Allahabad High Court
Committee Of Management, Abdul Karim ... vs State Of U.P. Through Secretary, ... on 24 August, 2005
Equivalent citations: 2006(1)AWC284
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Ashok Khare Senior Advocate, appearing for the petitioners, Sri P. N. Saxena appearing for the contesting respondents and the learned standing counsel appearing for the State respondents.
2. All these three writ petitions have been heard together and are being disposed of by this common judgement.
3. The Writ petition No. 16972 of 2005 has been filed by :he Committee of Management Abdul Karim Khan Inter College through its Manager Sabir Ali Abbasi challenging the order dated 22.2.2005 passed by the Director of Education as well as the order dated 1.3.2005 passed by the Joint Director of Education. The Director of Education by the order dated 22.2.2005 directed the Joint Director of Education to get fresh elections held of the Committee of Management of the Institution as per direction of the Division Bench of this Court dated 3.12.2004 passed in Special Appeals No. 453 of 2004, 454 of 2004 and 455 of 2004. The Joint Director of Education passed consequential order directing the District Magistrate to appoint a Returning Officer for holding fresh election in pursuance of the judgement dated 3.12.2004 passed by the Division Bench of this Court.
4. The Writ Petition No. 49442 of 2005 has been filed against the order dated 22.6.2005 passed by the Joint Director of Education directing the District Inspector of Schools to issue restraint order restraining the Committee of Management for exercising the administrative/financial functions. Consequential order was passed by the District Inspector of Schools on 27.6.2005 directing that the operation of the Salary account will be done by the District Inspector of Schools.
5. Writ Petition No. 11769 of 2004 has been filed challenging the order dated 15.3.2004 passed by the Joint Director of Education making the order dated 8th March, 2004 ineffective and directing the District Magistrate or his nominee to decide the representation of Mohd. Ayub dated 12.3.2003/20.12.2003.
6. The order of the Director of Education dated 22.2.2005 impugned in the first Writ Petition i.e. the Writ Petition No. 16972 of 2005 directs for holding fresh election by the Returning Officer to be nominated by the District Magistrate in pursuance of the decision passed by the Division Bench of this Court in Special Appeals No. 453 of 2004, 454 of 2004 and 455 of 2004. The subsequent order passed by the Joint Director of Education is consequential to the said order of the Director of Education The order dated 22.6.2005 impugned in the second Writ Petition No. 49442 of 2005 is again an order of the Joint Director of Education directing for restraining the Committee of Management in discharging the financial and administrative functions in which reference of the interim order dated 16.3.2005 passed by this Court (in writ petition No. 16972 of 2005) has been made, further, the judgement of the Division Bench dated 3.12.2004 of this court referred to above was noticed and it was also noticed that the election dated 14.1.2001 was upheld. The order further reads that all the elections subsequent to 14.1.2001 has become non est hence the financial and administrative power of the Committee of Management be restrained.
7. The decisions of first two writ petitions depends on purport and effect of the judgement dated 3.12.2004 passed by the Division Bench of this Court in aforesaid three Special Appeals. It is appropriate to note the facts giving rise to the Special Appeal No. 453 of 2004 and two other connected appeals. These three appeals decided on 3.12.2004 arises out of the judgement of three writ petitions decided on 24.3.2004 being Writ Petitions No. 235 of 1994 Board of Control for the Management through Abdul Karim Khan v. District Inspector of Schools; Writ Petition No. 1655 of 2001 Shane Ali Abbasi v. Joint Director of Education and Ors. and the Writ Petition No. 4768 of 2001 Sujat Ali Khan and Ors. v. Joint Director of Education and Ors. In Writ Petition No. 235 of 1994 the order dated 28/29.12.1993 passed by the District Inspector of Schools by which the removal of Hafiz Iqrar Ahmad Abbasi from the office of Manager was upheld, was challenged. Writ Petition No. 1655 of 2001 has been filed by Shane Ali Abbasi challenging the order dated 4.1.2001 passed by the Sub Divisional Officer deciding the membership of Board of Control in pursuance of the earlier judgement of this Court dated 25.5.2000 passed in writ petition No. 16862 of 1999. The learned Single Judge of this Court vide judgement dated 25.5.2000 passed in writ petition No. 16862 of 1999 in which the dispute pertaining to election of 1997 of the Committee of Management of the Institution was in issue, directed the District Inspector of Schools to get a fresh election held by Returning Officer nominated by the District Judge. An Special Appeal was filed against the judgement dated 25.5.2000 and the Division Bench of this Court in Special