Jitendra Kumar vs Smt. Usha Kiran Tyagi and Others

We have heard Shri R.N. Singh, Sr. Advocate assisted by Shri V.K. Singh for the Petitioner. Learned Standing Counsel appears for Respondent Nos. 2 and 3. Shri R.P. Dubey appears for the Petitioner.

Issue notice to Respondent Nos. 4 to 6.

All the Respondents will file counter affidavit within four weeks. The rejoinder affidavit may be filed within one week, thereafter. List on 11th July, 2011.

Shri Jitendra Kumar, Secretary, Secondary Education, Government of U.P. Lucknow has filed this special appeal against the order of learned Single Judge dated 13.4.2011 by which a direction has been issued to him to show cause on 2.5.2011 as to why he should not be punished for contempt of Court.

In pursuance to an advertisement issued by the Committee of Management of Shri Digambar Jain Kanya Higher Secondary School, Deoband, Saharanpur, a religious minority institution for appointment to the post of Principal Smt. Usha Kiran Tyagi, the Petitioner Respondent already serving as Officiating Principal applied for the selections. She did not succeed on which a writ petition was filed by her challenging the selection process.

The U.P. Secondary Education Service Selection Board Act, 1982 provides for selection of Principal and teachers of the educational institutions through a Selection Board. The institution enjoying minority status under Article 30(1) of the Constitution of India are exempt from operation of the Act. The Committee of Management can make selections for the post of Principal and teachers to be approved by the educational authorities for the purposes of performing educational qualifications.

During the course of hearing of the writ petition learned Single Judge found that the question of grant of minority status to various educational institutions by Governmetn Order dated 9.6.2004 in the matter of Inter College, Dharaon, Distt. Chandauli had come up for consideration in the Court. This Court held in Committee of Management, Inter College, Dharaon, Distt. Chandauli v. State of U.P. and Ors. 2006 (8) ADJ 109 that Government Order has wrongly conferred minority status to the educational institutions. The Special Appeal No. 903 of 2006 was dismissed on 24.8.2006 upholding the reasoning given in the order of learned Single Judge.

Learned Single Judge called affidavit of Secretary, Secondary Education. He defended the grant of minority status on the ground that it was made on the recommendation of Committee constituted by the State Government; subsequently the work of confirmation of the minority status was allocated to the Department of Minority Welfare and Muslim Waqf. The work relating to the subject is now entrusted to Department of Minority Welfare. The Department of Minority Welfare informed that a SLP has been filed by the State Government in the Apex Court against the judgment dated 24.8.2006, which is still pending.

Shri R.N. Singh, learned Counsel for the Appellant submits that the learned Single Judge hearing the writ petition did not agree with the stand of Addl. Advocate General that the Petitioner does not having locus to challenge the validity of the grant of minority status. He submits that it was not brought to the notice of the Division Bench that an Act has been passed by the Parliament namely National Commission for Minority Education Act, 2004, whereby a National Commission has been constituted to determine the minority status of the institutions.

It is submitted by Shri R.N. Singh that learned Single Judge called upon the Appellant Shri Jitendra Kumar, Secretary, Secondary Education, Government of U.P. Lucknow to withdraw the Government Order dated 9.6.2004. When the Appellant expressed his inability to do so as the institutions, which have been conferred benefit have to be issued show cause notice, learned Single Judge has issued notices as to why he should not be punished for contempt. The operative portion of the interim order passed by the learned Single Judge is quoted as below:

Thus, the competence of the Single Judge to initiate suo motu contempt has been recognised by the Hon''ble Supreme Court. This Court on the basis of the findings recorded here-in-above finds that all the four conditions, as noted in paragraph 15 in the case of Dinesh Kumar Gupta (supra) exist in the facts of this case.

Therefore, following charges are framed against the Secretary, Shri Jitendra Kumar Gupta.

(A) You have deliberately refused to act in compliance with the Division Bench judgment of this Court dated 24.8.2006 passed in the case of Committee of Management, Inter College Dharaon District Chandauli (supra) i.e. Special Appeal No. 903 of 2006.

(B) You have deliberately refused the compliance of the judgment of the Division Bench and have permitted the school to avail benefits of the minority status based on the recommendation of the Committee dated 02.06.2004 and Government Order dated 09.06.2004 despite the Division Bench judgment dated 24.8.2006 holding that State had no authority of law to confer minority status on the institution.

(c) You have deliberately refused to act in accordance with law despite the order passed by this Court on 25.3.2008 and dated 01.05.2008.

Shri Jitendra Kumar Gupta, Secretary may therefore show cause by 02.05.2011 as to why he may not be punished for contempt of the court. Issue notice to private Respondent fixing 02.05.2011 as the date.

Steps be taken within one week.

All Respondents may file counter affidavit by the next date.

In view of the fact that the Court is of the opinion that the order of the Government dated 9.6.2004 cannot confer any minority status on the school in question, it is provided that no further action shall be taken on the papers transmitted by the Committee of Management qua appointment on the post of Principal till the next date of listing.

List on 02.05.2011.

We prima facie find substance in the contention of Shri R.N. Singh that entire enquiry made by learned Single Judge was beyond the scope of the writ petition. There was no prayer in the writ petition made by the Petitioner, who is serving as Officiating Principal to challenge the grant of minority status of the institution. The directions given in Dinesh Kumar Gupta Vs. United India Insurance Co. Ltd. and Others, have not been properly appreciated. He submits that in the facts of the writ petition the Appellant did not in any way obstruct course of justice. He was asked by learned Judge to comply with the order passed in the earlier proceedings and to withdraw the minority status of several institutions. The request made by the Petitioner not to compel him to withdraw the minority status unless show cause notice issued to the institutions has been taken as defiance of the order. Learned Single Judge wanted the Appellant to comply with the earlier orders of the High Court, by force without deciding the objections taken by the Appellant.

We are prima facie satisfied that learned Single Judge has exceeded in exercise of his jurisdiction in proceeding with the contempt matter and to frame charges, to enforce the order of this Court passed in earlier writ petition, which do not further the cause of the Petitioner and the reliefs claimed by her. He could not have insisted upon the Appellant to comply with the order of the Division Bench and to take steps to deny the benefit of minority status to the institutions, who were not parties to the writ petition. We are informed that SLP filed against the earlier judgment in speical appeal in Committee of Management, Inter College Dharaon, Distt. Chandauli, Special Appeal No. 903 of 2006 filed by the State has been dismissed, but that the appeal filed by the private parties is still pending.

In Department of Telecommunications Vs. Gujarat Co-operative Milk Marketing Federation Ltd., the Supreme Court has made strong comments on the directions issued by the Court to compel the statutory authorities to pass orders.

The questions raised by the Appellant requires consideration.

As an interim measure we direct that further proceedings in Writ- A No. 15312 of 2011, Smt. Usha Kiran Tyagi v. State of U.P. and Ors. shall remain stayed.