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C/M K.G.K. POST GRADUATE COLLEGE AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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C/M K.G.K. Post Graduate College And Another v. State Of U.P. And Others - WRIT - C No. 13936 of 2007 [2007] RD-AH 5314 (26 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 13936 of 2007

Committee of Management and another................. Petitioners

Vs.

State of U.P. and others......................................... Respondents

Hon. S.P. Mehrotra, J.

Issue notice pending admission. Notices on behalf of the respondents nos. 1 to 3, 6 and 7 have been accepted by the learned Standing Counsel.

Notices will be issued to the respondents nos. 4 and 5 fixing 10.5.2007.

Shri P.S. Baghel, Advocate has filed  caveat on behalf of Dr. Shyam Lal Yadav, Principal of the College in question.

Counter affidavit on behalf of the respondents nos. 1 to 7 may be filed within four weeks.

Without prejudice to the contention of the petitioners that the caveator is neither necessary party nor proper party in the Writ Petition, Shri P.S. Baghel, learned counsel for the caveator is also permitted to file counter affidavit within the same period.

Rejoinder affidavit on behalf of the petitioners may be filed by the next date fixed in the matter.

Heard Shri Ashok Mehta, assisted by Shri Suresh Chandra Dwivedi, learned counsel for the petitioners, Shri P.S. Baghel, learned counsel for the caveator and the learned Standing Counsel appearing for the respondents nos. 1 to 3, 6 and 7 on the question of grant of interim relief.

Shri Ashok Mehta, learned counsel for the petitioners submits that besides issuing Show Cause Notice dated 22.2.2007 under Section 57 of the U.P. State Universities Act, 1973, copy whereof has been filed as Annexure-25 to the Writ Petition, the State Government also passed an order dated 23.2.2007 under Section 58 (2) of the said Act. It is submitted that pre-requisite for exercise of power under Section 58(2) of the U.P. State Universities Act, 1973 is that there should be necessity for immediate action in the interest of the College. Further requirement under Section 58(2) of the said Act is that reasons should be recorded in writing while passing the order under the said provision.

It is submitted by Shri Mehta that the word "immediate" in Section 58(2) of the U.P. State Universities Act, 1973 is significant, and it is only when the State Government records reasons in writing showing necessity for immediate action in the interest of the College, then an order under Section 58 (2) of the said Act may be passed.

In the present case, the submission proceeds, an analysis of each of the allegations  made in the order dated 23.2.2007 passed under Section 58(2) of the U.P. State Universities Act, 1973 shows that the same pertained to the alleged irregularities allegedly committed during the period between the years 2003 to 2005. Such allegations regarding the alleged irregularities allegedly committed during the period between the years 2003 to 2005 cannot provide the basis for action under Section 58(2) of the U.P. State Universities Act, 1973. The word "immediate" shows that there should not be much time-gap between the cause for taking action under Section 58(2) of the U.P. State Universities Act, 1973 and the order passed under Section 58(2) of the said Act.

It is further submitted by Shri Mehta that as the pre-condition for taking action under Section 58(2) of the U.P. State Universities Act, 1973 was lacking, the order dated 23.2.2007 passed under Section 58(2) of the U.P. State Universities Act, 1973 (Annexure-26 to the Writ Petition) was patently illegal.

It is further submitted by Shri Mehta that a perusal of the order dated 23.2.2007 (Annexure-26 to the Writ Petition) shows that after referring to the alleged irregularities allegedly committed during the period between the years 2003 to 2005, it is concluded that the alleged irregularities have caused detriment to the College and the State Government is also of the opinion that it is necessary in the interest of the College to take immediate action against the Management of the College under Section 58(2) of the U.P. State Universities Act, 1973.

Thus, the submission proceeds, the impugned order does not record any reasons as to why immediate action against the Management of the College was necessary. The impugned order has merely concluded that the alleged irregularities allegedly committed during the period between the years 2003 to 2005 have caused detriment to the interest of the College. No further reasons have been given, it is submitted, as to why immediate action against the College was necessary.

