Allahabad High Court
C/M Thakur Biri Singh Inter College And ... vs State Of U.P. And 5 Others on 25 February, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - C No. - 28560 of 2019 Petitioner :- C/M Thakur Biri Singh Inter College And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Nitinjay Pandey Counsel for Respondent :- C.S.C.,Hemendra Kumar,Naresh Chandra Tripahti Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order passed by the District Inspector of Schools, Firozabad, dated 26th June, 2019, whereby petitioner's application, filed pursuant to orders passed by this Court in Writ Petition No. 16904 of 2019, has been rejected and the previous order passed by the Inspector on 29th March, 2019 is maintained. The previous order of Inspector, dated 29th March, 2019, holds that in view of the order passed by this Court on 23rd January, 2019, in Special Appeal No. 215 of 2018, the continuance of petitioner committee pursuant to elections held on 30th September, 2018 has become impermissible in law and, consequently the Inspector has invoked her authority under Section 5(1) of the U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 to pass an order of single operation. This order is assailed primarily on the ground that the petitioner management stood recognized by the Inspector on 17.10.2018, which is not challenged by anyone, and as there is no difficulty in payment of salary to the teachers and employees of the institution, as such, the invocation of authority under Section 5(1) of the Act of 1971 to pass an order of single operation is wholly arbitrary and unsustainable in law.
2. Before adverting to the legal proposition urged on behalf of the petitioner, it would be necessary to refer to the basic facts of the present case in the context of which the aforesaid dispute has arisen. There exists a society known as 'Thakur Biri Singh Educational Society, Tundla Firozabad, registered under the provisions of the Societies Registration Act, 1860 (hereinafter referred to as the 'society'). The society is running an Intermediate College namely 'Thakur Biri Singh Inter College' at Firozabad which is recognized under the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 'institution'). The teaching and non-teaching staff of this institution is receiving salary from the State funds by virtue of the provisions contained in the U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 (hereinafter referred to as the Act of 1971). The educational institution is being managed in accordance with its recognized scheme of administration. The bye-laws of the society, as also the scheme of administration of the institution are contained in Annexures 1 & 2 to the writ petition in respect of which no dispute exists. The scheme of administration contains a definition clause wherein the society is defined in clause 2(8), as under:-
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3. Clause 5 of the scheme of administration provides for constitution of a managing committee. Sub-clause (2) of Clause 5 clearly provides that election of office-bearer will be made from the members of the society. Clause 5 (2) of the scheme of administration is reproduced hereinafter:-
''5-समिति का संगठन-
(2) समिति के सभी सदस्य पदेन सदस्यों को छोड़कर अवैतनिक होंगे। इनका चुनाव सोसायटी के सदस्यों मे से होगा।''
4. It appears that dispute arose in the past, from time to time, regarding valid election of the office-bearers of society and a bunch of writ petitions, in that regard, came to be disposed of by this Court on 2.2.2018. Claim of membership of petitioner no. 2 also fell for consideration before this Court. Following observations of this Court, made in that regard are relevant and are accordingly reproduced hereinafter:-
"In this backdrop, the Court has proceeded to have a glance of order dated 17.05.1990 and 25.07.2002 passed by the Deputy Registrar as well as order dated 19.05.2012 passed by Prescribed Authority by which it is clearly reflected that at the relevant point of time the society in question was time barred since as per the bye laws, the election ought to have been held within three years period as admittedly the last valid election was held on 18.01.1987 and as such, directives have been issued to conduct the election in terms of Section 25(2) of the Act. Perusal of the order dated 19.05.2012 would also reflect that a clear cut finding has been recorded by the Prescribed Authority that the dispute with regard to the membership was very much there and the same was required to be decided by Deputy Registrar before holding the election of Committee of Management of Society.
Record in question clearly reflects that it was the consistent case of petitioners that at no point of time any such exercise had been carried out and it appears that at the relevant point of time, while passing the order dated 13.05.2016, in absence of the said exercise, the Deputy Registrar had erroneously accepted the claim of Surendra Singh Nauhar and as such, the same cannot be accepted.
It is a trite law that once the term of the Society is over, then the Assistant Registrar has got the power to hold the election under section 25 (2) of the Act and in the present case also, vide order dated 17.05.1990 and 25.07.2002 passed by the Deputy Registrar as well as order dated 19.05.2012 passed by Prescribed Authority, the election was sought to be conducted in terms of Section 25(2) of the Act after finalizing the issue with regard to the electoral roll. Even it has also been argued before this Court that the contesting respondent namely Surendra Singh Nauhar is ceased to have been member of the Society since he has been convicted by Trial Court vide order dated 08.06.2012 in Case no.787/1997 (State vs. Surendra Singh and another) under Sections 147, 323, 353, 322 IPC, P.S. Tundla, District Firozabad and as such, the election set up by him is unsustainable as per the bye laws."
