Approval Granted 30 Yrs Ago Can't Be Withdrawn On Ground That Post Was Not Created By Competent Authority: Allahabad High Court

Allahabad High Court has held that approval for a post sanctioned 30 years ago cannot be withdrawn only on grounds that it was not created by competent authority. It held that the person employed on such post cannot be denied salary after 30 years of continuous work and being paid without allegations of fraud or malpractice.

Madarsa Jamia Alia Arabia Alinagar, Mau is a non-government aided minority Institution run and managed by a society namely Jamila Alia Arabia, Mau whose registration was renewed on 14.09.2019 for further period of five years. The affair of the Madarsa including the services of teaching and non-teaching staff are governed by U.P. Non-Government Arabic and Persian Madarsa Recognition Rules, 1987 which was later on amended in the year 2016.

In 1990, the Assistant Director of Education (Basic) forwarded the list stating that 27 posts of teaching and non-teaching staff were approved and those appointed were being paid their salaries. Due to increase in the number of students, request was made for sanctioning more posts for teaching staff. After inquiring into the matter, the District Basic Education Officer, Mau recommended creation of 14 posts and forwarded the recommendation to the Director Urdu/Western Language, U.P. Lucknow for necessary action.

Though petitioner was working as Assistant Teacher Tahtania since 1988, he started getting salary from the State Exchequer after the sanction of posts with effect from 1995. In 2021, when a post of Assistant Teacher Fauquania became vacant, process for promotion was initiated. Subsequently, petitioner was promoted to the said post and he started working as Assistant Teacher Fauquania. The papers of promotion were forwarded to District Minority Welfare Officer, Mau who forwarded the same to Registrar/Inspector, U.P. Madarsa Education Board, Lucknow for financial approval.

Petitioner pleaded that despite the financial approval, he and his successor on the post of Assistant Teacher Tahtania were not paid salaries. Consequently, his successor approached the High Court where Registrar/Inspector, U.P. Madarsa Education Board, Lucknow was directed to final decision in the matter within a period of 3 months.

In second contempt proceedings, the Registrar/Inspector, U.P. Madarsa Education Board, Lucknow informed the Court that order granting financial approval had been recalled. The successor filed another writ petition against the recall order wherein the High Court directed the personal appearance of District Minority Welfare Officer, Mau.

Subsequently, the Court directed that decision on the salary of petitioner, herein, on the post of Assistant Teacher, Tahtaniya or Faukaniya would not affect the payment of salary to his successor. As a consequence to the aforesaid order, the District Minority Welfare Officer, Mau passed an order stating that petitioner's earlier appointment to the post of Assistant Teacher Tahtania was not against a sanctioned post. Therefore, the financial approval granted for petitioner's promotion to the post of Assistant Teacher Fauquania is also withdrawn.

Counsel for petitioner argued that the order did not speak as to how the post was not sanctioned when the same was sanctioned by a Government Order issued in 1996. It was also argued that no allegations of fraud or malpractice were made against the petitioner to cancel his appointment.

The Court observed that the petitioner was being paid salary from 1995 to February 2024 from the State Exchequer and there was no allegation of fraud played by the petitioner. It was observed that the only contention of the respondent authority was that the sanction of post by Director, Urdu was not issued with prior permission of the State Government.

In Shivanandan C.T. & others Vs. High Court Kerala & others, the Apex Court held that unseating judicial officers who had been in service for 10 years would be against public interest when their selections were questioned to be illegal.

In Radhey Shyam Yadav & another Vs. State of U.P. & others, the Supreme Court, relying on the abovementioned decision held that prejudice would be caused to the applicants whose appointments were questioned without there being any mischief or fraud on their part.

Accordingly, Justice Prakash Padia held,

“For last about 30 years, there was no dispute or any allegation that the petitioner was paid salary against non-sanctioned post. It was open to the Competent Authority, who granted financial approval and started making payment of salary to the petitioner from the State exchequer to deny the financial approval or payment of salary to the petitioner in the year 1996 itself. The authorities being fully satisfied that the appointment of the petitioner is against the sanctioned post, he had been continuously getting his salary. Thus, the petitioner was not at all in fault. There is no mention of fraud or malpractice against the petitioner, who had served for about 30 years.”

Accordingly, the Court set aside the impugned order and held that the petitioner was entitled to all consequential benefits.

Case Title: Shafique Ahmad v. State Of U.P. And 3 Others [WRIT - A No. - 6586 of 2024]

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