Allahabad High Court
Committee Of Management, Bhartiya ... vs State Of U.P. And Ors. on 2 February, 2005
Equivalent citations: 2005(2)AWC1728, 2005(2)ESC964, (2005)2UPLBEC811
Author: Arun Tandon
Bench: Arun Tandon
JUDGMENT Arun Tandon, J.
1. Heard Sri N.L. Pandey on behalf of the petitioner, Sri Kapil Tyagi on behalf of respondent No. 5 and learned Standing Counsel on behalf of respondent Nos. 1 to 4.
2. Sri Krishak Vidya Pracharini Sabha, district Bulandshahr (now Gautam Budli Nagar) is a society duly registered under the Societies Registration Act. The said society has established a recognized and aided Intermediate College in the name and style of Bhartiya Adarsh Inter College, Tilpata, District Gautam Budh Nagar. The said institution is run and managed strictly in accordance with the provisions of Intermediate Education Act as well as in accordance with the provisions of the scheme of administration duly approved by the Regional Joint Director of Education. Undisputed elections of the Committee of Management in accordance with the approved scheme of administration took place on 12.12.1998. According to the provisions of the scheme of administration, as applicable then, the term of the Committee of Management was provided as three years. The period whereof would expire on 11.11.2001. However, before expiry of the said term of the Committee of Management, a resolution was passed proposing amendment in the scheme of administration, as contained in Clause 5 (7), and it was proposed that in place of the term of three years, the term with the elected Committee of Management be 5 years. In accordance with the provisions of Section 16-A(5) of the. Intermediate Education Act, the aforesaid resolution was forwarded for necessary approval of the Deputy Director of Education (Joint Director of Education). The Joint Director of Education by means of his order dated 15.10.2001 granted approval to the aforesaid proposed amendment in the scheme of administration, specifically Clause 5(7). On the basis of the aforesaid amendment it is claimed that the term of the Committee of Management, which was elected on 12.11.1998, stood extended up to 11.11.2003 and therefore, the Committee of Management continued to function even after expiry of 3 years. On the basis of the aforesaid extended term of the Committee of Management, fresh elections of the Committee of Management are said to have been held by the out going office bearers on 7.11.2003. The said elections of the Committee of Management have been approved by the Regional Level Committee, constituted under the Government Order dated 19.12.2000 vide order dated 11.12.2003. The said order of the Regional Level Committee is under challenge in the present writ petition.
3. On behalf of the petitioner it is contended that in view of the judgment of this Court dated 21.11.2002, passed in Writ Petition No. 49893 of 2002; Committee of Management, MM, College v. Regional Joint Director of Education, and on the judgment of this Court reported in (1992) 1 UPLBEC 327, the existing Committee of Management cannot extend its own term by seeking amendment in the provisions of the scheme of administration inasmuch as the Committee, which has been elected in accordance with the existing term, cannot prolong its life by amendment of the clause pertaining to the term of the Committee of Management. Any amendment in that regard would be applicable to the Commitee of Management elected subsequent to the amendment in the said provisions.
4. On behalf of the respondent it is contended that it is always open to an existing Committee of Management to amend the provisions of (the scheme of administration in view of the power conferred under Section 16-A (5) of the Intermediate Education Act. Amendment once approved by the Joint Director of Education became applicable with immediate effect and, therefore, the term of the existing Committee of Management stood extended from 3 to 5 years from the date approval is granted by the Joint Director of Education. Since in the facts of the case, the term of the Committee of Management elected in the year 1998 was subsisted from 3 years to 5 years under the amendment in the scheme of administration, duly approved by the Joint Director of Education, the Committee of Management is entitled to continue for the extended term (5 years) inasmuch as the amendment became applicable with immediate effect.
5. The respondent has placed reliance upon the judgment of this Court dated 18.9.2003 passed in Writ Petition No. 14041 of 2003, Committee of Management of Sri Guru Nanak Manya Inter College, Bilaspur, District Rampur and Ors. v. State of U.P. and Ors. as also upon the Division Bench judgment of this Court reported in 1994 (24) ALR 410, Committee of Management, M.M.I. Inter College, Bijnor v. Deputy Director of Education and Ors..
