1. This special appeal arises out of the judgment of learned Single Judge dated 23.3.2007, whereby the writ petition of the petitioner has been dismissed. The learned Single Judge has decided a batch of petitions by a common judgment and the petitioners' claim has been rejected. The basic facts, which are relevant to decide the issue in question, are as follows;
2. Fazal-ur-Rahman Islamia Inter College, Bareilly (for short, the "Institution") is a minority institution. It receives the aid out of the State fund. The affairs of the Institution are managed by a committee of management. The provisions of U.P. Intermediate Education Act, 1921 (for short, the "Act, 1921") and the Regulations of the said Act regulate the affairs of the Institution.
3. Three vacancies of lecturers arose due to retirement of three permanent teachers namely Hooram Singh Yadav, Lecturer in Hindi; Ram Gopal Sharma, Lecturer in Civics; and Mohd. Naseem
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, Lecturer in Economics. The Committee of Management on 29th September, 2002 issued an advertisement in two newspapers namely 'Amar Ujala' and 'Janmorcha' inviting applications for selection of lecturers in Hindi, Economics and Civics. The last date for submission of the application form was 19.10.2002.
4. The petitioners made applications in pursuance of the said advertisement. They received call letters under registered cover on 12.7.2003. The selection committee met on 22.7.2003. It is stated that the selection committee was constituted in terms of the provisions of Act, 1921 and the present Principal Mohd. Shakeel Raza Khan was also one of the members of the selection committee. The petitioners faced the selection committee and were found suitable. The papers were sent to the office of District Inspector of Schools (for short, the "DIOS") for his approval. The DIOS did not take any decision on the said papers. Accordingly, the committee of management assumed deemed approval of the appointment in terms of Regulation 17(g) of Chapter-II of the Regulations under the Act, 1921. Accordingly, the petitioners were issued appointment letters on 12th September, 2003. The petitioners were allowed to join their services on 16th September, 2013 by the Principal Mohd. Shakeel Raza Khan.
5. The committee of management sent the salary bill of the petitioners to the office of DIOS, but when no action was taken the petitioners preferred Writ Petition No. 42385 of 2005 for a direction upon the respondents to pay their salary w.e.f. their joining. In the said writ petition a counter-affidavit was filed. The stand taken in the counter-affidavit was that at the time of the selection, the committee of management headed by Haji Mukhtar Waseem was not validly constituted committee, as in August, 2003 Haji Mukhtar Waseem has got the recognition by concealment of the fact as the said order was stayed on 6.11.2000.
6. Aggrieved by the said order Haji Mukhtar Waseem has preferred Writ Petition No. 49683 of 2000, wherein an interim order was passed by this Court and on the strength of the interim order he continued. There are allegations of mismanagement against the said Manager. The Regional Director of Education vide order dated 26.11.2001 had appointed the Prabandh Sanchalak and DIOS by the order dated 4.10.2001 had imposed a ban for all selections.
7. The Manager of the Institution aggrieved by the said orders, had preferred a Writ Petition No. 6617 of 2000, which was disposed of with a direction to decide the appeal of the Manager. The appeal was rejected.
8. Feeling aggrieved by the said order the Manager preferred a writ petition, in which an interim order was passed by this Court. For the aforesaid reason the approval of the petitioners was not made. It is also stated that this Court in Writ Petition Nos. 15803 of 2004 and 16101 of 2004 had passed an order dated 21st April 2004 till the managerial disputes are pending in the Court, the DIOS shall continue to pay salary of all the teachers and the employees. For the aforesaid reasons in the counter-affidavit, the action of the DOIS has been treated to be justified for withholding the salary of the petitioners as their appointment itself was illegal.
9. We have heard Sri J.P. Singh, learned Counsel for the petitioners, learned Standing Counsel, Sri Vikas Budhwar, learned Counsel appeared for respondent No. 4 and Sri Prabhakar Awasthi, learned Counsel for the respondent No. 5.