5. After referring to various judicial pronouncements on the subject, this Court went on to direct as under:-
"In view of the above, once the Society was time barred and there were rival claims as well as membership dispute, then before holding the election, the membership was required to be decided by the Deputy Registrar and as such, the said view of the Deputy Registrar cannot sustain in the eyes of law in the light of order dated 17.05.1990 as well as order dated 25.07.2002 and as such, the order impugned in the present Writ Petition dated 03.09.2013 as well orders impugned in connected writ petitions dated 24.06.2015, 13.05.2016 cannot sustain and the same are set aside.
At this stage, without adverting such issue of membership as the same would be dealt with by the competent authority at the appropriate time and after careful consideration of the facts and circumstances of the present Writ Petition as well as in the connected writ petitions, this Court is of the considered opinion that the election may be held as early as possible and the same are to be ensured as per the directives issued by this Court vide order dated 28.01.2014, which provides as under:-
(a) The Assistant Registrar shall nominate an Officer as Election Officer to hold the election;
(b) The Election Officer shall call list of the members from all the rival groups within two weeks from the date of the appointment as Election Officer;
(c) On the basis of the list, supplied by the rival group, he will publish the tentative electoral roll and will call the objection to the tentative electoral roll;
(d) After receiving the objections, the Election Officer shall decide the objection by the brief reasons and finalize the electoral roll within six weeks from the date of receiving the objections;
(e) On the basis of the electoral roll the election shall be held within four weeks;
(f) Any party aggrieved by the election will be at liberty to adopt the remedy available under law.
Accordingly, the Writ Petition no. 54882 of 2013, Writ Petition no. 54860 of 2013, Writ Petition no. 41630 of 2015, Writ Petition no. 55419 of 2015, Writ Petition no. 25839 of 2016, Writ Petition no. 32104 of 2016, Writ Petition no. 38093 of 2016, are allowed and Writ Petition no. 38804 of 2016 is dismissed."
6. It is on record that petitioner committee of management conducted its election on 30th September, 2018 and the signatures of petitioner no. 2 (Surendra Singh Nauhwar) was attested for a term of four years (term of elected committee, as per scheme of administration, is four years) i.e. upto 26.9.2022. The order of Inspector dated 17.10.2018, recognizing the election of managing committee dated 30.9.2018 in which Surendra Singh Nauhwar got elected as the manager is not challenged.
7. The judgment of this Court, dated 2.2.2018 came to be challenged before a division bench of this Court in Special Appeal No. 215 of 2018 alongwith connected appeals. The special appeals have been disposed of vide following orders passed on 23.1.2019:-
"It is also evident from the record right from 1992 after the elections of 18.1.1987 more than a dozen of writ petitions relating to the election disputes of the Society have been preferred by either of the parties time and again.
It is settled that the Deputy Registrar is not empowered to deal with validity of the elections of the Society and the same if any, has to be left to be decided upon by the Prescribed authority in a summary manner. This is implicit vide Sub-section 1 of Section 25 of the Act. At the same time Sub-section 2 provides that where the office bearers of the Society are no longer entitled to continue in office or the elections of the office bearers have not been held within time specified, the Registrar may call a meeting of the general body of the Society for electing the office bearers.
In view of the above provisions, learned Single Judge is justified in holding that the Deputy Registrar by the order dated 3.9.2013 could not have decided about the dispute of the elections of the office bearers of the Society and ought to have referred it to the prescribed authority, if necessary.
There is also no dispute that previously all elections of the office bearers of the Society were held at the interval of five years uptil 2012 even though it is admitted that the terms of the office bearers of the Society is three years w.e.f. 21.3.1980. Therefore, all the elections were apparently held after the expiry of the term of the office bearers of the Society in contravention of Section 25 (2) of the Act which mandates the Registrar/Deputy Registrar to hold elections if the elections are not held within time.
In this context, it is relevant to refer to Sub-section 3 of section 25 of the Act as well which provides that no other meeting shall be called for the purposes of election by any authority or person claiming to be office bearers of the Society where a meeting is called by the Registrar in exercise of powers under Sub-section 2 of Section 25 of the Act. Thus, as in the present case there is already an order of the Deputy Registrar dated 17.5.1990 passed under Section 25 (2) of the Act for the purposes of holding the elections of the office bearers of the Society, no other person or authority could have held any other meeting for the purposes of election. Therefore, the said order not having been set aside, the Deputy Registrar is well within its power to hold the meeting of the Society for electing its office bearers.
In view of the aforesaid facts and circumstances, specially looking to the long drawn litigation so as to bring the Society on rails, we are of the opinion that to cut short all controversies, the directions given by the writ Court by the impugned order dated 2.2.2018 ought to be upheld and the Registrar/Assistant Registrar be permitted to proceed with-holding the elections of the office bearers of the Society in accordance with law keeping in view the directives of the Court. It goes without saying that if he is unable to finalize the list of members or the electoral roll in a summary manner or if his decision is not acceptable, the dispute of membership can be got resolved by taking recourse to the proceedings before the civil court.
All the appeals stand disposed of accordingly."
8. The division bench judgment was challenged before the Apex Court also in Special Leave to Appeal No. 7511 of 2019 but it was got dismissed as withdrawn on 5.4.2019, vide following orders:-
"Learned Senior Counsel appearing for the petitioners seeks permission to withdraw this petition with liberty to file review petition before the High Court.
