Allahabad High Court
C/M Daya Nand Uchattar Madhyamik ... vs State Of U.P.& Others on 12 July, 2010
Author: Dilip Gupta
Bench: Dilip Gupta
Reserved
Court No.39
Civil Misc. Writ Petition No.55706 of 2004
Committee of Management Daya Nand Uchattar Madhyamik
Vidyalaya, Thaur Khewasipur, Jaunpur & Anr. Vs. State of U.P. &
Ors.
With
Civil Misc. Writ Petition No.21209 of 2010
Committee of Management Daya Nand Uchattar Madhyamik
Vidyalaya, Thaur Khewasipur, Jaunpur & Anr. Vs. State of U.P. &
Ors.
~~~~~~~
Hon'ble Dilip Gupta, J.
Writ Petition No.55706 of 2004 has been filed by the Committee of Management of Dayanand Ucchatar Madhyamik Vidyalaya, Thaur Khewasipur, Jaunpur and Parmanand claiming to have been elected as Manager of the Committee of Management of the Institution for quashing the order dated 17th November, 2004 passed by the Joint Director of Education, Varanasi by which the two elections held for constituting the Committee of Management of the Institution have not been approved and the District Inspector of Schools has been appointed as Prabandha Sanchalak for holding the elections within a period of four months since the term of the Committee of Management elected earlier had expired.
Writ Petition No.21209 of 2010 has been filed by the Committee of Management of Dayanand Ucchatar Madhyamik Vidyalaya, Thaur Khewasipur, Jaunpur and Parmanand for quashing of the order dated 16th March, 2010 passed by the Joint Director of Education, Varanasi by which the Principal of the Government Inter College, Jakhani, Varanasi has been appointed as the Prabandha Sanchalak of the Institution in place of the District Inspector of Schools, Varanasi who had earlier been appointed as the Prabandha Sanchalak in the Institution by the order dated 17th November, 2004. A further direction has been sought upon the respondents to recognise the Committee of Management of the Institution with petitioner no.2- Parmanand as the Manager and to take a decision with regard to the holding 2 of fresh elections before the expiry of the term of the present Committee of Management.
It is stated that Dayanand Ucchatar Madhyamik Vidyalaya, Thaur Khewasipur, Jaunpur (hereinafter referred to as the 'Institution') is recognised under the provisions of the U.P. Intermediate Education Act, 1921 and receives aid from the State Government. It has its own Scheme of Administration which provides that the term of the office bearers and members of the Committee of Management of the Institution shall be three years but on expiry of the aforesaid period, the office bearers can continue for a further period of one month. However, if within this period of three years and one month the newly elected Committee of Management does not take charge, then the term of the Committee of Management shall automatically come to an end and the Deputy Director of Education shall nominate a person as Prabandha Sanchalak for managing the affairs of the Institution who shall constitute the Committee of Management of the Institution at the earliest and handover charge to it but if there is a dispute, he shall handover charge to such Committee of Management in whose favour order is passed by the Deputy Director of Education.
It is further stated that the elections of the Committee of Management of the Institution were held on 20th January, 1999 in which Ram Roop was elected as the President and Parmanand was elected as the Manager. One Shambhu Dutt Mishra raised a dispute and the Joint Director of Education by the order dated 25th July, 1999 approved the elections of the Committee of Management held on 20th January, 1999 with Parmanand as the Manager. The next elections of the Committee of Management of the Institution were held on 3rd February, 2002 in which Raja Ram was elected as the President and Parmanand was elected as the Manager. Papers were submitted before the District Inspector of Schools but one Shambhu Dutt Mishra also submitted papers regarding the elections of the Committee of Management of the Institution in which he claimed to have been elected as the Manager. The matter was referred by the District Inspector of Schools to the Joint Director of Education but during the pendency of the proceedings before the Joint Director of Education, Ram Roop who had also been elected as the President in the elections held on 20th January, 1999, died on 8th July, 2002.
