Allahabad High Court
Committee Of Management Of Digamber ... vs State Of U.P. And 7 Others on 20 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:240784
Court No. - 35
Case :- WRIT - A No. - 20415 of 2023
Petitioner :- Committee Of Management Of Digamber Jain Mahavidyalaya Baraut And Another
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Nipun Singh
Counsel for Respondent :- C.S.C.,Ashok Kumar Goyal,Avneesh Tripathi,Chandra Prakash Singh,Prateek Rai,Ritesh Upadhyay
Hon'ble Vikas Budhwar,J.
1. Instructions filed today are taken on record.
2. Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri Nipun Singh and Sri A.P. Shahi, learned counsels for the writ petitioners, Sri R.P. Dubey as well as Sri P.K. Shahi, learned Addl. Chief Standing Counsels for Respondent Nos. 1 to 3, Sri Avneesh Tripathi for Respondent No.4 and Sri A.K. Goyal assisted by Sri Ritesh Upadhyay for the fifth respondent.
3. In view of the order, which is being proposed to be passed today, notices are not being issued to the Respondent Nos. 6 to 8, who have been described in the array of the parties as Proforma Respondents.
4. The fifth respondent herein had preferred Writ-A No. 15018 of 2023, Narendra Kumar Jain Vs. State of U.P. and 5 others, in which, on 02.11.2013, following orders were passed:-
"1. Rejoinder affidavit filed today is taken on record.
2. Heard Sri R.K. Ojha, learned Senior Counsel appearing for the writ petitioner as well as Sri Santosh Kumar, learned Standing Counsel who appears for respondents No. 1,2 and 3 and Sri Avneesh Tripathi, learned counsel has accepted notice on behalf of the third respondent and Sri Nipun Singh, learned counsel who appears for respondents No. 5 and 6.
3. The case of the writ petitioner is that there is an institution by the name of Digambar Jain College, Baraut, District Baghpat which is a minority institution enjoying certain protection under Article 30 of the Constitution of India. It is further the case of the writ petitioner that he happens to be the life member of the general body and since there is a serious Managerial dispute and the matter is pending in litigation before this Court itself, thus, according to the writ petitioner who happens to be the life member of the society, the fourth and the fifth respondent have no authority under law to proceed with the advertisement sought to be published on 06.08.2023 for the post of Assistant Professor Hindi (1), B.Ed. (2), Geography (1), Political Science (2), Drawing and Painting (2), Chemistry (1), History (1), Library Science (1) and advertisement dated 10.08.2023 for Assistant Professor in Hindi, English, Sanskrit, Economics, Geography, Psychology, History, Mathematics and Chemistry.
4. Sri Nipun Singh, learned counsel who appears for respondents No. 5 and 6 submits that it is not the first time wherein the life member has approached this Court raising the grievance regarding the Managerial dispute as earlier also writ petition so filed being Writ A No. 4934 of 2014 (Subhash Chandra Jain Vs. State of U.P. & 6 Others) decided on 27.01.2014 and wherein this Court proceeded to pass the following orders.-
"Heard learned counsel for the parties.
Petitioner claims to be a life member. He submits that because of the orders passed in Civil Misc. Writ Petition No. 2674 of 2001, decided on 09.3.2010 and Civil Misc. Writ Petition No. 45786 of 2010, there is a serious dispute with regard to Committee of Management of the Institution/Society and therefore such committee cannot be permitted to hold fresh elections.
We are of the considered opinion that no interference under Article 226 of the Cconstitution of India is warranted at this stage inasmuch as no appointment in the institution can be made unless it is approved by the Vice-Chancellor/Regional Higher Officer nor any payment of salary can be released from State exchequer.
We dispose of this writ petition hearing it open for the authority concerned to examine all aspects of the matters before sanctioning the appointment."
5. Writ A No. 41677 of 2015 (Aridaman Kumar Jain & Another Vs. State of U.P. & 4 Others) decided on 28.07.2025.-
"Heard learned counsel for the parties.
No interference at the stage of proceedings is called for. As and when selection takes place, it will be open to the petitioners to represent their grievances before the Vice Chancellor of the University inasmuch as no selection can take effect unless it is approved by the Vice Chancellor. It goes without saying that the Vice Chancellor shall examine all aspects of the matter including the objection, if any filed by the petitioners, by means of a reasoned order.