Permission, as sought for, is granted.
Accordingly, the special leave petition is dismissed as withdrawn with the aforesaid liberty.
Needless to state that in case the petitioners fail before the High Court, they are permitted to approach this Court once over again challenging the main order as well as the order passed in the review petition."
9. The Deputy Registrar, Firms, Societies & Chits accordingly finalized the electoral college in order to hold elections under Section 25(2) of the Societies Registration Act, 1860. List of twelve members, who had participated in the last undisputed elections, dated 17.1.1987 came to be finalized on 7.3.2019. This order dated 7.3.2019 then came to be challenged before this Court in Writ Petition No. 9813 of 2019 which got disposed of vide following orders passed on 15th March, 2019:-
"Heard Sri Nitinjay Pandey, learned counsel for the petitioners, Sri Narendra Chandra Tripathi and Sri Arun Kumar Singh, learned counsel have entered appearance on behalf of the members who have been held valid by the order of the Deputy Registrar dated 07.03.2019 and learned Standing Counsel for the State respondents.
The order dated 07.03.2019 has declared the list of valid members. The validity of this list of members is not disputed.
The contention of learned counsel for the petitioners is that the various other members including 11 persons who claimed to be the valid members have not been made part of the list of members. The order dated 07.03.2019 is bad to that extent.
After some arguments, learned counsel for both the parties agree that a post decisional hearing in the instant case would subserve the ends of justice.
No useful purpose would be served by keeping the petition pending. With consent of the parties, the writ petition is being finally disposed of.
It is well settled that the principles of natural justice are not cast in any strait jacket formula. The requirements of natural justice are adapted to the facts of the case to subserve the ends of justice. In the evolution of the law of natural justice, the Hon'ble Supreme Court has applied the concept of post decisional hearing in appropriate cases. In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others, reported at (2015) 8 SCC 519, the Hon'ble Supreme Court held thus:
"38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on."
In view of the facts of the case and position of law laid down by the Hon'ble Supreme Court, a post decisional hearing would subserve the interest of justice. Matter is remitted to the respondent no. 2, Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra.
A writ of mandamus is issued commanding the the respondent no. 2, Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra to execute the following directions:
I. The petitioners shall submit all the documents and pleadings in regard to the validity of their membership on 25.03.2019.
II. The members of the societies whose membership have been held valid by the Deputy Registrar,Firms, Societies and Chits, Agra Region, Agra shall be served copies of the documents and pleadings being relied upon by the petitioners.
III. The members who have been held to be valid members by the order of Deputy Registrar dated 07.03.2019, shall file their objections to the pleadings and documents of the petitioners on 27.03.2019.
IV. The Deputy Registrar shall hear the parties on 29.03.2019.
V. The Deputy Registrar shall pass a final order on 02.04.2019.
VI. The claim of the petitioners shall be decided by a reasoned and speaking order in accordance with law.
It is clarified that this Court has not interfered the order dated 07.03.2019 passed by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra and any further action taken in pursuance thereof. The same shall abide by the decision taken by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra in compliance of the order passed by this Court.
The writ petition is disposed of finally."
10. A subsequent writ petition filed before this Court being Writ Petition No. 12689 of 2019, challenging the same order of Deputy Registrar, dated 7.3.2019, has also been disposed of vide following orders passed on 12.4.2019:-
"Considering the facts and circumstances of the case, with the consent of learned counsel for the parties, this petition is disposed of with a direction to Election Officer to proceed with the election proceeding and after declaration of result of election, at the time of recognition under Section 4(1) of the Societies Registration Act, 1860, petitioners is permitted to file their objection before Assistant Registrar (Firms, Societies & Chits), Agra and if any such objection is filed by the petitioners, the Assistant Registrar (Firms, Societies & Chits), Agra shall consider the same and decide strictly in accordance with law expeditiously, preferably within a period of one month from the date of receipt of proposal of recognition of election."
11. Another Writ Petition No. 24465 of 2019 also came to be filed challenging the order dated 7.3.2019, which too got disposed of vide following orders passed on 13.8.2019:-
"In view of the facts of the case and position of law laid down by the Hon'ble Supreme Court, a post decisional hearing would subserve the interest of justice. Matter is remitted to the respondent no. 2, Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra.
A writ of mandamus is issued commanding the the respondent no. 2, Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra to execute the following directions:
I. The petitioners shall submit all the documents and pleadings in regard to the validity of their membership on 25.08.2019.
II. The members of the societies whose membership have been held valid by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra shall be served copies of the documents and pleadings being relied upon by the petitioners.
III. The members who have been held to be valid members by the order of Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra, dated 07.03.2019, shall file their objections to the pleadings and documents of the petitioners on 27.08.2019.
IV. Other members of the society, who are desirous of submitting or tendering their objections along with supporting documentation, shall also be given an opportunity of hearing.
V. The pleadings/documents, shall be exchanged interse the parties, and their respective adversaries before the hearing. Finding in this regard shall be recorded by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra, in the proceeding book.
VI. The Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra, shall hear the parties on 28.09.2019.
VII. The Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra, shall pass a final order within two weeks from 28.09.2019.
