# C/M Madhav U M Vidyalaya & Anr v. State of U.P. & Ors - **Citation:** (2016) 4 ILRA 444 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-17 - **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-madhav-u-m-vidyalaya-anr-v-state-of-u-p-ors-43649 - **Pages:** 5 ## Headnote Section 5(1) Provisos Upheld - Constitutional challenge to provisos to Section 5(1) of the U.P. Payment of Salaries Act on ground of conflict with Section 16-A(7) of the U.P. Intermediate Education Act rejected; Court held that Section 16-A(7) only identifies which body is to be recognised as management in case of dispute, while Section 5(1) provisos and Section 6 separately regulate joint/single bank operation and supersession to secure salary payments, and both provisions operate harmoniously without repugnancy.(Paras 1-5) Writ Dismissed - No ground to strike down provisos or to issue directions for enforcement of Government Orders; State already has adequate statutory powers to secure compliance. No order as to costs. (Paras 5-6) ## Text 444 INDIAN LAW REPORTS ALLAHABAD SERIES 45. The relevant observation of Hon'ble the Apex Court in para 11 of the aforesaid judgment is extracted herein under: "The question whether these acts were committed and/or whether 1st Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the 1st Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of trial." 46. In view of the aforesaid authoritative pronouncement of the Supreme Court at the risk of repetition so far other accused persons are concerned the charge sheet has already been filed against them by the respondent no.3 and the State Government has also accorded sanction. There is no legal impediment for the court to proceed with the case if cognizance has been taken against them. It is well settled that the cognizance is always taken of the offence and not of the offender by the concerned court and the question whether in the case in hand sanction is necessary to prosecute the respondent no.4 should be left to be decided by the court itself at the appropriate stage. 47. Thus in view of the above the order impugned dated 21.11.2014 passed by Principal Secretary (Home), U.P. Government at Lucknow, the respondent no.2, is hereby quashed. The writ petition is hereby allowed. 48. We clarify that the court concerned will proceed on its own merit in accordance with law without being influenced by any observation made hereinabove as we have considered the facts of the case only to decide this writ petition. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.02.2016 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. THE HON'BLE YASHWANT VARMA, J. Writ C No.- 7078 Of 2016 C/M Madhav U M Vidyalaya & Anr. ...Petitioners Versus State of U.P. & Ors ...Respondents Counsel for Petitioners: Sri Chandra Jeet Yadav, Smt. Anjali 4 All. C/M Madhav U M Vidyalaya & Anr. Vs State Of U.P. & Ors. 445 Counsel for the Respondents: Chief Standing Counsel Section 5(1) Provisos Upheld - Constitutional challenge to provisos to Section 5(1) of the U.P. Payment of Salaries Act on ground of conflict with Section 16-A(7) of the U.P. Intermediate Education Act rejected; Court held that Section 16-A(7) only identifies which body is to be recognised as management in case of dispute, while Section 5(1) provisos and Section 6 separately regulate joint/single bank operation and supersession to secure salary payments, and both provisions operate harmoniously without repugnancy.(Paras 1-5) Writ Dismissed - No ground to strike down provisos or to issue directions for enforcement of Government Orders; State already has adequate statutory powers to secure compliance. No order as to costs. (Paras 5-6) (Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J. & Hon'ble Yashwant Varma, J.) 1. The petitioners have sought the issuance of a writ for declaring the provisos to Section 5 (1) of the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 19711 as being ultra vires to Section 16-A(7) of the Uttar Pradesh Intermediate Education Act 19212. 2. Section 16-A of the Intermediate Education Act provides for the framing of a Scheme of Administration. Under sub-section (7), it has been provided thus: "(7) Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education, upon such enquiry as is deemed fit to be in actual control of its affairs may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise: Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representations in writing. Explanation. - In determining the question as to who is in actual control of the affairs of the institution the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under sub-section (5) and other relevant circumstances." 446 INDIAN LAW REPORTS ALLAHABAD SERIES 3. Sub-section (7) of Section 16-A applies where there is a dispute with respect to the Management of an institution. In such an event, persons found by the Regional Deputy Director of Education, upon enquiry "to be in actual control of its affairs" may, for the purpose of the Act, be recognized to constitute the Committee of Management of the institution, until otherwise directed by a court of competent jurisdiction. This provision indicates that under sub-section (7), a power has been conferred upon the Regional Deputy Director of Education to recognize as a Committee of Management such body which is found to be in actual control of the affairs of the institution. However, this is for the purposes of the Act and the direction operates until a court of competent jurisdiction decides otherwise. The Explanation to sub-section (7) of Section 16-A provides the circumstances which are to be borne in mind in determining as to who is in actual control of the affairs of the institution. The Regional Deputy Director of Education is to have regard to (i) control over the funds of the institution; (ii) control over the administration; (iii) control over the receipt of income from its properties; (iv) the Scheme of Administration approved under sub-section (5); and (v) other relevant circumstances. 