# C/M S.N. Sen Balika Vidyalaya Post Graduate College, The Mall, Kanpur Nagar & Anr v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-18
- **Case number:** Writ C No. 23497 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-s-n-sen-balika-vidyalaya-post-graduate-college-the-mall-kanpur-nagar-anr-v-49017
- **Pages:** 7

## Headnote

A. UP St.Universities Act, 1973 - Sections
57 & 58 - UP Higher Education Services
Commission Act, 1980 - Section15(2) -
Committee of Management dispute -
Appointment of authorized controller by
the St.Government - Allegation of failure
in appointing the respondent as principal
even
after
recommendation
of
Commission
-
Power
to
assess
the
qualification, how far lie in the committee
- Held, it is not in the domain of the
Committee of Management to assess the
eligibility and qualification of the selected
candidate and such power vests only with
the Commission - The St. Government,
while exercising the powers u/s 58 of the
Act
of
1973
to
appoint
authorized
controller,
has
complied
with
the
requirements
of
the
provisions
-
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Impugned order appointing authorized
controller does not suffers from the vice of
procedural impropriety and has not been
passed in violation of the principles of
natural justice. (Para 11)
B. Interpretation of statute - Principle of
'Delegatus non potest delegare' - Meaning
- One to whom a power is delegated
cannot
himself
further
delegate
that
power. (Para 12)
Writ petition allowed. (E-1)

## Text

9 All. C/M S.N. Sen Balika Vidyalaya Post Graduate College, The Mall, Kanpur Nagar & Anr.
 Vs. State of U.P. & Ors.
323
compensation, cannot claim that the
acquisition proceedings had lapsed under
Section 24(2) of the 2013 Act.

366.6. The proviso to Section
24(2) of the 2013 Act is to be treated as
part of Section 24(2), not part of Section
24(1)(b).

366.7. The mode of taking
possession under the 1894 Act and as
contemplated under Section 24(2) is by
drawing of inquest report/memorandum.
Once award has been passed on taking
possession under Section 16 of the 1894
Act, the land vests in State there is no
divesting provided under Section 24(2) of
the 2013 Act, as once possession has been
taken there is no lapse under Section 24(2).

366.8. The provisions of Section
24(2) providing for a deemed lapse of
proceedings
are
applicable
in
case
authorities have failed due to their inaction
to take possession and pay compensation
for five years or more before the 2013 Act
came into force, in a proceeding for land
acquisition pending with the authority
concerned as on 1-1-2014. The period of
subsistence of interim orders passed by
court has to be excluded in the computation
of five years.

366.9. Section 24(2) of the 2013
Act does not give rise to new cause of
action to question the legality of concluded
proceedings of land acquisition. Section 24
applies to a proceeding pending on the date
of enforcement of the 2013 Act i.e. 1-12014. It does not revive stale and timebarred claims and does not reopen
concluded
proceedings
nor
allow
landowners to question the legality of mode
of taking possession to reopen proceedings
or mode of deposit of compensation in the
treasury instead of court to invalidate
acquisition.

 (emphasis by Court)

23. In view of what has been said
above, no good ground made out to
interfere with the order impugned.

24. This petition fails and is
dismissed.
----------
(2022) 9 ILRA 323
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 23497 of 2022

C/M S.N. Sen Balika Vidyalaya Post
Graduate College, The Mall, Kanpur Nagar
& Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi, Sri G.K. Singh (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Sarvesh Kumar

A. UP St.Universities Act, 1973 - Sections
57 & 58 - UP Higher Education Services
Commission Act, 1980 - Section15(2) -
Committee of Management dispute -
Appointment of authorized controller by
the St.Government - Allegation of failure
in appointing the respondent as principal
even
after
recommendation
of
Commission
-
Power
to
assess
the
qualification, how far lie in the committee
- Held, it is not in the domain of the
Committee of Management to assess the
eligibility and qualification of the selected
candidate and such power vests only with
the Commission - The St. Government,
while exercising the powers u/s 58 of the
Act
of
1973
to
appoint
authorized
controller,
has
complied
with
the
requirements
of
the
provisions
-
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Impugned order appointing authorized
controller does not suffers from the vice of
procedural impropriety and has not been
passed in violation of the principles of
natural justice. (Para 11)
B. Interpretation of statute - Principle of
'Delegatus non potest delegare' - Meaning
- One to whom a power is delegated
cannot
himself
further
delegate
that
power. (Para 12)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri G.K. Singh, learned
Senior Advocate assisted by Sri Prabhakar
Awasthi, learned counsel for the petitioners,
Sri Sarvesh Kumar, learned counsel for the
caveator/respondent No.5 and the learned
Standing Counsel representing the Staterespondents.