VIII. The claim of the petitioners shall be decided by a reasoned and speaking order in accordance with law after hearing all concerned parties who are before this court and who may like to tender their submissions.
It is clarified that this Court has not interfered the order dated 07.03.2019 passed by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra and any further action taken in pursuance thereof. The same shall abide by the decision taken by the Deputy Registrar, Firms, Societies and Chits, Agra Region, Agra in compliance of the order passed by this Court.
The writ petition is disposed of finally."
12. It is worth noticing that this Court in its judgment dated 2.2.2018, has specifically disapproved the order of Deputy Registrar, 13.5.2016, whereby the claim of membership of petitioner no. 2 was accepted. The judgment of this Court dated 2.2.2018, has attained finality upto the Apex Court. The claim of membership of petitioner no. 2 since is seriously doubted by this Court and his name otherwise did not figure in the list of 12 members finalized by the Deputy Registrar, as such the Inspector appear to have raised doubts upon the continuance of petitioner no. 2 as manager since a member of society alone could be elected as manager in terms of the scheme of administration. The District Inspector of Schools, consequently proceeded to pass an order dated 29th March, 2019 holding that the election dated 30th September, 2018, which stood recognized earlier on 17.10.2018, and the signatures of the petitioner no. 2 were attested was impermissible as it would be in teeth of the division bench judgment of this Court.
13. This apparently was done as under the scheme of administration the office-bearers of the committee of management of institution can be elected only from amongst the members of the society and as petitioner no. 2 was not found to be the member of the society, he could not be elected as the manager. For such purposes the Inspector invoked her jurisdiction under section 5(1) of the Act of 1971.
14. Order of Inspector dated 29th March, 2019 came to be challenged before this Court on the ground that no opportunity of hearing was given to the petitioner before passing it. The writ petition has been allowed vide following orders passed on 29th March, 2019:-
"Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1 to 3 and Sri N.C. Tripathi, learned counsel for newly impleaded respondent nos. 4 to 6.
Learned counsel for the petitioners has assailed the impugned order dated 29.03.2019 passed by District Inspector of Schools, Firozabad- respondent no. 2 basically on the ground that this order has been passed without providing opportunity of hearing to the petitioner ignoring this fact that prior to passing of order, committee of management of petitioners' institution was duly approved, therefore, it is required on the part of respondent no. 2 to provide opportunity of hearing prior to passing the order impugned.
Sri N.C. Tripathi, learned counsel for respondent nos. 4 to 6 has raised several facts, but could not dispute this fact that opportunity of hearing has not been granted. Learned Standing Counsel has also not disputed this fact.
Considering the facts and circumstances of the case, impugned order dated 29.03.2019 passed by District Inspector of Schools, Firozabad- respondent no. 2 is hereby quashed and the matter is remanded back to respondent no. 2 to pass fresh order, maximum within a period of 30 days from the date of production of certified copy of the order after providing opportunity of hearing to the petitioner as well as newly impleaded respondent nos. 4 to 6.
Accordingly, this petition is allowed.
No order as to costs."
15. It is thereafter that the Inspector has passed the order impugned reiterating her earlier order dated 29th March, 2019. The reasoning assigned in the order is that Deputy Registrar, Firms, Societies & Chits has finalized the list of members of society on 7.3.2019 and the name of petitioner no. 2 does not figure amongst the twelve members recognized by the Deputy Registrar. It has, therefore, been observed that the elections of petitioner committee held on 30th September, 2018 with the participation of 111 members was wholly impermissible in view of the order passed in Special Appeal No. 215 of 2018 and petitioner no. 2 cannot be recognized as the manager. Consequently, petitioner's application dated 20.6.2019 has been rejected.
16. The Deputy Registrar, Firms, Societies & Chits has proceeded to redetermine the list of members vide his order dated 6th November, 2019 by accepting claim of membership of even those also who were enrolled after expiry of the term of undisputed elections i.e. 1990. This order is challenged in Writ Petition No. 37643 of 2019 and the order of the Deputy Registrar, dated 6.11.2019, has been stayed vide following order passed on 21.11.2019:-
"Shri Ashish Srivastava, learned counsel for the respondents states that he has filed Caveat Application on behalf of one of the member of the Society and his Caveat has not been reported by the Stamp Reporter.
Shri Ashish Srivastava, learned counsel for the respondents is directed to file Impleadment Application as the members of the Society has not been impleaded as a party.
Put up this matter again on 5.12.2019 as fresh.
Till the next date of listing, effect and operation of the impugned order dated 6.11.2019 passed by Deputy Registrar, Firms Societies & Chits, Agra, respondent No.2 shall remain stayed."
