1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.145 OF 2009 Mahavir Zumbarlal Patni and another .. Petitioners Versus The Union of India, Through under Secretary, Ministry of Human Resource Development, Department of School Education and Literacy, New Delhi and others .. Respondents Shri P.B.Shirsath, Advocate for petitioners Shri Alok Sharma, Assistant Solicitor General for respondents 1 and 2 Shri S.V.Gangapurwala, Advocate for respondent No.3 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 7th October 2009 PER COURT : 1. This is a petition under Article 226 of the Constitution of India by which the petitioners pray vide prayer clause (B) for issuance of a writ of certiorari for quashing and setting aside the reconstitution of the Board of Management of Jan Shikshan Sansthan, Aurangabad as per letter dated 22.12.2008 issued by respondent No.1 and vide prayer clause (C) to the petition prays for issuance of a writ of mandamus directing respondents 1 and 2 to reconstitute the Board of Management of Jan Shikshan 2 Sansthan, Aurangabad as per the proposal submitted by the Director of petitioner No.2. 2. It appears that this petition challenges the reconstitution of the Board of Management of Jan Shikshan Sansthan, Aurangabad. The petitioners have only joined respondent No.3 who is the Chairman of the said Managing Committee without joining the other members of the reconstituted Board of Jan Shikshan Sansthan, Aurangabad. The relief which is prayed is of quashing the reconstitution of the Board of Management of Jan Shikshan Sansthan, Aurangabad. 3. However, since the third respondent has been joined, we have entertained the submissions of Shri Shirsath, learned Counsel for the petitioners in respect of challenge to the appointment of respondent No.3 as the Chairman of the Jan Shikshan Sansthan, Aurangabad, hereinafter referred to as “JSS” for the sake of brevity. We need not dilate in respect of the factual matrix of the present case as it would suffice to state that a scheme came to be framed by the Deputy Charity Commissioner on 3.5.2007 under Section 50-A of the Bombay Public Trusts, 1950. It is not necessary for us to refer to the other provisions of the scheme as Clause 18 of the said scheme deals with the selection, powers, functions and duties of the Chairman. 3 In order to appreciate the submissions advanced before us by Shri P.B.Shirsath, learned Counsel for the petitioners, it would be useful to refer to the provisions of Clause 18 of the said scheme which reads thus : 18. SELECTION, POWERS, FUNCTIONS AND DUTIES OF THE CHAIRMAN: I) Jan Shikshan Sansthan being registered and not affiliated to any voluntary Organization or University, the Govt.of India will decide the Chairman with prior discussion of earlier Board and finalize discussion with Director/Member Secretary.” As per paragraph (I) to the said scheme, a complete discretion vests with the Government of India in respect of the appointment of the Chairman. The rider, however, which is placed is that there must be prior discussion with the earlier Board and finalisation of the discussion with the Director/Member Secretary. In that light of the matter, it is urged before us by Shri Shirsath, learned Counsel for the petitioners that the Director had indeed submitted a proposal recommending names of three persons. The proposal submitted by the Director did not contain the name of the petitioner No.1. It is further urged before us by the learned Counsel for the petitioners that there was no prior 4 discussion with the earlier Board. Next it is urged before us that in the absence of the change report, the reconstituted Managing Committee cannot function. Shri Alok Sharma, learned Assistant Solicitor General for respondents 1 and 2 and Shri S.V. Gangapurwala, learned Counsel for the respondent No.3 have supported the appointment of respondent No.3 and have urged before us that the petition is bereft of the necessary details in respect of the non compliance of the conditions of the scheme relating to the appointment of the Chairman. 4. Perusal of the petition discloses that there is not even an oblique averment in the petition that there was no prior discussion with the earlier Board. The petitioner No.1 is one of the trustees of the Board. The other members of the Board have also not been joined as respondents to the petition who would have buttressed the submission made on behalf of the petitioners that there was no prior discussion with the earlier Board. In the absence of necessary pleadings to that effect and in the absence of any material even remotely indicating that there was no prior discussion with the earlier Board, according to us the first submission urged before us by the learned Counsel for the petitioners does not merit any consideration. 5 5. Turning to the second submission that the Director had not recommended the name of the petitioner No.1, perusal of the scheme discloses that the appointment of the Chairman is dependent upon the recommendations to be made by the Director/Member Secretary. All that the scheme contemplates is finalisation of the appointment of the Chairman with discussion with the Director/Member Secretary. As pointed out by us above, there is no averment in respect of non holding of the discussion with the Director/Member Secretary. The third submission which is urged before us by the learned Counsel for the petitioners is that in the absence of the change report, the entire reconstituted Managing Committee cannot function. At the outset, we have pointed out that the Managing Committee in its entirety is not joined as respondent to the petition. In the absence of the remaining members of the Managing Committee being joined as respondents to the petition, no relief in their absence can be granted. 6. Thus, we find that there is no merit, whatsoever in respect of the challenge to the appointment of respondent No.3 as Chairman. It was faintly urged before us that respondent No.3 is not a member of the trust and, therefore, could not have been appointed as a Chairman. There is nothing in the scheme to indicate that in order to be appointed as a Chairman of the JSS, it was necessary for the Chairman to be a member of the trust. 6 7. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the petitioners, according to us, there is no merit in the petition and the petition is, therefore, summarily dismissed with no orders as to costs. At this stage, Shri Shirsath, learned Counsel for the petitioners requested that the ad-interim stay which was operating since 13th January 2009 be continued for a further period of four weeks to enable the petitioners to avail the remedies available to them in law for challenging our order. We direct that ad-interim stay be continued for a period of four weeks from today. 8. Copy of this order duly authenticated by the Court Sheristedar be provided to the learned Counsel for the parties to act upon. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) (vvr/145.09wp)