Committee of Management vs State of U.P. and others

Pradeep Kant and Shabihul Hasnain, JJ.

Notice of this Special Appeal on behalf of opposite party Nos. 1, 2, 4 and 6 has been accepted by learned Chief Standing Counsel, 3 and 5 by Sri A.M. Tripathi and 7 by Sri Pankaj Pathak,

This Special Appeal has been filed against the judgment and order dated 1st October, 2008 passed by learned Single Judge (Hon''ble D.V. Sharma, J.) by means of which on day one when the petition was presented for preliminary hearing the same was disposed of with a direction that the petitioner shall file a fresh comprehensive representation along with certified copy of the order as well as complete copy of the writ petition with all Annexures before the Director of Education (Basic) who will decide the same by a speaking and reasoned order within three weeks of the receipt of representation, as contemplated above, exercising its unfettered discretion on the basis of record before him in accordance with relevant Rules, recent Government Order, Scheme/Policy. It was further directed that the operation of the impugned order dated 13.6.2008 shall be kept in abeyance.

Admittedly the petition was disposed of finally even without issuing notice to the present appellant i.e., Committee of Management and whose action was under challenge, and the tenor of the order is, as if the writ petition is to be considered and decided by the authority concerned.

The cause of action for filing the writ petition arose because of disciplinary enquiry being conducted by the present appellant i.e., Committee of Management. A resolution was passed by the Committee of Management for dismissing the services of opposite party No. 7 who was the Head Master. This resolution was forwarded to Basic Shiksha Adhikari for approval under Rule 15 of the Rules. The Basic Shiksha Adhikari in turn issued a show cause notice to the opposite party No. 7 requiring him to explain as to why the necessary approval may not be granted. It is at this stage the writ petition was filed by the opposite party No. 7.

Learned Counsel for the appellant assailing the aforesaid order submitted that not only the learned Single Judge passed the order against the interest of the Committee of Management but also without affording any opportunity of hearing to it and without issuing notice. It was further submitted that the writ petition itself was not maintainable against the show cause notice which was issued wholly in accordance with law and perfectly within the jurisdiction of the Basic Shiksha Adhikari.

Sri Pankaj Pathak appearing for opposite party No. 7 says that as a matter of fact no action can be taken on the basis of the present enquiry as the opposite party No. 7 was subjected to an enquiry on the same charges and was exonerated earlier.

These questions may require consideration by the learned Single judge when the petition was entertained but under no Rule or procedure, any order can be passed by the Court, which has an adverse or civil consequence upon the person who has been impleaded as opposite party. Even if a person is not impleaded as an opposite party, still no order can be passed which effects his right, unless he is arrayed as a party either on the direction of the Court or otherwise being pointed out of the said defect. In case, the necessary party is not impleaded, any order passed would not be binding upon him. More so for nonimpleadment of the necessary party the writ petition can be thrown out only on this ground, if the petitioner does not implead the person concerned despite the defect being pointed out.

We have noticed that in a larger number of cases in the recent past similar orders have been passed and the lawyers who appeared before the learned Single Judge did not tell nor pursued the Court that without issuing notice to the contesting opposite party, any order to their detriment can not be passed. It is the duty of the lawyer also to plead correctly and put forth before the Court the correct legal position and not to make an effort, in their zeal to get an order in their favour, by not pointing out, that there is a opposite party in the writ petition, to which the notice is required to be issued, but probably the lawyers do not point out to the Court, that there are private party already impleaded in the writ petition as opposite party and whose rights are to be affected if the order is passed in the writ petition. This is more essential for the reason that the petitioner himself impleads the opposite party in the writ petition. He does so when he is fully conscious that in the absence of such a party the writ petition would not be maintainable and entertained. Once they have impleaded the opposite party, it is the duty of the lawyer to point out to the Court that notice has to be issued and unless the notice is issued, the writ petition can not be disposed of finally. Interim orders can be passed as per the discretion of the Court but subject to issuing of notice to the private opposite parties. Any orders passed in violation of the aforesaid legal principles would be void and not binding upon the persons who have not been impleaded.

