C/M D.A.V. Post Graduate College ... vs State Of U.P. And 4 Others
2018 Latest Caselaw 1040 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- WRIT - C No. - 18693 of 2018
 

 
Petitioner :- C/M D.A.V. Post Graduate College And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sunil Kumar Srivastava,Shri Ashok Khare (Sr. Advocate)
 
Counsel for Respondent :- C.S.C.,J.P. Singh
 

 
Hon'ble Manoj Kumar Gupta,J.

The instant writ petition is directed against an order dated 5.5.2018 passed by the Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur, the third respondent in exercise of power under Section 2 (13) of the U.P. State Universities Act, 19731 and Statute 10.34, pursuant to direction of this Court dated 27.10.207 in Writ-C No.47930 of 2017. The order recognises the fourth respondent as validly elected Committee of Management of D.A.V. Post Graduate College, Azamgarh which is affiliated to the University.

Sri G.K. Singh, learned senior counsel assisted by Sri J.P. Singh appearing on behalf of respondent no.4 raised a preliminary objection against the maintainability of the writ petition contending that the petitioners have an efficacious alternative statutory remedy of filing Reference under Section 68 of the Act before the Chancellor and, therefore, this writ petition should not be entertained and the petitioners should be relegated to the remedy provided under the Statute.

On the other hand, Sri Ashok Khare, learned senior counsel assisted by Sri Sunil Kumar Srivastava appearing on behalf of the petitioners submitted that the third respondent, while passing the impugned order, has failed to return a finding on the issue of effective control of the affairs of the institution, as directed by this Court by its previous order dated 27.10.2017 in Writ-C No.47930 of 2017 and therefore, no factual aspect is required to be examined. It is urged that in such circumstances, alternative remedy would not be a bar to the maintainability of the instant petition.

For deciding the preliminary objection, certain background facts against which the impugned order came to be passed are required to be noted.

The parent society which has established the College is Arya Vidya Sabha, Azamgarh. It is run in accordance with a Constitution approved by the Vice Chancellor. It is common ground between the parties that as per Article V of the Constitution, the election for constituting Committee of Management of the College is held from the General Body of the society. It is also admitted to the parties that the power to call meeting of the General Body is vested in the Secretary of the society. In the meeting so convened, fifteen members of the Committee of Management are elected from the members of the General Body of the parent society. Thereafter, in another meeting, also to be convened by the Secretary of the society, with seven days clear notice to the members of the Committee of Management, the office bearers are elected.

Indisputably, one Vinod Kumar Srivastava was the Secretary of the parent society. The meeting dated 2.10.2016 of the General Body was called by Vinod Kumar Srivastava, the Secretary of the parent society. In the said meeting, the members of the Committee of Management were elected. It was followed by a meeting of Committee of Management dated 11.10.2016 in which the office bearers were elected. The impugned order records that the fourth respondent was elected in these meetings, duly convened by the Secretary Vinod Kumar Srivastava. The order also recites that these meetings were held in accordance with the procedure prescribed in the Constitution of the College. The claim set up by the petitioners relating to election dated 25.9.2016 was discarded on the ground that election of the members and the office bearers of the Committee of Management was held in one single day, which is contrary to the Constitution of College. One another set of election allegedly held on 4.2.2018 in which Dinesh Kumar Srivastava claims to be elected as President and Rajiv Kumar Arya as Manager, has also been discarded by recording a finding that the election set up by them is wholly sham and paper proceedings only. It has also been held that Assistant Registrar, Azamgarh, by order dated 21.3.2014, held them to be rank outsiders and the said order was relied upon by this Court in its order dated 29.9.2016 in Writ-C No.46344 of 2016 in keeping in abeyance an exparte interim order obtained by them on 19.8.2016.

Section 2 (13) of the Uttar Pradesh State Universities Act, 1973 provides as under:-

"2 (13) 'management' in relation to an affiliated or associated college, means the managing committee or other body charged with managing the affairs of that college and recognised as such by the University."

The Vice Chancellor has passed the impugned order in exercise of power under Section 2 (13) of the Act in recognising respondent no.4 as the Body charge with managing the affairs of the College. Under Statute 10.34 where a dispute arises in regard to Management of a College, the Vice Chancellor may recognise those persons who are found in possession and control of the properties of the College to be the Managing Committee until a Court of competent jurisdiction directs otherwise. This Court, while deciding previous writ petition by judgement dated 27.10.2017, observed as under:-

"Having heard learned counsel for the parties and perused the record, it is found that in the instant case, the Vice Chancellor of the University has simply ignored the rival claims and passed the order of recognition of election dated 29.09.2016, simply on the ground that the dispute regarding the membership of the parent body is pending before the Prescribed Authority. The reasons are heart of an order and should reflect from the order itself. The jurisdiction conferred upon the Vice Chancellor of the University under Section 2 (13) of the Act 1973 has not been discharged in a rightful manner.

