Taken To Have Been That Which It Was Not, That Act I Understand To Be Retrospective. That Is Not This Case. The Question Here Is Whether A Certain Provision As To The Contents Of Leases Is Addressed To The Case Of All Leases Or Only Of Some, Namely, Leases Executed After The Passing Of The Act. The Question Is As To The Ambit And Scope Of The Act, And Not As To The Date As From Which The New Law, As Enacted By The Act, Is To Be Taken To Have Been The Law."

These Observations Were Made In Dealing With The Question As To The Retrospective Construction Of Section 3 Of The Conveyancing And Law Of Property Act, 1892 (55 & 56 Vict. Clause 13). In Substance Section 3 Provided That In All Leases Containing A Covenant, Condition Or Agreement Against Assigning, Underletting, Or Parting With The Possession, Or Disposing Of The Land Or Property Leased Without Licence Or Consent, Such Covenant, Condition Or Agreement Shall, Unless The Lease Contains An Expressed Provision To The Contrary, Be Deemed To Be Subject To A Proviso To The Effect That No Fine Or Sum Of Money In The Nature Of A Fine Shall Be Payable For Or In Respect Of Such Licence Or Consent. It Was Held That The Provisions Of The Said Section Applied To All Leases Whether Executed Before Or After The Commencement Of The Act; And, According To Buckley, L. J., This Construction Did Not Make The Act Retrospective In Operation; It Merely Affected In Future Existing Rights Under All Leases Whether Executed Before Or After The Date Of The Act. The Position In Regard To The Operation Of Section 5(1) Of The Amending Act With Which We Are Concerned Appears To Us To Be Substantially Similar.

A Similar Question Had Been Raised For The Decision Of This Court In Jivabhai Purshottam V. Chhagan Karson, Civil Appeal No.153 Of 1958, Dated 27-3-1961 : (AIR 1961 SC 1491), In Regard To The Retrospective Operation Of Section 34(2)(a) Of The Said Amending Act XXXIII Of 1952 And This Court Has Approved Of The Decision Of The Full Bench Of The Bombay High Court On That Point In Durlabbhai Fakirbhai V. Jhaberbhai Bhikabhai. It Was Held In Durlabbhai's Case, 58 Bom LR 85; (S) AIR 1956 Bom. 285 (FB), That The Relevant Provision Of The Amending Act Would Apply To All Proceedings Where The Period Of Notice Had Expired After The Amending Act Had Come Into Force And That The Effect Of The Amending Act Was No More Than This That It Imposed A New And Additional Limitation On The Right Of The Landlord To Obtain Possession From His Tenant. It Was Observed In That Judgment That
"a Notice Under Section 34(1) Is Merely A Declaration To The Tenant Of The Intention Of The Landlord To Terminate The Tenancy; But It Is Always Open To The Landlord Not To Carry Out His Intention. Therefore, For The Application Of The Restriction Under Sub-section 2(A) On The Right Of The Landlord To Terminate The Tenancy, The Crucial Date Is Not The Date Of Notice But The Date On Which The Right To Terminate Matures; That Is The Date On Which The Tenancy Stands Terminated".
(emphasis Supplied)

The Aforesaid Decision Of The Supreme Court In Trimbak Damodhar Rajpurkar (supra) Was Followed By The Supreme Court In M/s New India Sugar Works Etc. Vs. State Of U.P. & Ors. AIR 1981 SC 998, And It Was Observed :-
"There Are, However, Two Arguments Urged Before Us Which Need Special Mention. In The First Place It Was Submitted That In The U.P. Cases The Order Impugned Imposing A Levy On The Khandsari Produced By The Petitioners Cannot Have Any Retrospective Operation So As To Apply To The Stock Of Sugar Manufactured Prior To The Date Of The Order And Would Apply Only To The Sugar Produced After The Coming Into Force Of The Impugned Notification. So Far As This Argument Is Concerned We Find No Substance In The Same Because It Is Not A Question Of Retrospectivity Of The Statute But Its Actual Working. Once The Notification Imposing The Levy Was Made It Will Obviously Apply To Stock Of Khandsari Produced By The Petitioners Either Before Or After The Order. This Principle Has Been Clearly Laid Down By The Constitution Bench Of This Court In The Case Of Trimbak Damodar Raipurkar V. Assaram Hiraman Patil And Ors.(1) (1962) Supp (1) SCR 700 : (AIR 1966 SC 1758),................................"
(emphasis Supplied)

