# The C/M, S.R.J. Intermediate College & another v. The D.E. and others

- **Citation:** (2001) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-c-m-s-r-j-intermediate-college-another-v-the-d-e-and-others-39591
- **Pages:** 7

## Text

1All] The C/M, S.R.J. Intermediate College & another V. The D.E. and others 179
Respondent from proceeding further
with the proceedings, rather the only
prayer which they made was to fix
instalments so that they could clear off the
dues sought to be recovered which was
allowed on certain terms and conditions.
It appears from the submissions made at
the Bar that the petitioners failed to
comply with the terms and conditions
imposed by this Court.

5. Apparently, the prayers made by
the petitioners in this writ petition, which
were also made in the earlier writ petition,
were not granted. Thus, this writ petition
for the same relief's, which is second one,
in the absence of grant of leave to the
petitioners to sue afresh is barred by the
principle of res judicata/constructive res
judicata in view of the ratio decidentdi
laid down by the Hon'ble Supreme Court
in Sarguja Transport Service v. State
Transport Appellate Tribunal, Gwalior
and others AIR 1987 Supreme Court 88
besides on the grounds of estoppel,
vaiver, acquiescence and abandonment
and thus, this writ petition is dismissed,
but without cost.

6. When we pointed out the
aforementioned legal position Sri Hajela,
learned counsel for the petitioners, very
fairly accepted it and thus we do not
impose cost on the petitioners.

Petition Dismissed.

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By the Court

1. The dispute relates about the
continuance
and
functioning
of
Sri
Dharam Raj Chaudhary - Respondent No.
5 as the Principal of Sri Ram Janki
Intermediate
College,
Girdharpur,
Kungai,
Siddharthanagar.
The
facts
leading to the present Writ Petition are as
follows:

2. There is an institution known as
Sri Ram Janki Intermediate College,
Girdharpur,
Kungai,
Siddharthanagar
which has been upgraded from time to
time and now has acquired the status of an
Intermediate College. Sri Dharma Raj
Chaudhary - Respondent No. 5 was
admittedly appointed as the Principal of
the College. On account of certain
allegations of squandering of the huge
amount of the College and Commission of
various other irregularities, he was placed
under suspension by the Committee of
Management by order dated 10.1.1981.
After due enquiry, he was dismissed from
service on 1.9.1981.The relevant papers
were sent for approval to the Basic Siksha
Adhikari who refused to accord necessary
approval as required by Law by Order
dated
1.6.1982.
The
Committee
of
Management preferred an Appeal before
the Basic Siksha Parishad. The said
Appeal was Allowed by Order dated
3.1.1983 and the Order passed by the
Basic Siksha Adhikari to refuse the
approval to the Order of dismissal of the
respondent No. 5 was set aside. Sri
Dharma Raj Chaudhary challenged the
Order passed by the Basic Siksha
Parishad by instituting Civil Misc. Writ
No. 727 of 1982 Which was dismissed at
the initial Stage by this Court on
21.1.1983. Thereafter Sri Dharam Raj
Chaudhary filed a Civil Suit No. 19 of
1983 in the Court of Munsif Bansi,
District Siddharthanagar to challenge the
Order passed by the Basic Siksha
Parishad. With the filing of the suit, he
also moved an Application (12-C) for
temporary injunction for a direction to
restrain the defendants not to interfere
with his functioning as the Principal of
the
College.
An
exparte
Order
of
injunction was granted which was later on
confirmed on 30.5.1983. The Committee
of Management was not a party to the suit
and, therefore, the present petitioner No.
2- Ram Kishore Das Bhikari, Chela Baba
Mangal Das moved an application for
impleadment which was rejected by the
trial Court by Order dated 30.5.1983. The
Petitioner No. 2 filed a Civil revision No.
181 of 1983 to challenge the Order of the
trial Court where by the application for
impleadment was rejected, A misc. Civil
Appeal No. 207 of 1983 was also
preferred against the Order of injunction
Both the revision application and the
Misc. Civil Appeal were allowed by two
separate Orders dared 3.9.1984. The
Petitioner No. 2 was directed to be
impleaded as party to the suit The Appeal
1All] The C/M, S.R.J. Intermediate College & another V. The D.E. and others 181
with regard to the Order of injunction was
allowed and the Order of injunction
granted by the trial Court was set aside. It
was directed that the application for
temporary injunction shall be decided
afresh after giving an opportunity of
hearing to both the parties. Sri Dharam
Raj Chaudhary. Preferred a Civil Misc.
Writ No. 14148 of 1984 against the said
Orders. The said Writ Petition was
dismissed on 9.9.1996 by observing :

