DEEP NARAIN MISRA v. DIRECTOR OF EDUCATION MADHYAMIK U P CAMP OFFICE
2009-05-06
PRADEEP KANT, SYED NAZIM HUSAIN ZAIDI
body2009
DigiLaw.ai
PRADEEP KANT, J. Heard Dr. L. P. Misra, learned Counsel for the appel lant and Ms. Winnie Srivastava, appearing for the respondents. 2. A writ petition, bearing No. 467 (M/s) of 2009, was filed by the respon dents challenging the election proceedings dated 22. 9. 2007, conducted by the present appellant as well as the decision of the Regional Committee dated 21. 1. 2008 and recommendation of the Joint Director of Education dated 24. 1. 2008. 3. It appears that an election dispute was going on between the appellant with respect to the management of the institution in question, of which the pre sent respondents, namely, the petitioners in the writ petition, claimed their own right as against the right as claimed by the present appellant, namely, re spondent No. 7 in the writ petition. The matter was decided by the Regional Committee, but the plea of the respondents is that the decision of the Regional Committee is perverse and against the scheme of administration and, there fore, the election so held cannot be given any recognition. 4. Learned Counsel for the appellant, however, disputes and refutes the aforesaid position. 5. Considering the prayer of the respondents (petitioners in the writ peti tion), the learned Single Judge, by means of the order under appeal, has dis posed of the writ petition on day one, after hearing the Counsel for the respon dents and the State Counsel, but without giving any opportunity or notice to the present appellant, who was impleaded as respondent No. 7 in the writ petition and who was also likely to be affected in case any order was passed or was to be passed in favour of the present respondent. The learned Single Judge directed the Joint Director Education to decide the representation filed by the respon dents within a period of four weeks by a speaking and reasoned order from the date a certified copy of the order is served upon him. 6.
The learned Single Judge directed the Joint Director Education to decide the representation filed by the respon dents within a period of four weeks by a speaking and reasoned order from the date a certified copy of the order is served upon him. 6. A writ in the nature of mandamus for deciding a representation said to have been made by a party, normally can be issued in case there is a statutory provision for making such a representation, or so to say, it is a statutory repre sentation and if the statutory authority, who is entrusted with the obligation to consider and decide the same, fails to do so within a reasonable time, or in a case though no statutory representation is provided, but where the Court feels, after considering the arguments and the material on record that the matter re quires to be re-considered by any authority competent to do so and for which any representation is made or directed to be made, the said representation can be directed to be considered and decided. 7. In the absence of any statutory provision for making a representation, every litigant cannot come to the Court seeking direction for deciding the repre sentation. Apparently, an order or direction for deciding a representation, may be after affording an opportunity to all the parties, ordinarily will be issued by the Court if such a representation is not provided under any Act or Rules. The reason is that a validity passed order by a competent authority in favour of one or the other person is put into the realm of scrutiny and review again even though the Court does not have any occasion, nor has applied its mind as to whether the order so passed suffers from manifest error or illegality. In case the order challenged suffers from any manifest error or illegality, the writ petition itself may be entertained and the matter may be decided in the writ petition itself, but if the Court is of the view that for some reasons, namely, for the fact that certain important questions or relevant pleas or the documents, which were though before the authority concerned, have not been considered, it may relegate the person for having a fresh decision on representation. 8.
8. Ordinarily the authority, who has already passed an order after con sidering the material on record and has applied its own mind, is not supposed to look into the matter again by way of review under the garb of direction for de ciding the representation. In any case, if the Court is inclined to pass an order for deciding the representation, in such a case, that can be done only after issu ing notice and giving opportunity of hearing to the contesting party, the reason being that the contesting party, in whose favour the order exists, would be sub jected to a fresh round of litigation, may be before the authority concerned, putting the order in his or her favour into jeopardy and giving one more chance to an unsuccessful party to have another order. 9. In the instant case, there was an election dispute between the parties. The representations said to have been made by the respondents are not statu tory representations, as fairly conceded by the Counsel for the respondents. We are, therefore, of the considered opinion that the learned Single Judge could not have given direction to the Joint Director Education to decide the representa tions on day one. In case, the representations were at all required to be decided, it could have been done only after issuing notice to the contesting respondents in the writ petition and affording them opportunity of hearing. 10. We, under the circumstances as aforementioned, set aside the order un der appeal and remit the matter to the Bench having jurisdiction for hearing and deciding it afresh. 11. This order shall not come in the way of learned Single Judge in hearing the matter on merit and passing orders finally including the order for deciding the representations if he so finds appropriate. 12. The appeal stands allowed. Appeal Allowed. .