Court No. - 19
Case :- WRIT - C No. - 20223 of 2018 Petitioner :- C/M Junior High School And Anr.
Respondent :- State Of U.P.And 4 Ors.
Counsel for Petitioner :- Sushil Kumar Srivastava, Counsel for Respondent :- C.S.C.,Nitin Chandra Mishra Hon'ble Manoj Kumar Gupta,J.
The petitioners had earlier approached this Court in Writ-C No.19268 of 2016 challenging an order of the Prescribed Authority deciding dispute relating to election dated 21.12.1997 of the Committee of Management of Junior High School, Digharuwa, Fatehpur, a registered society under the Societies Registration Act, 1860. This Court allowed the writ petition and quashed the order of the Prescribed Authority dated 22.3.2016. The matter was remitted back to the Prescribed Authority for fresh decision on the validity of the election proceedings of the year 1997 as well as all subsequent election proceedings, including co-option proceedings, which were held in the meantime. In pursuance of the said direction, the impugned order has now been passed by the Prescribed Authority declaring election of respondent no.5 as Manager on 27.12.2015 as legal and valid. The order further directs for sending copy of the order to the office of District Inspector of Schools for consequential action.
Learned counsel for the petitioners, apart from challenging the impugned order on several grounds, also raised a plea to the effect that the impugned order wrongly records that parties were heard. It is submitted that in fact oral hearing took place before the earlier incumbent holding the office of Up Zila Adhikari, Bindki, but he was thereafter transferred and in his place, Mr. Harihar Ram assumed office. There is a specific averment in paragraph 33 (ix) to the effect that no hearing took place before the Presiding Officer, who has passed the impugned order and recital in the order that both the parties were heard, is factually incorrect.
On such submission being made, learned standing counsel was granted time to obtain instructions by passing the following order:-
"One of the ground on which impugned order is being challenged, is that the officer who has passed the order, had not heard the parties. His predecessor had heard the parties. The order came to be passed after he was transferred.
Learned standing counsel shall seek instructions from respondent no.2 on the said aspect. Put up as fresh tomorrow."
Today, when the matter is taken up, learned standing counsel, on basis of instructions, very fairly admits that no oral hearing took place before the Presiding Officer, who has passed the impugned order.
Sri Nitin Chandra Mishra, learned counsel appearing on behalf of respondent no.5 is also not able to show to the Court that any oral hearing took place before the Presiding Officer, who has passed the impugned order. He tried to contend that on 8.1.2018 instead of hearing the parties personally, they were permitted to file written arguments. He, therefore, very fairly states that the matter be sent back to the Prescribed Authority for affording personal hearing to the parties and for passing a fresh order.
Accordingly, having regard to the undisputed fact that the incumbent who heard the matter, had since been transferred and no hearing took place before the present incumbent, the impugned order is rendered vulnerable and is quashed. The matter is remitted back to the Prescribed Authority for taking decision in the light of the directions contained in the previous order of this Court.
Counsel for the parties state that the parties would appear before the Prescribed Authority, the second respondent, on 7.6.2018. On that date, it shall be open to the Prescribed Authority to fix a date within two weeks looking to the convenience of the parties. He shall afford personal hearing to the parties and shall then proceed to take final decision within next two weeks. In case any of the parties did not avail the opportunity of personal hearing on the date fixed in this regard, it shall be open to the second respondent to take decision on merits without granting any further opportunity in that regard.
The writ petition stands allowed to the extent indicated above.
(Manoj Kumar Gupta, J) Order Date :- 31.5.2018 SL