Mahadevi Kanya Pathshala Society And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This Writ Petition is filed by the Mahadevi Kanya Pathshala Society, a Society registered under the Societies Registration Act, 1860, the Committee of Management M.K.P. (P.G.) College, Dehradun, the Secretary of the Committee of Management, the President of the Committee of Management and the Members of the Committee of Management, seeking a writ of certiorari to quash the order dated 29.04.2013 passed by the Vice-Chancellor of the Hemwati Nandan Bahuguna Garhwal University, Srinagar; a writ of certiorari to quash the order dated 10.07.2013 passed by respondents 1 and 2; a writ of mandamus to quash the order dated 12.07.2013 passed by the fourth respondent; and a writ of mandamus directing respondents 2 to 4 to forthwith open the locks put by them, over the office of the first petitioner and the Mahadevi Institute of Technology (Technology Institute run by the first petitioner) and the hostels of the Society.

Mr. Neeraj Garg, learned counsel appearing on behalf of the petitioners, would fairly state that, in the light of the interim order passed by this Court on 07.10.2013, the petitioners no longer seek the relief sought for in the prayer (d), since such a relief had already been granted by this Court. We shall, therefore, confine our examination in this Writ Petition only to the validity of the order passed by the Vice Chancellor dated 29.04.2013, the order passed by respondents 1 and 2 dated 10.07.2013, and the order passed by the fourth respondent (authorized controller) dated 12.07.2013 handing over charge of the duties of Principal to the seventh respondent. It is convenient to deal with prayers (a) and (c) together, and prayer (b) separately.

Facts, to the limited extent necessary, are that the first petitioner, a Society registered under the Societies Registration Act, 1860, constituted a Committee of Management, as per its bye-laws, for the M.K.P. (P.G.) College, Dehradun. On a complaint made by one Mr. Surendra Singh on 12.10.2009, against the illegalities and financial irregularities committed by the seventh respondent, the then Committee of Management, in its meeting held on 14.10.2009, took a decision to constitute a Committee to inquire into the matter. The Inquiry Committee submitted its report on 28.10.2010 holding that the allegations of financial irregularities, leveled against the seventh respondent, were established. The Committee of Management, in its meeting held on 14.09.2011, decided to initiate another inquiry into the matter. Eventually, by order dated 17.02.2013, the petitioners resolved to terminate the services of the seventh respondent. They submitted an application to the Vice-Chancellor of the Univeristy on 18.02.2013 seeking his approval of the order of termination. By order dated 29.04.2013, the Vice Chancellor refused to grant approval to the order dated 17.02.2013, passed by the Committee of Management, terminating the services of the seventh respondent.

While matters stood thus, a show-cause notice was issued to the petitioners on 25.03.2013 alleging several irregularities to have been committed by them. The petitioners submitted their reply, to the said show-cause notice, by letter dated 13.04.2013; and, by proceedings dated 10.07.2013, the State Government passed an order, on behalf of the Governor of the State of Uttarakhand, under Section 58 of the Uttar Pradesh State Universities Act, 1973 (for short the "1973 Act"), dissolving the Committee of Management of the M.K.P. (P.G.) College, Dehradun and appointing the District Magistrate, Dehradun as the Authorized Controller. Immediately after assuming charge, the Authorized Controller passed an order on 12.07.2013 directing that charge of the post of Principal be handed over to Dr. (Smt.) Indu Singh (i.e. the seventh respondent) to enable her to release salary and discharge other functions. These three orders, one of the Vice Chancellor dated 29.04.2013, the second passed by respondents 1 and 2 on 10.07.2013, and the third passed by the Authorized Controller dated 12.07.2013, are subjected to challenge in this Writ Petition.

After she was reinstated into service, pursuant to the order passed by the Authorized Controller dated 12.07.2013, the seventh respondent continued to discharge the functions of the Principal of the said College till she retired, after attaining the age of superannuation of 65 years, on 19.10.2017. She was, however, extended session-end benefit, under the orders of this Court, and was permitted to discharge the functions of a Principal till the end of the academic session i.e. till 30.06.2018.

The main challenge, to the validity of the order passed by the Vice Chancellor, rejecting the petitioners' request for grant of approval to the order passed by them terminating the services of the seventh respondent, is on the ground that the said order is bereft of reasons. After recording facts in detail, all that the Vice Chancellor has stated, in his order dated 29.04.2013, is that he had considered the facts of the case, as summarized in points 1 to 8, and had studied various issues and documents relating to the case, as summarized in points (i) to (ix); he had studied the matter in its entirety, and had applied his mind to analyse the implications of the charge-sheet, the inquiry report, the decision of the Management Committee, the reply of the seventh respondent, the legal opinion of the Advocates, the report of the Women Harassment Cell of the University, and the decision of the Sub-Registrar of Firms, Societies and Chits, to arrive at a decision in the matter; and, in view of the facts and documents presented, the decision of the Management Committee of the M.K.P. (P.G.) College, in terminating the services of the seventh respondent, was not approved.

