Mahila Vidyalaya,Aminabad, ... vs University Of Lucknow,Lko. Thru. ...
2023 Latest Caselaw 20355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


	   Neutral Citation No. - 2023:AHC-LKO:51238
 
	Court No. - 7
 
	Case :- WRIT - C No. - 9262 of 2022
 
	Petitioner :- Mahila Vidyalaya,Aminabad, Lucknow Thru. Its Manager And Secretary Dr. A.K. Srivastava And Others
 
	Respondent :- University Of Lucknow,Lko. Thru. Its Registrar
 
	 Badshah Bagh Lko. And Others
 
	Counsel for Petitioner :- Vikas Singh
 
	Counsel for Respondent:- Savitra Vardhan Singh,C.S.C.,Shashank Bhasin
 
	Hon'ble Abdul Moin,J.

1. Rejoinder affidavit filed today in Court be kept on record.

2. Heard Sri Vikas Singh, learned counsel for the petitioner, Sri Shashank Bhasin, learned counsel appearing for the respondents no, 1, 2 & 3 and Sri P.K.Singh, learned Additional Chief Standing counsel appearing on behalf of the respondent no. 4.

3. Instant writ petition has been filed praying for the following main reliefs:-

" (i) Issue a writ of Certiorari or a writ, order or direction in the nature of Certiorari to quash the resolution no. 16 dated 23.03.2021 after summoning its original from the opposite party no. 1, 2 & 3, office memorandum dated 27.05.2021 (Annexure No. 1 to the writ petition), the letter dated 04.08.2022 (Annexure No. 2 to the writ petition) and letter dated 20.10.2022 (Annexure No. 3 to the writ petition).

(ii) Issue a writ of Mandamus or a writ, order or direction in the nature of mandamus to command the opposite parties to reconize the Managing Committee of Mahila Vidyalaya Degree College as per letter dated 25.10.2021 (Annexure No. 7 to the writ petition) and send the name of subject experts for appointment of Assistant Professor of various subjects for which temporary affiliation was granted from the academic session 2022-23 as per the Provisions of the Uttar Pradesh State Universities Act, 1973 and Statutes framed there under or in the alternative, allow the petitioners to appoint ad-hoc Assistant Professors as per the qualification laid down the First Statute of University of Lucknow, Lucknow till the regular Assistant Professors of the concerned subjects are recruited by the College.

(iii) Issue a writ of Mandamus or a writ, order or direction in the nature of Mandamus to command the opposite parties not to give effect to resolution no. 16 dated 23.03.2021 after summoning its original from the opposite party no. 1, 2 & 3 office memorandum dated 27.05.2021 (Annexure No. 1 to the writ petition), the letter dated 04.08.2022 (Annexure No. 2 to the writ petition) and letter datd 20.10.2022 (Annexure No. 3 to the writ petition) during the pendency of the writ petition."

4. A preliminary objection has been taken by Sri Shashank Bhasin, learned counsel appearing for the respondent-University that considering the provisions of Section 68 of the State Universities Act, 1973 (hereinafter referred to as "Act, 1973") as the resolution impugned dated 23.03.2021 as issued vide office order dated 27.05.2021, a copy of which is annexure 1 to the writ petition is a decision of the Executive Council as such considering the provisions of Section 68 of the Act, 1973, the petitioner has a statutory remedy of preferring of a reference to the Chancellor and accordingly prays that the instant writ petition may be dismissed on this ground alone.

5. Responding to that, learned counsel for the petitioners states that there would be certain essential facts which would have to be first considered by the Court prior to considering the preliminary objection as has been raised on behalf of the respondent-University.

6. He states that the petitioner no. 1 is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860"). The petitioner no. 1 is a society which is administering the petitioner no. 3 College which is affiliated with the Lucknow University.

