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2013 DIGILAW 140 (PAT)

Governing Body v. Shikha Lal

2013-01-31

AHSANUDDIN AMANULLAH, R.M.DOSHIT

body2013
ORDER Interlocutory Application No.1702 of 2012: This Application for leave to appeal has been filed by the appellants for permission to challenge the judgment and order dated 10th April 2009 passed by the learned single Judge in C.W.J.C. No. 3156 of 2001. 2. On the facts and in the circumstances of the case, leave is granted. 3. Interlocutory Application stands disposed of. Interlocutory Application No.912 of 2012: 4. This Application under Section 5 of the Limitation Act is filed by the appellants for condonation of delay of 2 years and 204 days occurred in filing the Letters Patent Appeal. 5. The appellants are the governing body of the M.N.M. Mahila College, Bettiah and its Chairman and the Secretary (hereinafter referred to as “the College”). Although, the governing body was impleaded as party-respondent, notice was directed to be served through one Dr. (Smt.) Mahamaya Verma purportedly the Secretary of the managing committee of the College. According to the College, the said Dr. (Smt.) Mahamaya Verma was never the Secretary of the managing committee of the College. She had no authority to represent the managing committee. Nevertheless, in the writ petition she did represent the managing committee of the College and conceded to the claim made by the writ petitioner. Thus, the order has been obtained by the writ petitioner ex-parte against the College. According to the College, the then managing committee has now been replaced in 2006 by the governing body, the present appellants. The College was not aware of the impugned order until after a contempt petition was filed and the notice was issued in the contempt proceeding (M.J.C. No.2368 of 2010). Therefore, the delay. 6. On the facts and in the circumstances of the case, the delay is condoned. 7. Interlocutory Application stands disposed of. Letters Patent Appeal No.130 of 2012: 8. This Appeal under Clause 10 of the Letters Patent is preferred by the governing body of the College through its Secretary, Sub Divisional Officer, Bettiah against the judgment and order dated 10th April 2009 passed by the learned single Judge in C.W.J.C. No. 3156 of 2001. 9. According to the appellants, at the relevant time the affairs of the College was managed by the managing committee. The general body in its meeting held on 12th November 2000, recorded the continuous absence of the Incharge Principal Smt. Shikha Lal, her undisciplined conduct and resulting deterioration in education. 9. According to the appellants, at the relevant time the affairs of the College was managed by the managing committee. The general body in its meeting held on 12th November 2000, recorded the continuous absence of the Incharge Principal Smt. Shikha Lal, her undisciplined conduct and resulting deterioration in education. The general body also recorded the need for constitution of the managing committee. The general body constituted a managing committee under the chairmanship of one Smt. Renu Devi, a local Member of Legislative Assembly and three others. The managing committee constituted on 12th November 2000, in its meeting dated 6th December 2000 appointed one Smt. Shail Kumari as the Principal of the College. The appointment order was issued to the said Smt. Shail Kumari on 6th December 2000. 10. Feeling aggrieved, Smt. Shikha Lal, the then Incharge Principal of the College approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 3156 of 2001 against the State of Bihar, the Bhim Rao Ambedkar Bihar University, Muzaffarpur, the Vice-Chancellor of the said University, the Director of Higher Education, the District Magistrate, Dr. Kamta Prasad Yadav, a Lecturer in Ram Lakhan Singh Yadav College and Smt. Shail Kumari. Later on, under order dated 5th May 2006, the petitioner impleaded then managing committee of the College through its Secretary Dr. (Smt.) Mahamaya Verma as party-respondent no.8. The said Dr. (Smt.) Mahamaya Verma appeared before the Court and filed her counter affidavit. She made allegations against one Dr. Malik Prasad Verma and the activities of certain persons. She also made allegations against the Principal Smt. Shail Kumari and referred to the report of the Sub Divisional Officer made in respect of complaint of breach of peace made by the petitioner. 11. According to the petitioner, the process for selection of Principal in the College was undertaken by the Bihar College Service Commission. The said Commission had prepared a panel of selected candidates on 3rd January 2000. According to the said panel, the petitioner was at Sl. No.1 on the merit list and the aforesaid Smt. Shail Kumari was at Sl. No.2. The petitioner had, therefore, a prior right to appointment as a Principal. 12. The learned single Judge, having considered the facts on record, under impugned judgment and order dated 10th April 2009, allowed the writ petition. The learned single Judge did record the appearance on behalf of respondent nos. No.2. The petitioner had, therefore, a prior right to appointment as a Principal. 