Mr. Neeraj Garg, learned counsel appearing on behalf of the petitioners, would contend, placing reliance on the judgments of the Supreme Court in Lily Kurian v. Lewina : (1979) 2 SCC 124; S.N. Mukherjee v. Union of India : (1990) 4 SCC 594; and Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi : (1991) 2 SCC 716 that, since the order passed by the Vice Chancellor is bereft of reasons, and does not disclose the reasons which weighed with the Vice Chancellor in refusing to accord approval to the order of termination, the said order passed by the Vice Chancellor must be set-aside on this ground alone.

On the other hand Mr. Paresh Tripathi, learned counsel appearing on behalf of the Hemwati Nandan Bahuguna Garhwal University, would submit that no obligation is cast upon the Vice-Chancellor, by the First Statutes of the Hemwati Nandan Bahguguna University, Garhwal, to assign reasons for refusal to grant approval; a bare perusal of Statute 17.06(3), when read in conjunction with Statutes 18.14 and 18.15, would reveal that, in granting or refusing to grant approval to the order of termination passed by a Committee of Management of a private aided college, the Vice Chancellor is not obligated to assign reasons.

Mr. Shashank Pandey, learned counsel appearing on behalf of the seventh respondent, while adopting the submissions put forth on behalf of the H.N.B. Garhwal University, would also contend that, in the light of the subsequent event of the second respondent being substituted by the Authorized Controller (fourth respondent); and the fact that registration of the first petitioner-Society was not renewed later by the Registrar by his proceedings dated 16.12.2015, the petitioners herein are not entitled to question the validity of the order passed by the Vice-Chancellor, since their very existence has, subsequently, been brought to an end. Reliance is placed in this regard, by the learned counsel, on the judgment of the Andhra Pradesh High Court in Hyderabad Cricket Association Gymkhana Grounds, Secunderabad Vs. Cambridge Cricket Club and another : (2002) 5 ALD 818.

The submission of Mr. Paresh Tripathi, learned counsel for the University, is that, while Clauses 18.14 and 18.15 of the First Statutes of the University specifically obligate the Vice-Chancellor to accord reasons, there is no such requirement in Clause 17.06(3); and, if the State Government while framing the First Statutes of the University had intended that the Vice-Chancellor should assign reasons for either according or rejecting approval of the decision of the Committee of Management, it would have so provided in Clause 17.06(3), just as it had provided in Clauses 18.14 and 18.15 of the First Statutes of the University. It is necessary, therefore, to take note of these Clauses. Clause 17.06(3) of the First Statutes of the University of the Hemwati Nandan Bahguguna, Garhwal, reads thus:

"17.06(3) : The resolution shall forthwith be communicated to the teacher concerned and also be reported to the Vice-Chancellor for approval and shall not be operative unless so approved by the Vice-Chancellor."

Clauses 18.14 and 18.15 of the First Statutes of the University of Hemwati Nandan Bahguguna, Garhwal, read thus:

"18.14 All disputes regarding seniority of teachers (other than the Principal) shall be decided by the Principal of the college who shall give reasons for the decision. Any teacher aggrieved by the decision of the Principal may prefer an appeal to the Vice-Chancellor within 60 days from the date of communication of such decision to the teacher concerned. If the Vice-Chancellor disagrees from the Principal, he shall give reasons for such disagreement. [Section 49 (o)].

18.15 All disputes regarding seniority of Principals of affiliated colleges shall be decided by the Vice -Chancellor who shall give reasons for the decision. Any Principal aggrieved by the decision of Vice-Chancellor may prefer an appeal to the Executive Council within sixty days from the date of communication of such decision to the Principal concerned. If the Executive Council disagrees with the Vice-Chancellor shall give reasons for such disagreement. [Section 49 (o)]."

Clause 17.06(3), of the First Statutes of the University, is referable to Section 35(2) of the 1973 Act and, thereunder, every decision of the Committee of Management of a College, to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner, shall, before it is communicated to him, be reported to the Vice-Chancellor and shall not take effect unless it has been approved by the Vice-Chancellor.

The relationship between the management and a teacher is that of an employer and an employee, and there is no reason why the management cannot terminate the services of a teacher on the basis of the contract of employment. It is open to the State, in the exercise of its regulatory power, to require that, before the services of a teacher are terminated, he should be given an opportunity of being heard in his defence. However to require that, for terminating the services of a teacher after an inquiry has been conducted, the management should have the approval of an outside agency like the Vice-Chancellor would be an abridgement of its right to administer the educational institution. No guide-lines are provided by the legislature to the Vice-Chancellor for the exercise of his power. There is no specific obligation prescribed, either in the Act or the First Statute, for the Vice-Chancellor to give any reason for disapproval. (Ahmedabad St. Xavier's College Society vs. State of Gujarat: (1974) 1 SCC 717 ;Lily Kurian v. Lewina : (1979) 2 SCC 124).