10. Learned Counsel for the petitioners submits that on the date when the advertisement was made, Haji Mukhtar Waseem was the Manager of the Institution and as such the selection cannot be said to be illegal merely because there was some managerial dispute pending in the High Court. He further submits that there is no dispute that three vacancies arose in the subjects Civics, Hindi and Economics and in the larger interest of the students the appointments were necessary. He further submits that the Institution is a minority institution and in terms of the provisions of the Act, 1921 and the Regulations, the DIOS had a very limited jurisdiction. He has only to see whether the candidate has essential qualification. In the present case there is no dispute with regard to the vacancies and the procedure adopted by the committee of management. It is also not disputed that both the petitioners possess essential qualification. Lastly he urged that even if there was a managerial dispute, the action taken by the committee of management is saved by the de facto doctrine. He further submits that in view of Regulation 17(g) of Chapter-II of the Regulations under the Act, 1921 the appointment of the writ petitioners, was deemed to be approved as the DIOS failed to communicate any disapproval within a month from the date copy received in his office.
11. Learned Standing Counsel submits that appointment of the petitioners was void ab initio as at the time when the appointments were made the committee of management was working on the strength of interim order, therefore, the learned Single Judge has taken a correct view that the petitioners' appointment was without jurisdiction.
12. Sri Vikas Budhwar who represents the newly committee of management-respondent No. 4 has supported the appellants' case and Sri Prabhakar Awasthi who has put in appearance on behalf of respondent No. 5 has also not disputed the fact that the writ petitioners are entitled for their salary.
13. We have heard learned Counsel for the respective parties and perused the record.
14. The Institution is a minority institution protected under Article 30 of the Constitution. Section 16-FF of the Act, 1921 provides that the selection procedure provided under sub-section (4) of Section 16-E and 16-F shall not be applicable in case of the minority institution. The constitution of the selection committee and the procedure has been laid down for the minority institutions. The perusal of Section 16-FF of the Act, 1921 indicates that the selection committee has been predominated by the management and teachers of the same institution. The committee of management has a preference of the experts also from the penal prepared by the Director. Under Regulation-17 of Chapter-II a detail procedure has been laid down for the selection of the Head of Institution and Teachers. It is not disputed that the committee of management has followed the procedure under Regulation-17 of Chapter-II. The only dispute is with regard to the authority of committee of management to make the selection as there was a managerial dispute at the time of selection of the writ petitioners.
15. The principles of de facto and de jure have been explained by the Supreme Court in the case of Committee of Management Dayanand Arya Kanya Degree College, Moradabad and Others Vs. Director of Higher Education Allahabad and Others, . In the said case one Dr. Manju Saraswat was a Principal of Dayanand Arya Kanya Degree College. She tendered her resignation from the post, which was accepted by the managing committee. The dispute arose whether the committee of management had power to accept the resignation as on the date when the committee of management had accepted the resignation, it was in the office by virtue of interim order passed by the High Court in a writ proceeding in favour of the committee of management. The resignation was not accepted by the Vice Chancellor on the ground that the authorized controller was appointed in the Institution and he had not accepted the resignation but it was accepted by the committee of management, which was continuing on the strength of the interim order. The High Court had also taken the same view. The Supreme Court took the view that as the committee of management was working in the Institution on the strength of interim order, its decision is saved by de facto and de jure both. The similar view was taken by a Division Bench of this Court in the case of Committee of Management, Gangadin Ram Kumar Inter College Vs. Deputy Director of Education, Vth Region and Others, .
16. After careful consideration of the matter, we are of the view that the appointment of writ petitioners are saved by the de facto doctrine. Accordingly, the impugned order of the learned Single Judge so far as it relates to the petitioners in Dr. Mehandi Hasan and Aquil Yar Khan Vs. State of U.P. and Others, , is set aside and a direction is issued upon the respondents for the payment of salary of the writ petitioners. Accordingly, special appeal is disposed of.