- (1.) N. L. Ganguly, J. This writ petition is filed by Sri Shri Nath Gupta claiming himself to be the Manager of Sarvodaya Shiksha Sadan Inter College, Bhirpur, Allahabad as respondent No. 2 and Committee of Management of the Institution through Sri Shci Nath Gupta as petitioner No. 1. The peti tioners have prayed for a writ in the nature of certiorari quashing the order dated 22-7-1994 passed by the DIOS Allahabad by which he had accepted the resolution sent by the Committee of Management as the resolution alarming the no confidence resolution passed against Sri Nath Gupta. The other prayer in this is for issuing a writ of mandamus restraining the opposite parties from interfering with the official discharge of the duty of the petitioner No. 2 Sri Shri Nath Gupta as Manager of the Institution.
(2.) THE petitioner in this case stated that the last election for constitu tion of the Committee of Management took place on 30th January, 1994 in which Sri Shri Nath Gupta was elected as Manager. THE petitioner No. 2 Sri Srinath Gupta has been working as Manage* of the Committee of Manage ment for several tenures for the Committee of Management. THE learned counsel for the petitioner Sri L. N. Pandey submitted that the opposite party No. 3 Sri Kaushelash Prasad Sharma who is the son of the out- going Principal of the College, is now said to be elected as Manager after passing of no con fidence motion fictitiously against the petitioner No. 2. He submitted that the father of the opposite party No. 3, who was to retire on 30th June, 1994 is the main architect and instrument behind this game, for removal of the; petitioner and the fake proceedings for showing that the petitioner has been removed after no confidence resolution. THE learned counsel for the petitioner has further levelled serious allegations against the DIOS Allahabad and Sri Amar Nath Yerma, DIOS has been arrayed by name as opposite party No. 1-A. THE allegation against Sri Amar Nath Yerma are very serious, it has been said that Rs. 15000 was paid as bribe to Sri A. N. Yerma and it was heard by the petitioner that Sri Yerma had assured that he would see and support Sri Kaushelesh Prasad Sharma that he continues to be Manager of the Committee of Management. Learned Counsel for the petitioner pointed out that it has been said that meeting for consideration of the no confidence motion took place on 30th June, 1994. Number of annexures have been annexed by the petitioner, affidavit of treasurer and office bearers of the Committee of Management, who staled that they have not received any notice for consideration of the no confi dence motion on 30th June, 1994. The petitioner has stated in para 11 of the writ petition that the. DIOS Allahabad did not issue any notice to the peti tioner, the Committee of Management of its Manager Sri Srinath Gupta in respect of any proceedings coming before him for his removal and attestation of the signature of opposite party No, 3 in place of the real Manager, petitioner No. 2. Although Sri Amar Nath Verma, DIOS has filed his personal counter affidavit but in the counter affidavit he has omitted to reply the said paragraph, although the DIOS has given reply in respect of paras 12, 15 and 29 in which the petitioner have levelled serious allegation of accepting of bribe by the DIOS and that fact has bean denied. Since the DIOS Sri Amar Nath Gupta is a party and the DIOS by name, he was suppos ed to reply the said paragraph also when the impugned order was passed by him alone. Counter affidavit has been Sled by the Associate DIOS ia which no doubt it has been denied and stated that notices had been seat before passing of the order approving the resolution of the no confidence motion by the DIOS. The best and sole person competent for giving the correct fact who has avoided to make statement in this aspect. However, two disputed ques tions have been raised, whether no confidence resolution was moved and passed on 30th June, 1994 which was accepted by the DIOS and whether the notice for consideration of the matter by the DIOS was issued before passing final order in this aspect. The other question that arise for consideration is that the petitioner has annexed the copies of the representations sent by him which are Annexures 2-A to A-4 dated 20-7-1994 and 23-7-1994 by which the application was moved by the petitioner before the DIOS for considering the grievance of the petitioner. The said applications were served and filed before the DIOS and the initials of receipt of said representations are there on the said documents. The learned counsel for the petitioner wanted to open two envelopes which were sent to various persons of the general body for considera tion of the no confidence motion on 30th June, 1994, I do not consider it proper nor the envelopes are in such intact conditions, which may be examined in the writ petition as a court of fact. The grievance of the petitioner is that without opportunity and consideration of the application, submitted by the petitioner, the DIOS had passed the order and he had not passed any order on the representations sent by him. It is worth mentioning that the supplementary affidavit filed by Sri Kaushelesh Prasad Sharma, a copy of an order dated 21-9-1994 has been annexed by which the application of petitioner Sri Srinath Gupta seeking a relief that the evidence of Sri Kaushelesh Prasad Sharma recorded in suit No. 1047 of 1990 be not read in evidence. The said suit is pending since 1990. Sri Nath Gupta filed the suit and the order Annexure 13 with the supplemen tary affidavit shows that on 11-7-1994 the general body of the Society has removed Sri Srinath Gupta from the office of the Manager and Sri Kaushiesh Prasad Sharma was appointed as Manager. The said appointment of Sri Kaushelesh Prasad Sharma was approved by the DIOS by order dated 11-7-1994 and since then he is functioning as the Manager of the Institution and the pay bills etc. are being passed under his signatures. The allegations and counter allegations I need not mention in the order but it is evident from Annexure 13 that a suit is pending though it is suit of 1990 in which the ques tion about the competence and continuance of Sri Srinath Gupta as Manager of the Committee of Management is sub-judice before the Civil Court, Sri S. P. Singh at the outset raised a preliminary objection that the writ petition is not maintainable in view of the fact that alternative remedy of suit is already pending in the Civil Court.
(3.) AFTER hearing the learned counsel for the petitioner and Sri S. P. Singh, learned Standing Counsel and Sri M. Ki. Tewari who has put in appearance of the newly impleaded opposite party Raj Kumar Pandey, President of the Society, I consider it not proper to exercise my jurisdiction ander Article 226 of the Constitution to enter into the disputed questions of fact and adjudi cate whether the resolution for no confidence motion was really passed, in accordance with law and whether the notice of such resolution was communi cated and whether the proceedings taken by the DIOS was without notice to the petitioner. Since the civil court has already taken cognizance in the matter. 1 do not consider it proper that this court should interfere in the present writ petition into the disputed question of facts which shall be open for the petitioner to further amend in the civil suit if so advised and make any other relief which he thinks appropriate. While dismissing the writ petition on this ground of alternative remedy, I direct the VII Addl. Munsif, Allahabad who is proceeding with suit No. 1047 of 1990 shall take such steps that the suit itself be decided, if pos sible within six months. Parties shall co-operate. Any application for amendment moved by the parties would be expeditiously disposed of and such amendment be allowed according to law so that the litigation may come to an end and the educational institution and students may not suffer for the dispute raised by the Manager or other office bearers of the Committee of Management running the Institution. In case the parties do not proceed with the case expeditiously and the civil court is of the opinion that either of the parties are delaying the matter unnecessarily, he may pass appropriate orders for proper functioning of the institution by the DIOS and may even pass directions to DIOS to appoint authorised controller for running the institution till the suit is finally decided. The interest of students and the teaching in the institution is the first and foremost thing instead of rights of the parties contesting for their rights about the administration of the society and management of the institution.;