As regards the filing of Caveat on behalf of Dr. Shyam Lal Yadav through Shri P.S. Baghel, Advocate, it is submitted by Shri Mehta that neither the previous Committee of Management nor the Principal of the College was necessary party or proper party in the Writ Petition.

It is further submitted by Shri Mehta that the present Writ Petition is directed against the order dated 23.2.2007 passed by the State Government under Section 58(2) of the U.P. State Universities Act, 1973 (Annexure-26 to the Writ Petition), and not against the Show Cause Notice dated 22.2.2007 issued by the State Government under Section 57 of the U.P. State Universities Act, 1973. Therefore, the preliminary objection raised by Shri P.S. Baghel, learned counsel for the caveator regarding non-maintainability of the Writ Petition against the Show Cause Notice, is not relevant in the present case.

Shri Mehta has placed reliance on the following:

1. P.ORR and Sons (P) Ltd. Vs. Associated Publishers (Madras) Limited, (1991) 1 SCC 301 (paragraph 13).

2. Legal Glossary to show the meaning of the word 'immediate'.

3. Committee of Management, Atarra Mahavidyalaya, Atarra, Banda Vs. State of U.P. and others , 2003 (3) ESC 1650 (paragraph 13).

Shri P.S. Baghel, learned counsel for the caveator submits that the present Writ Petition has been filed against an order passed by the State Government under Section 58(2) of the U.P. State Universities Act, 1973. Such an order, the submission proceeds, is interlocutory in nature, and remains in operation only for a period of six months.

Serious charges have been levelled against the petitioners in the Show Cause Notice dated 22.2.2007 (Annexure-25 to the Writ Petition) issued by the State Government under Section 57 of the U.P. State Universities Act, 1973, and, therefore, no interference is called for in the present Writ Petition directed against the said order dated 23.2.2007 passed by the State Government under Section 58 (2) of the said Act.

It is further submitted by Shri Baghel that the impugned order is dated 23.2.2007, and almost four weeks have now elapsed . The petitioners, the submission proceeds, did not take any action immediately against the said order dated 23.2.2007, and on this ground also, no interference is called for with the impugned order dated 23.2.2007.

It is further submitted by Shri Baghel that the petitioners have already submitted their explanation to the State Government in response to the Show Cause Notice dated 22.2.2007 (Annexure-25 to the Writ Petition), and, therefore, there is no occasion for exercise of powers under Article 226 of the Constitution of India in the present case.

It is further submitted by Shri Baghel that the word 'immediate' occurring in Section 58(2) of the U.P. State Universities Act, 1973 has not been defined. Therefore, the submission proceeds, it has been left to the discretion of the State Government to decide as to whether immediate action is necessary or not,  depending on the facts and circumstances of each case.

If the allegations, it is submitted, are serious in nature (-even though not in immediate past but in remote past-), and  such allegations come in the knowledge of the State Government, and the State Government is of the opinion that continuance of the Management of the College would be detrimental to the interest of the College, then it would be within the purview of the word 'immediate' occurring in Section 58(2) of the said Act, and the State Government can take action in such a case.

It is further submitted by Shri Baghel that the allegations against the petitioners pertain to financial matters, and the papers in respect of such financial matters are with the petitioners, and, therefore, proper enquiry against the petitioners would not be possible if the petitioners remain in the Management of the College.

It is further submitted by Shri Baghel, in the alternative, that in case any interim order is passed by this Court, the same may be made subject to suitable conditions.

As regards the locus-standi of the previous Committee of Management/ Principal, to appear in the present Writ Petition, it is submitted by Shri Baghel that certain charges in the Show Cause Notice dated 22.2.2007 pertain to the action taken by the petitioners against the Principal. It is submitted that the Principal looks-after the Institution, and various funds are under his control, and in view of the harassment by the petitioners, as is apparent from the charges made in the Show Cause Notice dated 22.2.2007,  the Principal would not be able to perform his functions smoothly and properly in the interest of the College.

Shir Baghel relies on the following decisions of this Court:

1. Committee of Management, Chaudhary Chotu Ram Post Graduate College, Muzaffarnagar through its President and another Vs. State of U.P. through Secretary Higher Education, U.P. And others, (1995) 2 UPLBEC 790.