17. Subsequently, following orders have been passed in Writ Petition No. 37643 of 2019 on 28.1.2020, which is reproduced hereinafter:-
"An order passed by the Deputy Registrar, Firms Societies and Chits, Agra dated 06.11.2019 determining the Electoral College is assailed in this petition. It is contended that the determination made is absolutely in teeth of an earlier adjudication made by this Court in a bunch of writ petitions decided on 02.02.2018 with leading Writ Petition No. 54882 of 2013 as also the order passed in Special Appeal on 23.01.2019 with leading Special Appeals being Special Appeal No. 215 of 2018. It is contended that this Court in the aforesaid adjudication has clearly accepted the position that last undisputed elections of the Society were conducted in the year 1987 and because the term of society was three years which had exhausted/ outlift its tenure as such the Deputy Registrar had intervened under Section 25(2) of the Societies Registration Act,1860 vide his order dated 17.05.1990. The order passed by Deputy Registrar dated 17.05.1990 has already been upheld. The Division Bench has observed that once that be so no other faction would have the right to hold any subsequent election or to act as validly elected committee of management and to enroll new members. It is contended that the Deputy Registrar in his previous order dated 07.03.2019 had rightly restricted the membership of persons enrolled up till 17.01.1990 and that any subsequent acceptance of claim of membership based upon enrollment made after 07.01.1990 would clearly go contrary to the orders passed by this Court in special appeal.
Matter requires consideration.
The respondents are already represented through Sri Anoop Trivedi, learned Senior counsel assisted by Sri Vibhu Rai, Advocate. Application for intervention has also been filed by Sri N. C. Tripathi, learned counsel for respondents in the connected matter. It will be open for all the parties to file their affidavits within two weeks. Rejoinder affidavit, if any, may be filed within three days.
Let this matter be listed on 27.02.2020.
Interim order granted earlier shall continue, till the next date of listing. Persons who have filed the impleadment application would also be heard as interveners under Chapter 22, Rule 5-A of the Rules of the Court. It will be open for them also to file a counter affidavit within the same period."
18. Aggrieved by the order of Inspector, dated 26.6.2019, the petitioner is before this Court.
19. Sri Gajendra Pratap, learned Senior Counsel for the petitioner states that the primary purpose for passing an order of single operation under Section 5(1) of the Act of 1971 is to facilitate regular payment of salary to the teaching and non-teaching staff of the institution and as there was no default by the petitioner in that respect, the order of Inspector is wholly without jurisdiction. It is also urged that the elections held on 30th September, 2018 since has already been recognized on 17.10.2018, and no challenge to it is made before any forum, therefore, there was otherwise no occasion or justification for the Inspector to pass the order impugned. Learned Senior Counsel for the petitioner has placed reliance upon a judgment of this Court in Committee of Management, Gandhi Smarak Inter College, Agra Vs. District Inspector of Schools, Agra reported in 2001 (2) UPLBEC 1347. Reliance is placed upon paragraph 9 of the judgment, which reads as under:-
"9. Section 5 of the Salaries Act lays down the grounds on which an order of single operation of account can be passed. The Government Order dated 19.12.2000 provides that an order of single operation of accounts could be passed by the DIOS on the recommendations of the committee. The second proviso to Section 5(1) of the Salaries Act clearly provides that where a difficulty has arisen in disbursement of salaries of the staff of the institution due to any default of the management, an order of single operation of account can be passed by the DIOS. In paragraph 18 of the writ petition, it has been stated that there is no dispute regarding management and there was no default on the part of the management in respect of payment of salary to teachers and other employees of the institution. Section 5(1) does not provide that for the delay on the part of the DIOS or the regional committee in recognising the newly elected management, an order of single operation of account could be passed. The impugned order passed by DIOS on 3.4.2001 does not mention that the regional committee on the ground of delay had made a recommendation to the DIOS for passing an order of single operation of accounts. The power under Section 5(1) can be exercised sparingly and for reasons mentioned in the section as it is an infringement of right of an elected body to manage the affairs of the institution. Any infringement of right cannot be accepted as valid exercise of power. Therefore, in absence of any recommendation of the regional committee or existence of condition precedent for exercise of power, the order passed by the DIOS is arbitrary and illegal being contrary to the provisions of Section 5(1) of the Salaries Act and the Government Order dated 19.12.2000. It cannot be upheld."
20. Per contra, Sri N.C. Tripathi appearing for the respondents submits that petitioner no. 2 claims his induction as member of the society much after 1990, and in view of the settled legal proposition that a member could be enrolled by a legally constituted committee of management of society, any induction of member after 1991 would be impermissible. The continuance of petitioner no. 2 as recognized manager is alleged to be impermissible and in teeth of the orders passed by the division bench in Special Appeal No. 215 of 2018. Reliance is placed upon paragraphs 7, 8, 9 & 12 of a full bench judgment of this Court in Committee of Management, Pt. Jawahar Lal Nehru Inter College, Bansgaon Vs. Deputy Director of Education, Gorakhpur Region, Gorakhpur and others, reported in (2005) 1 UPLBEC 85, which reads as under:-
"7. In order to consider these questions, it is necessary to go into the background in which Section 16-A was inserted in the Act. Every recognized institution is to be managed by a Committee of Management elected in accordance with a 'Scheme of Administration approved by the Deputy Director of Education. Such a Committe of Management is required to discharge various statutory functions under the Act including the payment of salaries, appointments of adhoc teachers, determination of seniority etc. The District Inspector of Schools has to exercise various statutory functions in collaboration with such Committee of Management under the Act and the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees Act, 1971 (in short the U.P. Act of 1971). It is, therefore necessary to find out as to which of the elected Committee of Management is in actual control of the affairs of the Institution. Where the elections arc not disputed, the District Inspector of Schools is required to attest the signatures of the Principal and the Manager for the purposes of carrying out statutory functions and for maintenance of accounts. Where however there is a dispute regarding the elections, and the control over the Institution the District Inspector of Schools is required to satisfy himself as to who, according to him, is the validly elected Committee of Management.
