Allahabad High Court
C/M S.N. Sen Balika Vidyalaya And ... vs State Of U.P. And 4 Others on 18 August, 2022
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 51 Case :- WRIT - C No. - 23497 of 2022 Petitioner :- C/M S.N. Sen Balika Vidyalaya And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Sarvesh Kumar Hon'ble Ashutosh Srivastava,J.
1. Heard Sri G.K. Singh, learned Senior Advocate assisted by Sri Prabhakar Awasthi, learned counsel for the petitioners, Sri Sarvesh Kumar, learned counsel for the caveator/respondent No.5 and the learned Standing Counsel representing the State-respondents.
2. The instant writ petition has been filed assailing the order dated 29.7.2022 (Annexure-17 to the writ petition) passed by the State Government, Higher Education Department, whereby exercising powers under Section 58 of the U.P. State Universities Act, 1973 the petitioners' - Committee of Management has been superceded and the District Magistrate, Kanpur Nagar has been appointed as the Authorised Controller for a period of next one year or till further orders whichever occurs earlier. A challenge to the consequential order dated 30.7.2022 passed by the District Magistrate, Kanpur Nagar / Authorised Controller/respondent No.3 whereby he has proceeded to delegate his authority to discharge his duties as Authorised Controller in favour of the Sub-Divisional Magistrate, Sadar Kanpur Nagar has also been laid.
3. The facts shorn of unnecessary details giving rise to the present proceedings are that the petitioner - Committee of Management through its Manager, petitioner No.2, has been managing the affairs of a Degree College, established in the year 1953 in the name and style of "S.N. Sen Balika Vidyalaya Post Graduate College at District Kanpur Nagar" affiliated with Chhatrapati Shahu Ji Maharaj University. The respondent No.5, Dr. Suman, was recommended vide order dated 22.10.2021 of the Director of Education (Higher) for appointment as Principal which was lying vacant in the institution and was required to be filled up by way of regular appointment. On the strength of the recommendation dated 22.10.2021 the Regional Higher Education Officer wrote to the petitioner Committee of Management on 2.11.2021 to ensure the joining of the respondent No.5. A formal request was also made by the respondent No.5 by way of communication dated 8.11.2021. The petitioner Committee of Management began processing the appointment of the respondent No.5 and prior to issuance of the appointment letter sought to verify the testimonials of the respondent No.5 for Chaudhary Charan Singh University, Meerut and other universities from where the respondent No.5 had obtained her qualifications. During the course of such verification by the petitioners, the Regional Higher Education Officer as also the Director of Higher Education wrote to the petitioner Committee of Management vide letters dated 27.11.2021 and 1.12.2021, respectively, to ensure the joining of the respondent No.5. During the course of the verification of the testimonials of the respondent No.5, it was revealed that not a single student had done his PhD under the guidance of the respondent No.5. As per the qualification prescribed under the UGC Regulations an incumbent who seeks appointment on the post of Principal in a Post Graduate College has to have essential qualification of research guidance experience. The petitioners required the respondent No.5 to clarify her position in that regard. When no clarification was received from the respondent No.5, the petitioners vide letter dated 12.3.2022 requested the respondent Authorities to clarify whether the respondent No.5 stood qualified to be appointed as Principal of the Institution. Instead of clarifying the position, the State Government exercising powers under Section 57 of the U.P. State Universities Act, 1973, issued notices dated 20.5.2022 to it purporting to be under Section 57(ii) of the Act, 1973. The notice was duly replied by the petitioner by submitting its reply dated 6.6.2022. The State Government without considering the reply of the petitioner proceeded to pass the impugned order dated 29.7.2022 and consequent thereto the Authorised Controller proceeded to pass the order dated 30.7.2022.
4. Sri G.K. Singh, learned Senior Counsel appearing on behalf of the petitioners submits that the impugned order dated 29.7.2022, passed by the State Government appointing the Authorised Controller, superceding the petitioner Committee of Management, is patently illegal and is liable to be quashed on the grounds that:-
(i) the order dated 29.7.2022 suffers from the vice of procedural impropriety;
(ii) the order has been passed in utter violation of the principles of natural justice;
(iii) the very basis of passing the order dated 29.7.2022 having been extinguished on the joining of the respondent No.5 on 2.8.2022 the continuance of the order is unwarranted.
5. As regards the consequential order dated 30.7.2022 passed by the District magistrate Kanpur Nagar / Authorised Controller appointing the Sub-Divisional Officer, Sadar Kanpur Nagar to discharge duties as Authorised Controller, learned counsel submits that the said order also cannot be sustained on the principle of that delegated power cannot be further deligated.
6. Elaborating his arguments further, learned Senior Counsel for the petitioners contends that the Institution in question is a Degree College and as such the appointment of the respondent No.5 as Principal of the Institution is to be governed by the provisions of the U.P. Higher Education Services Commission Act, 1980. He has drawn the attention of the Court to Section 15 of the Act which reads as under:-
"15. Inquiry by Director. - (1) Where any person is entitled to be appointed as a teacher in any college in accordance with Sections 12 to 14, but he is not so appointed by the management within the time provided therefor, he may apply to the Director for a direction under sub-section (2).
(2) On receipt of an application under sub-section (1), the Director may hold an inquiry, and if he is satisfied that the management has failed to appoint the applicant as a teacher in contravention of the provisions of this Act, he may by order, require -
(a) the management to appoint the applicant as a teacher, and to pay him salary from the date specified in the order; and
(b) the Principal of the College concerned to take work from him as a teacher.