Recently, In T. Narasimhula & Ors. Vs. State Of Andhra Pradesh & Ors., (2010) 6 SCC 545, The Supreme Court Held That Seniority Of A Government Servant Is Not His Vested Right And Can, Therefore, Be Affected Retrospectively By Amendment Of The Recruitment Rules And The Observations Are :-
"In A Three-Judge Bench Judgment In S. S. Bola & Ors. V. B.D. Sardana & Ors. (1997) 8 SCC 522, Cited By Mr. Patwalia, However, We Find That This Court Has Clearly Held That Seniority Was Not A Vested Or Accrued Right. Three Separate Judgments Were Delivered By K. Ramaswamy, J., S. Saghir Ahmad, J. And G. B. Pattanaik, J. K. Ramaswamy, J. Has Held:
"153. AB. No One Has A Vested Right To Promotion Or Seniority. But An Officer Has An Interest To Seniority Acquired By Working Out The Rules. The Seniority Should Be Taken Away Only By Operation Of Valid Law." [(1997) 8 SCC At 634]

G. B. Pattanaik, J. Has Also Held:
"200. Thus, To Have A Particular Position In The Seniority List Within A Cadre Can Neither Be Said To Be An Accrued Or Vested Right Of A Government Servant And Losing Some Places In The Seniority List Within The Cadre Does Not Amount To Reduction In Rank Even Though The Future Chances Of Promotion Get Delayed Thereby. ...." [(1997) 8 SCC At 666].

S. Saghir Ahmad, J. Has Agreed With G. B. Pattanaik, J. And Has Held:
"162. In The Instant Case, The Judgments Rendered By This Court In The Earlier Decisions Relating To The Seniority Of The Present Incumbents Were Founded On The Service Rules Then Existing. These Service Rules Have Since Been Replaced By The Impugned Act Which Has Been Enforced With Retrospective Effect. The Various Aspects Of Merits Have Been Considered By My Brother Pattanaik And I Cannot Usefully Add Any Further Words On Merits. ...." [(1997) 8 SCC At 639 At Para 162].

It Is, Thus, Clear From The Judgment Of A Larger Bench That In S. S. Bola & Ors. V. B. D. Sardana & Ors. (supra) That Seniority Of A Government Servant Is Not A Vested Right And That An Act Of The State Legislature Or A Rule Made Under Article 309 Of The Constitution Can Retrospectively Affect The Seniority Of A Government Servant. The Second Contention Of Mr. Rao, Therefore, Also Fails."
(emphasis Supplied)

