- (1.) JANARDAN Sahai, J. Sri Yadavesh Inter College, Nav Purvaa, Jaunpur is an intermediate college recognised under the U. P. Intermediate Education Act hereinafter called the Act. The committee of management is aggrieved by an order passed by the State Government under Section 16-D (8) of the Act by which the committee of management has been suspended and an authorized controller has been appointed. It appears that there were certain reports about irregularities prevailing in the college. These irregularities can be summarized into three heads; First that the committee of management had appointed 53 teachers and staff although the sanctioned strength was only 33. Second that some land of the institution was sold by the committee illegally and the proceeds were not applied for the purpose for which permission for sale had been granted and Third that a sum of Rs. 38,260/-had been withdrawn by the management of the institution under single signatures instead of under the joint signatures and has been misappropriated. It appears that a notice was given by the Deputy Director of Education to the petitioners pointing out certain irregularities and after obtaining the explanation of the committee of management in regard thereto the Deputy Director of Education made a recommendation dated 8-8-2003 to the State Government that there were irregularities in making excess appointments of teachers and staff and that an authorized controller be appointed.
(2.) WHILE the matter was thus pending before the State Government a notice dated 5-11-2004 under Section 16-D (5) was issued by it to the petitioners to give their explanation in respect of the three irregularities of which reference has been made above. The committee submitted its explanation on 30- 12-2004 and the final decision on the notice after considering the explanation has yet to be taken by the State Government. On the same date on which the notice under Section 16-D (5) was issued the State Government passed the impugned order suspending the committee of management and appointing the authorized controller. I have heard Sri P. N. Saxena, learned Senior Counsel assisted by Sri R. N. Vishwakarma, learned Counsel for the petitioners, the learned Standing Counsel on behalf of the respondents 1, 2 and 3 and Sri A. K. Sinha, learned Counsel for the respondent No. 4 who is the complainant and on whose complaint the enquiry was initiated. Section 16-D (5) and (8) read as under : (5) If on the receipt of information or otherwise, the State Government is of opinion that in relation to an institution the ground mentioned in Clause (iii) or clause (v) of sub-section (3) exists, and that the interest of the institution calls for immediate actions, it may notwithstanding anything contained in the said sub-section, issue notice to the management of such institution to show cause within fifteen days from the date of receipt of such notice why an authorized controller be not appointed in respect of such institution. (8) If the State Government is of opinion that immediate suspension of the committee of management is also necessary or expedient in the interest of the institution concerned, it may, while issuing notice under sub-section (5) by order and for reasons to be recorded, suspend the committee of management and make such arrangement as it thinks proper for managing the affairs of the institution pending the order that may subsequently be made under sub-section (6 ). Provided that the suspension shall not remain in force for more than six months from the date it becomes effective. It is clear from the language in which sub-section 8 is couched that the pre-requisite for taking action under that provision is the existence of opinion of the State Government that immediate suspension of the committee of management is necessary or expedient in the interest of the institution concerned. The other precondition for passing the order of suspension is that reasons have also to be recorded. Sub-section 8 of Section 16-D does not refer to the grounds on which an order of suspension can be passed. Section 16-D (8) however refers to the stage when the power can be exercised. It postulates that the power is to be exercised at the time of issuing the notice under Section 16-D (5 ). As the exercise of the power of suspension is in reference to the notice under Section 16-D (5) the grounds on which the power of suspension can be exercised would be the grounds contemplated in Section 16-D (5 ). A notice under Section 16-D (5) can be issued only on the grounds covered under clauses (iii) and (v) of Section 16-D (3 ). These clauses cover a dispute with respect to the right claimed by different persons to be lawful office-bearers of the committee of management which has affected the smooth and orderly administration of the institution and also to a case where the committee of management has substantially diverted, misapplied or misappropriated the property of the institution to its detriment or has transferred any property in contravention of the provisions of the U. P. Educational Institutions (Prevention of Dissipation of Assets) Act, 