The power given to the Vice-Chancellor to veto the action of the managing body of an educational institution, in awarding punishment to a member of the staff, interferes with the disciplinary control of the managing body over its teachers. The power of approval conferred on the Vice-Chancellor is a blanket power. No guide-lines are laid down for the exercise of that power, and no restrictions are placed that the approval is to be withheld only in case the termination of service is mala fide or by way of victimisation or other similar causes. Conferment of such blanket power on the Vice-Chancellor, for vetoing the disciplinary action of the managing body of an educational institution, makes a serious inroad on the right of the managing body to administer an educational institution. (Ahmedabad St. Xavier's College Society vs. State of Gujarat: (1974) 1 SCC 717 ;Lily Kurian v. Lewina : (1979) 2 SCC 124). An uncanalised power, without any guidelines to withhold approval, is a direct abridgment of the right of the management to terminate the services of a teacher or inflict any other penalty after conducting an enquiry.(Ahmedabad St. Xavier's College Society vs. State of Gujarat: (1974) 1 SCC 717 ;Lily Kurian v. Lewina : (1979) 2 SCC 124).

While the validity of such uncanalised power is in serious doubt, and may well suffer from the vice of excessive and uncontrolled delegation, the fact remains that the constitutional validity of Section 35(2) of the Act and Clause 17.06(3) of the First Statute of the University have not been subjected to challenge in the Writ Petition. Even if we were to apply the presumption regarding constitutionality of statutory provisions, the said provisions must, nonetheless, be reasonably construed. The only manner in which the provisions can be construed in a reasonable manner is if the obligation of assigning reasons is read into these provisions. Consequently, while granting approval or disapproval, the Vice-Chancellor should record reasons, for the exercise of such power is subject to control by Courts. Neither the Act nor the First Statutes of the University make his order final, and Courts can surely nullify his order if it is arbitrary, mala fide or illegal.(Ahmedabad St. Xavier's College Society vs. State of Gujarat: (1974) 1 SCC 717).

The order of termination, passed by the second petitioner on 17.02.2013, is an order of punishment passed pursuant to a departmental inquiry, and is in the nature of a quasi-judicial order. Approval of the Vice-Chancellor is required, in terms of Clause 17.06(3) of the First Statutes of the University, with respect to such a quasi-judicial order of punishment. The power exercised by the Vice Chancellor, either to accord approval or to reject the request for approval, is also quasi-judicial in character, since the approval is accorded to an order passed by the Committee of Management in the exercise of its quasi-judicial powers. The order of termination, of the services of the seventh respondent, has been passed pursuant to initiation of disciplinary proceedings against her. In the exercise of his quasi-judicial power, to accord or refuse approval, the Vice-Chancellor was, in compliance with principles of natural justice, obligated to assign reasons.

The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely : (i) no one shall be a judge in his own cause (nemodebetessejudexpropriacausa), and (ii) no decision shall be given against a party without affording him a reasonable hearing (audialterampartem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must he held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.(S.N. Mukherjee v. Union of India : (1990) 4 SCC 594; A.K. Kraipak v. Union of India). The object, underlying the rules of natural justice, is to prevent miscarriage of justice and secure fair play in action. The requirement of recording reasons for its decision, by an administrative authority exercising quasi-judicial functions, achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. (S.N. Mukherjee v. Union of India : (1990) 4 SCC 594).

The requirement of recording reason can 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 whereunder jurisdiction has been conferred on the administrative authority. (S.N. Mukherjee v. Union of India : (1990) 4 SCC 594). Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record reasons for its decision.(S.N. Mukherjee v. Union of India : (1990) 4 SCC 594; Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi : (1991) 2 SCC 716). Unless the rule, expressly or by necessary implication, so exclude, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure. It may not be like a judgment, and the reasons may be precise. (Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi : (1991) 2 SCC 716).

Recording of reasons excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said principle would apply equally to all decisions, and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. It is 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 explicit so as to indicate that the authority has given due consideration to the points in controversy. The appellate or revisional authority, if 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.(Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi : (1991) 2 SCC 716 ; S.N. Mukherjee v. Union of India : (1990) 4 SCC 594).

Assigning reasons excludes the chances of arbitrary, whimsical or capricious decisions or conclusions. Reasons assure an in-built support to the conclusion/decision reached. The order, when it affects the right of a citizen or a person, requires recording of germane and relevant reasons, even though it may be precise. The recording of reasons is also an assurance that the authority concerned has consciously applied its mind to the facts on record. It also aids the appellate or revisional authority, or the High Court under Article 226, to examine whether the authority concerned has acted fairly and justly to mete out justice to the aggrieved person.(Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi : (1991) 2 SCC 716).

While the Vice-Chancellor may not be obligated to pass an elaborate order, the order passed by him must indicate, albeit in brief, the reasons which weighed with him in refusing to accord approval, to the decision of the Committee of Management, to terminate the services of the seventh respondent, as the order passed by him, in the exercise of his statutory power under Clause 17.06(3) of the First Statutes of the University, is amenable to judicial review.