Appeal No. 404 of 2000 modified the direction authorising the District Judge to nominate a judicial Officer to act as Returning Officer by appointing Sub Divisional Officer to act as Returning Officer. In pursuance of the judgement of the learned Single Judge dated 25.5.2000 fresh elections were held on 14.1.2001 which was recognised by the District Inspector of Schools, against which Writ Petition No. 4769 of 2001 was filed by Sujat Ali Khan and sixteen others praying for quashing the order dated 14.1.2001 as well as the attestation of the signatures. The learned Single Judge decided the aforesaid three Writ Petitions by his judgement dated 24.3.2004. The writ petition No. 235 of 1994 challenging the order of the District Inspector of Schools dated 28/29.12.1993 and the resolution regarding removal of Iqrar Ahamad was dismissed. The Writ Petition No. 1655 of 2001 and the Writ Petition No. 4768 of 2001 were allowed. The order of the Sub Divisional Officer dated 4.1.2001, 14.1.2001 and 15.1.2001 were quashed. Against the aforesaid judgement three Special Appeals were filed which have been decided on 3.12.2004. The Special Appellate Bench allowed all the three Specials appeals, the Writ Petition No. 235 of 1994 was allowed and the Writ Petitions No. 1655 of 2001 and 4768 of 2001 were dismissed. The Special appellate Bench uphled the election dated 14.1.2001 conducted by the Sub Divisional Officer. The conclusion of the Court and the operative portion of the order contained in paragraphs 35 and 36 of the judgement is extracted below :-
"CONCLUSION
35. Our conclusions are as follows:
(a) Sri Hafiz Ikrar Ahmad Abbasi was not validly removed in the meeting dated 25.7.1993.
(b) Even if it is taken that Sri Hafiz Ikrar Ahmad Abassi wrongly participated in the elections held on 14.1.2001, his vote did not affect the result of the election.
(c) No person other than Sri Hafiz Ikrar Ahmad Abbasi was removed.
(d)The Committee of Management elected after the undisputed 1991 elections were disputed. The members made by any of them were not entitled to participate in the elections held by the SDM.
36. In view of our conclusion, the Special appeals are allowed. Writ Petition No. 235 of 1994 is allowed, whereas writ petitionNo. 1655 of 2001 land Writ Petition No. 4768 of 2001 are dismissed. The order of District Inspector of Schools dated 28/29.1.1993 and 31.5.1994/ 4.6.1994------so far as they uphold the removal of Sri Hafiz Ikrar Ahmad Abbasi - are quashed. The elections held by the SDM on 14.1.2001 are upheld. "
8. In the writ petitions out of which the Special Appeals had arisen the election dated 14.1.2001 and the list of the members finalised by the SDM on 4.1.2001 was under consideration. The writ petitions were allowed by the learned Single Judge and the Election dated 14.1,2001 was quashed. The Special Appellate Court reversed the judgement and upheld the election dated 14.1.2001. The Special Appellate Bench in paragraph 33 of the judgement noted the earlier judgement of this Court dated 25.5.2000 by which this Court directed holding of afresh election by the Returning Officer. "As observed above, the election dated 14.1.2001 was in fact held in compliance of the judgement of this Court dated 25.5.2000. The Special Appellate Court judgement upheld the election dated 14.1.2001 and no further direction was given.
9. Sri P.N. Saxena, learned counsel for the respondents laid much emphasis on the observations made by the Special Appellate Bench in its judgement dated 3.12.2004 in paragraph 35 (d). Learned counsel contended that in view of the conclusion of the Division Bench that since the Committee of Management elected after undisputed elections 1991 were disputed, members made by any of them were not entitled to participate in the elections held by the Sub Divisional Magistrate. The observations in paragraph 35 (d) has to be be read along with the other observations made in the judgement. The Division Bench judgement specifically upheld the elections dated 14.1.2001 conducted by the Sub Divisional Magistrate. The membership was determined by the Returning Officer (Sub Divisional Officer) vide his order dated 4.1.2001 which was challenged in Writ Petition No. 1655 of 2001. The Writ Petition No. 1655 of 2001 has been dismissed by the Special Appellate Bench meaning thereby that the order of the Sub Divisional Officer determining the membership on 4.1.2001 has been upheld. Thus the observation made in paragraph 35 (d) of the judgement had no effect on the validity of the members as determined by the Returning Officer on 4.1.2001 and on the basis of which the elections dated 14.1.2001 were held. Moreover, the said observation cannot be read as observation declaring the subsequent election of the Committee of Management held by the petitioner on 26.12.2003 as invalid or directing for conducting fresh election by the Returning Officer. The submission of the counsel for the respondents that the Division Bench directed for holding of fresh election by the Returning Officer vide its judgement dated 3.12.2004 cannot be accepted.