1974. The validity of the order impugned is to be tested in the light of these provisions. The only material which the State Government has relied upon in support of the allegations in the impugned order is the aforesaid report of the Deputy Director of Education dated 8-8-2003. It is evident that the charge of making appointment of teachers in excess of the sanctioned strength is not covered under either of the two sub-clause (iii) and (v ). As regards the ground of withdrawal by single operation of a sum of Rs. 38,260/-it appears that there is no such finding in the report of the Deputy Director of Education dated 8-8-2003, which is the only material referred to in the order impugned. The impugned order specifically recites that the irregularities summarized above were found from an examination of that report. It is no doubt true that under Section 16-D (5) the State Government can rely upon any information or report about the existence of irregularities referred to in Clauses (iii) and (v) but for taking action under sub-section (8) reasons are required to be recorded. The object of insistence to record reasons is to ensure that the State Government has applied mind to the existence of the grounds relevant for exercising the power of suspension. In the impugned order of suspension the reasons disclosed are the three grounds of irregularities summarized above and the material in support of these grounds in this order too is the same report of the Deputy Director dated 8- 8-2003. There is no reference or finding of any irregularity of withdrawal of Rs. 38,260/-in this report. The report has therefore, been misread and the order shows non-application of mind to the contents of the report, which has been relied upon. The only other ground for action is misapplication of the proceeds of the sale of land. It is common ground between the parties Counsel that the land was sold way back in the year 1983. The only objection raised by Sri A. K. Sinha, learned Counsel for the private respondent in respect of this deal is that although permission was obtained for the transfer of the land but the proceeds of the sale were not applied for the purpose for which the permission was granted. The deal relates to the year 1983 and appears to be too stale for being the basis for taking, any immediate action of suspension. That apart although there is some discussion in the report dated 8-8- 2003 relating to the sale of land but the concluding portion the report ends with the finding relating to irregularity in excess appointment of staff only. The explanation of the petitioner upon the point has already been given before the State Government and the State Government is yet to take a final decision. It is to be noted that the report of the Director of Education was given after the explanation of the committee of management had been called for while the notice issued under Section 16-D (5) and the order under Section 16-D (8) is an ex parte one. The grounds relied upon being irrelevant or based on misreading of the very report which is relied upon or too stale can not constitute reasons valid for taking action under Section 16-D (8 ). The order impugned also suffers from the invalidity that it does not indicate that the State Government has formed the opinion that immediate suspension in the interest of the institution is necessary nor does it specify the reasons for immediate suspension.
(3.) SRI A. K. Sinha, learned Counsel for the private respondent relied upon the decision of this Court in 1995 (3) UPLBEC Page 1375, State of U. P. v. Committee of Management of S. K. M. Inter College & Anr. It was held therein that in case an order appointing an authorized controller on the recommendation of the Director of Education is passed after following the prescribed procedure and reasons are given by the State Government no interference is justified. In the present case the grounds relied upon in the order were either irrelevant or were based on a misreading of the report relied upon. The decision cited has therefore, no application to the facts. SRI A. K. Sinha also submitted that the order impugned has been passed in view of the direction of this Court in Writ Petition No. 8641 of 2003 (M. P. Yadav v. Deputy Director and connected petitions ). The copy of that order has been annexed. There is nothing to show that there was any direction for taking action under sub-section 8 of Section 16-D. The ground relating to excess appointment of teachers and staff which was the subject of consideration in that case may be relevant for exercise of power under Section 16-D (4) but is not relevant for exercise of power under Section 16-D (8 ). The grounds for proceeding order Section 16-D (4) are wider and are all the grounds contemplated under Section 16-D (3 ). But an order under Section 16-D (8) can be passed only on some of the specified grounds of Section 16-D (3 ). In the result, the writ petition is allowed. The order dated 5-11-2004 passed by the State Government is quashed. It would be open to the State Government however to pass final orders in the matter in accordance with law. W. P. allowed .;