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Akhlaq Husain Khan And Others v. Jt. Director Of Education And Others - WRIT - C No. 45462 of 2005  RD-AH 6302 (6 April 2007)
Civil Misc. Writ Petition No.56583 of 2003
Akhlaq Husain Khan and others
The Joint Director of Education, Ist Region, Meerut and others
Civil Misc. Writ Petition No.45462 of 2005
Akhlaq Husain Khan and others
Joint Director of Education, Ist Region, Meerut and others
Hon'ble Anjani Kumar, J.
These two writ petitions, namely, Writ Petition No.56583 of 2003 and Writ Petition No.45462 of 2005 since arise out of same set of facts and raise common question of law they are being disposed of by this common judgment.
Heard learned counsel for the parties.
Prior to filing of the aforesaid two writ petitions Ishrat Ali and 37 others filed Writ Petition No.34604 of 2002 before this Court with the following prayer:-
(a) To issue a writ, order or direction in the nature of Mandamus, commanding and directing the respondent no.2 not to approve the list of the members of the General Body of the Azad Memorial Inter College, Dasna, Ghaziabad, without including the names of the petitioners in the list of members sent by the respondent no.3; and
(b) To issue a writ, order or direction in the nature of Mandamus, commanding and directing the respondent nos. 2 and 3 not to hold the election of the new committee of management of the Azad Memorial Inter College, Dasna, Ghaziabad, without permitting the petitioners to vote and participate in the said election; or
(c) To issue such other and further suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.
The aforesaid writ petition was finally disposed of by this Court by the order dated 21st August 2002 which is quoted below:-
"During course of argument, learned counsel for the petitioner comes up with the prayer that in the event, the petitioner makes a representation before the concerned authority, a direction may be given to take appropriate decision in respect to the claim of the petitioner as has been pleaded in the writ petition. On the facts of the present case, it will be better if the petitioner is asked to make a fresh representation detailing his grievance.
After hearing leaned counsel for the parties and in view of the submission as has been made on behalf of the petitioner, it is hereby directed that in the event, the petitioner makes a representation before the concerned authority along with certified copy of this order, and a copy of writ petition the concerned authority will decide the same by a reasoned and speaking order in accordance with law, preferably within a period of one month from the date of certified copy of this order along with representation is received by the concerned authority.
With this direction, writ petition is disposed of finally.
Let a copy of this order be issued to the learned counsel for the petitioner on payment of usual charges within 24 hours."
Pursuant to the direction issued by this Court in the judgment dated 21st August 2002 the petitioners of Writ Petition No.34604 of 2002 approached the authority concerned who has decided the representation filed by them by order dated 18th September 2002 against which the committee of Management, Azad Memorial Inter College, Dasna, District Ghaziabad filed Writ Petition No.9353 of 2003. This Court on 4th March 2003 passed the following order:-
"Sri V.M. Zaidi has appeared on behalf of the caveator, Sri Fariyad Ali. He prays for and is allowed one week's time to file application for impleadment. Learned standing counsel appearing for respondents No.1, 2 and 3 prays for and is allowed one month's time to file counter affidavit. Petitioner may file rejoinder affidavit within a week thereafter.
List after expiry of the aforesaid period along with Writ Petition No.34604 of 2002. The prayer for interim relief will be considered after exchange of affidavits."
The aforesaid writ petition no.9353 of 2003 has been withdrawn by the petitioners of the writ petition and the order passed by this Court dated 12th July 2005 is as under:-
"This writ petition is dismissed as withdrawn vide order of date passed on Civil Misc. (Withdrawal Application) No.131954 of 2005.
No orders as to cost.
Interim order, if any, stands vacated."
Thirty seven so called newly inducted members of the General Body filed Writ Petition No.56583 of 2003 before this Court with the following prayer:-
(a) issue a writ, order or direction in the nature of certiorari calling for the record of the case and quash the impugned order dated 5.12.2003 (Annexure no.16 to the writ petition).
(b) issue a writ, order or direction in the nature of mandamus staying operation and effect of the impugned order dated 5.12.2003 (Annexure no.16 to the writ petition).
( c) issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(d) award cost of the petition in favour of the petitioners.