The order of termination of the services of the seventh respondent, passed by the Committee of Management, would come into force only on the Vice Chancellor according approval thereto. The moment the Vice-Chancellor refuses to accord approval, the earlier order of termination, passed by the Committee of Management, does not take effect and, consequently, an employee, whose services have been terminated, would continue to be an employee of the College under the administrative control of the Committee of Management. The College is also entitled to know why, despite the order of termination being passed, such an employee is again being thrust upon them. Failure to assign reasons would not only result in their being kept in the dark, as to why their decision to terminate the services of the seventh respondent has not been approved, but also disables them from questioning the said order, in appropriate legal proceedings, on its merits. Further this Court, while exercising its powers of judicial review under Article 226 of the Constitution of India, would be in a position to decide, whether or not the order dated 29.04.2013 is valid, only if it is able to discern, from the said order, why the Vice-Chancellor had chosen not to accord approval for the decision of the Committee of Management to terminate the services of the seventh respondent.

While it is, no doubt, true that, unlike Clauses 18.14 and 18.15 of the First Statutes of the University, Clause 17.06(3) does not specifically require the Vice Chancellor to assign reasons, principles of natural justice must be read into the unoccupied interstices of a statutory provision or a Rule unless there is a clear mandate to the contrary (Institute of Chartered Accountants of India v. L.K. Ratna AIR 1987 SC 71; C.B. Gautam v. Union of India : (1993) 1 SCC 78) and, in the absence of any prohibition therein regarding compliance with the Rules of natural justice, such an obligation must be read into the provisions of Section 35(2) of the 1973 Act and Clause 17.06(3) of the First Statutes of the University. We must express our inability to agree with the submission of Mr. Paresh Tripathi, learned counsel for the University, that the Vice-Chancellor is not obligated to assign reasons, albeit in brief, for refusing to accord approval to the decision of Committee of Management.

The submission of Mr. Shashank Pandey, learned counsel for the seventh respondent, that, in the light of the subsequent events, the impugned order dated 29.04.2013 does not even necessitate examination by this Court, is only to be noted to be rejected. The contention of the learned counsel is that, since by order dated 10.07.2013 the Authorized Controller was appointed in the place of the Committee of Management, the Committee of Management ceases to have any right, thereafter, to question the order of the Vice-Chancellor refusing to accord approval; further, registration of the first petitioner-Society was not renewed by the Registrar of Societies by his order dated 16.12.2015; and, since the first petitioner-Society is no longer a registered Society, it is not entitled to sue the respondents herein.

In the present Writ Petition, the petitioners have also questioned the orders passed by respondents 1 and 2 on 10.07.2013 appointing the Authorized Controller in the place of the Committee of Management. Accepting the submission of Mr. Shashank Pandey, learned counsel for the seventh respondent, would mean that, as a result of the order dated 10.07.2013, removing the Committee of Management and appointing the Authorized Controller in their place, the Committee of Management would be denuded of their right of availing their judicial remedies of questioning the very order by which their existence was brought to an end. Such a far-fetched contention does not merit acceptance.

While it is true that, by proceedings dated 16.12.2015, the registration of the first petitioner-Society was not renewed, the fact remains that all the proceedings, impugned herein, were subjected to challenge in a Writ Petition filed in the year 2013 long prior to the decision of the Registrar of Societies not to renew registration of the first petitioner-Society. Even though registration of the first petitioner-Society has not been renewed, it would nonetheless continue to remain an unregistered Society. Further, the petitioners herein have challenged the validity of the order passed by the Registrar of Societies, in not renewing their registration, in Writ Petition (M/S) No. 198 of 2016, which also forms part of the batch of Writ Petitions now listed before us for hearing. Since we are passing orders separately in each Writ Petition, forming part of the batch, we see no reason to non-suit the petitioners on this ground.

In Hyderabad Cricket Association Gymkhana Grounds, Secunderabad v. Cambridge Cricket Club and another : (2002) 5 ALD 818, a learned Single Judge of the Andhra Pradesh High Court had differed with the view of another learned Single Judge of the Andhra Pradesh High Court in K. Sivaji Rao v. Sri Sanithana Bhagavalha Bhaktha Samajam : 1981 (II) An. WR 103, and had relied on the judgment of the Bombay High Court, in Satyavart Sidhantalankar v. Arya Samaj, Bom., : AIR 1946 Bom. 516, to hold that an unregistered Society is an association of individuals which is neither a corporation, nor a partnership nor an individual which, apart from a statute, are the only entities known to law as capable of suing or being sued. It is wholly unnecessary for us to consider whether the said order of a learned Single Judge of the Andhra Pradesh High Court necessitates being followed, for, as noted hereinabove, the action of the Registrar, in not renewing the registration of the first petitioner-Society, is also under challenge in W.P. (M/S) No. 198 of 2016, which forms part of the batch of Writ Petitions and Special Appeals, listed before us for hearing.