"An application has been filed by the
Petitioner supported by his affidavit to
dismiss the Petition as not pressed. It is
alleged that the Petitioner has received the
desired relief and as such he does not
want to further adjudicate the matter.
Copy of this application was served on
the learned Counsel for the respondents.
There is no opposition. The application is
allowed. The Writ Petition is dismissed as
not pressed.
9.9.1996

Sd/-S.C. Varma, J"

Undeterred by the various Orders Passed
in the Civil suit and the Writ Petition the
respondent No. 5- Dharam Raj Chaudhary
continued to function as Principal of the
College which had in the meantime come
to be upgraded. The Committee of
Management of the College its president
Sri Sant Ram Chaudhary and Ram
Kishore Das Bhikari claiming himself be
a life member of the society and
interested in the welfare of the institution
run by the society, filed the present Writ
petition
under
Article
226
of
the
Constitution of India with the prayer that
the
defendant-
respondent
No.5
be
prevented from acting and functioning as
the Principal of the College and that the
proceeding in suit No. 19 of 1983 Now
pending in the Court of Civil JUDGE
(Junior Division) Siddharthanagar be
quashed. It was also prayed that the
respondent Nos.1 to 4 be directed to make
an enquiry into the alleged continuance of
respondent No. 5 as Principal of the
College after 3.1.1983 and to recover the
amount paid to him as salary.

3. A number of counter, rejoinder
and Supplementary affidavits have been
exchanged. This Writ Petition was taken
up for hearing on 28.1.1999 on which
date Sri Rakesh Kumar appearing of and
on
behalf
of
the
Committee
of
Management of the institution. Moved an
application that the petition be dismissed
as not pressed as the newly constituted
Committee does not want to prosecute the
Writ
Petition.
Accordingly
on
the
statement
of
Sri
Rakesh
Kumar,
Advocate, who was engaged by the
Committee
of
Management
of
the
institution concerned, the Writ Petition
was dismissed on 28.1.1999. Thereafter
Sri A.K. Gupta. Who had earlier filed the
Writ Petition, moved an application with
the prayer that the Order of dismissal of
the Writ Petition passed on 28.1.1999 be
recalled and the Writ Petition be heard on
merits. After hearing Sri Rakesh Kumar
along with Sri S.K. Lal, Counsel for the
newly
constituted
Committee
of
Management, the Order dated 28.1.1999
was recalled on 15.3.1999 for determining
the
question
of
maintainability
or
otherwise of the present Writ Petition in
the light of the subsequent events. This is
how the present Writ Petition has again
come before this Court for hearing

4. Heard S/ Sri R.S. Misra, A.K.
Gupta,
learned
Counsel
for
the
petitioners, S/Sri Rakesh Kumar and S.K.
Lal for the alleged newly constituted
Committee of Management, Dr. R.G.
Padia appearing on behalf of Sri Dharam
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
182
Raj
Chaudhary,
respondent
No.
5-
Principal of the College, as well as
learned Standing Counsel on behalf of the
other Respondents, at length.

5. There is no doubt about the fact
that the present writ Petition has been
filed by the Committee of Management of
the
College
concerned
through
its
erstwhile
president
Sri
Sand
Ram
Chaudhary and a life member of the
society.
A
new
Committee
of
Management
has
come
into
being
consequent upon the elections held on
25.6.1997
under
the
control
and
supervision
of
District Inspector of
Schools (for short called 'the DIOS').
S/Sri Jagram and Ram Ajorey Chaudhary
were
elected
as
the
president
and
Secretary
respectively
of
the newly
constituted Committee of Management.
The signatures of Sri Ram Ajorey
Chaudhary were attested by the DIOS.
The resolution to withdraw the present
Writ Petition was adopted by the newly
elected Committee of Management on
13.7.1997, a copy of which is Annexure 3
to the application No. 45185 of 1997
moved for the withdrawal of the present
Writ Petition and a copy of which was
served on Sri Anand Kumar Gupta
Advocate for the old Committee of
Management. This application remained
pending for a considerable long time
without any objection. On the strength of
the statement made by Sri Rakesh Kumar,
Counsel for the new Committee of
Management, the Petition was dismissed
On 28.1.1999.

6. S/Sri R.S. Misra and A.K. Gupta
urged that there is no Committee of
Management in existence and the function
of the Committee of Management being
discharged by the DIOS; that the election
which is alleged to have taken placed on
25.6.1007 is the subject matter of
challenge in Civil Misc. Writ Nos. 20194
of 1997 and 26563 of 1997 in which the
Order dated 26.6.1997 attesting the
signatures of Sri Ram Ajorey Chaudhary
by the DIOS has been stayed. Against the
said Order, Special Appeal No. 920 of
1998 has been filed. It is still pending.
Pursuant to the Orders of this Court, the
DIOS has recorded the finding on
17.8.1998 that the election held on
25.6.1997 was in Order. The said Order of
the DIOS has again been challenged in
Civil Misc. Writ No. 32506 of 1998 in
which a stay Order has been passed on
27.3.1999. Sri Ram Ajorey Chaudhary
claiming himself to be the duly elected
Manager has filed Special Appeal Nos.
255 and 256 of 1999. The present position
as it stands is that the institution is under
the Management and Control of the DIOS
who is discharging the function of
Committee of Management. It is also not
disputed that the Respondent No. 5- Sri
Dharam
Raj
Chaudhary
is
still
functioning as Principal of the College.

