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2015 DIGILAW 273 (ALL)

Abhishek Birthare v. State of U. P.

2015-02-11

RAN VIJAI SINGH

body2015
JUDGMENT Ran Vijai Singh, J. 1. Heard Sri Anil Kumar Mishra, learned counsel for the petitioner, learned standing counsel appearing for the State-respondents, Sri Neeraj Tiwari, learned counsel for respondent No. 2 and Sri R.S. Ram, learned counsel for the respondent No. 4. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 26.12.2014 passed by the respondent No. 2, by which the candidature of the petitioner for the post of President of the Students' Union has been declared invalid. 2. The facts giving rise to this case are that there happens to be a College, known as Sri Agrasen Post Graduate College, Mauranipur, Jhansi. The petitioner, who is a student of M.A. (Sociology) has contested the election for the post of President, Students' Union of the aforesaid College and was declared successful on 27.9.2014. 3. Aggrieved by the election of the petitioner, the respondent No. 5, who has also contested the election for the post of President, has filed Writ C No. 58995 of 2014, Sarvesh Rai v. State of U.P. and others, with the following prayer: "Issue writ, order or direction in the nature of certiorari calling for the records of the case and set aside the election of the respondent No. 5 as President of the Students' Union 2014-15 of the college (Annexure-2 to the writ petition)" 4. It may be noticed that respondent No. 5 in the aforesaid writ petition happens to be petitioner in this case. The aforesaid writ petition was disposed of on 17.11.2014 with the following observation: "The Apex Court in University of Kerala v. Council, Principals Colleges, Kerala, 2006 (8) SCC 304, has taken note of the recommendations of the Committee headed by Mr. J.M. Lyngdoh and a direction based upon it has been issued for holding of student union elections. In such circumstances, it would be appropriate that the Registrar of the university be directed to examine the grievance of the petitioner and to ensure that the judgment of the Apex Court, which notices the recommendations of the Committee headed by Mr. J.M. Lyngdoh, be complied with. Accordingly, the writ petition is disposed of, permitting the petitioner to approach the Registrar of the university, within a week from today. J.M. Lyngdoh, be complied with. Accordingly, the writ petition is disposed of, permitting the petitioner to approach the Registrar of the university, within a week from today. If such a grievance is raised before the Registrar, necessary action in accordance with the directions of the Apex Court would be taken by the Registrar, within a period of two weeks thereafter, after hearing the parties concerned." 5. After the order of this Court, respondent No. 5 has approached the Registrar of the University (respondent No. 2) alongwith certified copy of the order of this Court, upon which decision has been taken by the Registrar of the University declaring the election of the petitioner invalid taking note of the recommendation No. 6. 5. 6, which reads as under: "6. 5. 6 : The candidate shall have one opportunity to contest for the post of office bearer and two opportunities to contest for the post of on executive member." 6. Learned counsel for the petitioner has assailed the order on two grounds: "(i) the impugned order has been passed ignoring the judgment of this Court dated 17.11.2014, as while passing the order, no opportunity was given to the petitioner and thus, the order impugned suffers from breach of principles of natural justice : and (ii) the Registrar of the University had no jurisdiction to pass the impugned order in view of recommendation No. 6.8.1 of the Lyngdoh Committee, according to which there should be a Grievances Redressal Cell with the Dean (Student Welfare)/ teacher in charge of student affairs as its Chairman. In addition, one senior faculty member, one senior administrative officer and two final year students one boy and one girl, whereas in this case, the Registrar has passed the impugned order." 7. Learned counsel for the respondents submitted that so far as the non-providing of opportunity of hearing is concerned, since the petitioner has nowhere stated, in his writ petition, that he has not contested the election of President of the Students' Union in the year 2012-13, therefore, even if the opportunity was offered, the same result was likely to come and in that eventuality, the order cannot be put under the category of an order passed in breach of principles of natural justice. Regarding second submissions of learned counsel for the petitioner, learned counsel for the respondents submitted that assuming there is substance in the submission of learned counsel for the petitioner that the Registrar had no jurisdiction to pass the impugned order, even then the order cannot be held to be an illegal order as the same has been passed pursuant to the order of this Court; that too, after hearing learned counsel for the petitioner. 8. I have heard learned counsel for the parties and perused the records. 9. So far as the first point, which has been advanced by the learned counsel for the petitioner is concerned, it is not in dispute that this Court while passing the order dated 17.11.2014, relegating the respondent No. 5 to raise his grievance before the Registrar of the University, has observed that the orders shall be passed within two weeks after hearing the parties concerned. From the perusal of the order, it transpires that the order impugned has been passed without providing an opportunity of hearing. The only thing remains is that each and every order can be held to be vitiated on account of non-compliance of principles of natural justice. The law is settled in this regard. The Apex Court in the case of Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, has held that the breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute but relief can be refused when the case of the applicant is not one of 10 "real substance" or that there is no substantial possibility of his success or that the result will not be different even if natural justice is followed. The same view has been reiterated in the case of Glynn v. Keele University, Cinnamond v. British Airports Authority, not only in England but here also the Hon'ble Supreme Court in the case of S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379 , has held as under: "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal." 10. The same view has been reiterated in M.C. Mehta v. Union of India and others, (1999) 6 SCC 237 : 1999 (3) AWC 2 .107 (SC); Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529 : 2000 (4) AWC 2993 (SC) and Manish Kumar v. State of U.P. and others. 2010 (9) ADJ 762 and many other decisions of Apex Court as well as of this Court. 11. Learned counsel for the petitioner has neither argued, nor stated in the writ petition that he had not contested the election of the President in the year 2012-13. The recommendation No. 6.5.6 speaks that the candidates shall have one opportunity to contest for the post of office bearer and two opportunities for the post of Executive Member. Since the petitioner has contested the election of office bearer (for President) and that fact has not been denied, therefore, no illegality can be attached with the order impugned as even after affording an opportunity of hearing, result would be the same. 12. Learned counsel for the petitioner contended that in view of the recommendation No. 6.8.1 of the Lyngdoh Committee, it is the Grievances Redressal Cell, with the Deaen (Student Welfare)/teacher in charge of student affairs as its Chairman, in addition, one senior faculty member, one senior administrative officer and two final year students one boy and one girl, could pass the impugned order. Here the order impugned has been passed by the Registrar of the University, therefore, the same is vitiated. 13. Here the order impugned has been passed by the Registrar of the University, therefore, the same is vitiated. 13. There appears to be some substance in the submission of the learned counsel for the petitioner, but considering the fact that neither this point was raised when the order was passed after contest in Writ C No. 58995 of 2014, Sarvesh Rai v. State of U.P. and others, and the direction was issued to the Registrar of the University to decide the matter, nor it was opposed by the petitioner, nor it has been challenged in special appeal, therefore, I do not find that there was any jurisdictional error in passing the impugned order. In view of the foregoing discussions, no relief can be granted to the petitioner. The writ petition lacks merit and it is hereby dismissed.