When the order dated 5th December 2003, Annexure 16 to the Writ Petition No.56583 of 2003, was passed by the respondent, this order has been passed by the respondent in view of the order passed by this Court dated 21st August 2002 in Writ Petition No.34604 of 2002 quoted above. A perusal of the impugned order, in the writ petition, dated 5th December 2003 clearly demonstrates that the representation made by the petitioner of Writ Petition No.34604 of 2002 has been rejected by the authority concerned. In the writ petition no.56583 of 2003 this Court has been pleased to pass a detail interim order dated 19th December 2003 as quoted below:-
"Heard Sri P.C. Srivastava, assisted by Shri K.A. Ansari, learned counsel for the petitioners, learned standing counsel appearing for respondents no.1, 2 and 5 and Shri Ashok Khare, learned senior counsel assisted by Sri Pradeep Pandey, learned counsel appearing for respondent no.4. They pray for and are allowed one month's time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit. The petitioner shall take steps to serve respondent no.3 by registered post within one week. The office shall send notice returnable at an early date.
List on the date fixed by the office in the notice.
The Joint Director of Education passed the impugned order without deciding the application of the petitioners dated 11.11.2003 by which it was requested that the matter be referred to the Regional Committee which was competent to take a decision in the matter and he alone could not decide it. Further the Joint Director of Education was not present in his office on 18.11.2003 and an application was filed in his office by the petitioners. It is urged that the impugned order has been passed ex-parte behind back of the petitioners and it is wrongly mentioned in the impugned order that the petitioners were also present and heard. The aforesaid facts have been stated in paragraph 19 and 20 of the writ petition. In this view of the matter the petitioner is entitled for interim order.
Until further orders of this court, the effect and operation order dated 5.12.2003 passed by respondent no.1, annexure-16 to the writ petition shall remain stayed."
A counter affidavit has been filed on behalf of respondents 1 and 2 by Sri R.D. Singh who is authorised by respondents no.1 and 2 to file the said counter affidavit wherein paragraphs 19 and 20 of the writ petition are answered in paragraphs 16 and 17 of the counter affidavit. Paragraphs 16 and 17 of the counter affidavit on behalf of respondents no.1 and 2 are reproduced below:-
"16. That the contents of paragraph 19 of the writ petition are totally incorrect against record, hence denied. Joint Director of Education was very much present in his office and has heard the petitioner on the said date. Allegation made in paragraph under reply Petitioner made only for the purposes of the giving colour to their case.
17. That the contents of paragraph 20 of the writ petition are incorrect, hence denied. The respondent no.1 was present in his office and has heard the petitioner as is evident from the order dated 6.12.2003. Averment to the contrary are incorrect and are denied."
In view of this denial , in my opinion, the petitioners have not been able to make out any case as they argued when this Court passed the order dated 19th December 2003. There is yet another reason even assuming that the petitioners made statement regarding certain facts which have been denied by the respondents on oath, this raises questions of fact which cannot be properly decided by this Court, particularly in the circumstances that the petitioners did file a civil suit being Civil Suit No.957 of 2002 in the court of Civil Judge (Senior Division), Ghaziabad seeking relief of declaration that they may be declared members of General Body. In the said suit notices were issued on 25th July 2002 and the trial court did not grant any injunction in favour of plaintiff/petitioners in this writ petition, therefore, they moved an application 106C for withdrawal of the said suit with the permission to file a fresh suit. However, the trial court by order dated 19th August 2002 dismissed the suit without granting any permission to file a fresh suit. The suit was, however, withdrawn by the plaintiffs with the permission of the trial court. In these circumstances the petitioners, in my opinion, have not been able to make out a case for interference by this Court under Article 226 of the Constitution of India.
There is yet another reason that the legal ground raised by the petitioners that since Joint Director of Education himself has passed the order impugned in the writ petition dated 5th December 2003 and the controversy has not been decided by the Regional Committee as required to be decided in accordance with law. This controversy has been dealt with by a Division Bench of this Court in Special Appeal No.1394 of 2004, Committee of Management Gangakhand Inter College Vs. Regional Director of Education, Agra wherein similar arguments advanced before the Special Appeal Bench has been rejected and decided on 16th October 2004.
For the reasons given above this writ petition has no force and is accordingly dismissed.
So far as Writ Petition No.45462 of 2005 is concerned the second prayer (b) in the present writ petition was subject matter of Writ Petition No.56583 of 2003 which, as already stated above, has been dismissed by this Court by this very judgment. Now in view of fact that the petitioners' request for admitting them as members has been rejected by this Court and the suit filed by them for the similar declaration has been withdrawn by them, the relief no. (a) cannot be granted to the petitioners as the petitioners have miserably failed to demonstrate that they have any right which can be granted by this Court under Article 226 of the Constitution of India. This writ petition, therefore also deserves to be dismissed and is dismissed.
In view of what has been discussed above both the writ petitions are hereby dismissed with costs.
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