7. It is an indubitable fact that the
Committee of Management of which Sri
Sant Ram Chaudhary was President in the
year 1996 when the Writ Petition was
filed is no more in existence. The earlier
Committee of Management, by lapse of
time, became functus Officio. In its place.
A new Committee of Management has
come into being and as said above, S/Sri
Jag Ram and Ram Ajorey Chaudhary
have been elected as president and
Manager respectively. This Committee of
Management was recognised by the DIOS
and on 13.7.1997, on which date the
resolution to withdraw the present Writ
Petition
was
passed
by
the
new
Committee of Management, there was no
1All] The C/M, S.R.J. Intermediate College & another V. The D.E. and others 183
Writ Petition or stay Order with regard to
the
election
or
functioning
of
the
Committee of Management. On the
strength of resolution, a copy of which is
Annexure 3 to the application for
withdrawal of the present Writ Petition,
the Writ Petition was dismissed as
withdrawn. In any case. Sri Sant Ram
Chaudhary who filed the present Petition,
on
behalf
of
the
Committee
of
Management, has lost his right to
continue the Writ Petition as the earlier
Committee
of
Management
stands
substituted by the newly constituted
Committee of Management. Even if it be
taken
that
the
new
Committee
of
Management cannot function in view of
the stay Order Passed by this Court, this
legal and factual aspect of the matter
cannot be lost sight of that the earlier
Committee of Management represented
by Sri Sant Ram Chaudhary cannot be
revived once it has ceased to exist. It is
either the newly constituted Committee of
Management which is to function in place
of old Committee or the DIOS would
perform the function of the Committee of
Management under the Orders of the
Court and the higher authorities. The
DIOS who is performing the function of
the Committee of Management has not
challenged the right of the Respondent
No. 5 to function and continue as
Principal of the College. Therefore, if the
new Committee of Management has taken
a decision to withdraw the Writ Petition,
the old Committee of Management which
had instituted the Writ Petition can have
no grudge in the matter.

8. Sri R.S. Misra, learned Counsel
for the Petitioners urged that in the
absence
of
the
Committee
of
Management, Sri Ram Kishore Das
Bhikari-Petitioner No.2 has right to
continue the Writ Petition as being the life
member of the society and interested in
the welfare of the institution. It has come
on record that the membership of Ram
Kishore Das Bhikari- Petitioner No. 2 has
been terminated by the general body on
6.7.1986 as has been averred in paragraph
20 of the main Counter affidavit of the
Respondent No. 5 Sri Ram Kishore Das
Bhikari, therefore, has ceased to have any
interest in the matter and, thus, he cannot
by himself continue the Writ Petition.
There is yet another aspect of the matter.
Sri Ram Kishore Das Bhikari in his
individual capacity or even otherwise, has
no
locus
standi
to
challenge
the
appointment of the Respondent No. 5 It is
the Committee of Management, which is
the aggrieved party and if it chooses to
accept the Respondent No. 5 as Principal
of the institution and permits him to
continue as such and function in the said
capacity, the Petitioner No.2 cannot, by
any stretch of imagination, take an
exception the validity of the function
being discharged by the Respondent No. 5
as Principal. On behalf of the new
Committee
of Management and the
Respondent No. 5, a Number of decisions
were cited to lend strength to the point
that the present Writ Petition cannot be
treated as a public interest litigation on
behalf of Sri Ram Kishore Das Bhikari. In
this behalf, reference was made to the
following decisions:

1999 (1) Supreme Court Cases - 492 -
Raunaq
International
Vs.
IV
R.
Construction (Note B)

1998 (2) Supreme Court Cases -449 -
Bhartiya Homeopathy College Vs. Student
Counsel (Note B paras 24 and 25)
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
184
A.I.R.1993 S.C. 1769 - R.K. Jain V.
Union of India (Note F Para 74)

1985 LIC - 337 U.P. Bank Employees
Union V. State of U.P. (Para 25)

1999 ACJ - 682 Mohd. Idris Vs. State of
U.P.

My Considered view of the matter is that
independent
of
the
Committee
of
Management, Ram Kishore Das Bhikari
has no right to challenge the Continuance
of the Respondent No. 5 as the Principal
of the College.

