Lucknow University Associated Colleges Teachers Association vs District Magistrate, Lucknow and Others

Heard the learned counsel for the petitioner Smt. Nalini Jain, learned counsel for the State Sri Alok Sinha and the learned counsel for the respondent No.2 Sri F.A. Osmany and Sri H.J.S. Parihar.

The petitioner, Lucknow Unviersity Associated Colleges Teachers'' Association (LUACTA) challenges the order passed by U.P. Minority Commission dated 6th November 2008 and also the order passed by the District Magistrate dated 7th November 2008. The Minority Commission on 6th November 2008 issued a direction to the District Magistrate that the election scheduled to be held on 8th November 2008 be stayed and not allowed to be held and that thereafter free and fair election be ensured. The District Magistrate on his turn in compliance of the directive issued by the Minority Commisison has issued an order to the Returning Officer Dr. A.P. Singh directing that election scheduled to be held on 8th November 2008 be postponed and thereafter free and fair election should be held.

Lucknow University Associated Colleges Teachers'' Association is a registered Society under the provisions of the Societies Registration Act with the primordial object of promoting better service conditions for teachers and striving for the betterment of the working conditions of the Associated Colleges and their staff. The Constitution (Memorandum of Understanding) of the Association prescribed procedure for holding elections of the office bearers of the Association which gives the manner in which the election is to be held i.e. the date time and venue of the election. The date, time and venue is to be decided by the Executive Committee.

On 11.8.2008 it was resolved in the meeting of the executive Committee of LUACTA for holding election on 8th November 2008 in which one Dr. A.P. Singh, Reader of the University was proposed as a Returning Officer and in accordance with the resolution of LUACTA, dated 11th August 2008, a Notification dated 3rd October 2008 was issued for holding the election.

In the aforesaid Notification the entire programme of the election was detailed and the entire procedure for preparing the voter list was also provided. It was prescribed therein that the voter list shall be published on 2.11.2008. The objections may be filed thereafter within time and then it shall be finalized by the time given therein. Final voter list was to be published on 3.11.2008. The date of nomination was fixed as 4.11.2008.

It remains undisputed that the election process started as per the election Notification issued and according to the petitioner on 4.11.2008, 22 teachers filed their nominations out of which 7 teachers belonged to minority community. The petitioner''s further case is that on 5.11.2008 i.e. the date fixded for withdrawal of the nomination papers, four teachers opted out of the race and on the same day itself 7 representatives and 2 Joint Secretaries were elected upopposed, of which 3 belonged to the minority community.

It is at this juncture that the respondent No.3 Dr. Rockey John moved an application/complaint before Minority Commission on 5.11.2008 in pursuance of which the impugned order was passed by the Minority Commission on 6th November 2008 and the District Magistrate in compliance there of passed the order on 7th November 2008, staying the election.

Apart from the plea of the petitioner that the alleged complaint raised by respondent No.3 in regard to his name not being included in the voter list, could not be a subject matter of consideration by the Minority Commisison, as it does not effect the rights of respondent No.3 as a member belonging to the minority committee, it has been strongly urged that Minority Commission does not have any such jurisdiction to entertain such grievance in the matter of election and to issue a directive for postponement or stay of the election which is perse without jurisdiction. The plea raised, requires to be considered first.

Learned counsel for the respondent No.3 has not been able to indicate that whether the Executive Committee constituted under the election of Lucknow University Associated Colleges Teachers'' Association has to be represented by any number or specified members of the Minority Committee or the election is to be held by reserving some seats for the minority community. There is no such classification amongst the members constituting LUACTA as members belonging to minority committee or in other words there is no reservation for minority community.

Even otherwise, the name of the respondent No.3 was not included in the voter list, it can not be said that the rights of the respondent No.3 as a member of minority community have been adversely affected.

The respondent, thus, cannot claim shelter before the Minority Commisison, unless of course, it is established that there is some deprivation of his right as a person belonging to minority.

The elections of Lucknow University Associated Colleges Teachers'' Association are not to be held by giving representation to the minority community separately and therefore, the complaint itself before the Minority Commission is misconceived. Besides the aforesaid fact, the Commission, even if, had jurisdiction to entertain the complaint did not and does not have any power to issue any directive or to pass any final order to the District Magistrate or to the LUACTA or to the Returning Officer for postponing the elections or for getting the elections held thereafter.

Learned counsel for the respondents have made an unsuccessful effort to impress upon us to read the provision of Minority Commission Act, 1994 that it has the power to issue direction and to pass orders like impugned orders and for which they relied upon Section 9(1)(d) and subclause (3) of Section 9 of the Act.

Chapter III of the Act prescribes the function of the Commission which reads as under:

�9. (1) The Commission shall perform all or any of the following functions, namely:

(a) evaluate the progress of the development of minorities in Uttar Pradesh;

(b) monitor the working of the safeguards in respect of minorities provided in the constitution and in laws enacted by the State Legsilature;

(c) make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Government;

(d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;

(e) cause studies to be undertaken not problems arising out of any discrimination against minorities and recommend measure for heir removal;

(f) conduct studies, research and analysis on the issues relating to socioeconomic and educational development of minorities;

(g) suggest appropriate measures in respect of any minority to be undertaken by the Government;

(h) make periodical or special reports to the Government on any matter pertaining to minorities and in particular difficulties confronted by them; and,

(i) any other matter which may be referred to it by the Govenrment.