2. The instant writ petition has been filed
assailing the order dated 29.7.2022 (Annexure17 to the writ petition) passed by the State
Government, Higher Education Department,
whereby exercising powers under Section 58 of
the U.P. State Universities Act, 1973 the
petitioners' - Committee of Management has
been superceded and the District Magistrate,
Kanpur Nagar has been appointed as the
Authorised Controller for a period of next one
year or till further orders whichever occurs
earlier. A challenge to the consequential order
dated 30.7.2022 passed by the District
Magistrate,
Kanpur
Nagar
/ Authorised
Controller/respondent No.3 whereby he has
proceeded to delegate his authority to discharge
his duties as Authorised Controller in favour of
the Sub-Divisional Magistrate, Sadar Kanpur
Nagar has also been laid.

3. The facts shorn of unnecessary
details
giving
rise
to
the
present
proceedings are that the petitioner -
Committee of Management through its
Manager,
petitioner
No.2,
has
been
managing the affairs of a Degree College,
established in the year 1953 in the name
and style of "S.N. Sen Balika Vidyalaya
Post Graduate College at District Kanpur
Nagar" affiliated with Chhatrapati Shahu Ji
Maharaj University. The respondent No.5,
Dr. Suman, was recommended vide order
dated 22.10.2021 of the Director of
Education (Higher) for appointment as
Principal which was lying vacant in the
institution and was required to be filled up
by way of regular appointment. On the
strength of the recommendation dated
22.10.2021 the Regional Higher Education
Officer wrote to the petitioner Committee
of Management on 2.11.2021 to ensure the
joining of the respondent No.5. A formal
request was also made by the respondent
No.5 by way of communication dated
8.11.2021. The petitioner Committee of
Management
began
processing
the
appointment of the respondent No.5 and
prior to issuance of the appointment letter
sought to verify the testimonials of the
respondent No.5 for Chaudhary Charan
Singh
University,
Meerut
and
other
universities from where the respondent
No.5 had obtained her qualifications.
During the course of such verification by
the
petitioners,
the
Regional
Higher
Education Officer as also the Director of
Higher Education wrote to the petitioner
Committee of Management vide letters
dated
27.11.2021
and
1.12.2021,
respectively, to ensure the joining of the
respondent No.5. During the course of the
verification of the testimonials of the
respondent No.5, it was revealed that not a
single student had done his PhD under the
guidance of the respondent No.5. As per the
qualification prescribed under the UGC
Regulations an incumbent who seeks
9 All. C/M S.N. Sen Balika Vidyalaya Post Graduate College, The Mall, Kanpur Nagar & Anr.
 Vs. State of U.P. & Ors.
325
appointment on the post of Principal in a
Post Graduate College has to have essential
qualification
of
research
guidance
experience. The petitioners required the
respondent No.5 to clarify her position in
that regard. When no clarification was
received from the respondent No.5, the
petitioners vide letter dated 12.3.2022
requested the respondent Authorities to
clarify whether the respondent No.5 stood
qualified to be appointed as Principal of the
Institution.
Instead
of
clarifying
the
position, the State Government exercising
powers under Section 57 of the U.P. State
Universities Act, 1973, issued notices dated
20.5.2022 to it purporting to be under
Section 57(ii) of the Act, 1973. The notice
was duly replied by the petitioner by
submitting its reply dated 6.6.2022. The
State Government without considering the
reply of the petitioner proceeded to pass the
impugned order dated 29.7.2022 and
consequent
thereto
the
Authorised
Controller proceeded to pass the order
dated 30.7.2022.