This Court in Writ Petition no.37053 of 2014 (C/M of Mahatama Gandhi Post Graduate College & another Vs. State of U.P. & Others) decided on 6.08.2014 reported in 2015(2) AWC 520 in a matter of recognition of managing committee of the institution affiliated or associated to the University has held that in exercise of power under Section 2(13) of the Act, the Vice Chancellor has to decide the question of effective control on the basis of evidence before him as also the record of the institution. The order passed by the Vice Chancellor impugned in the present petition is a result of complete non-application of mind on the controversy before him.

Learned counsel for the respondent lastly placed reliance upon the judgement of Division Bench of this Court in Special Appeal no.1414 of 2012 (C/M Dharma Samaj Society Inter College & another Vs. State of U.P. & others) passed on 18.09.2012 to submit that the petitioner has alternative remedy of approaching Chancellor of the University under Section 68 of the U.P. State Universities Act' 1973 Act. The petitioners may be relegated to file reference before the Chancellor.

This submission of learned counsel for the respondent does not find force for the simple reason that the Vice Chancellor of the University has not addressed itself on the issue at all. Availability of alternative remedy is not a complete bar for invoking extraordinary jurisdiction under Article 226 of the Constitution of India moreover, in view of the fact that the pending claim before the Vice Chancellor has not been adjudicated.

For all the above reasons, the order dated 16.09.2017 passed by the Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur cannot be sustained and is hereby quashed.

The matter is remitted back to the Vice Chancellor, Veer Bahadur Singh Purvanchal Unijversity, Jaunpur to take fresh decision having regard to the statutory provision as discussed above.

An expeditious decision, in accordance with law, shall be taken preferably within a period of four weeks from the date of submission of certified copy of this order after giving due opportunity of hearing to all concerned. "

Sri G.K. Singh, learned senior counsel appearing on behalf of the fourth respondent submitted that the question of effective control is also required to be determined under Section 16-A (7) of the U.P. Intermediate Education Act, 1921 while recognising Committee of Management of a recognised Intermediate college. He, by placing reliance on a Full Bench judgment of this Court in Committee of Management, Pt. Jawahar Lal Nehru Inter College, Bansgaon, Gorakhpur Vs. Deputy Director of Education, Gorakhpur Region, Gorakhpur, 2005 (1) UPLBEC 85, submitted that while deciding the question of effective control, the authority is required to record a prima facie satisfaction relating to validity of the elections. A Committee, if found not to be validly elected, could not be recognised solely on the ground that it is in actual or effective control of the affairs of the institution. In this regard, relevant observations made by the Full Bench are reproduced for convenience of reference:-

"35. Control is a comprehensive term. Ordinarily it means the powers to govern, dominate, direct and supervise in some respect the conduct of another, the extent and degree of dominion depending upon the circumstances of the particular case. Where the enquiry is with regard to 'actual control' and the statute prescribes the method of the enquiry and the factors to be considered in determination of the dispute, the authority vested with the powers to decide the question must confine its powers to the relevant factors, keeping in view the object and purpose of such determination. We find that the purpose of determination under Section 16-A(7), is to find out as to who, prima facie, is entitled to manage and administer the educational institution. The 'Scheme of Administration' provides for the procedure for constituting the Committee of Management by periodical elections. It also provides for qualification and disqualification of the members and office-bearers and the terms of the office and the procedure to call and to conduct the meetings. In our view, the Deputy Director of Education in such matter must investigate about the validity of the election of the office-bearers. This enquiry, however, is to be summary in nature and is subject to the final decision of the Court of competent jurisdiction.

36. .....Where the persons are not found to be validly elected office-bearers, they cannot be allowed to manage and administer the institution only on the ground that they are in actual physical control over the affairs of the institution. In the circumstances, we hold that where the Regional Deputy Director of Education finds that the elections of both the rival Committees are invalid, he is not required to decide the question of actual control and to recognize one or the other Committees. In such circumstances, where the Scheme of Administration provides for appointment of Administrator (Prabandh Sanchalak), the Dy. Director (or Jt. Director, as the case may be) may appoint an Administrator with direction to hold elections in accordance with the Scheme of Administration, and where there is no such provision he may appoint an Authorised Controller, who shall expeditiously hold elections and manage the affairs of the institution until a lawfully elected Committee of Management is available for taking over the Management."

The Full Bench thereafter answered the Reference as under:-

"38. Accordingly, we answer the questions as follows :

(1) The Regional Deputy Director of Education, while deciding a dispute under Section 16-A(7) of U.P. Intermediate Education Act, 1921, exercises quasi-judicial powers and not purely administrative powers.

(2) The Regional Deputy Director of Education white deciding a dispute under Section 16-A(7) of the U.P. Intermediate Act, 1921, must decide the question of validity of the elections prima facie, in deciding the question of actual control over the affairs of the institution.