7. It is contended that by means of the impugned resolution dated 23.03.2021 it has been resolved as under:-

 
"कुलसचिव कार्यालय
 
लखनऊ विश्वविद्यालय
 
लखनऊ-226007
 
     संदर्भ संख्याः R/401/202/सम्ब.अनु/2021
 
								दिनांकः 27/05/2021									रजिस्टर्ड/स्पीडपोस्ट/व्यक्तिगत
 

 
कार्यालय-ज्ञाप
 

सूच्य है कि सहयुक्त महाविद्यालयों का प्रबन्ध समिति का निर्वाचनोपरान्त सम्बन्धित महाविद्यालय द्वारा विश्वविद्यालय में अनुमोदन/मान्यता प्रदान किये जाने सम्बन्धी प्रस्ताव प्रस्तुत किया जाता है जिसका अनुमोदन विश्वविद्यालय से प्रदान किया जाता है।

इस संबंध में यह सूचित करने का निदेश हुआ है कि कार्य परिषद की बैठक दिनांक 23 मार्च, 2021 के विनिश्चय संख्याः 16 में निम्नवत् निर्णय पारित किया गया हैः-

"कार्य परिषद ने सम्यक विचारोपरान्त महाविद्यालयों की प्रबन्ध समिति के चुनाव निष्पक्षता से सम्पन्न कराने के दृष्टिगत विश्वविद्यालय द्वारा पर्यवेक्षक नियुक्त किये जाने का सर्वसम्मति से निर्णय लिया।"

अतः समस्त सहयुक्त महाविद्यालयों से अनुरोध है कि उपरोक्त निर्णय का प्रत्येक दशा में अनुपालन सुनिश्चित करने का कष्ट करें।

 
	
 
								(डा० विनोद कुमार सिंह)
 
									कुलसचिव
 

 
	संख्या				दिनांकः
 
	प्रतिलिपि निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषितः-
 
	1.  सचिव, कुलपति को मा० कुलपति महोदय के सूचनार्थ।
 
	2.  अधिष्ठाता, महाविद्यालय विकास परिषद, ल०वि०वि०।
 

3. इंचार्ज वेबसाईट/कम्प्यूटर केन्द्र को इस आशय से प्रेषित कि समस्त सहयुक्त महाविद्यालयों (जनपद-लखनऊ, हरदोई, सीतापुर, रायबरेली एवं लखीमपुर खीरी) को इ-मेल से प्रेषित करने एवं विश्वविद्यालय की वेबसाईट पर अपलोड करने का कष्ट करें।

4. प्रबन्धक, समस्त सहयुक्त महाविद्यालय (जनपद-लखनऊ, हरदोई, सीतापुर, रायबरेली एवं लखीमपुर खीरी) को इस आशय से प्रेषित कि उपरोक्त निर्णयानुसार निर्वाचनोपरान्त ही प्रबन्ध समिति सम्बन्धी प्रस्ताव उपलब्ध कराने का कष्ट करें अन्यथा की स्थिति में प्रस्ताव स्वीकार नहीं किये जायेंगे।

5. गार्ड फाईल।

कुलसचिव"

Office of the Registrar

Lucknow University

Lucknow-226007

Reference No. R/401/202/Samb. Anu./ 2021

Date: 27/05/2021

Registered/ Speed Post/ Personal

Office Memo

It is to inform that after election of management committee of affiliated colleges, the proposal for approval/ recognition is presented before the University by the concerned college, approval whereof is granted by the University.

In this regard it has been directed to inform that following decision has been resolved in Agenda No. 16 in the meeting of Executive Council held on 23rd March 2021: -

"After due consideration, the Executive Council unanimously passed the decision for appointment of observer by the University for holding impartial election of the management committee of the colleges."

Therefore, all the affiliated colleges are requested to ensure compliance of the aforesaid decision.

