C/M C.L. Jain Post Graduate College and Another vs State of U.P. and Others

Shishir Kumar, J.—Heard learned Counsel for the parties and Sri R.P. Dubey, Advocate, who wanted to be impleaded on behalf of Principal of the Institution, who alleges himself to be the Joint Secretary of the Committee of Management. He has filed a counter affidavit. The same may be kept on record.

The order under challenge is dated 13.09.2010, by which petitioner No. 2, who is Secretary of the Committee of Management of C.L. Jain Post Graduate College, his approval as Secretary has been cancelled only relying upon Section 39 of the Universities Act. For the convenience of the Court Section 39 is being quoted below:

Disqualification for membership of Management.- A person shall be disqualified for being chosen as, and for being, a member of the Management of an affiliated or associated college (other than a college maintained exclusively by the State Government or by local authority), if he or his relative accepts any remuneration for any work in or for such college or any contract for the supply or goods to or for the execution of any work for such college:

Provided that nothing in this section shall apply to the acceptance of any remuneration by a teacher as such or for any duties performed in connection with an examination conducted by the college or for any duties as Superintendent or Warden of a training unit or of a hall or hostel of the college or as a proctor of tutor of for any duties, of a similar nature in relation to the college.

According to Petitioners, the election of Committee of Management was held and by order dated 12.11.2009 it was recognized and the signatures of the office bearers were attested. An objection has been raised by the petitioners regarding application for impleadment that Principal of the Institution cannot become the Joint Secretary of the Committee of Management. He can only be ex officio member. It is apparent from the order dated 12.11.2009 that the person who wanted to be impleaded as one of the respondent working as a Principal. His name has been recognized as ex officio member of the Committee of Management. A complaint by one Ashok Dixit was made to the Vice Chancellor stating therein that two real younger brothers of Anil Kumar Yadav, who is working as Secretary, are working in the same College and according to Section 39 of the University Act such person cannot be elected as an office bearer of the Committee of Management if his relation is working in the Institution. A request was also made for superseding the Committee of Management. A show cause notice was issued and the petitioners submitted a reply stating therein that Section 39 will not be applicable in view of the proviso of the said section, but in spite of the aforesaid fact the order impugned has been passed dated 13.09.2010 only placing reliance upon Section 39 of the Act cancelling the election of the petitioner being a Secretary of the Committee of Management.

Sri P.S. Baghel, learned Senior Counsel appearing for the petitioners submits that the order impugned is bad in law in view of the fact that Section 39 will not be applicable in the present case because the brothers of the petitioner were already working from 2002 and 2006 and their appointments have already been approved. Section 39 does not states that if an employee is working in the Institution, his relation cannot become the office bearer of the Committee of Management. There is a provision to this effect in the U.P. Intermediate Education Act, but in the Universities Act there is no such provision, but placing reliance upon the aforesaid provision only a cryptic order without assigning any reason has been passed. From the perusal of the order, it clearly appears that no reason has been recorded, therefore, a clear presumption is that the respondent while considering the claim of the petitioner has not applied its mind.

On the other hand, learned Counsel appearing for the respondents are also not in a position to justify the order impugned.

It is well settled that an order having civil consequences even though passed by the administrative authority must contain reasons so as to enable the aggrieved party to challenge the reasoning of the administrative authority. In the absence of reasons no foundation can be laid down by the petitioner and only argument remains is that the order is based upon non-application of mind. In our view if the reasoning of an order passed against the aggrieved person is not communicated and only a communication regarding decision has been communicated it cannot be assailed by the respondents that the grievance of a person has been decided. In our opinion, it is no order in eye of law and it has no legs to stand.

In case of S.N. Mukherjee v. Union of India reported in AIR 1984 the Apex Court has already held as follows:

In view of the expanding horizon of the principles of natural justice, the requirement to record reason an be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest under lying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. Therefore except in cases where the requirement has been disposed with expressly or by necessary implications, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.

The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicitly so as to indicate that the authority has been due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.

In the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, the Apex Court has held as under:

The reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. They also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an Inbuilt support to the conclusion/decision reached. When an order affects the right of a citizen or a person, irrespective of the fact whether it is a quasi-judicial or administrative order, and unless the rule expressly or by necessary implication excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but a the least, the record should disclose reasons. It may not be like a judgement. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicitly so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, of it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person.

In the case of Mahabir Prasad Santosh Kumar Vs. State of Uttar Pradesh and Others, the Apex Court has held as under:

The High Court in rejecting the petition filed by the appellants has observed that the District Magistrate in considering the explanation of the appellants had "considered all the materials" and also that "the State Government in considering the appeal had considered all the materials". We have, however, nothing on the record to show what materials if any were considered by the District Magistrate and the State Government. The High Court has also observed that Clause 7 of the Sugar Dealers'' Licensing Order does not require "the State Government to pass a reasoned order. All that is required is to give an aggrieved person an opportunity of being heard." We are of the view that the High court erred in so holding. The appellants have a right not only to have an opportunity to make a representation, but they are entitled to have their representation considered by an Authority unconcerned with the dispute and to be given information which would show the decision was reached on the merits and not on considerations of policy or expency. This is a clear implication of the nature of the jurisdiction exercised by the appellate authority; it is not required to be expressly mentioned in the statute. There is nothing on the record which shows that the representation made by the appellants was even considered. The fact that Clause 7 of the Sugar Dealers'' Licensing Order to which the High Court has referred does not "require the State Government to pass a reasoned order" is wholly irrelevant. The nature of the proceeding requires that the State Government must given adequate reasons which disclose that an attempt was made to reach a conclusion according to law and justice."

In such circumstances, I am of the opinion that this writ petition can be disposed of finally with the consent of the parties at this stage because inviting counter and rejoinder affidavits will be a futile effort, as ultimate result of the writ petition will be the same.

In view of the aforesaid discussion and respectfully following the decision of the Apex Court, I am of the view that the order passed by the respondent No. 3 suffers from non application of mind and is, therefore, set aside. Therefore, it will be open to the respondents to pass fresh reasoned order after considering the points raised in the representation after affording an opportunity to the petitioners in accordance with law.

The writ petition is accordingly allowed. The impugned order dated 13.09.2010 (Annexure-9 to the writ petition), passed by respondent No. 3 is hereby quashed with liberty to respondents to pass fresh orders according to law within a period of three months from the date this order is produced before respondents No. 2 or 3.

The writ petition is disposed of accordingly.

No order as to costs.