A Division Bench Of This Court In Special Appeal No.375 Of 1975 (Dr. Anandjee Vs. Dr. K.L. Shrimali & Ors.) Decided On 22nd April, 1976, Also Examined A Similar Controversy. The Appellant-Dr. Anandjee Was Appointed As Professor And Head Of The Department Of Law In The Law College Of The Banaras Hindu University In 1959. The Vice Chancellor Of The University By The Order Dated 22nd December, 1973 Appointed The Respondent Dr. K.L. Shrimali As Head Of The Department Of Law For A Period Of Two Years Under Statute 25(4) Of The Statutes Framed Under Section 17 Of The Banaras Hindu University Act 1915. The Appellant, Therefore, Ceased To Function As The Head Of The Department Under Sub-Clause (6) Of The Statute 25(4). This Order Was Challenged By The Appellant In The Writ Petition Which Was Dismissed Against Which The Special Appeal Was Filed By The Appellant. It Was Contended By The Appellant That The Amendment Made In The Statutes In 1972 Subsequent To His Appointment As Head Of The Department Of Law In 1959 Will Not Be Applicable To His Case Since He Had A Vested Right To Continue In Office On The Basis Of The Statutes Applicable At The Time When He Was Appointed As The Head Of The Department And The Amendment Cannot Have Retrospective Effect. Placing Reliance Upon The Decision Of The Supreme Court In Trimbak Damodhar Rajpurkar (supra), The Division Bench Of This Court Observed :-
".........It Would Be Seen That Statutes Are Either Rules And Regulations Determining Conditions Of Service Or Decisions Of The Executive Council. The Appellant Was Entitled To Hold The Office Of The Head Of Department Subject To The Statutes, Etc. Framed From Time To Time. At The Time Of The Appellant's Appointment As Head Of The Department Statute 26-A(4) Was In Force And He Was Governed By It. In 1973 When The Impugned Order Was Passed Statute 25(4) In Its Present Form Was In Force And It Governed The Appellant. No Question Of Taking Away The Appellant's Vested Right Arises As He Had No Vested Right And Whatever Right He Had Was Subject To The Statutes And Ordinances. It Is The Common Case Of The Parties That On The Date When The Impugned Order Was Passed The Department Of Law Had More Than One Professor. Sub-clause (2) Of Statute 25(4) Was, Therefore, Attracted In The Matter Of Appointment Of Its Head. It Is Thus Clear That On The Respondent No.3 Being Appointed As The Head Of The Department By The Impugned Order Under Sub-clause (2) Of Statute 25(4) The Appellant Ceased To Function In View Of Sub-clause (6) Notwithstanding The Contract Dated December 12, 1963.
We Are Also Not Satisfied That Statute 25(4) Has Been Applied Retrospectively In The Case Of The Appellant. None Of His Rights Prior To The Coming Into Force Of Statute 25(4) Has Been Affected By The Said Statute. There Is A Marked Distinction Between An "existing Right" And A "vested Right". The Appellant At Best On The Date When Statute 25(4) Came Into Force Had An Existing Right To Continue As Head Of Department Till That Appointment Was Terminated According To Law. Where The Statute Operates In Future It Cannot Be Said To Be Retrospective Merely Because Within The Sweep Of Its Operation All Existing Rights Are Included."
(emphasis Supplied)