Sd/--illegible

(Dr. Vinod Kumar Singh)

Registrar

(English Translation by Court)

8. Sri Singh contends that a perusal of the aforesaid resolution would indicate that for the purpose of considering the transparency of any election, an observer has to be appointed by the University. Placing reliance on the provisions of Statute 13.05 of the First Statute of the University of Lucknow it is contended that the statute is couched in the manner of a person to be "chosen" for the purpose of constitution of the management and no election ever takes place rather it is more in the form of the "selection" which takes place which would be apparent from the said statute itself.

9. It is contended that once no election is taking place for electing the Committee of Management consequently, once the Committee of Management has been constituted and the same had been sent for approval, the same could not have been turned down by the respondent-University.

10. It is contended that the impugned resolution itself is not applicable on the Committee of Management inasmuch as no election has taken place consequently, there would not be any occasion to call for an observer and for an independent observer to have been sent by the University for the purpose of approval of such "selection" in terms of Statute 13.05 as no election took place and thus the insistence on the part of the University is patently misconceived. The further contention is that it is the society which is administering the college consequently, the election/selection of the committee of management would be governed by the Act, 1860 and the University would have no role in the matter.

11. Thus, it is contended that as the aforesaid resolution has been issued patently without jurisdiction consequently, the remedy of reference under Section 68 of the Act, 1973 would not be applicable.

12. Another ground which which has been urged by the learned counsel for the petitioners is that even if for the sake of argument, the resolution as passed by the Executive Council is said to be applicable, even then, there has been no communication of the said resolution as per the specific averment made in paragraph 10 of the writ petition to which there is no specific denial in paragraph 8 of the counter affidavit.

13. No other ground has been urged.

14. Responding to the aforesaid grounds as taken by Sri Vikas Singh, learned counsel for the petitioners, the argument of Sri Shashank Bhasin, learned counsel appearing for the respondent-University is that statute 13.05 (g) specifically indicates that if any question arises whether any person has been duly chosen or is entitled to be a member or office bearer of the Management or whether the management is legally constituted, the decision of the Vice-Chancellor shall be final.

15. Reliance has been placed on Sub Section (13) of Section 2 of the Act, 1973 to contend that the Act, 1973 defines "Management" in relation to an affiliated or associated college as the Managing Committee or other body charged with managing the affairs of that college and recognized as such by the University,

16. Placing reliance on the aforesaid definition clause as per the Act, 1973 the argument of Sri Shashank Bhasin, is that till such time the management committee, as has been allegedly "selected" in terms of Clause 13.05 is not recognized by the University consequently, there would not be any occasion even for sending of a subject expert as has been prayed for in the instant writ petition.

17. Reliance has also been placed on Sub Section (4) of Section 38 of the Act, 1973 to contend that the said provision specifically provides that the conditions of recognition of an associated college shall be such as may be prescribed or imposed by the Executive Council.

18. Placing reliance on the provisions of Section 68 of the Act, 1973 read with Section 19 of the Act, 1973 the further argument of Sri Shashank Bhasin is that Section 68 of the Act, 1973 itself provides that if any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University including any question as to the validity of the Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor is in conformity with this Act or the Statutes or the Ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final.

19. It is contended that Sub Clause (a) of Section 19 of the Act, 1973 specifically stipulates that the Executive Council would be one of the authority of the University. Thus, as the instant writ petition has been filed challenging the resolution of the Executive Council consequently, it would be a decision of an authority of the University and in case the petitioner is aggrieved by the said decision, the Act, 1973 mandates that the same has to be referred to the Chancellor keeping in view Section 68 of the Act, 1973.

