Allahabad High Court
C/M Mahatma Gandhi Smarak Inter College ... vs State Of U.P. Thru. Prin. Secy. /Addl. ... on 12 September, 2024
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:63236 Court No. - 7 Case :- WRIT - C No. - 7323 of 2024 Petitioner :- C/M Mahatma Gandhi Smarak Inter College Thru. Manager Respondent :- State Of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Deptt. Of Secondary Education Lko. And 5 Others Counsel for Petitioner :- Amrendra Nath Tripathi,Jay Karan Mishra,Ranjeet Kumar Pal Counsel for Respondent :- C.S.C.,Rakesh Chandra Tewari,Shashank Upadhyay Hon'ble Alok Mathur,J.
1. Heard Sri Amrendra Nath Tripathi, learned counsel for the petitioner as well as learned Standing counsel for respondent No.s 1 to 6.
2. An application for impleadment has been filed by Sri Prince Verma, Advocate. Learned counsel for the petitioner is granted one week's time to file objection against the said application.
3. By means of the present petition the petitioner has challenged order dated 24.7.2024 passed by the State Government in exercise of the powers under Section 16 (D) (4) of U.P. Intermediate Education Act, 1921 wherein authorized controller has been appointed in the petitioner-institution as well as consequential order dated 30.07.2024.
4. The main ground for assailing the impugned order is with regard to opportunity of hearing as provided under Section 16 (D) has not been granted to the petitioner. It is stated that at the stage of Section 16 (D) (3) the Director is mandated to give notice to the Committee of Management to show cause within thirty days from the date of receipt of such notice in case he wishes to proceed under Section 16 (D) (4). After receipt of the response of the petitioner in case the Director is of opinion that authorized controller has to be appointed and the matter deserves to be referred to the State Government he shall refer the same to the State Government and the State Government is mandated to again issue a notice to the petitioner prior to passing the order of appointing authorized controller.
5. Learned counsel for the petitioner submits that neither was any show cause notice given by the Director at the stage of Section 16 (D) (4) nor any notice was given by the State Government prior to appointment of authorized controller.
6. It is in the aforesaid circumstances, learned Standing Counsel was granted time to seek instructions and specifically informed this Court as to whether the notice at the stage of Section 16 (D) (3) or by the State Government at the stage of Section 16 (D) (4) was given to the petitioner before passing of the impugned orders dated 24.07.2024 and 30.07.2024.
7. Learned Standing Counsel on the basis of written instructions dated 11.09.2024 received from the Director of Education (Secondary), U.P., Prayagraj could not produce any show cause notice given to the petitioner prior to passing of the impugned orders and accordingly, there is no doubt that the contention raised by the petitioner in the present writ petition are clear that opportunity of hearing as envisaged has not been given.
8. The petitioner has relied upon a judgment of this Court in the case of Chandrashekar Tiwari Vs. State of U.P. and others reported in MANU/UP/0136/2023 in paragraph no. 13 has held as under:-
"13. The Writ Court while remitting the matter to the State Government has placed reliance on a judgment of learned Single Judge in Committee of Management, Gautam Buddha Inter College and Another Vs. State of U.P. & 4 Others1, wherein it has been held that although the statute provides for opportunity of hearing at the stage of enquiry by the Director but in case there is recommendation by the Director to supersede the Committee of Management, it is implicit in the provision that the State Government would accord hearing to the affected parties before it supersedes the Committee of Management. This is necessary, in view of the fact that the decision making authority is the State Government and it is enjoined with duty to record reasons for supersession of the Committee of Management. The relevant observations are extracted below:-
"10. In my opinion, it would be incumbent upon the State Government to issue notice to the aggrieved party to show cause before passing an order on the recommendation of the Director. The decision making authority is the State Government and not the Director. Aggrieved party would have every right to show cause before the State Government, contending that the recommendations made by the Director are either incorrect or per se perverse. It would, therefore, be incumbent upon the State Government to pass suitable order considering the objections. It is immaterial whether the Committee of Management has appeared before the Director pursuant to the show cause notice under sub-section (3). Principle of natural justice would have to be read into sub-section (4) to uphold the vires of the section.
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18. Notwithstanding, the fact that the sub-section (4) does not contain any express provision for the affected party being given an opportunity of being heard. Undoubtedly, action under the said sub section is a function which involves due application of mind to the facts as well as to the requirements of law. Therefore, it is plain that before acting upon the recommendation of the Director, State is bound to put the aggrieved party to notice. Civil consequence of superseding the Committee of Management follows the decision of the State Government and not of the Director."
9. Accordingly, it is further noticed that the judgment of this Court the case of C/M Gautam Buddha Inter College and another Vs. State of U.P. and others reported in 2016 SCC OnLine 2496 has been approved by the Division Bench of this Court as well as has been followed by this Court. Therefore, there is no dispute that the petitioner had not been accorded any opportunity of hearing or subjected to any notice either by the Director of Education at the stage of exercising its power under Section 16 (D) or by the State Government at the stage of 16 (D) (4) of the U.P. Intermediate Education Act, 1921.
10. Accordingly, in the aforesaid circumstances, the impugned orders dated24.7.2024 passed by the State Government in exercise of the powers under Section 16 (D) (4) of U.P. Intermediate Education Act, 1921 as well as consequential order dated 30.07.2024 having been passed in clear violation of principles of natural justice and therefore, the same are set aside. The matter is remitted to the Director of Education (Secondary), U.P., Lucknow to proceed afresh and pass necessary orders in accordance with law and shall take into consideration the judgment of this Court where clear prescription has been provided for grant of opportunity of hearing to the petitioner before passing any such orders.
11. Considering that the much time has been lapsed during the pendency of this writ petition, let Director of Education (Secondary), U.P., Prayagraj may pass fresh orders in accordance with law expeditiously say within a period of three months from the date a certified copy of this order is produced before him.
12. A vehement request has been made by learned counsel for respondents to restrain the petitioner from dis-alienate the property.
13. It is not disputed by either of the parties that some interim injunction has already been obtained by the respondents, accordingly, no such direction can be given in the present writ petition.
14. In the remand proceedings, the petitioner shall be at liberty to take all pleas at his command while submitting his response to the notice.
15. With the aforesaid observations/directions, this writ petition stands allowed.
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(Alok Mathur, J.) Order Date :- 12.9.2024 Virendra