6. In rejoinder, on behalf of the petitioner, it is contended that the Division Bench judgment relied upon by the respondent has no binding effect in view of the law laid down by the Hon'ble Supreme Court in the judgment reported in 2003 (7) SCC 197, Divisional Controller v. Mahadeva, specifically Paragraph 23. Reliance has also been placed upon the letter of Director dated 4.8.2003.
7. Thus, the controversy giving rise to the present writ petition is, as to whether the change in the term of the Committee of Management, by amendment of the clause in scheme of administration, providing for the term of the Committee of Management, has the effect of extending the life of the existing Committee of Management for the increased term or the amended term would be applicable only in, respect of the Committee of Management elected subsequent to the said amendment being approved under Section 16-A(5) of the Act. In other words, whether the term of an elected Committee of Management would expire with reference to the period as was existing on the date of its election in the approved scheme of administration.
8. I have heard Counsel for the parties and have gone through the records of the writ petition.
9. For the purposes of appreciating the controversy raised on behalf of the parties, it would be relevant to refer to the certain provisions of the U.P. Intermediate Education Act, which provide for being enforcement of scheme of administration and amendment thereof. For ready reference Sections 16-A, 16-A (5) and 16-A (6) are being quoted herein below :
"16-A. Scheme of Administration.--Notwithstanding anything in any law, document, or decree or order of a Court or other instrument there shall be a Scheme of Administration (hereinafter referred to as the Scheme of Administration) for every institution, whether recognized before 01 after the commencement of the Intermediate Education (Amendment) Act, 1958. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. The Head of the institution and two teachers, thereof, who shall be selected by rotation according to seniority in the manner to be prescribed by Regulations, shall be ex-officio members of the Committee of Management with a right to vote."
"16-A(5) The Scheme of Administration of every institution shall be subject to the approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without the prior approval of the Director:
Provided.................."
"16-A(6) Every recognized institution shall be managed in accordance with the Scheme of Administration framed under and in accordance with Sub-section (1) to Sub-section (5) and Section 16-B and 16-C."
10. Reference may also be made to the provisions of the existing Scheme of Administration, regulating the term of the office bearers of the Committee of Management, which reads as follows:--
^^3-5 ¼7½ izcU/k lfefr dk dk;Zdky&&orZeku izkfo/kku fujLr fd;k tkrk gS A iwoZ izkfo/kku ds LFkku ij fuEukafdr izkfo/kku djsxk%&& inkf/kdkfj;ksa ,oe lfefr ds lnL;ksa dk dk;Zdky rhu o"kZ dk gksxk A dk;Zvof/k lekIr gks tkus ij vxys ,d ekl rd gh vifjgk;Z dkj.kksa ls inkf/kdkjh cus jg ldsaxs A ;fn rhu o"kZ i'pkr~ ,d ekl ds vUnj uop;fur lfefr dk;ZHkkj xzg.k ugha djrh gS rks rhu o"kZ ,d ekl i'pkr dkykrhr lfefr dk dk;Zdky Lor% lekIr le>k tk;sxk vkSj e.Myh; mi f'k{kk funs'kd }kjk izcU/k lapkyd fu;qDr fd;k tk;sxk vkSj ftls izcU/kkf/kdj.k ds iwoZ vf/kdkj gksaxs A og izcU/k lapkyd uop;fur lfefr dks pquko u gksus dh fLFkfr esa pquko djkdj ¼'kh?kzfr'kh?kz½ dk;Zjr djk;sxk A ;fn ,d ls vf/kd izcU/k lfefr vf/kdkj dk nkok djs rks izdj.k mi f'k{kk funs'kd dks izLrqr fd;k tk;sxk A**
11. The amendment in the aforesaid clause of the scheme of administration, as approved under the order of the Joint Director of Education, 1st Region, Meerut dated 15.10.2001, reads as follows:--
^^la'kksf/kr@vuqeksfnr izkfo/kku %&& inkf/kdkfj;ksa ,oa lfefr ds lnL;ksa dk dk;Zdky ikap o"kZ dk gksxk A dk;Zvof/k lekIr gks tkus ij vxys ,d ekl rd gh vifjgk;Z dkj.kksa ls inkf/kdkjh cus jg ldsaxs A ;fn ikap o"kZ ds vUnj uop;fur lfefr dk;ZHkkj xzg.k ugha djrh gS rks ikap o"kZ ,e ekl i'pkr dkykrhr lfefr dk dk;Zdky Lor% lekIr le>k tk;sxk vkSj e.Myh; la;qDr f'k{kk funs'kd }kjk izcU/k lapkyd fu;qDr fd;k tk;sxk A ftls izcU/kkf/kdj.k ds iwoZ vf/kdkj gksasxs A ;g izcU/k lapkyd uop;fur lfefr dh pquko u gksus dh fLFkfr esa pquko djkdj 'kh?kzfr'kh?kz dk;Zjr djk;sxk A ;fn ,d ls vf/kd izcU/k lfefr vf/kdkj dk nkok djaas rks izdj.k la;qDr f'k{kk funs'kd dks izLrqr fd;k tk;sxk A ftldk fu.kZ;
vfUre gksxk A**
