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2008 DIGILAW 2250 (ALL)

YOGENDRA SINGH @ BALLU v. STATE OF U. P.

2008-11-11

RAJIV SHARMA

body2008
JUDGMENT RAJIV SHARMA, J.-Heard Sri Asit Chaturvedi, Counsel for the petitioner assisted by Dr. R.K. Mishra, Sri Farhan Alam Usmani, Counsel for the Minorities Commission, Sri Qamrul Hasan, Counsel for the opposite party No. 4. Sri Afzal-Ur Rehman, Counsel for opposite party No.5 Sri Surya Prakash Singh, Counsel for the opposite party No.6 as also the Standing Counsel. 2. In the instant writ petition the petitioners, who are said to be the members of the society, have questioned the correctness and validity of the order dated 22.5.2008, passed by the U.P. Commission for Minorities, Lucknow, whereby the Commission has issued a direction for holding of election of the Committee of Management within a month and submission of compliance report inter alia on the ground that the impugned order passed by the commission is without jurisdiction, non-est and per se illegal. Further, in the application filed by Sri Meraj Ahmad before the V.P. Commission for Minorities [in short referred to as 'the Commission'] was for issuing direction to the Joint Director of Education, Faizabad Region, Faizabad to comply the order passed in Writ Petition No. 2628 (M/S) of 2007 and there was no prayer for issuing such a direction. 3. Counsel for the petitioner submits that the institution, namely, Azad Industrial Inter College, Fatehpur, Barabanki, was established as a non-minority institution by the society known as "Sub Committee Azad Industrial High School, Fatehpur, Barabanki'. There were members of both Hindu and Muslim community. Initially, Munshi Ram Jiyawan Lal was appointed as the Manager of the institution whereas Late Munshi Shafiuddin was Secretary. The non-minority status of the college continued for three decades but all of a sudden in the year 1994, by deceitful means was converted into a minority institution. The declaration of the institution as minority institution has been assailed in Writ Petition No. 3079 of 2006, which is pending. 4. The opposite party No. 5 Meraj Ahmad filed a writ petition bearing No. 2628 (M/S) of 2007, which was disposed of by the order dated 24.5.2007 with a direction that the application of Meraj Ahmad dated 7.3.2007 shall be decided within a period of three months. In compliance of the order the District Inspector of Schools, Barabanki passed an order dated 12.5.2008 rejecting the representation of the petitioner. 5. In compliance of the order the District Inspector of Schools, Barabanki passed an order dated 12.5.2008 rejecting the representation of the petitioner. 5. Thereafter, Meraj Ahmad-opposite party filed an application (Annexure-9 to the writ petition) before the minorities commission for restoring the administrative rights and issuing a direction to the Joint Director to comply the order passed in Writ Petition No. 2628 (M/S) of 2007. 6. Counsel for the petitioner has contended that the impugned order dated 22.5.2008 has been passed on the basis of undertaking given by opposite' party No. 6-Smt. Prema Shukla, Senior Clerk directing for holding of election of the Committee of Management within a period of one month, and for submission of compliance report. The contention of the petitioners is that the minorities commission has no jurisdiction or authority to direct for holding of election of a committee of management, as the authority to pass such an order vests somewhere else i.e., the Joint Director of Education or Deputy Registrar, as the case may be. Moreover, there was no such prayer of opposite party No.5 in the application moved before the minorities commission. He has also contended that various writ petitions are pending before this Court in respect of the institution in question and when this Court is seized of the matter, it was not appropriate for the commission to interfere in the matter. Moreso, when the prayer of the petitioner for compliance of the High Court's order has also become infructuous as the representation of the petitioner was decided by the District Inspector of Schools. 7. Lastly, Sri Chaturvedi contended that the commission is not vested with the power to issue directions, as it is only a recommendatory body. Further, the undertaking, of which reference has been given in the impugned order, has been given by an incompetent person. 8. A counter-affidavit has been filed by opposite party No. 5 in which it has been stated that Smt. Prema Shukla was fully competent to give undertaking as she was authorized being the senior assistant of office to contest and appear before the minority commission, which would be evident from the letter dated 26.2.2008. 8. A counter-affidavit has been filed by opposite party No. 5 in which it has been stated that Smt. Prema Shukla was fully competent to give undertaking as she was authorized being the senior assistant of office to contest and appear before the minority commission, which would be evident from the letter dated 26.2.2008. It has also been mentioned that since the college is a minority institution and the grievances of opposite party No. 5 were not being heard by D.I.O.S., Barabanki, therefore, he rightly approached to minority commission for rights of legally elected body of committee of management. The application was moved on 18.2.2008 and thereafter the D.I.O.S. passed the order on 12.5.2008. Clarifying further, he submitted that this Court has passed the order dated 26.5.2006 for ensuring smooth functioning of institution and proper maintenance of property and accounts. The authorized controller has not been appointed by the High Court. 