4. Sri G.K. Singh, learned Senior
Counsel appearing on behalf of the
petitioners submits that the impugned order
dated 29.7.2022, passed by the State
Government appointing the Authorised
Controller,
superceding
the
petitioner
Committee of Management, is patently
illegal and is liable to be quashed on the
grounds that:-

(i) the order dated 29.7.2022
suffers from the vice of procedural
impropriety;

(ii) the order has been passed in
utter violation of the principles of natural
justice;

(iii) the very basis of passing the
order
dated
29.7.2022
having
been
extinguished
on
the
joining
of
the
respondent
No.5
on
2.8.2022
the
continuance of the order is unwarranted.

5. As regards the consequential order
dated 30.7.2022 passed by the District
magistrate Kanpur Nagar / Authorised
Controller appointing the Sub-Divisional
Officer, Sadar Kanpur Nagar to discharge
duties as Authorised Controller, learned
counsel submits that the said order also
cannot be sustained on the principle of that
delegated
power
cannot
be
further
deligated.

6. Elaborating his arguments further,
learned Senior Counsel for the petitioners
contends that the Institution in question is a
Degree
College
and
as
such
the
appointment of the respondent No.5 as
Principal of the Institution is to be
governed by the provisions of the U.P.
Higher Education Services Commission
Act, 1980. He has drawn the attention of
the Court to Section 15 of the Act which
reads as under:-

"15. Inquiry by Director. - (1)
Where any person is entitled to be
appointed as a teacher in any college in
accordance with Sections 12 to 14, but he is
not so appointed by the management within
the time provided therefor, he may apply to
the Director for a direction under subsection (2).

(2) On receipt of an application
under sub-section (1), the Director may
hold an inquiry, and if he is satisfied that
the management has failed to appoint the
applicant as a teacher in contravention of
the provisions of this Act, he may by order,
require -

(a) the management to appoint
the applicant as a teacher, and to pay him
salary from the date specified in the order;
and
326 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) the Principal of the College
concerned to take work from him as a
teacher.

(3) The amount of salary, if any,
due to such teacher shall, on a certificate
issued by the Director, be recoverable by
the Collector as arrears of land revenue."

7. Learned Senior Counsel has also
invited the attention of the Court to
Sections 57 and 58 of the U.P. State
Universities Act, 1973 which are being
quoted hereunder:-

"57.
Power
of
the
State
Government to issue notice.- If the State
Government receives information in respect
of any affiliated or associated college
(other
than
a
college
maintained
exclusively by the State Government or a
local authority) -

(i) that its management has
persistently committed wilful default in
paying the salary of the teachers or other
employees of the college by the twentieth
day of the month next following the month
in respect of which or any part of which it
is payable; or

(ii) that its management has
failed to appoint teaching staff possessing
such qualifications as are necessary for the
purpose of ensuring the maintenance of
academic standards in relation to the
college or has appointed or retained in
service any teacher in contravention of the
Statute or Ordinances [or has failed to
comply with the orders of the Director of
Education (Higher Education) made on the
basis of the recommendation of the Uttar
Pradesh
Higher
Education
Service
Commission under the Uttar Pradesh
Higher Education Services Commission
Act, 1980,] or

(iii) that any dispute with respect
to the right claimed by different person to
be lawful office-bearers of its Management
has affected the smooth and orderly
administration of the college; or

(iv) that its management has
persistently failed to provide the college
with
such
adequate
and
proper
accommodation,
library,
furniture,
stationery, laboratory, equipment and other
facilities, as are necessary for efficient
administration of the college; or

(v) that its Management has
substantially
diverted,
misapplied
or
misappropriated the property of the college
to the detriment of the college;

it may call upon the Management
to show cause why an order under Section
58 should not be made :

Provided that where it is in
dispute as to who are the office-bearers of
the Management, such notice shall be
issued to all persons claiming to be so.

58. Authorised Controller.- (1) If
the State Government after considering the
explanation, if any, submitted by the
Management under Section 57 is satisfied
that any ground mentioned in that section
exists, it may, by order, authorise any
person (hereinafter referred to as the
Authorised Controller) to take over, for
such period not exceeding two years as
may be specified, the Management of the
college and its property to the exclusion of
the
Management
and
whenever
the
Authorised Controller so takes over the
Management, he shall, subject only to such
restrictions as State Government may
impose, have in relation to the Management
of the college and its property all such
powers and authority as the Management
would have if the college and its property
were not taken over under this sub-section :