12. The learned single Judge, having considered the facts on record, under impugned judgment and order dated 10th April 2009, allowed the writ petition. The learned single Judge did record the appearance on behalf of respondent nos. 6 and 7, Dr. Kamta Prasad Yadav and Smt. Shail Kumari and noted that they had not contested the writ petition. Relying upon the recommendation made by the Bihar College Service Commission, held that the writ petitioner was at serial no.1 on the merit list and that she ought to have been appointed as the Principal of the College. In absence of any justification by the managing committee, the learned single Judge issued direction to act in accordance with the recommendation made by the Bihar College Service Commission. Therefore, this Appeal. 13. Learned advocate Mr. Mahesh Narayan Parbat has appeared for the appellant. He has submitted that the general body of the College had, under its Resolution dated 12th November 2000, recorded the fact that the Incharge Principal Smt. Shikha Lal was absent for a long time and that the then managing committee, under its Resolution dated 6th December 2000, appointed Smt. Shail Kumari as the Principal of the College. Although the petitioner impleaded the managing committee as party-respondent under order dated 5th May 2006, the notice was served through Dr. (Smt.) Mahamaya Verma shown to be the Secretary of the managing committee. The said Dr. (Smt.) Mahamaya Verma was not the Secretary or even a member of the managing committee. She is actually related to the writ petitioner. She, therefore, appeared before the Court and made affidavit in support of the petitioner. Thus, the impugned order has been obtained by the petitioner in collusion with the respondent no.8, the aforesaid Dr. (Smt.) Mahamaya Verma. The order, therefore, deserves to be set aside. 14. The Appeal is contested by learned advocate Mr. Mukul Sinha appearing on behalf of the respondent no.1, the writ petitioner. Mr. Sinha has strenuously urged that it was Dr. (Smt.) Mahamaya Verma who was the Secretary of the duly constituted managing committee of the College. The constitution of the committee headed by Smt. Renu Devi was illegal and non est in the eye of law. He has relied upon the report made by the then Sub Divisional Officer, Bettiah to the Superintendent of Police. (Smt.) Mahamaya Verma who was the Secretary of the duly constituted managing committee of the College. The constitution of the committee headed by Smt. Renu Devi was illegal and non est in the eye of law. He has relied upon the report made by the then Sub Divisional Officer, Bettiah to the Superintendent of Police. It is apparent that pursuant to the complaint made by the petitioner regarding breach of peace, the Sub Divisional Officer, Bettiah has made some enquiry and reported to the Superintendent of Police about the internal dispute in respect of the managing committee of the College. The said report suggests that the constitution of the committee under the chairmanship of Smt. Renu Devi was not legal and the earlier committee under the Sub Divisional Officer, Bettiah was the legally constituted committee. Mr. Sinha has submitted that the committee headed by Smt. Renu Devi being illegal, the petitioner was not required to challenge the constitution of the said committee or any of the decisions of the said committee. He has submitted that the petitioner was concerned with her own appointment and the appointment of Smt. Shail Kumari. She had, therefore, rightly challenged the appointment of Smt. Shail Kumari alone. He has also supported the aforesaid affidavit made by Dr. (Smt.) Mahamaya Verma and the decision of the learned single Judge. 15. We have considered the records of the writ petition and the Letters Patent Appeal. It does appear that right, wrong or otherwise the managing committee under the chairmanship of Smt. Renu Devi had been constituted by the general body in its meeting held on 12th November 2000. Unless the constitution of the said committee was declared to be illegal or void, the decision made by the said committee would be binding and enforceable. It is apparent that the petitioner was aware of the constitution of the said committee and its decision. Nevertheless, she did not disclose the factum of the said committee in the writ petition nor did she disclose the Resolution dated 6th December 2000 passed by the said managing committee. In absence of challenge to the resolution passed by the managing committee, the appointment of Smt. Shail Kumari as Principal of the College could not have been challenged. 16. Nevertheless, she did not disclose the factum of the said committee in the writ petition nor did she disclose the Resolution dated 6th December 2000 passed by the said managing committee. In absence of challenge to the resolution passed by the managing committee, the appointment of Smt. Shail Kumari as Principal of the College could not have been challenged. 16. It is more than evident that the petitioner has obtained the impugned judgment and order dated 10th April 2009 by suppressing the material facts and in collusion with the respondent no.9 Dr. (Smt.) Mahamaya Verma. Such judgment cannot be sustained. 17. We are informed at the bar that at present neither the petitioner Smt. Shikha Lal nor the respondent no.8 Smt. Shail Kumari is in employment of the College. Both are appointed as Principal in other Colleges. 18. For the aforesaid reasons, this Appeal is allowed. Impugned judgment and order dated 10th April 2009 passed by the learned single Judge in C.W.J.C. No. 3156 of 2001 is set aside. C.W.J.C. No. 3156 of 2001 is dismissed. 19. The petitioner, Smt. Shikha Lal will bear the cost of the appellants. The costs is quantified at Rs.5,000/-. Rest of the respondents will bear their own cost.