LPA No. 355 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 355 of 2011 Date of Decision: November 15, 2011 Kartar Singh Sekhon and another …Appellants Versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. A.K. Chopra, Sr. Advocate with Mr. N.D. Kalra, Advocate for the appellant. Mr. Suvir Sehgal, Addl. A.G., Punjab for respondent Nos. 1 to 3. Mr. Vikas Behl, Advocate for respondent Nos. 4 to 6. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against order dated 12.01.2011 rendered by the learned Single Judge by issuing directions to the District Education Officer (Secondary), Jalandhar to take over the management and control of the J.S.F.H. Senior Secondary School, Atta, Tehsil Phillapur (Jalandhar) (for brevity 'Khalsa School'). 2. Brief facts may be necessary for disposal of the controversy. The Khalsa School admittedly is a Government Aided Privately Management School. It receives 95% grant-in-aid from the State of Punjab and was established by a Society known as Sikh Educational LPA No. 355 of 2011 -2- Board, Nawanshahr Doaba (for brevity 'the Board'). There was dispute between two rival groups concerning the management of the affairs of the society. The one group is represented by writ petitioner- respondents No. 5 and 6 and the other by appellant Nos. 1 and 2. When the matter was decided by the learned Single Judge on 12.01.2011, the Civil Court was yet to decide the dispute as the Board had filed Civil Suit No. 227 of 2010 on 03.08.2010. Placing reliance on circular dated 14.08.2006 (R-4) the learned Single Judge proceeded to hand over the management and control of Khalsa School to the District Education Officer (Secondary), Jalandhar by observing as under: “In relation to the educational institutions receiving 95% grant-in-aid from the State Government and in relation thereto when a dispute of the Managing Committee, is pending adjudication, “the Director of Public Instructions [SE], Punjab has issued a Circular dated 14.08.2006 [Annexure R-4] which provides that “the concerned District Education Officer will start working as correspondence under conditions of expiry of correspondents' tenure/groupism dispute in all such schools where there is a dispute in the Managing Committee of the Privately Managed Government Aided Schools”. Having heard learned counsel for the parties at some length, I find that the aforementioned Circular is fair, just and meets the urgent needs of the hour. Suffice it to observe that when the public money is LPA No. 355 of 2011 -3- diverted in larger public interest interest like for imparting education to the future generations but there is likelihood of its mis-appropriation or no appropriation due to inter-se rivalry amongst the members of the Managing Committee more so when lis is pending before the Civil Court, there has to be an adhoc arrangement comprising an impartial authority to ensure that the teachers are paid their salaries timely and made to impart teaching to the students. The District Education Officer is the best, well equipped and concerned authority to see that the public funds are utilized to their optimum use. For the reasons afore-stated, the writ petition is disposed of with a direction to the District Education Officer [SE], Jalandhar to take over the management and control of the J.S.F.H Senior Secondary School, Atta, Tehsil Phillaur, District Jalandhar forthwith; to act as its correspondent and look after its other day-to-day affairs till the dispute regarding the Managing Committee is finally resolved by the Civil Court[s].” 3. When the matter came for consideration before the Letters Patent Bench of this Court, operation of the judgment passed by the learned Single Judge was stayed keeping in view order dated 30.10.2009 (R-4/1) restoring the appointment of appellant No. 2-Anil Taheam as correspondent. LPA No. 355 of 2011 -4- 4. We have heard learned counsel for the parties at a considerable length. The appellants have placed on record order dated 17.02.2011 (A-1) passed by the Additional Civil Judge (Sr. Division), S.B.S. Nagar and judgment dated 26.03.2011 (A-2), passed by the District Judge, S.B.S. Nagar. While deciding the application under Order 39 Rule 1 and 2, the learned Additional Civil Judge, S.B.S. Nagar has reached the conclusion that Kartar Singh Sekhon and the Board constituted by him were running the affairs of the Khalsa School for a period of more than 10 years. It was observed that the Board through Raghbir Singh Chhina, who was one of the writ petitioners, had earlier filed a similar suit in which he did not succeed and the effect of earlier decision was to be seen at the later stage while deciding the suit on merits. It was also noted that the affairs of the Khalsa School are being managed by the appellants and regular returns are being filed. Against the aforesaid order, the learned District Judge has dismissed the appeal on 26.03.2011 (A-2) and thus, upheld the interim directions issued by the Trial Court. 5. Firstly, once the writ petitioner-respondents had invoked the jurisdiction of the Civil Court, no writ petition would be competent. It is futile argument that for one cause of action, the jurisdiction of this Court under Article 226 of the Constitution could be invoked and for another part of cause of action a civil suit could be filed. A Division Bench of this Court in Darshan Singh v. State of Punjab 1999 (1) RSJ 730 went to the extent of observing that once the proceedings have been initiated by filing a Civil Suit then no writ petition would be competent. The view of the Division Bench is based on a sound LPA No. 355 of 2011 -5- principle which aim at avoiding multiplicity of litigation incorporating the rationale envisaged by Section 11 Explanation IV and Order 2, Rule II of CPC. These are principles governing the policy of law. It also avoids the possibility of conflicting view and the vice of forum hunting. In a case of the present nature the full-fledged controversy has flowered before the civil court and omni bus orders have been passed by the Civil Judge and District Judge while disposing of application under Order 39 Rule 1 and 2. Therefore, no writ petition under Article 226 would be competent. 6. There is another aspect of the matter. The learned Single Judge should have preferred the course of dismissing the writ petition because the writ petition was filed on 25.05.2009, impugning the order dated 20.08.2008 (P-13) on the ground that it violated the instructions dated 28.08.1997 (P-10). In the short reply filed by the appellant an order dated 30.10.2009 (R-4/1) was attached showing that the Director, Education Department (S.S.), Punjab, Chandigarh, has withdrawn order dated 20.08.2008 appointing the District Education Officer (Secondary), Jalandhar as correspondent of the Khalsa School. In other words, order dated 09.05.2008 subject matter of challenge in the writ petition appointing appellant No.2- Anil Taheam was restored. In fact the writ petitioner-respondents were not left with any cause of action because the new order dated 30.10.2009 (R-4/1) was never challenged by them. Therefore, there is no escape from the conclusion that neither the writ petition was maintainable in view of the Division Bench judgment in Darshan Singh's case (supra) nor the learned Single Judge could have taken the view without setting aside order LPA No. 355 of 2011 -6- dated 30.10.2009 (R-4/1) passed by the Director, Education Department (S.S.), Punjab, Chandigarh. 7. In view of the above, the appeal is allowed. Order dated 12.01.2011 passed by the learned Single Judge is set aside. (M.M. KUMAR) JUDGE (RAJIV NARAIN RAINA) JUDGE November 15, 2011 Atul