While setting aside the order passed by the Vice Chancellor dated 29.04.2013 this Court would, ordinarily, have remanded the matter to the Vice-Chancellor calling upon him to pass an order afresh assigning reasons. The fact, however, remains that the seventh respondent has since retired from service on 30.06.2018. No Rule, which enables the Committee of Management to continue with disciplinary proceedings after its employee has retired from service on attaining the age of superannuation, has been brought to our notice. In the absence of any Rule or provision to the contrary, the relationship of master and servant between the second petitioner and the seventh respondent came to an end on 30.06.2018 when the seventh respondent retired from service on attaining the age of superannuation. In the absence of any master and servant relationship, continuing to remain in existence between the second petitioner and the seventh respondent after 30.06.2018, no order of punishment could have been passed against the seventh respondent, thereafter, terminating her services.

Mr. Neeraj Garg, learned counsel for the petitioners, would, however, submit that, while the order of termination passed by the second respondent may not come into effect, its existence does not cease and, consequently, on the matter being remanded to him, and if the Vice-Chancellor were to now accord approval, the said order of approval would relate back to 17.02.2013 when the order of termination was passed, long before the seventh respondent retired from service on attaining the age of superannuation. Learned counsel would further submit that it is unnecessary for this Court, in the present writ proceedings, to examine the consequences of a fresh order being passed by the Vice-Chancellor.

The jurisdiction which this Court exercises, under Article 226 of the Constitution of India, is discretionary. This Court would not issue futile writs in the exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. Section 35(2) of the 1973 Act, as noted hereinabove, makes it clear that the order passed by the Committee of Management shall not take effect unless it has been approved by the Vice-Chancellor. Consequently, though the second petitioner had, no doubt, passed an order of termination on 17.02.2013, the said order would come into effect only after it is approved by the Vice-Chancellor. Remanding the matter to the Vice-Chancellor, at this stage, would now require him to pass an order afresh. Even if the Vice-Chancellor were to accord approval as on date, the said order, passed by the second respondent dated 17.02.2013, would only take effect from the date on which the Vice Chancellor accords approval, and would not relate back to the date on which the order of termination was passed. Since the seventh respondent has ceased to be an employee of the second petitioner-College on 30.06.2018 itself (more than a year ago), the Vice Chancellor cannot now accord approval for the termination of services of the seventh respondent, since she is, as on date, not even an employee of the second petitioner-College.

Reliance placed by Mr. Neeraj Garg, learned counsel for the petitioners, on Section 68-A(2) of the 1973 Act is also of no avail. Section 68-A of the 1973 Act provides that the Vice-Chancellor, on refusing to accord approval, may also order reinstatement of the teacher concerned subject to such terms and the conditions as he thinks fit. While it is true that the Vice-Chancellor has not passed a specific order of reinstatement, the Authorized Controller, who was appointed in the place of the second petitioner by order dated 10.07.2013, had passed such an order on 12.07.2013 and, pursuant thereto, the seventh respondent re-joined duty and continued to work as the Principal till she retired from service on 30.06.2018. It matters little, therefore, that the Vice-Chancellor did not pass a specific order of reinstatement pursuant to his decision not to accord approval to the decision of the Committee of Management to terminate the services of the seventh respondent.

While we are satisfied that the order passed by the Vice-Chancellor must be quashed on the ground that it is bereft of reasons, we see no reason to remand the matter to him at this stage, since no useful purpose would be served in doing so. Since we are not interfering with the continuance of the seventh respondent as a Principal for reasons aforementioned, the order passed by the fourth respondent dated 12.07.2013, directing the seventh respondent to join services, does not also necessitate interference. Prayers (a) and (c) in the Writ Petition cannot, therefore, be granted.

In so far as prayer (b) is concerned, the challenge in the Writ Petition is to the order dated 10.07.2013, whereby the first respondent communicated to the petitioners the decision of the Governor, under Section 58 of the 1973 Act, to dissolve the Committee of Management of the College, and to appoint the District Magistrate, Dehradun, in their place, as the Authorized Controller of the College.

Mr. Neeraj Garg, learned counsel for the petitioners, would question the validity of the order dated 10.07.2013 primarily on three grounds. Firstly that the show-cause notice dated 25.03.2013, which preceded the impugned order dated 10.07.2013, does not even disclose that action was sought to be taken against petitioners under Section 58 of the 1973 Act; secondly that the power, under Section 58 of the 1973 Act, can only be exercised if the ingredients of Section 57 of the 1973 Act are satisfied and, in the present case, these ingredients are not satisfied; and thirdly that the petitioners' reply dated 13.04.2013, to the show-cause notice dated 25.03.2013, was not even considered while passing the impugned order dated 10.07.2013.

