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2024 Supreme(Pat) 880

IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR SINHA, J.
CWJC Nos. 22400 of 2013 with 7292
of 2014
(25.10.2024)
Dr. Shaukat Ali Khan (in 22400)
Dr. Abdul Washim Khan
(in 7292) ... Petitioners
vs.
State of Bihar & Ors, ... Respondents
(in both)

Advocates:
For the Petitioners: M/s Binodanand Mishra (in 22400); Md. Anisur Rahman Mr, Jai Prakash Singh (in 7292).
For the University : M/s Chandan Kumar Bindhyachal Rai (in 22400, 7292).
For the College : Mr. Abhinav Srivastava (in 22400, 7292).
For Resp. No. 10 : Mr. Siyaram Sahi (in 22400).
For the State : Mr. Raghwanand, GA-11 (in 7292).

Headnote:

Constitution of India – Article 30(1) – Right of minorities to establish and administer the educational jurisdiction – It is well settled that right to manage, run and control a minority educational institution is a fundamental right guaranteed under Article 30(1) of the Constitution of India – The fundamental right guaranteed under Article 30(1) of the Constitution of India protects the interest of minority community from interference by the State, by imposing various forms of limitations on the exercise of power by the State – The appointment of teachers in the minority college has been made subject to the concurrence by the Commission Selection Committee of the University and by an order of the Court, taking into consideration that the commission was disbarred or not functioning, referred the matter to the three Men committee – The petitioner's appointment was found valid by the committee and he was found to have been appointed prior to respondent no. 10 – petitioner having been appointed prior in time is having genuine right to be considered for shifting on the 5th post, which is the deficit grant post – Petitioner was found discharging his duties continuously in the college as lecturer in History, where the respondent no. 10 was found missing between 1998 to 2006 – The Principal Secretary or the Vice Chancellor cannot act like an appellate authority on the report of the committee on his appointment made by the GB of the college has been approved by the Commission as well as the committee – Impugned order by the Principal Secy. cannot survive and accordingly, set aside – CWJC No. 22400/13 allowed and CWJC No. 7292/2014 dismissed. (Paras 55 to 64)

1990 BLJR 1229; AIR 1997 SC 2425; (1998) 8 SCC 555; 2016 SCC Online Pat. 5242; 1984 PLJR 86; (1970) 2 SCC 417; (1974) 1 SCC 717 – Referred.

Anil Kumar Sinha, J.—Both these writ applications, having common question of facts and law, were heard together by this Court.

2. For the sake of convenience, Dr. Shaukat Ali Khan, the petitioner of CWJC No. 22400 of 2013, is mentioned herein below as ‘the petitioner’ and Dr. Abdul Wasim Khan, the petitioner of CWJC No. 7292 of 2014 and respondent no. 10 of CWJC No. 22400 of 2013, is mentioned herein below as ‘the respondent no. 10’.

3. The prayer of the petitioner is for quashing the order, as contained in Memo No.1624, dated 04.09.2013, issued under the signature of the Principal Secretary, Education Department, Government of Bihar, whereby he has refused to pass necessary orders for payment of salary of the petitioner, which is in defiance of the report of the three-men committee constituted by this Court. The petitioner has further prayed for a direction to the respondent authorities to make payment of salary, current as well as arrears, and other benefits, with interest at the rate of 18 per cent per annum to the petitioner on the unpaid amount of arrears of salary to the petitioner.

4. The prayer of respondent no. 10 is for issuance of a writ directing the respondents to pay the arrears of salary from the date of his joining, i.e. with effect from 24.04.1990 as well as current salary and also for awarding compensation for mental torture and harassment due to financial loss incurred to him.

5. The brief facts involved in these writ applications is that Z. A. Islamia College, Siwan, (hereinafter referred to as ‘the College’) is a recognized minority educational institution within the meaning of Article 30 (1) of Constitution of India and is also a deficit grant college, permanently affiliated to the Jai Prakash University, Chapra (herein after referred to as ‘the University’).

6. The Petitioner was initially appointed as Lecturer on temporary basis in the subject of History on 04.04.1988. The petitioner’s initial appointment was without any advertisement. Thereafter, an advertisement was published in the Urdu daily ‘Qaumi Tanzeem’, Patna Edition, on 31.08.1988, inviting applications for appointment of Lecturers in different subjects, including History. In the said advertisement, it was stated that teachers working on the temporary basis/post may also apply.

7. Pursuant to the aforesaid advertisement, the petitioner, having requisite qualification, applied for appointment as Lecturer in History, following which the interview was held on 10.09.1988 in which five candidates, including the petitioner, appeared and the selection committee, after interview, recommended the name of the petitioner. Accordingly, the Governing Body of the College, vide resolution no. 4, dated 20.09.1988, regularized the services of the petitioner on permanent basis with effect from 04.04.1988, i.e. from the date of initial appointment.

8. At this juncture, it would be pertinent to mention that the respondent no. 10 was appointed on the post of Lecturer in the subject of History, vide order, dated 24.04.1990, pursuant to the advertisement, dated 13.12.1989, published in the newspaper, The Times of India.

9. The Secretary of the Governing Body of the College, vide letter, dated 13.12.1990, requested the Bihar College Service Commission (herein after referred to as ‘the Commission’) for granting concurrence to the services of the petitioner and others, following which, the Commission issued letter, dated 02.09.1994, calling in total 52 Lecturers working in the said College for the interview in order to grant approval to their permanent appointment. In the said letter, it was specifically mentioned that the petitioner was to be interviewed against the 5th post of Lecturer in the subject of History; whereas, the respondent no.10 was to be interviewed against the 7th post.

10. Thereafter, the Commission, vide letter, dated 31.03.1995, sent its concurrence, in which it had given concurrence to the respondent no. 10 against the 6th post of Lecturer in History, but t

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