8. In Committee of Management v. District Inspector of Schools and others, 1978 AWC 124, a Division Bench held that the mere raising of a dispute did not absolve the District Inspector of Schools from his duty, to find out on administrative level as to who are the real office bearers of the College. In order to perform statutory functions under the U.P. Act of 1921 and the U.P. Act of 1971, it is the duty of the District Inspector of Schools to satisfy himself as to who, according to him, are validly elected office bearers of the Institution. In Jaswant Singh v. District Inspector of Schools and others, 1980 ALJ 124 : 1980 UPLBEC 43 (DB), another Division Bench held that neither U.P. Act of 1921, nor U.P: Act of 1971, makes a provision for deciding the dispute raised by rival Committees of Management, in regard to the validity of elections in which they claim to be elected, and considerable time and expenditure is involved in getting the adjudication from a Civil Court, consequent upon the Deputy Director of Education recognizing one of the rival contenders as a duly constituted Committee of Management. Further since the experience of the Court had shown that the rate of litigation on this score is fairly high, the Court recommended that some Tribunal may be constituted to decide such disputes as has- been referred in the case.
9. The Act was consequently amended by Intermediate Education (Amend- ment) Act, 1980 (U.P. Act No. 1 of 1981). The relevant portion of the statement and object and purpose for inserting Section 16-A is quoted as below :
"Since the cases of mis-Management in the institutions are increasing fast, which obviously affects the teaching work in such institutions, it has been decided to amend the provisions relating to 'Scheme of Administration' and appointment of Authorised Controller, with a view to make effective provisions for proper Management of such institutions."
12. In Committee of Management, Sri Gandhi Mahavidyalaya v. District Inspector of Schools, Ballia and others, 1981 Education Cases 100 : 1981 UPLBEC 328, the Division Bench held that the enquiries are to be made, to first ascertain as to whether the meeting to hold the election has been held in accordance with the requirement of the Scheme of Administration and any other relevant provision in this behalf applicable to the affairs of the society which runs the institution. It is true that the District Inspector of Schools is not expected to write a detailed judgment as, if he was a Court of law, but nevertheless as observed in Jaswant Singh's case, his order must indicate that he has applied his mind to the controversy involved before him."
21. It is in the above background that the legality of the order of single operation, passed by the Inspector, needs to be examined.
22. In order to appreciate the submissions advanced it would be appropriate to reproduce Section 5(1) of the Act of 1971, which reads as under:-
"5. Procedure for payment of salary in the case of certain institutions. - (1) The management of every institution shall, for the purpose of disbursement of salaries to its teachers and employees, open [in a Scheduled Bank or a Cooperative Bank] a separate account to be opened jointly by a representative of the management and by the Inspector or such other officer as may be authorised in that behalf :
Provided that after the account is opened, the Inspector may, if he is, subject to any rules made under this Act, satisfied that it is expedient in the public interest so to do, instruct the bank that the account shall be operated by the representative as the management alone, and may at any time revoke such instruction :
Provided further that in the case referred to in the provision to subsection (2), or where a difficulty arises in the disbursement of salaries due to any default of the management, the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may at any time revoke such instruction."
23. Management in the Act of 1971 is defined in sub-section (d) of Section 2 in following terms:-
"2(d) "Management" in relation to any institution, means the Committee of Management constituted in accordance with the scheme of administration, if any, and includes the Manager or other person vested with the Authority to manage and conduct the affairs of the institution;"
24. The Act of 1971 has been enacted by the State legislature to regulate the payment of salaries to teachers and other employees of High School and Intermediate Colleges receiving aid out of the State funds and to provide for matters connected therewith. The High School and Intermediate Colleges are to be such Institutions which are recognized under the U.P. Intermediate Education Act, 1921 and are also receiving maintenance grant from the State Government. It is for the purposes of payment of salary to the teachers and other employees of such Institution that an account has to be opened in a Scheduled or Cooperative Bank. This account is to be jointly operated by a representative of management and the Inspector or such other officer as may be authorised in that behalf. However, the first proviso to Section 5(1) permits the Inspector, if he is satisfied that it is expedient in public interest so to do, instruct the bank that the account shall be operated by the representative of management alone and, at any time may revoke such instruction. The second proviso contemplates that in the event referred to in sub-section (2) of Section 5 of the Act of 1971 or where a difficulty arises in the disbursement of salaries due to any default of the management the Inspector may instruct that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may, at any time revoke such instruction.