Before examining these contentions, it is necessary to take note of the provisions of Section 57 and 58 of the 1973 Act. They read as under:

"57. Power of the State Government to issue notice. - If the State Government receives information in respect of any affiliated or associated college (other than a college maintained exclusively by the State Government or a local authority) -

(i) that its management has persistently committed willful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable; or

(ii) that its management has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the college or has appointed or retained in service any teacher in contravention of the Statute or Ordinances [or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of the recommendation of the Uttar Pradesh Higher Education Service Commission under the Uttar Pradesh Higher Education Services Commission Act, 1980,] or

(iii) that any dispute with respect to the right claimed by different person to be lawful office-bearers of its Management has affected the smooth and orderly administration of the college; or

(iv) that its management has persistently failed to provide the college with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment and other facilities, as are necessary for efficient administration of the college; or

(v) that its Management has substantially diverted, misapplied or misappropriated the property of the college to the detriment of the college; it may call upon the Management to show cause why an order under Section 58 should not be made :

Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so.

Authorised Controller. - (1) If the State Government after considering the explanation, if any, submitted by the Management under Section 57 is satisfied that any ground mentioned in that section exists, it may, by order, authorise any person (hereinafter referred to as the Authorised Controller) to take over, for such period not exceeding two years as may be specified, the Management of the college and its property to the exclusion of the Management and whenever the Authorised Controller so takes over the Management, he shall, subject only to such restrictions as State Government may impose, have in relation to the Management of the college and its property all such powers and authority as the Management would have if the college and its property were not taken over under this sub-section : Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper Management of the colleges and its property, it may, from time to time, extend the operation of the order for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order under this sub-section does not exceed five years :

Provided further that if at the expiration of the said period of five years, there is no lawfully constituted Management of the college the Authorised Controller shall continue to function as such, until the State Government is satisfied that the Management has been lawfully constituted :

Provided also that the State Government may, at any time, revoke an order made under this sub-section.

(2) Where the State Government while issuing a notice under Section 57 is of opinion, for reasons to be recorded, that immediate action is necessary in the interest of the college, it may suspend the Management, which shall thereupon cease to function, and make such arrangement as it thinks proper for managing the affairs of the college and its property till further proceeding are completed :

Provided that no such order shall remain in force for more than six months from the date of actual taking over the Management in pursuance of such order :

Provided further that in computation of the said period of six months, the time during which the operation of the order was suspended by any order of the High Court passed in exercise of jurisdiction under Article 226 of the Constitution or any period during which the Management failed to show cause in pursuance of the notice under Section 57, shall be excluded.

(3) Nothing in sub-section (1), shall be construed to confer on the Authorised Controller the power to transfer any immovable property belonging to college (except by way of letting from month to month in the ordinary course of Management or to create any charge thereon) except as a condition of receipt of any grant-in-aid of the college from the State Government or the Government of India.

(4) Any order made under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or in any instrument relating to the Management and control of the college or its property :

Provided that the property of the college and any income therefrom shall continue to be applied for the purposes of the college as provided in any such instrument.

(5) The Director of Education (Higher Education) may give to the Authorised Controller such directions as he may deem necessary for the proper management of the college or its property, and the Authorised Controller shall carry out those direction."

Section 58(1) of the 1973 Act requires the State Government to first consider the explanation, if any, submitted by the Management under Section 57. In considering such an explanation, the State Government is required to satisfy itself that any of the grounds, mentioned in Section 57 of the 1973 Act, exist. It is only on such satisfaction being arrived at by the State Government, is it then entitled, by a specific order, to authorize any person, to be called the Authorized Controller, to take over, for such period not exceeding two years, the Management of the College and its property to the exclusion of the Management. Under the proviso thereto, power is conferred on the State Government to extend the operation of the order, passed under Section 58(1) of the 1973 Act, for such period, not exceeding one year at a time, so however, that the total period of operation of the order, including the initial period, should not exceed five years. In order to pass an order of extension, the State Government must arrive at the opinion that it is expedient to pass such an order to secure the proper management of the college and its property.

It is not in dispute that no order of extension was passed by the State Government, under the first proviso to Section 58(1) of the 1973 Act, and, even without any such order of extension being passed, the Authorized Controller, who took charge of the Management of the College on 10.07.2013, continues to manage the said College even till date, though the maximum five years' period, prescribed under the first proviso to Section 58(1) of the 1973 Act, expired more than a year ago on 10.07.2018.

A bare reading of the show-cause notice dated 25.03.2013 shows that no reference is made therein to any action sought to be taken under Sections 57 and 58 of the 1973 Act. It is evident therefrom that the petitioners were not even informed that the respondents intended to appoint an Authorized Controller, in the place of the Committee of Management, resulting in their inability to show cause there-against. While the impugned order may have necessitated being set-aside on this ground alone, we are satisfied that the said order is also liable to be quashed on the other two grounds urged on behalf of the petitioners. The relevant portion of the order, passed under Section 58 of the 1973 Act on 10.07.2015, reads as under:

"(1) On account of formation and working method/ procedure of Managing Committee of the College, development works and educational atmosphere is being affected in the College.