9. In the writ petition and in the counter-affidavit various allegations have been made regarding membership dispute, misappropriation and alienation of college property, lodging of F.I.R. and other acts and omissions. 10. As the main controversy involved in the present writ petition is whether the minorities commission is vested with the power to pass the impugned order or not and, as such this Court is not entering into other disputes. 11. A counter-affidavit has also been filed by the Secretary of Minorities Commission. In this counter-affidavit, it has been mentioned that the opposite party No. 5 gave a representation to the Chairman, U.P. Commission for Minorities, Lucknow and the impugned order is based on an undertaking given by Smt. Prema Shukla, Senior Assistant of District Inspector of Schools, Barabanki, who appeared before the Commission on behalf of District Inspector Schools. 12. Counsel for the minorities commission has stated that section 9 (d) of U.P. Commission for Minorities Act, 1994 provides to look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matter with the appropriate authorities. Therefore, the order passed by the commission dated 22.5.2008 is fully valid and justified. 13. Before dealing with the controversy involved in the present writ petition, I deem it proper to refer the aims and objection and various provisions of the Uttar Pradesh Commission for Minorities Act, 1994. 14. Therefore, the order passed by the commission dated 22.5.2008 is fully valid and justified. 13. Before dealing with the controversy involved in the present writ petition, I deem it proper to refer the aims and objection and various provisions of the Uttar Pradesh Commission for Minorities Act, 1994. 14. The Uttar Pradesh Commission for Minorities Act, 1994 [U.P. Act No. 22 of 1994] came into existence on 31st August, 1994. The statement of objects and reasons says that a commission for minorities to study various problems and difficulties of the minorities of the State and advise the State Government from time to time, was working in the State. The constitution of the said commission was being regulated by the order of the State Government. Since the commission had no legal status, its constitution was affected on account of change of Government from time to time due to which the commission could not function effectively. It was, therefore, decided to enact a law to provide for the constitution of a commission for minorities on the pattern of the National Commission for Minorities Act, 1992 enacted by the Government of India, so that it would work independently to safeguard the interests of the minorities in the State. 15. Chapters I and II deals with the definitions, Constitution of Commission and the terms of office/condition of service of Chairman and Members. Chapter III deals with the functions of the commission. 16. Section 9 deals with the functions of the commission and reads as under: "Functions of the Commission.-(1) The commission shall perform all or any of the following functions, namely: (a) evaluate the progress of the development of minorities in Uttar Pradesh; (b) monitor the working of the safeguards in respect of minorities provided in the Constitution and in laws enacted by the State. Legislature; (c) make recommendations for the effective implementation of safeguards for the protection of the interest of minorities by the Government; (d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities; (e) cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal; (f) conduct studies, research and analysis on the issues relating to socioeconomic and educational development of minorities; (g) suggest appropriate measures in respect of any minority to be undertaken by the Government; (h) make periodical or special reports to the Government on any matter pertaining to minorities and in particular difficu1tie; confronted by them; and (i) any other matter which may be referred to it by the Government." 17. Having considered, the submissions of the Counsel for the parties and going through the various provisions of the Minorities Act, 1994, I am of the view that the U.P. Commission for Minorities Act is not empowered to issue directions to hold election of the Committee of Management of an institution. Clause (f) empowers the commission to conduct study, research and analysis on the issues relating to socio-economic and educational development of minorities but it does not mean that it has power to issue directions for holding of elections of Committee of Management of an institution. There is a different statutory provision and authority, which deals with the election of Committee of Management. My view is strengthened by the Supreme Court's decision rendered in the case of Bal Patil and another v. Union of India and others 1 (2005) 6 SCC 690 . and a, decision of Division Bench of this Court in Writ Petition No. 6420 (M/B) of 2003, which has been referred to, in the writ petition. 18. In Bal Patil's case (supra) the Hon'ble Supreme Court while dealing with the objects of the commission expressed, the view that the recommendations made by National or State Minorities Commissions are in the nature of advice only and can have no binding effect. 