20. Heard the learned counsel appearing for the contesting parties and perused the records.

21. From the arguments of the learned counsel appearing for the contesting parties and a perusal of records, it emerges that an election for the Committee of Management had taken place, in terms of Statute 13.05, of the College which took place on 25.10.2021. Statute 13.05 reads as under:-

"13.05- The constitution of the Management of every college shall provide that:

(a) the Principal of the college shall be ex-officio member of the Management;

(b) twenty-five percent of the members of the Management, are teachers (*excluding the Principal): (c) The teachers (excluding the Principal) referred to in clause (b) are such members for a period of one year by rotation in order of seniority;

(d) one member of the Management shall be from the nonteaching class III employees of the college selected for a period of one year by rotation in order of seniority:

(e) subject to the provisions of clause (c) no two members of the Management shall be related to each other within the meaning of the explanation to Section 20;

(f) no change in the said constitution shall be made except with the prior permission of the Vice-Chancellor:

(g) if any question arises whether any person has been duly chosen as, or is entitled to be a member or office- bearer of the Management or whether the Management is legally constituted, the decision of the Vice-Chancellor shall be final.

(h) the college is prepared to place before any person or persons authorised by the Vice-Chancellor or before the Panel of Inspectors appointed by the University all original documents pertaining to income and expenditure of the college including the accounts of the Society/ Trust/Board/Parent body under which it may be operating. (i) the income from the endowment funds referred to in Statutes, 13.06 shall be available for the maintenances of the College".

22. A perusal of Statute 13.05 indicates the Constitution of the Management of the college which includes the Principal & members of the Management. As per Sub Clause (g) of the Statute 13.05 it emerges that if any question arises whether any person has been duly chosen as, or is entitled to be a member or office bearer of the Management or whether the Management is legally constituted, the decision of the Vice-Chancellor shall be final.

23. At first blush, Statute 13.05 indicates that it is only a "selection" of the Management which is taking place and there is no element of "election" involved therein. This is also the argument of the learned counsel for the petitioners. However, the averments made in paragraphs 6, 7, 8 & 9 of the writ petition would indicate that the petitioners themselves indicate the said Committee of Management to have been elected meaning thereby the petitioners themselves treat the Management Committee which has been constituted not on the basis of any "selection" but on the basis of an election.

24. The petitioners themselves having treated the said election of the Committee of Management to be an election and not a selection would also be apparent from a perusal of the letter that had been sent by the college dated 09.03.2022, a copy of which is annexure 10 to the writ petition wherein paragraphs 3 & 8 it has categorically stated that the 'election' has been finalized. Thus, it no longer lies with the petitioners to say that in terms of statute 13.05 "selection" takes place and not 'election' , as the same would virtually amount to blowing hot and cold in the same breath as well as being contradictory to their own stand and pleadings.

25. Be that as it may, the fact of the matter remains that for any such committee of management, the recognition of the Vice-Chancellor is a sine-qua-non as per provisions prescribed under Sub Section (13) of Section 2 of the Act, 1973 which on reproduction reads as under:-

"(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 recognized as such by the University: [ Provided that in relation to any such college maintaind by a Municipal Board or a Nagar Mahapalika, the expression "Management" means the Education Committee of such Board of Mahapalika as the case may be and the expression "Head of the Management" means the Chairman of such Committee]

(emphasis by the Court)

26. From a perusal of Sub Section (13) of Section 2 of the Act, 1973 it emerges that the "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 recognized by the University. The Executive Council of the University in terms of its decision dated 23.03.2021 itself mandated that for any election, an observer would be required. Once the resolution of the Executive Council exists and admittedly no observer had been sent by the University when the election of the Committee of Management was held consequently, it cannot be said that the election, as held by the petitioners in terms of Clause 13.05 would stand legally recognized by the University.

27. Another aspect of the matter would be that if the petitioners are aggrieved by the said resolution it was always open for them to have challenged the same by way of a reference before the Chancellor in terms of the Section 68 of the Act, 1973.