(2) The Managing Committee of the College has refrained the Principal from her rights and duties, which act is against rules.

(3) Conduction of financial matters with regard to Hostels of the College under single signatory system is against rules, orders and prevalent procedure.

(4) Despite surplus funds in the Budget approved by the Society, purpose for escalation of Fees from Rs. 12000 to 25000 (more than double) with regard to self-financed curriculum is not clear.

(5) In order to not to get revealed the financial irregularities, Audit of the Financial Account of the Institution was go conducted by the Chairman and Hony. Secretary of the Managing Committed from Shri Alok Jain, Chartered Accountant instead of duly appointed Chartered Accountant Shri Ajay Khatak, which is against rules.

(6) The Hon'ble Court had stayed the financial matters of the Institution for the period from 20th June, 2010 to 07th September, 2010 for the Annual Budget of 2010-11. Non passing of the Budget prior and after the period during which the financial matters of the Institution were stayed by the Hon'ble Court, but passing the budget on the last day of the financial year creates doubts on the working procedure of the Managing Committee.

(7) Frims, Societies and Chits, Uttarakhand has vide Order No. 50 dated 4th April, 2013 cancelled the Amended Rules of Mahadevi Kanya Pathshala registered on 15.01.2008, on the premise that the same were inconsistent to the provisions of Societies Registration Act, 1980 and the Society is not following its Constitution and all acts and deeds done during this period were considered to be illegal.

(8) On the basis of enquiry made by the Women Cell of HNB Garhwal (Central) University, there is no favorable atmosphere for the women employees in the M.K.P. College.

(9) Dr. Indu Singh was suspended by the Managing Committee from the post of Principal of the College. Judgment dated 09.10.2012 passed by the Hon'ble Court was not acted upon by the Managing Committee with immediate effect. Payment of salary was started to be made to Dr. Indu Singh after receipt of Notice of Contempt from the Hon'ble High Court in the matter. The order of termination of service of Dr. Indu Singh passed by the Managing Committee was quashed by the University on 29.04.2013.On the quashing of termination proposal/ order by the Competent Authority/ University, Dr. Indu Singh is the Regular Principal of the College, despite the same, the Managing Committee has not let her joined on the post of Principal. On account of absence of the signatures of the Regular Principal on the salary bills, the matter with regard to the payment of salaries of the employees of the College is pending and a situation for agitation by the employees of the College has arisen.

From the above facts, it is clear that the Managing Committee of MKP (PG) College is working in an arbitrary, anarchical and in unfettered manner by misusing the Statutory rights and duties cast upon it, due to which educational atmosphere of the College is being affected adversely. Hence, for the purpose of smooth running of studies of the students of the College, in order to protect the welfare of the employees and to maintain the educational atmosphere of the College, H.E. Governor exercising the powers under section 58 of The U.P. State Universities Act, 1973, dissolving the Managing Committee of the MKP (PG) College, Dehradun has been pleased to approve the appointment of District Magistrate, Dehradun as the Authorized Controller of the MKP (PG) College, Dehradun subject to the following conditions/ restrictions -

(1) All rights accruing from the Rules/ Act of the University and the Byelaws of MKP (PG) College, Dehradun shall vest with the Authorized Controller.

(2) ON the basis of the Byelaws of the College, the Authorized Controller shall constitute the new Managing Committee as early as possible.

(3) Till the constitution of the new Managing Committee as per Rules, the District Magistrate, Dehradun, as an Authorized Controller shall ensure carrying out work obligations.

(4) Responsibilities of the District Magistrate as Authorized Controller, shall cease automatically on the day of constitution of the new Managing Committee.

On the question whether any of the afore-mentioned irregularities would fall within the ambit of any of Clauses (i) to (v) of Section 57 of the 1973 Act, Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would confine his submissions to the validity of the order dated 10.07.2013 contending that the words "other facilities", in Clause (iv) of Section 57 of the 1973 Act, must be understood as including "educational atmosphere"; and, consequently, the first irregularity, referred to in the order dated 10.07.2013, is covered by Section 57(iv) of the 1973 Act. While contending that irregularities 5 and 6 fall within the ambit of Section 57(v) of the 1973 Act, learned Standing Counsel for the State Government would submit that irregularity no. 9, of the order dated 10.07.2013, is covered by Section 57(i) of the 1973 Act.

Irregularity no. 1, as noted hereinabove, is that, on account of formation and working method/procedure of the Management Committee of the College, development works and educational atmosphere were being affected in the College. The said irregularity, referred to in the order dated 10.07.2013, does not disclose which development works were affected. Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would, however, contend that, since the impugned order makes a specific reference to the educational atmosphere of the College, being adversely affected, such an irregularity would fall within the ambit of Section 57(iv) of the 1973 Act.