25. The purpose of attesting signatures under the Act of 1971 is to ensure disbursement of salaries to the teachers and employees of the educational institution through the recognized management. The purpose of recognition to be granted to the management has been noticed by the full bench of this Court in Committee of Management, Pt. Jawahar Lal Nehru Inter College, Bansgaon (supra) in paragraph 11, which is reproduced hereinafter:-
"11. The nature of power in the Deputy Director of Education under Section 16-A(7) of U.P. Act of 1921, has been subject matter of consideration on several decisions of this Court. In Committee of Management of Sarvodaya Inter College v. Deputy Director of Education, Vth Region, Varanasi and others, 1982 UPLBEC 31, a Division Bench of this Court held that the. forum now provided by Section 16-A(7) is only a substitute for that which were being decided by the District Inspector of Schools under Section 5 of the Payment of Wages Act, 1971. This Court has held in a number of cases, that for the purposes of enabling himself to pay the salaries to the teachers on the bills submitted by a Manager, it was necessary for the District Inspector of Schools to recognize him and to decide the dispute relating to his right. Such a decision was, of course, summary in nature and was subject to the decision of a Civil Court. As there were serious doubts about the desirability of the District Inspector of Schools, being conferred such a power, by U.P. Act No. 1 of 1981, a new forum was created. By Section 16-A(7) the Deputy Director of Education was conferred the power to decide the dispute. This only brings about the change of forum. The Deputy Director of Education is not an Appellate Authority over the District Inspector of Schools in respect of cases earlier decided by the District Inspector of Schools. The power of the Deputy Director of Education is the same as used to be exercised by the District Inspector of Schools."
26. Since salary to teaching and non-teaching staff has to be disbursed pursuant to bills presented under the signatures of the manager and he also signs on the cheque, it is imperative that the Inspector authorises only such representative of the management which is constituted in accordance with the scheme of management. In addition to the functions assigned to a management in the Act of 1971, there are other responsibilities entrusted upon the management by virtue of provisions contained in the U.P. Intermediate Education Act, 1921. The Act of 1921, therefore, contemplates that a scheme of administration shall exist for every institution recognized under the Act of 1921. The scheme of administration shall, amongst other matters provide for the constitution of a committee of management which is vested with the authority to manage and conduct the affairs of the Institution. The requirement of having such scheme of administration and also the particulars which it must contain are specified in Section 16-A of the Act of 1921. Sub-section (6) of Section 16-A mandates that every recognized institution shall be managed in accordance with the scheme of administration provided for in Sub-sections (1) to (6) thereof. Amendment has been made in the Act of 1921 to incorporate Section 16-CC and Section 16-CCC vide U.P. Act No. 1 of 1981. Third Schedule has also been added vide the same amending Act laying down principles on which approval to a scheme of administration shall be accorded. One of the factors specified in the Schedule is to provide for periodical elections. The scheme of administration is also required to be approved by the Deputy Director of Education.
27. The object of enumerating need to have a scheme of administration and for a committee of management to be constituted as per it is to ensure that the body entrusted with the task of management functions in a democratic manner and the officials of the State interact only with a body duly elected in accordance with the approved scheme of administration. It is in this context that the term recognition needs to be understood for the committee of management of the Institution concerned. There is otherwise no specific provision in the Act of 1921 for grant of recognition.
28. At this stage it would be relevant to take note of the statutory scheme contained in the Act of 1921 for the purposes of settling any dispute which may arise in constituting the committee of management as per the scheme of administration. Section 16A(7) of the Act of 1921 contemplates that wherever there is a dispute with respect to management of an Institution the persons found by the Regional Deputy Director of Education, upon such enquiry as is deemed fit to be in actual control of its affairs may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution. By a government order the authority for such summary adjudication has now been vested in the Regional Level Committee.
29. A dispute of office-bearer ordinarily would not be examined by the Inspector since the forum in that regard, even for a summary adjudication, is before the Deputy Director of Education by virtue of Section 16-A(7) or the Regional Level Committee constituted under the Government Order dated 19.12.2000. The Inspector only attests the signature of the recognized manager under Section 5(1) of the Act of 1971 for the purposes of payment of salary. The Inspector however retains the jurisdiction to see as to whether the person claiming to be the manager of committee of management represents the committee of management constituted in accordance with the scheme of administration.
30. In the facts of the present case it is not in issue that signatures of petitioner no.2 as the manager were attested by the Inspector on 17.10.2018 and the order in that regard is not under challenge. It is also not a case where there exists any actual difficulty in payment of salary to teachers and other employees of the institution. The question is as to whether in such circumstances the Inspector would be justified in directing payment of salary to be released under an order of single operation?
31. The difficulty which may arise in payment of salary to be released to the teachers and other employees can be of two kinds. In a given case difficulty may arise in payment of salary due to default on part of the management in submitting salary bills. Difficulty may also arise in law in releasing salary if it is found by the Inspector that the person whose signatures are attested for payment of salary is not the manager of the committee constituted as per the scheme of administration. The present case falls in the second category inasmuch as a difficulty in law has arisen in payment of salary to be released under the signatures of petitioner no. 2.
32. A conjoint reading of Section 5(1) of the Act of 1971 read with Section 2(d) of the said Act makes it explicit that the Inspector will permit only such person to represent the management for operating the bank accounts which has been constituted in accordance with the approved scheme of administration.