4. The Payment of Salaries Act contains a provision in Section 5 for the payment of salary of recognized institutions which receive a maintenance grant from the State Government. Under sub-section (1) of Section 5, the Management is, for the purpose of disbursement of salaries to its teachers and employees, required to open a separate bank account which is to be opened jointly by a representative of the Management and by the Inspector or an officer authorised by him. Under the first proviso to sub-section (1) of Section 5, a provision has been made for single operation of accounts if the Inspector is satisfied that it is expedient in public interest so to do. In such an event, the Inspector would instruct the bank that the account would be operated by the representative of the Management alone. In other words, joint operation is replaced by a direction for single operation when it is expedient in public interest to do so under the first proviso to sub-section (1) of Section 5. Section 5(1) is extracted herein below for convenience of reference: "5. Procedure for payment of salary in the case of certain institutions.- (1) The management of every institution shall, for the purpose of disbursement of salaries to its teachers and employees, open in a Scheduled Bank or a Co-operative Bank a separate account to be opened jointly by a representative of the management and by the Inspector or such other officer as may be authorised in that behalf: Provided that after the account is opened, the Inspector may, if he is, subject to any rules made under this Act, satisfied that it is expedient in the public interest so to do, instruct the bank that the account shall be operated by the representative of the management alone, and may at any time revoke such instruction: 4 All. C/M Madhav U M Vidyalaya & Anr. Vs State Of U.P. & Ors. 447 Provided further that in the case referred to in the proviso to sub-section (2), or or where a difficulty arises in the disbursement of salaries due to any default of the management, the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may at any time revoke such instruction." 5. Section 6 of the Payment of Salaries Act empowers the Inspector to recommend action being taken against an institution where he is satisfied that the Management has committed default in complying with its statutory obligations under Sections 3, 4 or 5. Under sub-section (3) of Section 6, the Regional Deputy Director is empowered, upon considering the cause shown by the Management, to supersede the Management. Thereupon, after an order is made under sub-section (3), the Authorised Controller shall, to the exclusion of the Management, exercise all the powers and perform the functions of the Management including in respect of management of the property belonging to or vested in the institution. The Authorised Controller would operate singly the bank account referred to in Section 5. In other words, once an Authorised Controller is appointed under the provision of sub-section (3) of Section 6, sub-section (4) mandates that the bank account shall be operated singly; the bank account being that which is referred to in Section 5. 6. Once the provisions of Section 16-A(7) of the Intermediate Education Act and those of Section 5(1) and Section 6(4) of the Payment of Salaries Act are appreciated in their proper perspective, it is evident that there is no conflict between the two sets of provisions. Sub-section (7) of Section 16-A empowers the Regional Deputy Director of Education to recognize who should constitute the Committee of Management where there is a dispute with respect to management, and the Explanation to sub-section (7) contains a reference to the circumstances which are to be borne in mind, including control over the funds of the institution. The Payment of Salaries Act is an Act to regulate the payment of salaries to teachers and employees of High School and Intermediate Colleges receiving State aid. The first proviso to Section 5(1) empowers the Inspector to order single operation of the bank account in the circumstances which are referred to therein. Section 6 (3) empowers the Regional Deputy Director to supersede the Management. In that event the Authorised Controller is appointed, upon which he shall exercise all powers of the Management including single operation of the bank account. There is, thus, no conflict of jurisdiction much less any conflict between the statutory provisions. Both sets of provisions are of State legislation and have to be read harmoniously so as to give full effect to the statutory scheme. 7. We do not find any reason or justification to entertain the second prayer for seeking enforcement of a Government Order. The State Government is vested with adequate powers to ensure that its orders are duly enforced, albeit in accordance with the provisions of law. 448 INDIAN LAW REPORTS ALLAHABAD SERIES 8. Consequently, we see no reason to entertain the writ petition. The writ petition is accordingly dismissed. There shall be no order as to costs. ---------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 06.04.2016 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE MOHD. TAHIR, J. Criminal Misc. Writ Petition No.- 7362 Of 2016 Pradeep Kumar ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Ravi Kant, Senior Advocate, assisted by Sri Imran Syed Counsel for the Respondents: G.A. Sanction for Prosecution - Writ challenging Governor's sanction dated 2.3.2016 for prosecuting petitioner (then ADM City, Allahabad) under Sections 218/120-B IPC and 13(2) PC Act for allegedly cancelling, then collusively restoring, firearm licences - Held, sanctioning authority need only be prima facie satisfied on material placed; impugned order records consideration of allegations, material and evidence and satisfaction to prosecute; court cannot re-assess adequacy of material or insist on detailed reasoning; no requirement to await charge-sheet before granting sanction. (Paras 1-3, 6-8, 12-15, 17) Writ Dismissed - No infirmity in sanction; writ petition dismissed with direction to Investigating Officer to file police report under Section 173(2) CrPC within one month; compliance directions issued to Chief Secretary and S.P., CBCID. (Paras 17-20) Case Law discussed: 1. State of Maharashtra through CBI v. Mahesh G. Jain, (2013) 8 SCC 119 2. CBI v. Ashok Kumar Aggarwal, AIR 2014 SC 827 (Delivered by Hon'ble Ramesh Sinha, J.) 1. The present writ petition has been filed for quashing of the impugned order dated 2nd March, 2016 passed by the State Government. A mandamus is also sought for restraining the respondents from prosecuting the petitioner in pursuance of the alleged investigation carried out by the CBCID.