A.P.SAHI,J. - (1.) HEARD learned counsel for the petitioner Ch. N.A. Khan in both the writ petitions.
(2.) THE petitioners in Writ Petition No. 60896 of 2008 claim themselves to be the Teachers Association of Madarsa and in Writ Petition No.61099 of 2008, the petitioners claim themselves to be an Association of Managers running such institutions which are governed by the provisions of Uttar Pradesh Board of Madarsa Education Act, 2004. The challenge in both the writ petitions is to the Circular dated 27.10.2008 issued by the Madarsa Board in respect of the examination for the Sessions 2009 and the grievance of the petitioners is with regard to clause 3 of the said circular, which reads as follows:- @Hindi@@... Ch. N.A. Khan contends that such a restriction which has been imposed on the Madarsa is unconstitutional and such discrimination practised by the Madarsa Board on the ground of sex is impermissible. The writ petitions were entertained and the following detailed interim order was passed on 30.3.2009 in Writ Petition No. 61099 of 2008:- "Heard learned counsel for the petitioner and Sri R.A. Yadav, learned counsel for the respondent. The petitioner no. 1 i.e. Manager Association Madaris-E-Arabia U.P. Kanpur is registered society under the societies registration Act, 1860 vide renewal registration no. K.1073/2004-05 dated 24.1.2005 and petitioner no. 2 is its President of working Committee. The aforesaid society is the working body of managers of all aided/unaided recognised Madarsas imparting instructions in Madarsa education under the authority of U.P. Board of Madarsa Education Act, 2004. Prior to the constitution of U.P. Board of Madarsa Education under the U.P. Act No. 29 of 2004, the aforementioned Madarsas were under the control of Director, Minority Welfare U.P. and the Registrar/Inspector, Arabia, Farsi Madarsa and the same were being administered under the Arabi, Farsi Madarsa Rules, 1987 amended from time to time. As per the guidelines/instructions issued from time to time by respondent no. 3, all the aided/unaided recognised Madarsas running under the authority of U.P. Act No. 29 of 2004, grant admission to students in first year on the commencement of academic session starting w.e.f. Ist July to 20th May every year for various courses viz. Munshi, Moulvi, Aalim, Kamil and Fazil. The duration of each course is of two years and at the end of academic session in every second year, the board examination of each course is conducted by the respondent no. 3. The contention of learned counsel for the petitioner is that the respondents-Board are not granting permission to the girls students for appearing in the examination from the Boys Madarsa, which has been made an examination centre for the examination. The counsel for the petitioner submits that since in very few districts of U.P. The aided/unaided recognised Madarsas only for girls are available, therefore, it has been established practice that most of Madarsas grant regular admission to both boys and girls on common basis in various courses and also used to forward their examination forms to respondent no. 3 for the purpose of conducting their examination. He states that neither there was/is a bar under the provisions of U.P. Act no. 29 of 2004 or under the earlier rules i.e. Arabi, Farsi Madarsa Rules, 1987 prohibiting Madarsas not to grant regular admission to boys and girls on common basis and also not to forward their examination forms on such basis. Nor there was any guidelines issued in this regard by respondent no. 3 to restrict the recognised Madarsas dominated by boys not to grant admission to girl students and also not to forward their examination forms to the Board. It is stated by the learned counsel for the petitioner that for the first time in the history of Madarsa education, respondent no. 3 vide its letter/direction dated 27.10.2008 addressed to all the District Minority Welfare Officer, U.P. And all the Principals of recognised Madarsas of U.P. Laid down the guidelines for holding of Munshi, Moulvi, Aalim, Kamil and Fazil Examination 2009 and thereby by means of para no. 3 of the impugned letter has directed that the girls Madarsas will forward the examination forms of girls student only whereas the boys Madarsas will forward the examination forms of boys students only, however, in case where there is no any recognised Madarsa of girls in the district, the boys Madarsas will forward the examination form of the girls with necessary permission of board. Thereafter the respondent no. 3 has issued another letter/direction dated 17.11.2008 amending the earlier direction dated 27.10.2008 to the extent that where there is no any recognised girls Madarsa, the examination forms of girls student for the aforementioned examinations of the Board can be forwarded by the boys Madarsas as private candidate only. It is also stated that the petitioners have come to know from the management of all the aided/unaided recognised Madarsas of U.P. that due to the aforementioned condition imposed under para no. 3 of the impugned letter dated 27.10.2008 and impugned letter dated 17.11.2008 by respondent no. 3, all the District Minority Welfare Officer throughout the State of U.P. Are