(3) The amount of salary, if any, due to such teacher shall, on a certificate issued by the Director, be recoverable by the Collector as arrears of land revenue."
7. Learned Senior Counsel has also invited the attention of the Court to Sections 57 and 58 of the U.P. State Universities Act, 1973 which are being quoted hereunder:-
"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 Service Commission under the Uttar Pradesh Higher Education Services Commission Act, 1980,] or
(iii) that any dispute with respect to the right claimed by different person 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.
58. Authorised 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 colleges 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 proceeding 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) Nothing in sub-section (1), shall be construed to confer on the Authorised Controller the power to transfer any immovable property belonging to college (except by way of letting from moth to month in the ordinary course of Management or to create any charge thereon) except as a condition of receipt of any grant-in-aid of the college from the State Government or the Government of India.
(4) Any order made under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or in any instrument relating to the Management and control of the college or its property :
Provided that the property of the college and any income therefrom shall continue to be applied for the purposes of the college as provided in any such instrument.
(5) The Director of Education (Higher Education) may give to the Authorised Controller such directions as he may deem necessary for the proper management of the college or its property, and the Authorised Controller shall carry out those direction."
8. Placing reliance upon the above mentioned sections, learned Senior Counsel submits that there is no dispute that if the Committee of Management of an institution does not give appointment to the selected candidate action can be taken against the Management under Section 15(2) of the U.P. Higher Education Services Commission Act, 1980 as well as Sections 57 and 58 of the U.P. State Universities Act, 1973 but such action can be taken only after following the procedure prescribed. Section 15(2) of the Act, 1973 contemplates that the Director is required to hold an enquiry and record a satisfaction that the Management has failed to appoint the teacher in contravention of the provisions of the Act. In the case at hand no such enquiry has been undertaken by the Director of Higher Education nor any satisfaction has been recorded that the petitioner Committee of Management has failed to appoint the respondent No.5.
9. Learned Senior Counsel further submits that the State Government has also been given the powers under Section 58 of the U.P. State Universities Act, 1973 to supercede the Committee of Management and appoint an Authorised Controller but such power also can be exercised only after considering the reply/explanation submitted by the Committee of Management pursuant to issue of notice under Section 57 of the Act. In the case at hand the State Government issued notice under Section 57 of the Act and pursuant thereto the petitioners submitted their reply dated 6.6.2022. However, the State Government without adverting to the reply of the petitioner and recording its satisfaction as to whether the same was satisfactory or not, proceeded to pass the order dated 29.7.2022 under Section 58 of the Act.
10. Learned Standing Counsel and Sri Sarvesh Kumar, learned counsel for the caveator/respondent No.5 have been unable to refute the legal submission made by Sri G.K. Singh, learned Senior Counsel. Sri Sarvesh Kumar, learned counsel for respondent No.5 does not dispute the fact that Dr. Suman/respondent No.5 has since joined the institution as Principal on 2.8.2022 and is functioning as such.
11. Having heard the learned counsel for the parties and having perused the record, the Court finds that the exercise of powers by Director under Section 15 of the U.P. Higher Education Services Commission Act, 1980 and the power of the State Government under Section 58 of the U.P. State Universities Act, 1973 operate in different fields. While Section 15(2) of the 1980 Act empowers the Director to order the Management of the Institution to appoint the selected applicant as Teacher and pay him his salary, order the Principal of the College concerned to take work from him as a teacher, the Director lack power to order for appointment of Authorised Controller. The said power vests only with the State Government under Section 58 of the U.P. State Universities Act, 1973. The Court finds that the impugned order takes note of the reply/explanation of the petitioners dated 6.6.2022 and has considered the same in the light of the report dated 7.7.2022 submitted by the Director of Higher Education and concluded that it is not in the domain of the Committee of Management to assess the eligibility and qualification of the selected candidate and such power vests only with the Commission. Thus the Court finds that the State Government while exercising the powers under Section 58 of the U.P. State Universities Act, 1973 has complied with the requirements of the provisions. The Court is not impressed with the submissions of the learned Senior Counsel for the petitioners that the order dated 29.7.2022 suffers from the vice of procedural impropriety and has been passed in violation of the principles of natural justice.
12. However the Court finds substance in the submission of the learned Senior Counsel that the respondent No.5 having joined the Institution as Principal on 2.8.2022 and is also working as such which fact is not disputed by the parties, the very basis of passing the order dated 29.7.2022 stands extinguished and there is no need for the Authorised Controller to continue, particularly when no other grounds for ousting the Committee of Management and for continuance of the Authorised Controller have been shown to exist. So far as the order dated 30.7.2022 passed by the District Magistrate/Authorised Controller appointing the Sub Divisional Officer, Sadar to discharge the duties as Authorised Controller is concerned the Court is of the opinion that such an order cannot be sustained on the principle "Delegatus non potest delegare", i.e. one to whom a power is delegated cannot himself further delegate that power.
13. In view of the above, considering the totality of the circumstances the order dated 29.7.2022 passed by the State Government exercising powers under Section 58 of the U.P. State Universities Act, 1973 (Annexure-17 to the writ petition) as also the order dated 30.7.2022 passed by the District Magistrate / Authorised Controller (Annexure-18 to the writ petition) are set aside.
14. The writ petition is allowed. No order as to costs.
Order Date :- 18.8.2022 Vandana (Ashutosh Srivastava,J.)