2. Swami Devanant Snatak Mahavidyalaya and another Vs. State of U.P. And another, 1979 ALJ (NOC) 23 (DB).

It is submitted by Shri Baghel that the above decisions show that even where vague allegations were made in the order passed under Section 58(2) of the U.P. State Universities Act, 1973, no interference was made under Article 226 of the Constitution of India.

Learned Standing Counsel appearing for the respondents, mentioned above,  has supported the impugned order passed by the State Government. He submits that the impugned order is interlocutory in nature, and no interference is called for with the same.

In rejoinder, Shri Ashok Mehta, learned counsel for the petitioner submits that the Show Cause Notice dated 22.2.2007 (Annexure-25 to the Writ Petition) as well as the order dated 23.2.2007 (Annexure-26 to the Writ Petition) were dispatched by the State Government on 2.3.2007, and the same were received on 5.3.2007. On 13.3.2007, copy of the Writ Petition was served on the learned counsel for the caveator.

Shri Mehta refers to the photostat copy of the envelope (Annexure-27 to the Writ Petition) to show that the Show Cause Notice dated 22.2.2007 and the order dated 23.2.2007 were dispatched on 2.3.2007.

In the circumstances, the submission proceeds, there were no laches on the part of the petitioners in filing the Writ Petition.

As regards  the action taken against the Principal, Shri Mehta refers to the order dated 26.4.2005 (Annexure-19 to the Writ Petition) passed by the State Government under Section 57 of the U.P. State Universities Act, 1973 wherein it was, inter-alia,  held that the earlier Management and the Principal were responsible for various irregularities. It is pointed out by Shri Mehta that on account of the directions given in the said order dated 26.4.2005 for removal of irregularities, actions were taken against the Principal but the orders were set aside by the Vice-Chancellor.

Shri Mehta submits that the merits of the charges would be gone into by the State Government while considering the explanation submitted by the petitioners. However, the submission proceeds, power under Section 58(2) of the U.P. State Universities Act, 1973 could not be exercised as there was no necessity for immediate action as required by the said provision.

It is further submitted by Shri Mehta that no reasons have been recorded in the impugned order for the formation of opinion for taking immediate action as contemplated under Section 58(2) of the U.P. State Universities Act, 1973.

As regards the submission made by Shri P.S. Baghel that the papers pertaining to financial matters are with the petitioners, and therefore, action under Section 58(2) of the U.P. State Universities Act, 1973 was justified, Shri Mehta submits that no such ground has been mentioned in the impugned order for formation of opinion for taking immediate action under Section 58(2) of the said Act.

Shri Mehta further submits that in case this Court considers proper, the interim order may be passed subject to suitable conditions.

I have considered the submissions made at the Bar, and perused the record.

Section 57 of the U.P. State Universities Act, 1973 is as under:

"57. Power of the State Government to issue notice.- If the State Government receives information in respect of any affiliated or associated college (other than a college maintained exclusively by the State Government or a local authority)-

(i) that its Management has persistently committed wilful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable; or

(ii) that its Management has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the college or has appointed or retained in service any teacher in contravention of the Statute or Ordinances [or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of the recommendation of the Uttar Pradesh Higher Education Services Commissioner under the Uttar Pradesh Higher Education Services Commission Act, 1980,] or

(iii) that any dispute with respect to the right claimed by different persons to be lawful office-bearers of its Management has affected the smooth and orderly administration of the college; or

(iv) that its Management has persistently failed to provide the college with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment, and other facilities, as are necessary for efficient administration of the college; or

(v) that its Management has substantially diverted, misapplied or misappropriated the property of the college to the detriment of the college;

it may call upon the Management to show cause why an order under Section 58 should not be made:

Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so."