The writ petition is disposed of accordingly."
6. He seeks to rely upon the judgment in Writ A No. 14360 of 2023 (Sukhmal Chand Jain Vs. State of U.P.) decided on 29.08.2023.
7. According to him, as per the statute governing the field no appointments can be accorded until and unless the stand approved by the Vice Chancellor/ Regional Higher Education Officer or before any payment can be made, released from the State Exchequer.
8. Confronted with the said orders, Sri Ojha, learned Senior Counsel appearing for the writ petitioner submits that the basic purpose for filing the present writ petition is attributable to the fact that the writ petitioner is conscious about his rights as life member and he seeks an environment whereby there should not be any compromise on merit that too by a rank stranger or usurper.
9. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed of at this stage without seeking any response providing that before proceeding to issue any appointment, approval be taken from the competent authority as per the statute. The entertaining of the present writ petition may not be construed to be an expression that this Court has even otherwise endorsed the right of the writ petitioner to maintain the writ petition as obviously this Court being the guardian of law is concerned with a situation wherein there is no compromise upon the merit and further the fact that the appointments are duly made as per statute and approved by the competent authority. Nonetheless, it is always open for the writ petitioner to join the proceedings, if the law provides and he is able to convince the authorities in that regard.
10. With the aforesaid observations, the writ petition stands disposed of."
5. Post passing of the said order, an order is stated to have been passed by the Joint Secretary, State of U.P., Lucknow, second respondent on 22.11.2023 on the basis of the complaint so lodged by the fifth respondent and others has stayed the selection process, which was being initiated by the writ petitioners.
6. Questioning the said order, the writ petitioner has filed the present writ petition. The writ petition was entertained on 18.12.2023 while passing the following orders: -
"In Re: Civil Misc. Amendment Application No. Nil of 2023
By means of the present amendment application, amendment has been sought in the stay application.
Since there is no opposition to the amendment application, the same is allowed.
Let the necessary amendment be carried out during the course of the day.
Order on petition
Vakalatnama has been filed on behalf of fifth respondent by Sri A.K. Goyel and Sri Ritesh Upadhyay which is taken on record.
The contention of the learned Senior Counsel who appears for the writ petitioners is that the order dated 22.11.2023 passed by the Joint Secretary, State of Uttar Pradesh forestalling the selection process is completely without jurisdiction particularly in view of the fact that the power for approving selections stands envisaged upon the University and not the State Government as the only source of power is under Section 66A of the U.P. State Universities Act. It is not a case of policy decision then the State Government has no right to pass such an order.
Sri Goel, learned counsel for the fifth respondent submits that there is no legally elected Committee of Management of the institution in question, thus, the Committee of Management cannot be allowed to make selections particularly when it is the right of the Committee of Management to make selections which is legally elected and that too in conformity and in consonance with the provisions of the statute.
Sri P.K. Shahi, learned Additional Chief Standing Counsel seeks time to obtain instructions.
On his request, put up this case on 20.12.2023 at 10:00 A.M. as fresh.
When the matter is next listed, the name of Sri Avneesh Tripathi, A.K. Goyel and Ritesh Upadhyay be shown from the respondents' side."
7. Pursuant to the aforesaid order, instructions have been forwarded by the learned Addl. Chief Standing Counsels under the signatures of Special Secretary, State of U.P. dated 19.12.2023.
8. Sri G.K. Singh, learned Senior Counsel, who appears for the petitioners has sought to argue that the exercise undertaken by the second respondent, Joint Secretary, State of U.P., Lucknow while passing the impugned order dated 22.11.2023 staying the selection process is without jurisdiction and authority for the simple reason that the only power which vests with the State Government, under the U.P. State Universities Act, 1973 is Section 66-A. Elaborating the said submission, Sri G.K. Singh, learned Senior Counsel submits that under Section 66-A the State Government may issue directions from time to time to the University on policy matters not in consistent with the provisions of the Act as it may deem necessary, such directions shall be complied with by the University. His Submission is that Section 66-A of the State Universities Act 1973 does not empower the State Government in a routine manner to issue such directions, as the said directions can only be issued in specific circumstances, i.e. with respect to policy matters that too which are not inconsistent with the provisions of the Act when it deems necessary. According to him, in the present case, there is no such policy matter is involved, as the matter which is involved is with respect to conducting selections, might be the complainants had come up with the case that the Committee of Management did not possess power to conduct selections for whatever reason it might be. In order to buttress the submission, learned Standing Counsel has sought to rely upon the judgment in the case of Smt. Rekha Yadav Vs. State of U.P. and others, reported in 2012 (30) LCD 1017 so as to contend that while exercising powers under Section 66-A when an action was taken by the State Government, the same was deprecated. He also seeks to rely upon the Supreme Court Judgement in the case of Rakesh Ranjan Verma Vs. State of Bihar, AIR 1992 SC 1348, wherein there was a para materia provision under Section 78A of the Electricity Supply Act, 1948. Sri G.K. Singh, learned Senior Counsel for the writ petitioner has also argued that the order impugned has been passed without putting to notice the writ petitioner in violation of principles of natural justice and had the writ petitioner been put to notice, then the writ petitioner could have amply demonstrated that there was no occasion to pass such an order.