3It needs to be mentioned that the Joint Director of Education, Varanasi also appointed the District Inspector of Schools as the Prabandha Sanchalak for holding the elections of the Committee of Management by the order dated 30th October, 2002. This order was assailed by the petitioners in Writ Petition No.49019 of 2002 which was allowed by the judgment and order dated 18th November, 2002 with the following observations:-
"Before passing of the impugned order dated 30.10.2002 appointing Authorised Controller, no opportunity has been given to show cause against the recommendation to that effect. Such provision is specially made in clause 20 of the Scheme of Administration.
In the circumstances, after hearing learned counsel for the petitioners and Sri D.S.M. Tripathi, appearing for the respondents, the impugned order dated 30.10.2002 (Annexure-15 to this writ petition) is quashed. If the tenure of the earlier Committee of Management has expired, consequent action may be taken as permissible in law in accordance with the procedure given. If the decision under Section 16-A(7) is pending the same may also be taken expeditiously.
The writ petition is allowed, as above."
The Joint Director of Education, Varanasi by the order dated 13th September, 2003 recognised the Committee of Management of the Institution with Shambhu Dutt Mishra as the Manager. This order was challenged by the petitioners in Writ Petition No.44528 of 2003 in which initially an interim order was passed on 29th September, 2003, but ultimately the petition was allowed by the judgment and order dated 12th April, 2004 with the following observations:-
"........... Here in the present case, the Joint Director of Education has not all adverted himself to the aforementioned adjudication made on the earlier occasion and as such order is bad on this score alone. On the question of membership, petitioner No.2 by means of affidavit dated 30.7.2003 had placed documents to substantiate the membership, but this documents have not even been referred to and this shows no application of mind on the part of the Joint Director of Education, while deciding the dispute.
While deciding the dispute under Section 16-A(7) of the U.P. Intermediate Education Act, 1921, the Joint Director of Education apart from going into question of effective control has to be incidentally for prima facie satisfaction that elections are valid namely (i) right of person/groups of person, who had convened meeting and 4 held election (ii) persons who had participated in the election, has right to participate in the election (iii) elections have been held as per provisions contained in the Scheme of Administration.
Here in the present case, no such exercise has been undertaken by the Joint Director of Education and as such decision making procedure adopted by the Joint Director of Education is faulty on the face of it and as such same deserves to be set aside. Consequently writ petition is allowed. Order dated 13.9.2003 passed by the Joint Director of Education and other consequential action is hereby quashed and set aside and Joint Director of Education is directed to decide the dispute afresh after providing opportunity of hearing to both the parties, preferably within a period of three months from the date of production of a certified copy of this order."
Pursuant to the aforesaid directions issued by the Court, the Joint Director of Education, Varanasi passed an order on 17th November, 2004 again holding that none of the two elections of the Committee of Management were held in accordance with the Scheme of Administration of the Institution but as the term of the Committee of Management of the Institution earlier elected had come to an end, the District Inspector of Schools was appointed as the ex-officio Prabandha Sanchalak and he was directed to hold the elections of the Committee of Management within four months.
In the order dated 17th November, 2004, the Joint Director of Education has made the following observations:-
1. Parmanand claims to have held held elections from amongst 40 members of the General Body but the validity of the membership of these persons is doubtful. This apart, the election programme was also not published in any newspaper approved by the District Inspector of Schools and the election proceedings were also not conducted in accordance with the Scheme of Administration. Even Parmanand was not enrolled as member in 1997 according to the Scheme of Administration of the Institution.
2. The list submitted by Shambhu Dutt Mishra cannot also be relied upon.
3. In the absence of any valid list, the elections said to have been held by both the parties cannot be approved.5
4. Thus, since the elections of both the parties were not conducted in accordance with the Scheme of Administration of the Institution, it is not possible to approve the said elections
5. As the term of the earlier elected Committee of Management had come to an end, it is necessary to appoint the District Inspector of Schools as ex-officio Prabandha Sanchalak of the Institution who shall hold the elections of the Committee of Management of the Institution within four months.