19. In Managing Director, U.P. State Bridge Corporation v. State Minorities Commission, the Minorities Commission directed the Bridge Corporation to promote Smt. Mehtab Jehan from the post of Assistant Grade I to the post of Section Officer and to submit the compliance report to the commission. 19. In Managing Director, U.P. State Bridge Corporation v. State Minorities Commission, the Minorities Commission directed the Bridge Corporation to promote Smt. Mehtab Jehan from the post of Assistant Grade I to the post of Section Officer and to submit the compliance report to the commission. This order was assailed before this Court by the Bridge Corporation on the ground that the commission has no jurisdiction or authority to entertain a claim of promotion of any employee of the corporation and in no case could have issued direction for making promotion. A Division Bench of this Court held as under: "In the instant case, the commission has not only recommend for considering the promotion of Smt. Mehtab Jehan, if at all such a recommendation could have been made, but, as a matter of fact, issued a positive direction for promoting her to the post of section officer from the post of Assistant Grade I and to submit the compliance report within one month failing which action order section 15 of the Act would be taken. The applicability of section 15 for the purpose of getting any order implemented is also being seriously disputed by the learned Counsel for the petitioner, Sri Shishir Jain. His submission is that section 15 would come into play only when an order is passed by the commission within its jurisdiction or authority or that if a person, who is required to appear as a witness or furnish such information or produce the record in terms of sub-section (3) of section 9 and he fails to do so, then action under section 15 can be taken. We find force in the argument of the learned Counsel for the petitioner. Smt. Bulbul Godiyal, appearing for the respondents made an attempt to justify the order passed by the commission, but could not satisfy the Court the authority under which the commission could have issued such a direction. The Commission Act does not provide any such power with the commission. We, therefore, find that the commission acted wholly without jurisdiction and acted beyond the scope of the Act in issuing a direction for promotion of Smt. Mehtab Jehan. The aforesaid order, therefore, is liable to be quashed, which is hereby quashed. 20. The Commission Act does not provide any such power with the commission. We, therefore, find that the commission acted wholly without jurisdiction and acted beyond the scope of the Act in issuing a direction for promotion of Smt. Mehtab Jehan. The aforesaid order, therefore, is liable to be quashed, which is hereby quashed. 20. Similarly, in the present case, the commission passed the impugned order for holding of election on the basis of undertaking given by Smt. Prema Shukla, Senior Assistant and submission of compliance report. 21. Interestingly, Smt. Prema Shukla has filed a short counter-affidavit denying of giving any undertaking by her. In paragraph 6, she has stated that an order was passed by the minority commission on 22.5.2008 after perusal of the letter dated 12.5.2008. But in that order nothing was said about the order dated 12.5.2008 passed by D.I.O.S, Barabanki. Paragraph 8 of the short counter-affidavit, which is relevant in the present controversy, reads as under: "That the deponent was not agreed-with the facts and deponent giving undertaking that I shall hold the election within one month. The deponent has never stated before the minority commission and has never given alleged undertaking about holding of election proceeding, she has not any power to agree or disagree in any manner. Thus in regard to these fact, order of minority commission dated 22.5.2008 is perse bad, not good." 22. From the above discussions, it is clear that the undertaking, the very basis of passing the impugned order for holding election has been disputed by Smt. Prema Shukla. She has stated in unequivocal words that she has never given the alleged undertaking about the holding of election proceeding. I am also of the view that senior clerk/clerk [clerk III employee] of an office is not a person competent to give an undertaking. 23. In view of the above, the impugned order directing for holding of election is wholly without jurisdiction and the commission acted beyond the scope of the Act, in issuing such a direction. Needless to mention that the recommendation made by the commission could only be recommendatory and are not binding upon the State Government or the Government Officers, unless, of course, the department, in its own wisdom, accepts the same for good reasons. 24. For the reasons aforesaid the writ petition is allowed. The order dated 22.5.2008 passed by the minorities commission is hereby quashed. 24. For the reasons aforesaid the writ petition is allowed. The order dated 22.5.2008 passed by the minorities commission is hereby quashed. The application of the opposite party No.5 shall be disposed of by the minorities commission expeditiously, if possible within a month, in accordance with law and in light of the observations made hereinabove, after hearing all the parties. Writ Petition Allowed.