33. It has already been noticed that as per the approved scheme of administration only a member of society can be elected as an office bearer of the managing committee. A dispute had arisen as to whether petitioner no. 2 is the member of society. The dispute in that regard has been resolved by this Court vide judgment dated 2.2.2018 wherein the order accepting claim of membership of petitioner no. 2 has been disapproved. The judgment dated 2.2.2018 however was subjudice before this Court in a bunch of special appeals when the signatures of petitioner no. 2 got recognized as the manager. The issue pending in special appeal has subsequently been resolved with dismissal of special appeal no. 215 of 2018. The observation of this Court doubting membership of petitioner no. 2 has been affirmed. A categorical view is taken that only such persons would be taken as members who were enrolled pursuant to last admitted election of the year 1987 term whereof expired in 1990. Only 12 persons have been found to be the members validly enrolled till then which does not include the name of petitioner no. 2. The membership of petitioner no. 2 is of a subsequent date. When petitioner no. 2 is not found to be a member of the parent society there would be no question of his being validly elected as an office bearer of the managing committee of the institution. The claim of election of petitioner no. 2 as the manager, therefore, is found to be prima facie inconsistent with the scheme of administration. The continuance of petitioner no. 2 as the manager apparently is found to be in teeth of the adjudication made by this Court in special appeal no. 215 of 2018. A difficulty in law does arise in payment of salary if petitioner no. 2 is allowed to act as manager contrary to the scheme of administration.
34. If the facts of the present case are analyzed in light of the law settled, it is apparent that petitioner no. 2, even prima facie, cannot claim to be the elected manager. A serious cloud on the membership of petitioner no. 2 having arisen on account of adjudication made by the division bench in Special Appeal No. 215 of 2018, the Inspector would clearly be entitled to exercise her powers under Section 5 to pass an order of single operation. Mere fact that none has challenged the attestation of signature therefore would not be a valid ground to deny authority to the Inspector to invoke her powers under Section 5(1) of the Act of 1971. Even in the absence of any challenge the Inspector retains the jurisdiction to exercise her authority under Section 5(1) of the Act of 1971 if a difficulty in law arises in payment of salary as is noticed above in the facts of the present case.
35. A division bench of this Court in Committee of Management of Shri Nehru Intermediate College, Rohi, Varanasi and another Vs. District Inspector of Schools, Varanasi and another reported in (1990) 1 UPLBEC 339 has clearly acknowledged that Inspector can exercise power under Section 5(1) of the Act of 1971 if a serious dispute has arisen regarding constitution of the committee of management. Paragraphs 3 to 6 of the aforesaid judgment is reproduced hereinafter:-
"3. Learned counsel for the petitioners contends that in view of the fact that Smt. Durga Devi was also the Manager of previous Committee of Management elected in 1984 and the further fact that her signatures had already been attested by the District Inspector of Schools, as result of which salary of the teachers and employees for the month of December, 1987 had been disbursed without any problem in pursuance of the bills submitted by her in January, 1988 no difficulty can be said to have arisen in regard to the disbursement of the salaries in the future so as to warrant action under Section 5(1) of the aforesaid Act.
4. We are unable to agree. Two-fold difficulties have been pointed out by the District Inspector of Schools in his order: First that a dispute has arisen with regard to the management of the institution on account of two rival groups claiming to be validly elected Committee of Management which has already been referred for determination of the Deputy Director of Education under Section 16-A(7) of the U.P. Intermediate Education Act and Second: that at present there is no recognised Manager of the Institution. In our opinion both these grounds furnish valid justification for an action under Section 5(1) of the Act. The attestation on which the petitioner is relying was the attestation done by the District Inspector of Schools while Smt. Durga Devi was acting as the Manager of the previous Committee of Management which was elected in 1984. On the basis of that attestation, the District Inspector of Schools could obviously not proceed to disburse the salary of the teacher and employees even after having come to know that fresh election for the Constitution of the Committee of Management had admittedly taken place. The attestation of the signatures of the Manager is an indirect recognition by the District Inspector of Schools of the Management for the purpose of disbursement of the salaries. Consequently, the attestation of the signatures of Smt. Durga Devi while she was acting as the Manager of the previously elected Committee of Management could not legally be availed of in relation to the new management.
5. In our opinion, a dispute having admittedly arisen with regard to the constitution of the Committee of Management and the same having been referred for determination of the Deputy Director of Education under Section 16-A(7) and at present there being no recognised Manager, the District Inspector of Schools rightly considered the present to be a fit case for invoking powers under Section 5(1) of the Act.
6. There is no merit in this petition and the same is dismissed."
36. In view of the deliberations and discussion aforesaid, this Court finds that the exercise of power by the Inspector, in the facts of the present case to pass an order of single operation of accounts is clearly justified and is in consonance with the law laid down by this Court. The challenge laid to the order passed by the District Inspector of Schools, Firozabad, dated 26th June, 2019 fails and the writ petition, accordingly, is dismissed. No order as to costs.
Order Date :- 25.2.2020 Ranjeet Sahu