10. The order of the Director of Education dated 22.2.2005 impugned in the first Writ Petition reads the order of the Division Bench as directing holding of fresh election by the Returning Officer. It is relevant to note that the Special Appellate Bench itself has noted the holding of fresh election on 26.12.2003 during the pendency of the Writ Petition No. 1655 of 2001 and the Writ Petition No. 4768 of 2001 the Division Bench also noticed the elections dated 26.12.2003 were recognised by the Joint Director of Education by his order dated 8.3.2004 which was subsequently withdrawn and was subject matter of the Writ Petition No. 11769 of 2004. Thus before the Special Appellate Bench there was no dispute of the election held by the Committee of Management on 26.12.2003 and the Special Appellate Bench was concerned with regard to judgement of the learned Single Judge dated 24.3.2004 which pertains to expulsion of Ikrar Ahamad and the election dated 14.1.2001. The Director of Education has completely misread the judgement of the Division Bench of this Court dated 3.12.2004. In the said judgement there is no direction for holding the fresh election by the Returning Officer. The Director says that the Division Bench in its judgement dated 3.12.2004 has nominated the Returning Officer for holding fresh election. There is no such direction in the said judgement and the letter of the Joint Director of Education dated 22.2.2005 is based on misreading of direction and the findings of this Court noted in the judgement dated 3.12.2004.
11. In view of above the order of the Director of Education dated 22.2.2005 as well as the consequential order dated 1.3.2005 cannot be sustained and are hereby quashed.
12. The second Writ Petition No. 49442 of 2005 challenges the order of the Joint Director of Education dated 22.6.2005 by which he directed the District Inspector of Schools to restrain the Committee of Management from exercising the administrative and financial functions. The said order again emanate from misinterpretation of the judgement of the Division Bench dated 3.12.2004. The Joint Director of Education after noticing Division Bench judgement dated 3.12.2004 observed that all the elections after 14.1.2001 have been held invalid. There is no such observation or the declaration in the judgement dated 3.12.2004 declaring the elections subsequent to 14.1.2001 invalid. The Division Bench has upheld the election dated 14.1.2001 but there is no direction with regard to subsequent elections although the Division Bench noticed the election dated 26.12.2003 which was held in between and was also recognized The order of the Joint Director of Education dated 22.6.2005 and consequential order issued by the District Inspector of Schools dated 27.6.2005 cannot be sustained and are hereby quashed.
13 The third Writ Petition No. 11769 of 2004 challenges the order of the Joint Director of Education dated 15.3.2004 making the earlier order dated 8.3.2004 ineffective and also direct that the representations of Mohd Ayub shall be considered by the District Magistrate or any officer nominated by him. Before '15.3.2004 the Joint Director of Education has passed an order dated 8.3.2004 deciding the dispute of two rival Committee of Managements under Section 16-A(7) of the UP. Intermediate Education Act, 1921. Before the Joint Director of Education two rival claims had arisen. On 26.12.2003 an election of the Committee of Management was claimed to be held by the petitioners in which Sabir Ali Abbasi claimed to be elected as Manager. Another election was claimed by Dr. Mohd. Suheb and Shane Ali Abbasi who also claimed their election on 26.12.2003. The District Inspector of Schools in his letter dated 12.1.2004 has referred the dispute of two rival Committee of Managements under Section 16-A(7) of the UP. Intermediate Education Act. The Joint Director of Education issued notice to the rival Committees for hearing. Both the parties had appeared before the Joint Director of Education. The case of the respondent Mohd. Suheb and Shane Ali Abbasi was to the effect that the fresh elections have been held on 12.11.2003. It was stated that the said election was held by fifteen members and they have effective control over the Institution. The claim of the petitioners before the Joint Director of Education was that the fresh elections have been held on 26.12.2003 by the existing Committee of Management. The list of 39 members was verified by the District Inspector of Schools and out of thirty nine members thirty two members have signed the agenda and 34 members out of 39 members had participated the election. The claim of both the parties is noticed in the order of the Joint Director of Education and atter hearing both the parties the Joint Director of Education recognised the election dated 26.12,2003 in which the petitioner No. 2 was elected as Manager and refused to recognise the election set up by the respondent Dr. Mohd. Suiheb and Sabir Ali Abbasi. After the said order dated 8.3.2004 the impugned order dated 15.3.2004 was passed by the Joint Director of Education. The language of the order dated 15.3.2004 is that from the representation dated 12.3.2004 of one Mohd. Ayub it has come in the notice that the complaint regarding membership of Board of Control was submitted ;by the complaint dated 2.12.2003/20.12.2003 which was pending consideration before the District Inspector of Schools and without deciding the membership dispute he has sent the report to the Joint Director of Education. Noticing the aforesaid fact the Joint Director of Education passed the order making the earlier order dated 8.3.2004 ineffective.