As noted hereinabove, Clause (iv) of Section 57 of the 1973 Act would be attracted if the management has "persistently" failed to provide the College with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment and other facilities, as are necessary for efficient administration of the College. The words "other facilities" must be read in the context of the words preceding, which relate to proper accommodation, library, furniture, stationery, laboratory and equipment. The "other facilities" are in the nature of infrastructural facilities which are required to be provided apart from the aforementioned facilities. Educational atmosphere being adversely affected, is not "other facilities", and would, therefore, not fall within the ambit of Clause (iv) of Section 57 of the 1973 Act. The Concise Oxford English Dictionary defines "persistent" to mean persisting or having a tendency to persist; continuing or recurring; and prolonged. The impugned order dated 10.07.2013 makes no mention of the management having persistently or continuously failed to provide the required infrastructure, nor does the order indicate as to whether such facilities were required to be provided for efficient administration of the College. Irregularity no. 1, as noted in the order dated 10.07.2013, does not fall within the ambit of Section 57(iv) of the 1973 Act.

Irregularities 5 and 6 relate to the failure of the Management to get their books of accounts audited by Mr. Ajay Khatak, Chartered Accountant, and to have got it audited by another Chartered Accountant Mr. Alok Jain. Even if the action of the Management, in getting the books of account audited by Mr. Alok Jain, Chartered Accountant, instead of Mr. Ajay Khatak, Chartered Accountant, is presumed not to accord with the Rules, that, by itself, would not justify the conclusion that such an act, on the part of the Management, was only not to reveal the financial irregularities. The minimum requirement, for the ingredients of Section 57(i) of the 1973 Act to be attracted, is for the impugned order dated 10.07.2013 to record the details of the financial irregularities allegedly committed by the Committee of Management. A mere change of the Chartered Accountant would not, by itself and without anything more, justify the inference that the object of having the books of accounts audited by another Chartered Accountant, was only not to reveal financial irregularities. The findings, so recorded in the impugned order dated 10.07.2013, are perverse and are based on no evidence.

Irregularity No. 6 relates to passing of the budget on the last day of the financial year. This, according to the respondents, creates doubt on the working procedure of the Committee of Management. As to how passing of the budget on the last day of the financial year would create a doubt on the working procedure is not disclosed in the impugned order dated 10.07.2013. Further more passing of the budget on the last day of the financial year would not fall within the ambit of clause (v) of Section 57 of the 1973 Act, which would be attracted only if the Management has persistently diverted, misapplied or misappropriated the budget to the detriment of the College. The impugned order makes no reference to any diversion, misapplication or misappropriation of the budget much less persistently or to the detriment of the College. The contention that irregularities (5) and (6) fall within the ambit of Section 57(v) of the 1973 Act does not, therefore, merit acceptance.

Irregularity No. (9) relates to the failure of the Committee of Management to re-instate the seventh respondent despite the order passed by the Court. While there, no doubt, appears to be some delay in complying with the order, and it does appear that it is only after the Authorized Controller took charge on 10.07.2013 was the seventh respondent permitted to join duty on 12.07.2013, the question which necessitates examination is whether such delay, on the part of the Committee of Management, would fall within the ambit of Section 57(i) of the 1973 Act which, as noted hereinabove, would be attracted only if the Management has persistently committed willful default in payment of salary of teachers or other employees of the College by the twentieth day of the month next following the month in respect of which or any part of which it is payable.

While Irregularity No. 9, no doubt, reads that delay in permitting the seventh respondent to join duty had resulted in her not signing the salary bills, the requirement of Clause (i) of Section 57 of the 1973 Act is for persistently committing of default, and that too willfully. The word "persistently" would not mean one instance, but often and continuously. Further such persistent committing of default must also be willful. The impugned order does not record any willful default on the part of the petitioners herein. It is evident, therefore, that none of the ingredients of Section 57 of the 1973 Act are fulfilled justifying the impugned order dated 10.07.2013 being passed under Section 58 of the 1973 Act.

The petitioners had in their letter dated 13.04.2013, in reply to the show-cause notice dated 25.03.2013, furnished a point-wise reply to the allegations leveled against them in the show-cause notice dated 25.03.2013. None of the contentions, put forth by the petitioners in their reply to the show-cause notice, have even been noted in the impugned order dated 10.07.2013, much less considered. The second respondent brushed aside the explanation furnished by the petitioners holding that "explanation so received was not accepted being not based on facts". The impugned order neither discloses how the explanation furnished by the petitioners is not based on facts, nor does it record why the explanation furnished, in the reply submitted by the petitioners, did not merit acceptance. The impugned order dated 10.07.2013, having been passed without considering the objections raised by the petitioners in their reply to the show-cause notice dated 13.04.2013, would also necessitate its being set aside, and the relief sought for, in prayer (b) of the Writ Petition, being granted.

For the reasons aforementioned, the impugned order dated 10.07.2013 is quashed. The Writ Petition is partly allowed to the extent the order dated 10.07.2013 is quashed, and the relief sought for in prayer (b) is being granted, and is partly dismissed with respect to reliefs (a) and (c) as sought for in the writ petition. However, in the circumstances, without costs.