9. Countering the said submission, learned Addl Chief Standing Counsels as well as Sri A.K. Goyal, and Sri Ritesh Upadhyay have sought to argue that besides Section 66-A the power also stands vested under Section 40 of the U.P. State Universities Act, 1973, wherein the State Government has the right to cause an inspection to be made by such person or persons as it may direct, of any affiliated or associated college, including buildings, laboratories and equipments thereof and also of the examinations, teaching and other work conducted or done by it, or cause an inquiry to be made in respect of any matter connected with the administration and finances of such college. Submission of the learned counsel for the respondents are that once a power stands envisaged under Section 40 of the 1973 Act, then the power to stay the selections is implicit as once during the course of the inspection it is found that the selections were illegal, then obviously, much water would be flown, then in order to eliminate that contingency, the power to stay the selections is implicit in that regard. The learned counsel for the respondents have also argued that the writ petitioners did not possess any authority to conduct selections, particularly when their continuance itself is under cloud and their elections have not been approved by the University in question.
10. I have heard the learned counsel for the parties and perused the records.
11. The facts are not in dispute. The only bone of contention in between the parties is relatable to the fact as to whether the said exercise could have been resorted to by the State Government on the basis of the complaint behind the back of the writ petitioners without putting them to notice. The second issue would be whether the source of power of passing the said order would be Section 66-A or Section 40 of the U.P. State Universities Act, 1973. Though learned counsel for the writ petitioners argues that Section 66-A does not provide for such a power to be resorted to in view of the judgments in the case of Rekha Yadav (supra) and Rakesh Ranjan Verma (supra), however, on the other hand the respondents have relied upon Section 40 of the 1973 Act. Section 40 of the U.P. State Universities Act, 1970 provides a procedure, according to which inspection is to be done and further the association of the Committee of Management is also required. It is also apparent from Sub-section (4) of Section 40 that the State Government may communicate to the Management the result of the inspection or enquiry and may issue a direction as to the action to be taken and the Management shall comply thereof and further Sub-Section (5) provides that the State Government shall inform the Vice-Chancellor about any communication made by it to the Management under sub-section (4) and finally sub-section (6) of Section 40 provides that the State Government may, at any time, call for any information from the Management or Principal of an affiliated or associated college in connection with such inspection or inquiry. Thus in the opinion of the Court, a complete set of procedure has been provided modulating the manner according to which inspection is to be done and follow up action to be taken in that regard. Since the Court finds that the order in question has been passed in violation of the principles of natural justice and further the writ petitioner has raised the issue of jurisdiction, thus in the opinion of the Court the State Government has to specify as to what is the provision, under which it has proceeded to take such an action and whether it is permissible under law.
12. Bearing in mind the aforesaid issues, the writ petition is decided in the following manner: (a) The order dated 22.11.2023 passed by the Joint Secretary, State of U.P., Lucknow, second respondent is set aside. (b) The matter stands remitted back to the second respondent, Joint Secretary, State of U.P., Lucknow, to pass fresh order strictly in accordance with law within a period of two weeks from today.
13. It is open for the affected parties to join themselves post-remand and the second respondent shall pass orders strictly in accordance with law detailing the source of power either under Section 40 or Section 66-A of the State Universities Act 1973 and it is open for the writ petitioners to raise the questions of jurisdiction and all legal and factual issues, which is to be decided by the authorities.
14. With the aforesaid observations, the writ petition stands disposed of.
Order Date :- 20.12.2023
N.S.Rathour