Provided
that
if
the
State
Government is of opinion that it is
expedient so to do in order to continue to
secure the proper Management of the
9 All. C/M S.N. Sen Balika Vidyalaya Post Graduate College, The Mall, Kanpur Nagar & Anr.
 Vs. State of U.P. & Ors.
327
colleges and its property, it may, from time
to time, extend the operation of the order
for such period, not exceeding one year at
a time, as it may specify, so however, that
the total period of operation of the order,
including the period specified in the initial
order under this sub-section does not
exceed[five years]:

[Provided further that if at the
expiration of the said period of five years,
there
is
no
lawfully
constituted
Management of the college the Authorised
Controller shall continue to function as
such, until the State Government is satisfied
that the Management has been lawfully
constituted :

Provided also that the State
Government may, at any time, revoke an
order made under this sub-section.]

(2) Where the State Government
while issuing a notice under Section 57 is
of opinion, for reasons to be recorded, that
immediate action is necessary in the
interest of the college, it may suspend the
Management, which shall thereupon cease
to function, and make such arrangement as
it thinks proper for managing the affairs of
the college and its property till further
proceeding are completed :

Provided that no such order shall
remain in force for more than six months
from the date of actual taking over the
Management in pursuance of such order :

Provided
further
that
in
computation of the said period of six
months,
the
time
during which
the
operation of the order was suspended by
any order of the High Court passed in
exercise of jurisdiction under Article 226 of
the Constitution or any period during
which the Management failed to show
cause in pursuance of the notice under
Section 57, shall be excluded.

(3) Nothing in sub-section (1),
shall be construed to confer on the
Authorised Controller the power to transfer
any immovable property belonging to
college (except by way of letting from moth
to month in the ordinary course of
Management or to create any charge
thereon) except as a condition of receipt of
any grant-in-aid of the college from the
State Government or the Government of
India.

(4) Any order made under this
section shall have effect notwithstanding
anything inconsistent therewith contained
in any other enactment or in any instrument
relating to the Management and control of
the college or its property :

Provided that the property of the
college and any income therefrom shall
continue to be applied for the purposes of
the college as provided in any such
instrument.

(5) The Director of Education
(Higher Education) may give to the
Authorised Controller such directions as he
may deem necessary for the proper
management of the college or its property,
and the Authorised Controller shall carry
out those direction."

8. Placing reliance upon the above
mentioned sections, learned Senior Counsel
submits that there is no dispute that if the
Committee of Management of an institution
does not give appointment to the selected
candidate action can be taken against the
Management under Section 15(2) of the
U.P.
Higher
Education
Services
Commission Act, 1980 as well as Sections
57 and 58 of the U.P. State Universities
Act, 1973 but such action can be taken only
after following the procedure prescribed.
Section
15(2)
of
the
Act,
1973
contemplates that the Director is required
to hold an enquiry and record a satisfaction
that the Management has failed to appoint
the teacher in contravention of the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of the Act. In the case at hand no
such enquiry has been undertaken by the
Director of Higher Education nor any
satisfaction has been recorded that the
petitioner Committee of Management has
failed to appoint the respondent No.5.

9. Learned Senior Counsel further
submits that the State Government has also
been given the powers under Section 58 of
the U.P. State Universities Act, 1973 to
supercede the Committee of Management
and appoint an Authorised Controller but
such power also can be exercised only after
considering the reply/explanation submitted
by the Committee of Management pursuant
to issue of notice under Section 57 of the
Act. In the case at hand the State
Government issued notice under Section 57
of the Act and pursuant thereto the
petitioners submitted their reply dated
6.6.2022. However, the State Government
without adverting to the reply of the
petitioner and recording its satisfaction as
to whether the same was satisfactory or not,
proceeded
to
pass
the
order
dated
29.7.2022 under Section 58 of the Act.

10. Learned Standing Counsel and Sri
Sarvesh Kumar, learned counsel for the
caveator/respondent No.5 have been unable
to refute the legal submission made by Sri
G.K. Singh, learned Senior Counsel. Sri
Sarvesh
Kumar,
learned
counsel
for
respondent No.5 does not dispute the fact
that Dr. Suman/respondent No.5 has since
joined the institution as Principal on
2.8.2022 and is functioning as such.