not accepting the examination forms of girl students enrolled in Madarsas dominated by boy students. As a result of which the career of regular girl students who are pursuing the various courses of Madarsa Board alongwith their boys counter parts in boys Madarsas, is likely to be spoiled if their examination forms are not accepted by the respondent no. 3 on the ground that same are not forwarded by girls Madarsas. The condition imposed in para no. 3 of impugned letter dated 27.10.2008 and in impugned amended letter dated 17.11.2008 is absolutely arbitrary, illegal, evasive, fanciful and as such uncalled for in the eye of law and deserves to be quashed by this Court. Sri R.A. Yadav, learned counsel for the respondents submits that there is no such prohibition and he has relied upon the paragraphs and 5 and 13 of the rejoinder affidavit filed by the petitioner that there is no discrimination. He submits that every body has right to take eduction. It is stated that before issuance of impugned letters such condition was imposed nor the girls and boys students have ever been discriminated in such manner and restrained from participating in Board examinations on the ground that girls students examination forms have been forwarded by boys Madarsa, and boys students examination forms are forwarded by girls Madarsa. Thus, to that extent impugned directions are illegal. No such direction has ever been issued by respondent no. 3 that no recognised Madarsa dominated by boys will grant admission to girl students, nor there is any provision under U.P. Act No. 29 of 2004 prohibiting admission of girls in boys Madarsas and nor under the Arabi, Farsi Madarsa Rules 1987, the provisions of which were previously applicable to Madarsas any such rule debarring girl students form studying in boys Madarsas and taking on the examinations exists. After hearing learned counsel for the parties, it appears that there are only few recognised girl Madarsas in the state which are imparting instructions only to girls and it is impossible and impractical for them to meet out the need of proper and regular girl education. Therefore, in order to fill up the gap the Madarsas dominated by boys student also grant admission to girl students on regular basis for pursuing the various courses offered by Madarsa Board. Their examination forms too, have always been forwarded by these Madarsas which got acceptance of respondent no. 3 in the past. But with the issuance of impugned letters/guidelines for the exams to be conducted in year, 2009 such girl students who are enrolled as regular students in boys Madarsas cannot appear in examination of 2009 to be conducted by respondent no. 3 by simple reason, that their examination forms are forwarded by the Madarsa which unfortunately a boys Madarsa, therefore, any such restriction in the mid of the duration of course is aimed at spoiling the career of students which is absolutely illegal. In the circumstances, the petition is admitted. The effect and operation of para no. 3 of impugned letter/direction dated 27.10.2008 (Annexure no. 2 to the writ petition) and also the impugned letter/direction dated 17.11.2008 (Annexure no. 3 to the writ petition) to the extent it relates to not forwarding of the examination forms of girls students as regular candidates from boys Madarsas during the pendency of instant writ petition is stayed. An ad-interim mandamus is also issued directing respondent no. 3 to direct all the District Minority Welfare Officer of U.P. to accept the examination forms of girl students (for Madarsa Board Exams, 2009) who are enrolled in boys Madarsas and whose exam forms are to be forwarded by the said boys Madarsa, during the pendency of instant writ petition. It is made clear that the girls students are permitted to give examination in the meantime from any examination centre either boys Madarsa or Girls Madarsa whichever is allotted to them and shall not be restrained from appearing in the examination. It is also made clear that students, who are appearing as regular student, shall be permitted as a regular student and those students who are appearing as a private student shall be permitted as a private student."
(3.) IT is contended by Ch. Khan that in pursuance to the said interim order, the students of the Madarsa, who had already taken admission and their forms pertaining to the examination, had already been submitted treating them to be the students of the Sessions 2007-08 have appeared in the examination in 2009, and their results have now to be declared. It is urged that their admissions had been made prior to the decision taken by the Board pursuant whereof the impugned Circular had been issued. He contends that the Circular, according to the recital contained therein, would apply for the current year 2009 if at all and not for the preceding years. The argument in substance is that the said circular does not have any retrospective effect in respect of such students, who had already entered in the Session 2008-09. It is pointed out that this issue was raised at the time when the interim order was granted wherein the commencement of the academic Session has been indicated from 1st July to 20th May in the succeeding year.;