28. For the sake of convenience, Section 68 of the Act, 1973 is reproduced as under:-

"68. Reference to the Chancellor:- If any question arises whether any person has been duly elected or appointed as, or is entitled to be, a member of any authority or other body of the University., or whether any decision of any authority or officer of the University [(including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor)]1 is inconformity with this Act or the Statutes or the Ordinances made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final:

Provided that no reference under this section shall be made--

(a) more than three months after the date when the question could have been raised for the first time;

(b) by any person other than an authority or officer of the University or a person aggrieved:

Provided further that the Chancellor may in exceptional circumstances--

(a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso;

(b) where the matter referred relates to a dispute about the election, and the eligibility of the person so elected is in doubt, pass such orders of stay, as he thinks just and expedient;

(c) [* * *]2"

29. A perusal of Section 68 of the Act, 1973 would indicate that if any question arises as to whether any decision of any authority or officer of the University is an conformity with the Act of the Statute or the ordinance made thereunder, the matter shall be referred to the Chancellor. As already indicated above, the Executive Council would be an authority in terms of Clause (a) of Section 19 of the Act, 1973. It is the petitioners who are aggrieved by the decision of the Executive Committee. Consequently, keeping in view the provisions of Section 68 of the Act, 1973 it was always open for them to have made a reference to the Chancellor.

30. So far as the relief of the ad-hoc Assistant Professor's appointment is concerned, needless to mention that when the Committee of Management itself is not recognized by the University as such on a mere request made by interlopers/third parties /unrecognized bodies who have no recognition by the University in view of Section 2(13) of the Act, 1973, as such there would not be any occasion for the University to send any subject expert. For this difficulty, it is the petitioners who have to thank themselves.

31. So far as the argument of learned counsel for the petitioner that there was no communication of the resolution to the petitioners, the same merits outright rejection inasmuch as the copy of the letter dated 27.05.2021 which has been filed as annexure 1 to the writ petition would indicate that at note-3, the resolution has been required to be sent through e-mail and for being uploaded on the official website . There is no averment in the entire writ petition that the resolution was neither received by the college through e-mail nor uploaded on the website. In absence thereto, it is to be deemed that there was communication of the said letter.

32. In this regard, it would be apt to refer to the judgment of the Apex Court in the case of G. Sarana vs University Of Lucknow & Ors reported in (1976) 3 SCC 585 wherein the Apex Court after considering the provisions of Section 68 of the Act, 1973 has held that where remedy by way of reference of the matter under Section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974 to the Chancellor is open and has not been exhausted then the writ petition would not be maintainable.

33. Likewise, the Division Bench of this Court in the case of Professor Ajay Kumar Srivastava vs. State of Uttar Pradesh and Ors reported in MANU/UP/0102/2011 in similar circumstances has held that where the remedy of representation before the Chancellor under Section 68 of the Act, 1973 is available then the writ petition would not be maintainable but the Court must be satisfied with the exceptions as carved out with regard to non attraction of alternative remedy are not attracted i.e the alternative remedy may not be an absolute bar to the relief under Article 226 of Constitution of India directed where there has been gross violation of principles of natural justice or the alternative remedy is too dilatory or difficult for quick relief or where the mandatory provisions of the Constitution have been violated or where the alternative remedy is itself unconstitutional or ultra vires for want of legislative competence or where the order is nullity for some defect going to the root of the jurisdiction of the authority. In the instant case, learned counsel for the petitioners has been unable to demonstrate that any of the aforesaid exceptions are attracted so as to persuade this Court to entertain the writ petition under Article 226 of Constitution of India and to not relegate the petitioners to the alternative remedy of reference under Section 68 of the Act, 1973.

34. Keeping in view the aforesaid discussion, the preliminary objection as raised by Sri Shashank Bhasin, learned counsel appearing for the respondent-University is upheld and the writ petition is dismissed on the ground of alternative remedy.

35. However, it would be open to the petitioners to file the reference under Section 68 of the Act, 1973 before the Chancellor. In case, such a reference is filed within a period of three weeks from today, the Chancellor may consider the same on merits and decide the reference in accordance with law as expeditiously as possible.

Order Date :- 3.8.2023

Pachhere/-