Section 58 of the U.P. State Universities Act, 1973, in-so-far as is relevant, is as under;

"58. Authorized Controller.- (1) If the State Government after considering the explanation, if any, submitted by the Management under Section 57 is satisfied that any ground mentioned in that section exists, it may, by order, authorise any person (hereinafter referred to as the Authorised Controller) to take over, for such period not exceeding two years as may be specified, the Management of the college and its property to the exclusion of the Management, and whenever the Authorised Controller so takes over the management, he shall, subject only to such restrictions as State Government may impose, have in relation to the Management of the college and its property all such powers and authority as the Management would have if the college and its property were not taken over under this sub-section:

Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper Management of the college and its property, it may, from time to time, extend the operation of the order for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order under this sub-section does not exceed [five years]:

[Provided further that if at the expiration of the said period of five years, there is no lawfully constituted Management of the college the Authorised Controller shall continue to function as such, until the State Government is satisfied that the Management has been lawfully constituted:

Provided also that the State Government may, at any time, revoke an order made under this sub-section.].

(2) Where the State Government while issuing a notice under Section 57 is of opinion, for reasons to be recorded, that immediate action is necessary in the interest of the college, it may suspend the Management, which shall thereupon cease to function, and make such arrangement as it thinks proper for managing the affairs of the college and its property till further proceedings are completed:

Provided that no such order shall remain in force for more than six months from the date of actual taking over the Management in pursuance of such order:

Provided further that in computation of the said period of six months, the time during which the operation of the order was suspended by any order of the High Court passed in exercise of jurisdiction under Article 226 of the Constitution or any period during which the Management failed to show cause in pursuance of the notice under Section 57, shall be excluded."

(3) to (5)........................................................"

A perusal of sub-section (2) of Section 58 of the U.P. State Universities Act, 1973 shows that the said provision gives power to the State Government to suspend the Management of the College while issuing notice under Section 57 of the said Act. However, pre-conditions for exercise of the said power by the State Government are :

(a) The State Government is of the opinion that immediate action is necessary in the interest of the College.

(b) The State Government records reasons for forming such opinion.

In Swami Devanant Snatak Mahavidyalaya case (supra), relied upon by Shri P.S. Baghel, learned counsel for the caveator, a Division Bench  of this Court has laid down that when Section 58(2) of the U.P. State Universities Act, 1973 contemplates the passing of an order suspending the Management at the stage of issuing of the notice under Section 57 of the said Act, there seems to be no doubt that an opportunity of hearing being given prior to the passing of an order suspending the Management was ruled-out by the provisions contained in Section 58, if not expressly then by necessary implication. The only finding which has to be given or the conclusion which has to be reached by the State Government before passing an order under sub-section (2) of Section 58 of the U.P. State Universities Act, 1973 is that  the immediate action is necessary in the interest of the College to suspend the Management. The opinion formed under sub-section (2) of Section 58 of the said Act will be prima-facie opinion based on ex-parte material and not a final opinion given after considering the cases of both the parties.

In Committee of Management, Chaudhary Chotu Ram Post Graduate College, Muzaffarnagar through its President case (supra), relied upon by Shri P.S. Baghel, a learned Single Judge of this Court has laid down that from a perusal of Section 58(2) of the U.P. State Universities Act, 1973, it is apparent that the State Government while issuing notice under Section 57 of the said Act, may form an opinion to suspend the Management during the pendency of the proceedings. There is a further mandatory requirement that reasons should be recorded that immediate action is necessary in the interest of the College.

Referring to the order passed under Section 58(2) of the said Act, which was impugned in the said decision, the learned Single Judge has held that para 2 of the impugned order states that the irregularities mentioned in the notice are serious. Thus, all the grounds mentioned in the notice stand incorporated by reference in the impugned order and as both the notice as well as the impugned order have been served on the petitioners in the case together, the grounds mentioned in the notice provided material for forming the opinion. After perusal of the financial irregularities, mentioned in the notice, it cannot be said that the opinion formed by the State Government and the conclusions arrived at were not possible.

The learned Single Judge has placed reliance on the Division Bench decision in Swami Devanant Snatak Mahavidyalaya case (supra).

In Legal Glossary, cited by Shri Ashok Mehta, various meanings of the word 'immediate' have been given. Some of the meanings are "occurring, acting or accomplished without loss  of time; made or done at once; instant...........................;existing without intervening  space or substance;..........................................."