12. Under Section 16-A (5) of the Intermediate Education Act any amendment proposed by the Committee of Management does not become enforceable until and unless the said amendment is approved by the Regional Joint Director of Education and from the date the amended clause of the scheme of administration stands wiped out from the scheme of administration and is substituted by the amended provision. Since the clause prescribing the term of the-Committee of Management is also one of the clause of the scheme of administration, the amendment in the said clause also takes effect like any other provision from the date it is approved by the Regional Joint Director of Education and subsequent thereto the earlier un-amended clause ceases to exist in the scheme of administration. At this stage it may also be clarified that the amendment in clause cannot infuse any life in Committee of Management term where of has already expired.
13. In the opinion of the Court, it is, therefore, but necessary that once the provision prescribing the term is amended and new term is prescribed for the Committee of Management, it necessarily mean that the same becomes applicable from the date the approval is granted, wholly irrespective of the fact as to whether any Committee is in control of the institution or not on the said date of approval.
14. The aforesaid conclusion is supported by the Division Bench judgment of this Court reported in 1994 (24) ALR 410, Relevant portion reads as follows;--
"Amendment introduced in the existing Scheme takes effect immediately. Although it is not retrospective in operation, but the term of the existing Committee has to be calculated in accordance with it. When amendment is enforced only from the date when it was made and not from any earlier date, it cannot be said to be retrospective, merely because it might affect the term of the Committee which was elected prior to the date of amendment. In Bishun Narain v. State of U.P., Supreme Court has laid down that if the rule reducing the age of retirement of a Government servant is enforced only from the date when it was promulgated and not from any earlier date, the rule will not be retrospective, merely because it would affect the person who has joined the service prior to amendment. Such a rule will govern the age of retirement of every Government servant whether he entered service before or after the amendment."
15. So far as the judgment of the Hon'ble Supreme Court (Ref. 2003 (7) SCC 197) referred by the Counsel for the petitioner is concerned, the same has no application in the facts of the present case and is clearly distinguishable. The judgment of the Hon'ble Single Judge dated 21.11.2002 passed in Writ Petition No. 49893 of 2002; Committee of Management, MM. Inter College Khekra District Baghpat and Anr. v. Joint Director of Education, 1st Region, Meerut and Ors., is also not applicable.
16. At this stage no occasion can be arrived that the amendment in the clause providing for the term of the Committee of Management in the scheme of administration cannot however be read in the manner so as to long into the term of the Committee of Management which has already been ran out. In that regard the judgment reported in 1999 (1) AWC 498 is reiterated. However, where the term of the elected Committee of Management has not expired and the provision under the scheme of administration is amended whereby the term is increased from 3 years to 5 years it would take effect immediately and the existing Committee of Management would be informed subsequent to the amendment by the term prescribed under the amended clause. At this stage reference has also made to the letter issued by the Director of Education dated 20.3.2004 (enclosed as Annexure-4 to the writ petition) whereby the Director of Education has clarified that all the amendments affecting the term of the Committee of Management shall be applicable only in respect of the Committee of Management constituted subsequent to the amendment and not to the existing Committee.
17. There is a dispute as to whether the aforesaid letter of the Director of Education can in any way affect the statutory provision and can curtail the scope of Section 16-A (5). However, it is not necessary to adjudicate upon the aforesaid aspect of the matter inasmuch as the said Government Order is admittedly prospective in nature and cannot in any way affect the amendments which have already been approved prior to that date It is only in respect of the amendment which arc approved subsequent to the letter of the Director of Education dated 20.3.2004 can be said to be regulated under the same.
18. In view of the aforesaid facts and circumstances, the writ petition as filed by the petitioner is misconceived and is accordingly dismissed.