- (1.) RAJES Kumar, J. By means of present petition under Article 226 of the Constitution of India, the petitioners are challenging the notice dated 29. 4. 2008 issued by the Principal Secretary, Higher Education Department under Section 57 (1) of the U. P. State Universities Act, 1973 (hereinafter referred to as the "act") and the order dated 29. 4. 2008 passed under Section 58 (2) of the Act whereby the Committee of Management has been suspended and the District Magistrate, Agra has been appointed as the Authorised Controller for the period of six months.
(2.) HEARD Sri Sailendra, learned counsel for the petitioner, Sri P. S. Baghel, learned counsel appearing on behalf of respondent No. 5 and learned Standing Counsel. Counter and rejoinder affidavits have been exchanged between the parties. With the consent of the parties the present writ petition is being disposed of finally. Learned counsel for the petitioners submitted that the notice under Sec tion 57 of the Act is patently bad in law inasmuch as it does hot fulfil the require ments of Section 57 of the Act. He submitted that the allegations made in the notice are vague. He submitted that in respect of each and every allegations mentioned in the notice, the reply has already been given earlier and the position has been clarified before the issuance of the present notice. However, he admit ted that till date the reply of the present impugned notice has not been filed. He submitted that the power under Section 58 (2) of the Act can be invoked only in special circumstances after recording the reason while in the order no reason has been recorded for exercising the power. He further submitted that the order under Section 58 (2) of the Act was passed earlier also on 11. 2. 2005 which has been set aside by this Court in Writ Petition No. 12959 of 2005 vide order dated 15. 3. 2005.
(3.) IN support of the contention, he relied upon the various decisions of this Court in the case of Committee of Management, Raja Mohan Girls Degree Col lege, Faizabad and others v. State of U. P. and others, (1999) 1 UPLBEC 658; Committee of Management, Atarra Mahavidyalaya, Atarra, District Banda v. State of U. P. and others, (2003) 3 UPLBEC 2293; Committee of Management, Dayanand Arya Kanya Degree College, Moradabad and another v. State of U. P. and others, 1894 (1) ESC 176 (All); Chaudhary Chhotu Ram College, Managing Committee, Muzaffarnagar v. Meerut University, 1976 ALJ 680; U. P. State Road Transport Corporation, Meerut Region, Meerut v. State Transport Appellate Tribunal, U. P. Lucknow and others, 1992 AWC 71; Committee of Management, Lai Bahadur Shastri Post Graduate College and another v. State of U. P. and others, (2000) 2 UPLBEC 63 (Sum); Committee of Management, Mahip Narain Shahi Janta INter College, Mahavir Chhapara, District Gorakhpur and another v. State of U. P. and others, (2004) 3 UPLBEC 2694; Writ Petition No. 29323 of 2007, Committee of Management Degree College Uparadaha and another v. State of U. P. and others, decided on 4. 7. 2007; Special Appeal No. 836 of 2004; Committee of Manage ment, Hindu College, Moradabad and another v. State of U. P. and others decided on 23. 7. 2004; Nathimal Ramsai Mai Edward Coronation College Association, Khurja, Bulandshahr and others v. State of U. P. and others, 1979 ALJ 1103 and Board of Trustees, Unani Medical College, Allahabad and another v. State of U. P. and others, 1982 UPLBEC 205. Sri PS. Baghel, learned counsel appearing on behalf of respondent No. 5 submitted that notice under Section 57 of the Act has been issued on the basis of the enquiry made by the Director of Higher Education on the complaint of respon dent No. 5. He submitted that the Principal was acting as a Secretary of the Society which was contrary to the bye-laws. The Principal has got the boundary wall constructed without entering into the contract directly; necessary papers have not been provided to the audit parties sent by the Auditor General which was obligatory; a sum of Rs. 8,48,000/- has not been used in the sports and has been used for the payment to the daily wagers; certain amount received for the opera tion of the engineering and technical education has been misused by the Princi pal. He submitted that apart from various allegations made in the notice there are other materials of the embezzlement and misappropriation of the money which all be considered during the course of the proceeding before passing the final order under Section 57 of the Act. He submitted that it is not in dispute that Principal Secretary, Higher Education has a jurisdiction to issue the notice under Section 57 of the Act. Therefore, there is no case of lack of jurisdiction and in the circum stances the writ petition against the notice is not maintainable. He submitted that it is open to the petitioner to give reply to the notice and the same may be considered while passing the order. So far as the order under Section 58 (2) of the Act is concerned, he submitted that the order was passed on the same day when the notice under Section 57 of the Act was issued. In the order allegations made in the notice under Section 57 of the Act have been adopted and made basis for the order and, therefore, it cannot be said that no reason has been given for passing the order. He further submitted that since both the notice under Section 57 of the Act and the order under Section 58 (2) of the Act have been issued on the same day it is explicit that the allegations in the notice are the basis of order under Section 58 (2) of the Act. He further submitted that though about four months have passed but the petitioner has not given the reply to the notice under Section 57 of the Act and in case, if it may be filed the same may be considered by the Principal Secretary and appropriate order be passed. In support of the contention he relied upon the decisions in the case of Swami Dayanand Snatak Mahavidyalaya, Deoria and another v. State of U. P. and another, 1979 (5) ALR 124; Committee of Managements. State of U. P. and others, 1995awc 976; Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111; Chief Conservator of Forests, Government of A. P. v. Collector and others, (2003) 3 SCC 472; Bharat Petroleum Corporation Ltd. and another v. N. R. Vairamani and another, (2004) 8 SCC 579; Writ Petition No. 27565 of 2003, Committee of Management, Hindu College, Moradabad and another v. State of U. P. and others decided on 5. 7. 2004 and Committee of Management, Hindu College, Moradabad and another v. State of U. P. and others, 2004 (5) AWC 4833.;