In Committee of Management, Atarra Mahavidyalaya, Atarra, Banda case (supra), a learned Single Judge of this Court opined that an order of suspension under Section 58(2) of the U.P. State Universities Act, 1973 is of serious consequence because it deprives the concerned of its right to manage the affairs of its College without giving 'opportunity of hearing', which is otherwise a basic requirement of law. Suspension of Committee of Management cannot be permitted by taking recourse to casual approach, i.e., by mere recital of expression 'irregularities are serious in nature'. It is not the 'label' but the 'substance' which is required to satisfy the requirement of law.

The learned Single Judge has further held that prima-facie, the charges in the Show Cause Notice do not appear to be new but rather stale as they are alleged to be prevailing since long. Also they do not appear to be of such nature that reasonable time could not be given to the petitioner in the said case to submit explanation. The charges seemingly did not warrant an immediate action of suspension of Committee of Management or to show that such action was imminent or unavoidable to safeguard the interest of the College.

In P.ORR and Sons (P) Ltd. Case (supra), relied upon by Shri Ashok Mehta, their Lordships of the Supreme Court observed as under (paragraph 13 of the said SCC):

"13. ............................... "Immediate" means "at once; without delay". "Immediate" also means "directly connected; not secondary or remote"; "not separated by any intervening medium" (Black's Law Dictionary, 5th edn.; Concise Oxford Dictionary, New 7th edn.). This clause no doubt denotes urgency...........................".

From a perusal of the various decisions, as mentioned above, it is, prima-facie, evident that there are two pre-conditions, as mentioned above, which should be satisfied before the power of suspension of the Management of the College may be exercised by the State Government under sub-section (2) of Section 58 of the U.P. State University Act, 1973.

Having regard to the language of sub-section (2) of Section 58 of the  U.P. State University Act, 1973, and keeping in view the decisions mentioned above, I am, prima-facie, of the opinion that before exercising power under sub-section (2) of Section 58 of the  U.P. State University Act, 1973, the State Government must form opinion that having regard to the facts and circumstances of the case, as emerging from the material placed before it, the situation is such that immediate action is necessary in the interest of the College. In other words, situation should be such that if immediate action is not taken then the interest of the College would suffer. Situation should be such that immediate action is imminent or unavoidable to safeguard the interest of the College. Such situation may arise, for instance, where there is any continuing irregularity or where there is continuing effect of any irregularity.

The State Government is further required to record its reasons for the formation of the opinion as indicated above.

Having perused the impugned order, I am, prima-facie, of the opinion that the State Government while passing the impugned order, though refers to various irregularities allegedly committed by the petitioners during the period between the years 2003 to 2005, has not considered as to whether the alleged irregularities have led to a situation where immediate action is necessary in the interest of the College.

In view of the above, I am, prima-facie, of the view that the petitioners are entitled to interim protection subject to suitable conditions.

Subject to the following conditions, the operation of the impugned order dated 23.2.2007 (Annexure-26 to the Writ Petition), will remain stayed till 10.7.2007 or till the decision of the State Government pursuant to the Show Cause Notice dated 22.2.2007, whichever is earlier:

1. The petitioners will not take policy decision in financial matters of the College.

2. The petitioners will not incur any financial expenditure except day-to-day expenditure. However, any day-to-day expenditure exceeding Rs. 1000/- (Rupees one thousand) will be incurred subject to the prior approval of the Regional Director, Higher Education of the concerned Region.

3. The petitioners will submit before the Regional Director, Higher Education of the concerned Region statement of receipts and expenditures for the month of April, 2007 and the subsequent months within ten days of the expiry of each such month, duly signed and verified as correct by the petitioner no.2.

4. The petitioners will not alienate in any manner whatsoever any of the assets of the College.

In the event of default in complying with any of the above conditions, this interim order will stand automatically vacated.

It is made clear that the views expressed in the present order are, prima-facie, in nature for the purpose of deciding the question of grant of interim relief. It will be open to the parties to raise all pleas on merits at the time of hearing.

List on 10.5.2007.

Dt. 26.3.2007

safi


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