(3) Where the Regional Deputy Director of Education finds that the election of both the rival Committees arc invalid, he is not required to decide the question of actual control to recognize one or the other Committee of Management, and instead he shall, where the Scheme of Administration provides for appointment of an Administrator (Prabandh Sanchalak), appoint an Administrator with the direction to hold elections expeditiously in accordance with the Scheme of Administration, and where there is no such provision in the Scheme of Administration he shall appoint an Authorised Controller who shall expeditiously hold elections to the Committee of Management and shall manage the affairs of the institution until a lawfully elected Committee of Management is available for taking over the Management."

The object of a Management being recognised by the University under the Act and the Statute is similar to one under the U.P. Intermediate Education Act, 1921. The Management exercises various important functions under the Act and the Statutes. It plays an important role in making appointments, determining seniority, preparing and submitting salary bills. It is also entrusted with the Government funds, therefore, a rank outsider or an usurper or a person not validly elected, could not be recognised, nor entrusted with the statutory functions under the Act. The law laid down by the Full Bench in the context of Section 16-A (7) of the U.P. Intermediate Education Act, 1921 would also be applicable when the Vice Chancellor exercises power under Section 2 (13) read with Statute 10.34. He cannot recognise a Committee which, on the face of it, is not validly elected.

In the instant case, the Vice Chancellor has returned a specific finding that the election set up by the petitioners is contrary to the Constitution of the College. Once such a finding has been arrived at, this Court is unable to accept that merely on basis of effective control, the petitioners be recognised as validly elected Committee. Moreover, the petitioners claim effective control on basis of the previous order of the Vice Chancellor dated 16.9.2017, which already stands quashed by this Court by judgement dated 27.10.2017 in Writ-C No.47930 of 2017. They also claim effective control on basis of another order of Vice Chancellor dated 23.12.2017, whereby they were permitted to operate certain accounts. Once again, the same was only in pursuance of the order of the Vice Chancellor while the dispute relating to grant of recognition to the validly elected Committee was under consideration. However, once such a decision has been taken, the petitioner Committee cannot claim right to be recognised as validly elected Committee solely on the basis of the order passed by the Vice Chancellor permitting it to operate certain accounts in the meantime.

The question as to whether the order of the Vice Chancellor impugned herein is sustainable or not, could very well be examined in Reference under Section 68 of the Act. It is noteworthy that the petitioner Committee claims that meeting dated 25.9.2016 in which it was elected was called by Narendra Kumar Srivastava, Secretary of the parent society. Concededly, the person initially elected as Secretary of the parent society was Vinod Kumar Srivastava. The petitioners claim that he was expelled from the post of Secretary of the parent society on 25.3.2016 and his membership was also ceased. So far, there is no adjudication by any authority upholding expulsion of Vinod Kumar Srivastava. The said dispute is pending before the Prescribed Authority under Section 25 (1) of the Act. In order to be successful, the petitioners have also to establish that Vinod Kumar Srivastava was validly expelled and in his place, Narendra Kumar Srivastava was validly elected. In the opinion of the Court, these issues, which require appreciation of evidence, should be permitted to be examined in Reference under Section 68 of the Act.

The remedy of Reference under Section 68 is an efficacious remedy, inasmuch as the Chancellor, while exercising power under Section 68 pertaining to a dispute relating to election, is also invested with specific power to pass such orders of stay as he thinks just and expedient. A Division Bench of this Court in Writ-A No.44972 of 2013 Managing Committee Shibli National PG College Vs. State of U.P. and others by judgement dated 30.9.2013 declined to entertain a writ petition holding that the remedy under Section 68 by way of Reference is a comprehensive remedy where questions of fact as well as law both could be raised and decided. Again, in Committee of Management, Raja Balwant Singh College and others Vs. State of U.P. and others, 2016 (1) ADJ 781, I have taken the same view and declined to entertain the writ petition relegating the parties to invoke the remedy of Reference under Section 68 of the Act.

No doubt, there is no absolute bar in entertaining a writ petition under Article 226 even though an alternative remedy is available under the Statute, but having regard to the facts and circumstances of the instant case, this Court is of the considered opinion that it is a fit case where the petitioners should be relegated to avail the alternative statutory remedy under Section 68 of the Act.

Accordingly, while declining to entertain the instant petition in exercise of writ jurisdiction, it is left open to the petitioners to avail the remedy of Reference under Section 68 of the Act. It is further provided that in case the petitioners seek Reference within two weeks from today, all endeavour shall be made to decide the same in accordance with law expeditiously. The Reference, if made, shall be decided without being influenced by any observation made herein above.

The writ petition stands disposed of accordingly.

(Manoj Kumar Gupta, J)

Order Date :- 29.5.2018

SL