11. Having heard the learned counsel
for the parties and having perused the
record, the Court finds that the exercise of
powers by Director under Section 15 of the
U.P.
Higher
Education
Services
Commission Act, 1980 and the power of
the State Government under Section 58 of
the U.P. State Universities Act, 1973
operate in different fields. While Section
15(2) of the 1980 Act empowers the
Director to order the Management of the
Institution to appoint the selected applicant
as Teacher and pay him his salary, order the
Principal of the College concerned to take
work from him as a teacher, the Director
lack power to order for appointment of
Authorised Controller. The said power
vests only with the State Government under
Section 58 of the U.P. State Universities
Act, 1973. The Court finds that the
impugned
order
takes
note
of
the
reply/explanation of the petitioners dated
6.6.2022 and has considered the same in
the light of the report dated 7.7.2022
submitted by the Director of Higher
Education and concluded that it is not in
the
domain
of
the
Committee
of
Management to assess the eligibility and
qualification of the selected candidate and
such
power
vests
only
with
the
Commission. Thus the Court finds that the
State Government while exercising the
powers under Section 58 of the U.P. State
Universities Act, 1973 has complied with
the requirements of the provisions. The
Court
is
not
impressed
with
the
submissions of the learned Senior Counsel
for the petitioners that the order dated
29.7.2022
suffers
from
the
vice
of
procedural impropriety and has been passed
in violation of the principles of natural
justice.

12.
 However
the
Court
finds
substance in the submission of the learned
Senior Counsel that the respondent No.5
having joined the Institution as Principal on
2.8.2022 and is also working as such which
fact is not disputed by the parties, the very
basis of passing the order dated 29.7.2022
stands extinguished and there is no need for
9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
329
the Authorised Controller to continue,
particularly when no other grounds for
ousting the Committee of Management and
for
continuance
of
the
Authorised
Controller have been shown to exist. So far
as the order dated 30.7.2022 passed by the
District Magistrate/Authorised Controller
appointing the Sub Divisional Officer,
Sadar to discharge the duties as Authorised
Controller is concerned the Court is of the
opinion that such an order cannot be
sustained on the principle "Delegatus non
potest delegare", i.e. one to whom a power
is delegated cannot himself further delegate
that power.

13.

In
view
of
the
above,
considering
the
totality
of
the
circumstances the order dated 29.7.2022
passed
by
the
State
Government
exercising powers under Section 58 of the
U.P.
State
Universities
Act,
1973
(Annexure-17 to the writ petition) as also
the order dated 30.7.2022 passed by the
District
Magistrate
/
Authorised
Controller (Annexure-18 to the writ
petition) are set aside.

14. The writ petition is allowed. No
order as to costs.
----------
(2022) 9 ILRA 329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ C No. 28249 of 2021
with other connected cases

Kusum Lata Yadav & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Disaster Management Act, 2005 -
Sections 12 & 38 - Ex-gratia assistance -
COVID Pandemic - Entitlement of family
members of person, who died during
election duty - Cause of death, how far
material - Held, once the admission of
deceased persons was on account of
Covid-19, the resulting cause being heart
failure or dysfunction of any other organ
leading to death is immaterial and would
nevertheless be treated as Covid-19 death
- High Court directed the opposite parties
to release ex-gratia payment within one
month. (Para 29 and 30)
B. Constitution of India - Article 226 -
Writ - Jurisdiction of High Court u/s 12 of
Disaster Management Act, 2005 - Suit
proceeding, where lie - Held, for any claim
that has trammelled in Law through a
government order within the scope of
Section 12 r/w Section 38 of the Act of
2005, the jurisdiction has been vested in
the Supreme Court of India and the High
Courts to entertain a proceeding of suit or
other proceeding, hence all the writ
petitions filed for payment of ex-gratia
amount are maintainable. (Para 25)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Writ Petition (Civil) No. 539 of 2021; Gaurav
Kumar Bansal Vs U.O.I. & ors. decided by
Supreme Court on 04.10. 2021
2. Delhi Development Authority & anr. Vs Joint
Action Committee, Allottee of SFS Flats & ors.;
(2008) 2 SCC 672
3. In Re, Distribution of Essential Supplies &
Services During Pandemic; (2021) 7 SCC 772
4. Dhulabhai etc. Vs St. of M.P. & anr.; AIR
1969 SC 78