It Is, Therefore, Clear From The Aforesaid Decisions That Where A Statute Operates In Future, It Cannot Be Said To Be Retrospective Merely Because Existing Rights Are Also Included Within The Sweep Of Its Operation. In Trimbak Damodar (supra) Which Has Been Followed Subsequently, It Has Clearly Been Observed That The Provisions Shall Apply To All The Leases Whether Executed Before Or After The Commencement Of The Act And This Will Not Make The Act Retrospective. Prior To Coming Into Force 1987 Rules, The Recognition Was Granted To The Madarsas Under The Rules Of Recognition Of Arabic And Persian Madarsas, Uttar Pradesh In Which There Was No Condition That The Madarsas Should Have Their Own Building. It Is Under Rule 11 Of The 1987 Rules That Such A Condition Was Introduced For The First Time. Relaxation Was, However, Given That Such Madarsas Which Did Not Have Their Own Building Should Construct Them Within Five Years. Rule 2 Of The 1987 Rules Clearly Directs That On Coming Into Force Of The Said Rules All Previous Orders Issued By The Government Shall Stand Cancelled. There Is Also A Provision For Cancellation Of The Recognition If The Conditions Are Not Fulfilled. In View Of The Decision Referred To Above, It Cannot Be Said That 1987 Rules Will Be Retrospective In Nature If They Cover The Madarsas Recognised Prior To 1987. Such Madarsas Recognised Prior To 1987 Had Only An Existing Right To Be Governed By The Rules And On Coming Into Force Of The 1987 Rules, The Existing Madarsas Recognised Prior To 1987 Shall Also Have To Comply With The Requirements Contained In The 1987 Rules.
It Is For This Reason That When The 1987 Rules Came Into Force, The Committee Of Management Constructed Its Own Building At Adampur Akbar, Jaunpur For The Madarsa And Submitted An Application For Shifting The Madarsa To Its Own Building And The Inspector, Arbi Madarsa, Uttar Pradesh By The Order Dated 27th February, 1993 Granted Permission To The Committee Of Management To Shift The Madarsa To Its Own Building To Adampur Akbar, Jaunpur On 31st March, 1993 And Consequently Madarsa Qurania Was Shiftd To Its Own Building To Adampur Akbar, Jaunpur On 31st March, 1993. This Order Continued To Operate Till It Was Cancelled By The Registrar On 2nd December, 2000 But Soon Thereafter The State Government Directed For Cancellation Of This Order Dated 2nd December, 2000 And For Taking Punitive Action Against Such Persons Found Responsible For Passing The Order Dated 2nd December, 2000 And Thereafter The Registrar Cancelled The Order Dated 2nd December, 2000 By The Order Dated 22nd March, 2001. However, The State Government After Ten Years, By The Order Dated 13th April, 2010, Directed The Registrar To Recall The Order Dated 27th February, 1993 By Which Permission Had Been Granted To Shift The Madarsa To Its Own Building To Adampur Akbar, Jaunpur And Consequently By The Order Dated 12th May, 2010 The Registrar Recalled The Order Dated 27th February, 1993. The Main Reason Given For Recalling The Order Dated 27th February, 1993 Is That The 1987 Rules Will Not Apply To The Madarsa As It Was Recognised Prior To The Commencement Of The 1987 Rules. This, As Noticed Hereinabove, Is Not Correct Since The 1987 Rules Will Also Apply To The Madarsas Recognised Prior To 1987.
In This Connection, The Submission Of Sri G.K. Singh, Learned Counsel For The Respondents Is Also That The Order Dated 27th February, 1993 For Granting Permission To The Committee Of Management To Shift The Madarsa To Its Own Building To Adampur Akbar, Jaunpur By 31st March, 1993 Is Bad Since Under 1987 Rules, Such A Decision Could Only Have Been Taken On The Basis Of The Recommendation Under Rule 18 Made By The Manyata Samiti. This Submission Of The Learned Counsel For The Respondents Cannot Be Accepted. Rule 18 Will Apply To Grant Of Fresh Recognition And Will Not Apply To A Case Where Only A Decision To Shift The Madarsa Is Required To Be Taken.
It Is Also The Submission Of Sri G.K. Singh, Learned Counsel For The Respondents That It Is Only The Registrar, Arabic And Persian Examination Who Can Pass An Order For Shifting Of The Madarsa And So The Order Passed By The Inspector, Arabi Madarsa, Uttar Pradesh Is Without Jurisdiction And The Registrar Was Justified In Cancelling The Order Dated 27th February, 1993.
It Is The Submission Of Sri Ashok Khare, Learned Senior Counsel For The Petitioners That The Inspector, Arbi Madarsa, Uttar Pradesh Was Competent To Grant Permission On 27th February, 1993 Since He Is Also The Ex-officio Registrar Of The Arabic And Persian Examination.