Orders of the like nature also increase burden of litigation in the Courts as every time such an order is passed, immediately Special Appeal is filed. The result is that the order is set aside and the matter is again sent back to the learned Single Judge for adjudication in accordance with law. A case has to be decided by the Court and it is not to be merely disposed of. It is not also in the interest of the petitioner who approaches the Court to have such an order which can not last even for a day and is set aside when the Special Appeal is filed.

It would be appropriate to mention that normally a petitioner comes to the High Court, when all his efforts and representations have not yielded any results, or once a decision has been taken or an order has been passed against him by the concerned authority, therefore, approaching the same very authority again by making representation, would be futile, and meaningless. Even otherwise, the aggrieved person, comes to the High Court, for redressal of his grievances, which is ordinarily to be considered by the Court and each and every petitioner or a large number the petitioners, are not supposed to be relegated to the same authority, whose action is under challenge or superior administrative authority, unless there is an Appellate or Revisional Forum.

The High Court, undoubtedly has the jurisdiction to issue a direction for making representation for its decision, but if the facts and the legal position, so require.

It need not be reiterated that the principles of audialtefajn partem and the rules of natural justice require that before passing an order which might have any adverse affect or any civil consequence against the interest of the parties impleaded, can not be passed without giving opportunity of hearing and no matter howsoever the case be strong, no final order can be passed without giving opportunity of hearing to the opposite parties.

In the instant case admittedly no such notice was issued to the Committee of Management i.e., the present appellant, and in the order while directing for deciding the representation the learned Single Judge did not give any reason as to why the matter should be referred to the Director of Education when he was not the authority competent to look into the matter at the stage of issuing show cause notice.

Learned Single Judge also did not indicate that how the writ petition was maintainable against the show cause notice. Not only this while opening a new forum for the opposite party No. 7 to raise his grievance during the pendency of the disciplinary proceedings under the rules, he also stayed the operation of the notice said to have been issued by the Basic Shiksha Adhikari on 13th June, 2008 which was not even an order nor any prejudice was caused to opposite party No. 7 by issuing such a notice.

The Court also did not consider that the notice was dated 13th June, 2008 and the opposite party No. 7 has filed the writ petition after four months approximately i.e., on 12th October, 2008 and during all this period he has not replied to the notice. Under Article 226 of the Constitution of India the conduct of the petitioner is also one of the very relevant consideration while granting interim order or final order.

We, for the reasons aforesaid, set aside the order passed by the learned Single Judge only on the ground that the same has been passed without issuing any notice to the present appellant.

Let the matter be sent back to the learned Single Judge having jurisdiction to decide the same in accordance with law after affording opportunity of hearing to the parties concerned. Any observation made in this writ petition is not for the purpose of deciding the writ petition. The observation has been made only with a view to find out as to whether the impugned order can be sustained.

The order passed by the learned Single Judge dated 1.10.2008 is set aside.

Before parting we would like to mention that though the learned Counsel for the appellant has submitted that all the orders which are passed by the learned Single Judge are actually on the same terms and language but for the minor changes in the operative portion of the order and the petitioners are relegated to make representations, even without issuing notice to the opposite parties. We do not intend to enter into these questions but it is for the Court concerned to pass any order in accordance with law.

We do take notice of the fact that the Standing Counsel who is given notice before the filing of the writ petition also probably did not bring it to the notice of the Court that the petition can not be disposed, of finally without issuing notice to the private opposite parties. It is the duty of the Standing Counsel also as well as the Bench Secretary to inform the Court that there is a private opposite party for which the notice may have to be issued before passing an order and we do not have any reason to believe that if such a fact is pointed out to a learned Judge he would not issue notice to the private opposite party, if need be.