(2) The Government shall cause the recommendations referred to in clause (c) of subsection (1) to be laid before each house of State Legislature alongwith a memorandum explaining the action taken or proposed to be taken on the recommendations and the reasons for the nonacceptance, if any, of any of such recommendations.

(3) The Commission shall, while performing any of the functions mentioned in clauses (a) (b) and (d) of sub section (1), have all the powers of a Civil Court trying a suit and in particular, in respect of the following matures, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Court or office;

(e) issuing commissions or the examination of witnesses and documents; and,

(f) any other matter which may be prescribed�.

Section 9(3) which is being heavily relied upon by the respondents is a provision which gives power to the Commisison to exercise those powers which are exercised by a Civil Court while performing any of the functions mentioned in clause a, b and d of sub section (3) of Section 9 i.e. the Commission can exercise any of the powers given under sub sections (a) to (e) under sub section (3) of Section 9. The aforesaid power of the commission is for the purpose of performance of his duty so that the persons who are supposed to appear as witness can be compelled to appear, if they do not appear themselves and likewise the documents can be required to be produced and the evidence can be taken on affidavit. The functions described therein do not make the Commisison a Civil Court or Tribunal for a purpose so as to pass an adjudicatory order and decide the dispute and in particular it does not give any power to issue any specific direction to any authority or body to act or not to act in a particular manner.

A Division Bench, in a writ Petition No.6420 (M/B) of 2003 in re: Managing Director, U.P. State Bridge Corporation Limited v. The State Minorities Commission U.P. and others, in which one of us (Pradeep Kant, J.) was a member had an occasion to consider the power of the Minority Commisison and to consider the scope of Section 9(3) of the Act.

The Division Bench found that �The Commisison being a creation of statute has the power to exercise jurisdiction and authority over the matters specified under the Act or as may be referred to it by the State Government. Section 3(1) admits no ambiguity in finding out the functions of the Commission, which says that the Commission shall exercise such powers which may be conferred on and to perform such functions which are assigned to it under this Act, namely the Commission Act. A perusal of Section 9, sub clause (a) to (i) would reveal that the Commission has not been bestowed or conferred with any such power for issuing a direction to make promotion of a particular person. Without entering into the details of the functions which have been prescribed under the Act, the controversy in the present case would only revolve around the question whether the Commisison could have issued any direction for promoting the respondent (Smt. Mehtab Jehan) to the next higher post of Section Officer and that too by completely ignoring the case of other similarly situated employees, who are senior to the said incumbent�.

It was further observed that �Subsection (2) of Section 9 again makes it very explicitly that the Commission is only a recommendatory body and it has power to recommend on matters enumerated in subsection (1) clauses (a) to (f) and that the recommendation so made with respect to clause (c) of subsection (1) have to be laid before each House of the State Legislature alongwith a memorandum explaining the action taken. The Commission though has been given powers while performing its functions mentioned in clauses (a) (b) and (d) of sub section (1) of a Civil Court trying a suit and in particular, in respect of the matters enumerated in clauses (a) to (f) of sub section (3) of Section 9, but conferment of these powers do not constitute the Commisison either a tribunal or the adjudicating authority or the Court. The aforesaid powers have been given only to arrive at a conclusion in case a complaint is received or where a matter is to be considered as per provisions of the Commission regarding the deprivation of the rights and safeguarding the interest of a person belonging to minority community but this exercise of power which is done by the Commission cannot be equated nor it can be treated to be a substitute of judicial authority or the tribunal. The recommendations made by the Commisison have to be accepted or rejected by the State Government or the employer, as the case may be, for any valid reason�.

Nothing has been brought on record in the argument of the learned counsel for the respondents so as to take a different view in the present case. The Commission is a recommendatory body and could not have issued the direction as contained in the impugned order. The Commission could not have passed an order which has the effect of postponing the election in which certain members have already been elected unopposed. Interference in the election was, thus, no justified.

We are, therefore, of the considered opinion that the Commisison did not have jurisdiction to pass the impugned order and it did not have any authority to pass the same. The impugned order is, thus, liable to be quashed, which is hereby quashed.

Though on merit Smt. Nalini Jain has submitted that in fact Rockey John respondent No.3 since did not deposit his subscription, therefore, his name did not find in the voter list, but we do not enter into the said controversy nor do entertain the said plea at this stage, as such a dispute cannot be decided in the instant writ petition.

The writ petition is allowed. The impugned orders dated 6.11.2008 and 7.11.2008 are hereby quashed. We further direct that the election process be resumed from the stage from where it has been disrupted. The election shall be held forthwith without any further delay. If the respondent No.3 or any other person feels aggrieved by the election, such persons are free to challenge the said election, after the elections are over in accordance with law, before the appropriate forum.

(Petition allowed)