As Seen Above, The Decision Taken On 27th February, 1993 To Shift The Madarsa To Its Own Building At Adampur Akbar Was In Accordance With Rule 11 Which Provides That A Madarsa Must Have Its Own Building. The Dispute Now Raised Is Whether The Inspector, Arabi Madarsa, U.P. Could Take A Decision On His Own Or The Registrar Alone Could Take A Decision. In This Connection, It Needs To Be Mentioned That After Enforcement Of The 1987 Rules, The Committee Of Management Constructed Its Own Building At Adampur Akbar, Jaunpur For The Madarsa And Submitted An Application Seeking Permission For Shifting The Madarsa To Its Own Building And In Writ Petition No.363 Of 1993 Filed By The Committee Of Management, The Court By The Order Dated 11th January, 1993 Directed The Inspector, Arabi Madarsa, U.P. To Either Accord Permission To Run The Madarsa From Adampur Akbar, Jaunpur Or Show Cause By Filing A Counter Affidavit. It Is In Compliance Of The Said Directions That The Inspector, Arabi Madarsa, U.P., Granted Permission To The Committee Of Management To Shift The Madarsa To Its Own Building At Adampur Akbar, Jaunpur By The Order Dated 27th February, 1993. The State Government Did Not Object To The Said Order And The Petition Was Ultimately Dismissed As Having Become Infructuous. It Also Needs To Be Mentioned That While Deciding Writ Petition No.15057 Of 1993 Filed By The Manager Of Madarsa Qurania, Jama Masjid For Quashing The Permission Granted By The Inspector, Arabi Madarsa, U.P. On 27th February, 19993, The Court Did Observe That The Rules Provide That The Madarsa Should Have Its Own Building And The Permission Impugned In The Present Petition Purports To Transfer The Madarsa From The Mosque To Its Own Building. It Further Needs To Be Mentioned That This Issue Was Also Examined In Detail By The Director, Minority Welfare Department In His Report Dated 26th October, 1998 Since The Payment Of Salary To The Teaching And Non-teaching Staff Of The Madarsa Running At Adampur Akbar Had Been Stopped. The Registrar, Arabic And Persian Examinations, U.P. Also Submitted A Report Dated 8th June, 1999 And It Is On A Consideration Of These Two Reports That The State Government Took A Conscious Decision On 9th July, 1999 For Payment Of Salary To The Teaching And Non-teaching Staff Working In The Madarsa At Adampur Akbar.
Thus, When The Decision Of The Inspector, Arabi Madarsa, U.P. Has Continued To Operate For All These 17 Years And Was Examined In Writ Petition No.17057 Of 1993, By The State Government In Its Decision Taken On 9th July, 1999 And The Madarsa Had Actually Shifted To Adampur Akbar And Had Started Running From There, The Registrar Could Not Have Cancelled The Permission Earlier Granted On 27th February, 1993 Only On The Ground That The Registrar And Not The Inspector Was Competent To Grant Permission. This Apart, It Also Needs To Be Mentioned That The Inspector, Arabi Madarsa, U.P. Was Also The Ex-officio Registrar Of The Arabic And Persian Examinations.
The Report Dated 29th September, 2009 Submitted By The Registrar To The State Government Has Mainly Mentioned That The 1987 Rules Will Not Apply; The Decision To Shift Madarsa Vests With The Manyata Samiti Constituted Under Rule 18 And That The Inspector, Arbi Madarsa Had No Jurisdiction To Pass The Order. The State Government Relied Upon The Said Report Submitted By The Registrar And, Therefore, Directed Him To Pass A Fresh Order. These Factors, As Found Above, Could Not Have Been Taken Into Consideration By The Registrar Or The State Government.
It Is Also The Submission Of Sri G.K. Singh, Learned Counsel For The Respondents That The Petitioner Is Not A Validly Elected Committee Of Management And, Therefore, Cannot Be Permitted To Assail The Decision Taken By The Registrar. It Is The Contention Of The Learned Senior Counsel For The Petitioner That The Petitioner-Committee Of Management Is Validly Elected. It Is Not Necessary To Examine As To Whether The Petitioner-Committee Of Management Is Validly Elected Or Not But Suffice It To State That Since The Order Dated 12th March, 2010 Passed By The Registrar Is Contrary To The Provisions Of Rule 11 Of The 1987 Rules, The Committee Of Management Could Not Have Taken A Decision To Run The Madarsa From Jama Masjid Since It Would Be Clearly Contrary To The Provisions Of Rule 11 Of 1987 Rules. Under Rule 11 The Madarsa Has To Run From Its Own Building For Which Permission Was Granted On 27th February, 1993. The Writ Petition, Therefore, Cannot Be Dismissed Merely On The Ground That The Petitioner-Committee Of Management Is Not A Validly Elected Committee Of Management. It Is, However, Made Clear That This Decision Will Not Mean That The Court Has Recognised The Petitioner-Committee Of Management As Validly Elected Committee Of Management And It Will Be For The Authorities To Adjudicate Upon The Same.
Thus, For All The Reasons Stated Above, The Order Dated 13th April, 2010 Passed By The Special Secretary, Government Of Uttar Pradesh And The Order Dated 12th May, 2010 Passed By The Registrar, Uttar Pradesh Madhyamik Shiksha Parishad, Lucknow Cannot Be Sustained And Are Accordingly, Set Aside.
The Writ Petition Is, Accordingly, Allowed.

Go to Navigation