9. In view of the subsequent events,
which
have
taken
place
after
the
institution of the Writ Petition and
particularly the fact that new Committee
of Management has adopted a resolution
to withdraw the Writ Petition, the present
Writ Petition has, of necessity, to be
dismissed as the original Petitioners have
lost their right to pursue the same.

10. A passing reference may be
made to the merits of the case of the
Petitioners. Whether the Respondent No.
5 has to function or continue as the
Principal of the College is a question,
which is now to be determined and
decided by the Civil Court where suit No.
19 of 1983 is pending in which the Order
of the Basic Siksha Parishad has been
challenged. The controversial facts, which
are the subject matter of scrutiny before
the Civil Court can appropriately be
decided after evidence. In the Writ
Jurisdiction the scrutiny of facts is not
possible. The Order to dismiss the
Respondent No. 5 was passed way back in
the year 1981, i.e., two decades ago. This
Order could not be implemented on
Account of refusal of the Basic Siksha
Adhikari
to
Accord
the
necessary
approval. An Order of dismissal Passed
by the Committee of Management cannot
be translated into action unless it is
approved by the appropriate statutory
authority. The Basic Siksha Parishad
before which the Order of the Basic
Siksha Adhikari was challenged allowed
the Appeal. It was urged on behalf of the
Petitioners that after the vacation of the
Order of injunction by the appellate Court
in Misc. Appeal No. 207 of 1983, it shall
be deemed that necessary approval has
been
granted
and
consequently,
Respondent No. 5 stood dismissed from
service. Dr. Padia urged that mere passing
of the resolution by the Committee of
Management is not enough. For the grant
of approval by the competent authority,
further steps are required to be taken by
the
Committee
of
Management
to
determine
the
employment
of
an
employee. In support of his contention,
Dr. Padia Placed reliance on a Division
Bench decision of this Court in the case of
A.S.H.P. Association and others Vs.
Deputy Director of Education Agra
Region, Agra - 1977 A.L.J. - 341 in
which the following view was taken:

"It is true that before the Managing
Committee of an Institution applies to the
Inspector
of
Schools
soliciting
his
approval for terminating the service of an
employee, it has to meet and decide that
the service of the employee is to be
terminated by giving him one month's
notice and that such decision of the
Managing Committee is to be expressed
in the form of a resolution. The service of
the employee is not affected by such
resolution.
Mere
approval
by
the
Inspector also does not have the effect of
determining
the
employment
of
the
employee.
The
Committee
of
1All] Smt. Anamika V. State of U.P. and others 185
Management
has
to,
after
its
resolution has been approved, take steps
to determine the employment either by
giving the employee one month's notice
or one month's pay in lieu there of. It is
thus evident that what can be approved by
the Inspector is the proposal made by the
Committee for terminating the service of
the employee and not its action in
determining his employment."

On the strength of the above observation,
it was maintained that no steps were taken
by the committee of Management to
dispense with the services of Respondent
No. 5 after the Appeal was allowed by the
Basic Siksha Parishad and the Order of
injunction had been vacated by the
appellate Court in Misc. Appeal No. 207
of 1983. On the Order hand, it was
pointed out that the Respondent No. 5 has
been allowed to continue and function as
Principal of the College by the Committee
of Management throughout the long
period of about 17 years. Sri R.S. Misra
Pointed out that the Respondent No. 5 has
been
sticking
to
the
office
by
manipulating disputes between the rival
Committee of Management, particularly,
the managers and has taken full advantage
of
such
conflict
of
interest.
This
submission besides being merit-less, does
not to too far. The Respondent No. 5
cannot
be
expected
to
have
such
monstrous capacity as to maneuver office
bearers
of
various
Committees
of
Management
and
the
authorities
concerned with a view to cling to office.
The fact remains that the Respondent No.
5 has been working on the post of
Principal in spite of the Order of dismissal
passed in the year 1981. The said Order
was never given effect to. There are also
documents on record to indicate that Sri
Sant Ram Chaudhary and Sri Ram
Kishore Das Bhikari who have filed the
present Writ Petition in one capacity or
the
Order,
had
themselves
been
responsible to permit the Respondent No.
5 to function and continue as Principal of
the College.

11. In the conspectus of the above
facts, the present Writ Petition is held to
be not maintainable at the instance of Sant
Ram Chaudhary as well as Sri Ram
Kishore Das Bhikari. They have no locus
standi to continue the Writ Petition in
view of the resolution adopted by the new
Committee of Management to withdraw
the Writ Petition.

The Writ Petition is accordingly
dismissed without any Order as to cost
Dated November 11.12.2000.
Petition Dismissed.

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