Arun Tandon, J.@mdashThese two writ petitions pertains to the same institution and practically involve same issues of facts and law, therefore, are being decided by a common judgment.
2. Fazulur Rehman Islamia Inter College, Bareilly is a minority institution duly recognized as such under Intermediate Education Act. The provision of U.P. High School and Intermediate Colleges (Payment of salary) Act, 1971 are applicable to the teachers and staff of the said institution.
3. Shauib Siddiqui, petitioner in Writ Petition No. 67656 of 2005 seeks a writ of mandamus commanding the respondents to promote the petitioner on the post of lecturer in the subject of English. The vacancy is stated to have been caused on 30-6-1997. From the record it is established that the vacancy caused on 30-6-1997 with the retirement of Sri T.A. Khan, was within 50% reserved for promotion. The claim of the petitioner for such promotion was not considered in view of the promotion said to be granted in favour of one Sri Sageer Ahmad Siddiqui against the said vacancy.
4. The controversy with regard to promotion of Sageer Ahmad was directed to be examined under the orders of this Court dated 4-10-2006, by the Director of Education. A report has been submitted by the Director of Education wherein it has been stated that on the date when vacancy was caused Sagheer Ahmad was not qualified for being promoted on the post of Lecturer in English mark sheet alleged to have been submitted by Sagheer Ahmad for establishing that he was Post Graduate (M.A) in the subject of English from Magadh University Bodhgaya (Bihar) was forged.
5. At this stage it may be recorded that the counsel for Sageer Ahmad Siddiqui has made an statement that at no point of time Sagheer Ahmad Siddiqui made any claim for promotion on the post of lecturer in English inasmuch as he was not qualified for the post it is further stated that Sagheer Ahmad did not file a copy of the degree of Maghad University Bodhgaya, State of Bihar in support of his being M.A. in the subject of English before the authorities. He lastly states that Sageer Ahmad was never paid salary as lecturer. In the aforesaid facts the issue with regard to promotion of Sageer Ahmad as suggested by the State respondent and the committee of management of the institution is non-est. This Court therefore records that the vacancy on the post of lecturer in English still survives and at no point of time Sageer Ahmad Siddiqui can be said to have been promoted or to have occupied the post in accordance with law. The petitioner claims to be senior most qualified teacher in the institution, entitled for promotion against the said vacancy. However, his claim is not being processed even now on the ground that there is no lawful committee of management in the institution and in absence of resolution of committee of management petitioner cannot be granted promotion.
6. Promotion of teachers in the minority recognized institution is regulated by Chapter-2 Regulation 6 of the Regulation framed under Intermediate Education Act. Promotion as lecturer is to be granted with reference to, Annual Character Roll, entries which reflects upon performance of the teacher concerned along with essential qualifications prescribed both in respect of academic qualification as well as teaching experience.
7. Since there is no recognized committee of management, this Court is of the opinion that the Regional Level Committee constituted under Government order dated 19-12-2002 may examine the petitioners claim and pass appropriate orders. It is to be noticed that all promotions in recognized institutions are required to be approved by the Regional Level Committee. Accordingly the writ petition filed by Shauib Siddiqui is allowed. Let the claim of the petitioner for promotion on the post of lecturer in English be examined by the Regional Level Committee Bareilly preferably within a period of six weeks from the date a certified copy of this order is placed before the Joint Director of Education, Bareilly, who is the Chairman of Regional Level Committee. The Regional Level Committee shall afford opportunity of hearing to the petitioner, Principal of the institution and any other teacher interested in such promotion. The Committee shall examine the annual character roll of the teacher concerned and shall pass a reasoned speaking order.
8. Syed Moid Akhtar who has filed Writ Petition No. 61420 of 2006 he was appointed by direct recruitment after following due procedure prescribed against the vacancy which is said to have been passed due to promotion of Sagheer Ahmad as lecturer in English. Since this Court has recorded that such promotion of Sagheer Ahmad was non-est in the eyes of law, it logically follows that no vacancy become available because of such promotion against which Syed Moid Akhtar could have been appointed. Normally this Court would have set aside the appointment of Syed Moid Akhtar after coming to the conclusion that there is no vacancy in LT Grade due to grant of non-est promotion in favour of Sagheer Ahmad. Such a direction will not be in the interest of substantial justice in the facts of the case for the following reasons:
Admittedly the institution is a minority institution. The provisions of U.P. Secondary Education Services Selection Board Act, 1982 are in-affirmative to it. This Court: in its judgment and order dated 19-3-2007 in Writ Petition No. 67945 of 2005 in respect of the same institution has recorded that there are 21 existing vacancies in LT Grade. All these existing vacancies are required to be filled by direct recruitment inasmuch as feeding cadre for promotion (C.T. Grade) has already been declared to be dying cadre and all teachers who have been working in CT Grade for more than ten years are deemed to have been appointed in LT Grade in view of Regulation 7 of Chapter-2 of the Regulations framed under Intermediate Education Act. From the record it is established that appointment of Syed Moid Akhtar was made after following due procedure prescribed for a minority institution. He is also possessed of the prescribed qualifications and such appointment of Syed Moid Akhtar has also obtained approval of the authority concerned as early as in the year 2002, It is not the case of the State respondents that there is no requirement of L.T. Grade teacher in the institution in respect of the subject for which Syed Moid Akhtar is qualified and can be adjusted. It would be too harsh to remove Syed Moid Akhtar from his employment on the technicality that the vacancy against which he was appointed does not exist which there were and are other substantive vacancies in the institution in the cadre and in respect of same subjects, specifically when there are existing vacancy in LT Grade in the institution against which his appointment can be adjusted. Such a direction of appointment of Syed Moid Akhtar will not result in any additional financial burden upon the State Exchequer. To the similar effect are the directions issued by this Court in W.P.No.67945/05 decided on 19-3-2007, referred to above.
9. Accordingly writ petition filed by Syed Moid Akhtar is allowed to the extent that he may be allowed to continue as LT Grade teacher in the institution treating his appointment against a vacancy available in the institution in L.T. If Syed Moid Akhtar has actually discharged his duties in the institution subsequent to the grant of approval. He may be paid his salary along with arrears of salary. Interim order restraining payment of salary to Syed Moid Akhtar is hereby revoked
10. Both the writ petition are allowed as above.