14. The submission of counsel for the petitioner is that the Joint Director of Education after deciding the dispute under Section 16-A(7) of the UP. Intermediate Education Act could not have passed the order staying his earlier order. It was further contended that the basis given in the impugned order was not sufficient for passing any order staying the earlier final decision. It is contended that mere fact that certain complaint regarding membership were pending before the District Inspector of Schools were not material since the dispute was finally decided by the Joint Director of Education.
15. Sri P. N. Saxena, learned counsel appearing for the contesting respondents has submitted that the Joint Director of Education has not actually decided the dispute of membership in the impugned order and there was error in the judgement of the Joint Director of Education hence the Joint Director of Education has every jurisdiction to stay the effect of earlier order. Sri Saxena has submitted that the representations were pending before the District Inspector of Schools and the membership dispute was essential to be decided by the District Inspector of Schools.
16. The provisions of Section 16-A(7) of the U.P. Intermediate Education Act is extracted below :-
"16- A. Scheme of Administration,_ (1)...
(2)...
(3)...
(4)...
(5)...
(6)...
(7) Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education upon such enquiry as is deemed fit to be in actual control of its aff may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction direct otherwise:
Provided that the Regional Deputy Director of Education shall , before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representations in writing.
Explanation:-- In determining the question as to who is in actual control of the affairs of the institution, the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under Sub-section (5) and other relevant circumstances. "
17. The provision of Section 16-A(7) of the U.P. Intermediate Education Act enjoins that the whenever there is dispute between the two rival Committee of Managements the Joint Director of Education shall decide the dispute. It has been held by the Division Bench of this Court that whenever the dispute appears before the District Inspector of Schools within the meaning of Section 16-A(7) he has no jurisdiction to proceed further and refer the matter to the Joint Director of Education. The Division Bench of this Court in 1984 UPLBEC 610 ( Committee of Management S. M. National Inter College. Machhatl. Ghazlpur v. The District Inspector of Schools. Ghazlpur and Ors.) has laid down the said proposition. The District Inspector of Schools came to know about the two rival elections of '.vo Committee of Managements dated 26.11.2003 claimed by the parties. The District Inspector of Schools has no option but to refer the dispute to the Joint Director of Education who is competent authority to decide the matter. In any event the complaint regarding validity of the member was pending before the District Inspector of Schools that does not cloth the District Inspector of Schools to proceed to decide the dispute of membership and not to refer the dispute under section 16-A(7) of the UP. Intermediate Education Act. The competent authority to decide the dispute was Joint Director of Education. It is to be noted that in the impugned order it is not even said that there was any error in the judgement of the Joint Director of Education which requires recall or setting aside the order of the Joint Director of Education. The Joint Director of Education in the judgement has also noted the submissions of both the parties regarding membership on which both the parties' claimed to have held the election. The Joint Director of Education has also noted the number of members who participated in the election from both the sides. Final decision has been taken by the Joint Director of Education after hearing both the rival parties. It was not open for the Joint Director of Education to stay the earlier order on a representation of a person who merely alleged that some complaints were pending before the District Inspector of Schools regarding membership which was not decided. Assuming for argument sake that the Joint Director of Education had jurisdiction to recall his final decision dated 8.3.2004, and also to stay the effect ;of said judgement, the said jurisdiction can be exercised only on a valid ground. For the present case suffice it to say that only ground given in the impugned order dated 15.3.2004 to stay the final determination, could not have been a ground for exercise of any such jurisdiction. Accepting the narration of facts in the impugned order dated 15.3.2004 that a complaint of Mohd. Ayub regarding membership was submitted before the District Inspector of Schools which had not been decided, the same cannot be a ground for staying the final determination by the Joint Director of Education. As observed above, after referring a dispute under Section 16-A(7) to the Joint Director of Education , the District Inspector of Schools is denuded of jurisdiction to enter into the dispute pertaining to validity of the election which includes the determination regarding membership of the persons who were entitled to participate in the election. From the Scheme of Section 16-A(7) of the UP. Intermediate Education Act it is clear that the Joint Director of Education has not been given any power to review his order on merits. Joint Director of Education has acted wholly illegally in making his final determination ineffective on the basis of the complaint of one Mohd. Ayub. From a reading of the order it is clear that Mohd. Ayub is one of the complainant along with Ikbal Abbasi, Shujat Ali, Nor Ahamad and Shane Ali Abbasi i.e. he belong to rival group of the respondents who have set up the election dated 26.12.2003. The Joint Director of Education has clearly erred in passing the order dated 15.3.2004 which was not based on any valid grounds. The order dated 15.3.2004 cannot be sustained and is hereby quashed.
18. In the result all the three writ petitions are allowed. The parties shall bear their own costs.