This order dated 17th November, 2004 was challenged by the petitioners by filing Writ Petition No.55706 of 2004 in which an interim order as passed on 5th January, 2005 which is quoted below:-
"Standing Counsel who represents respondent 1 to 3 prays for and is granted three weeks time to file counter affidavit.
Issue notice to respondent no.4.
Until the date of next listing, operation of the order dated 17.11.2004 passed by the Joint Director of Education, Varanasi shall remain stayed."
It is stated in Writ Petition No.21209 of 2010 that on the basis of the interim order granted by the Court, petitioner no.2-Parmanand functioned as the Manager of the Institution and, thereafter, elections of the Committee of Management of the Institution were held on 16th January, 2005 and papers were submitted to the District Inspector of Schools. Subsequently, before the expiry of the term of the Committee of Management elected on 16th February, 2005, fresh elections of the Committee of Management of the Institution were also held on 3rd February, 2008 and papers were also submitted in the office of the District Inspector of Schools on 4th February, 2008 but no orders have been passed by the District Inspector of Schools. It is further stated that the Joint Director of Education passed an order on 16th March, 2010 modifying the earlier order dated 17th November, 2004 and the Principal of the Government Inter College, Jakhani, Varanasi was appointed as the Prabandha Sanchalak instead of the District Inspector of Schools.
In the impleadment application filed by Shambhu Dutt Mishra, it has been pointed out that by the order dated 5th April, 2010 the Joint Director of Education appointed the District Basic Education Officer, Jaunpur as the Prabandha Sanchalak for holding the elections of the Committee of Management of the Institution and pursuant to the said order dated 5th April, 6 2010 the District Basic Education Officer has taken over charge on 12th April, 2010 as the Prabandha Sanchalak of the Institution and his signatures have also been attested by the District Inspector of Schools by the order dated 15th April, 2010. The impleament application was allowed by the Court by the order dated 22nd April, 2010.
An amendment application was, therefore, filed by the petitioners for quashing the order dated 5th April, 2010. This amendment application was also allowed by the order dated 22nd April, 2010.
Sri R.K. Ojha, learned counsel appearing for the petitioners submitted that the order dated 17th November, 2004 passed by the Joint Director of Education for appointment of Prabandha Sanchalak should be set aside as the elections of the Committee of Management of the Institution held on 3rd February, 2002 in which Raja Ram was elected as President and Parmanand was elected as the Manager were held in accordance with the Scheme of Administration of the Institution and the Joint Director of Education has committed an infirmity in rejecting the said election. It is also his submission that when the order dated 17th November, 2004 passed by the Joint Director of Education appointing the District Inspector of Schools as the ex-officio Prabandha Sanchalak of the Institution had been stayed by this Court in Writ Petition No.55706 of 2004 on 5th January, 2005, the Joint Director of Education could not have passed the subsequent orders on 16th March, 2010 or 5th April, 2010 replacing the said Prabandha Sanchalak and appointing the Principal of the Government Inter College or the District Basic Education Officer as the Prabandha Sanchalak for holding the elections of the Committee of Management of the Institution. It is also his submission that the Committee of Management of the Institution had not become time barred as fresh elections had been held within the stipulated time on 3rd February, 2002, 16th January, 2005 and 3rd February, 2008 and, therefore, the Joint Director of Education was not justified in appointing the Prabandha Sahchalak for holding fresh elections of the Committee of Management of the Institution and in support of his contentions he has placed reliance upon the decisions of this Court in Committee of Management, Adarsh Shiksha Samiti, Karchana, Allahabad and Anr. Vs. State of U.P. & Ors., 2009 (8) ADJ 393 and Om Prakash Sharma Vs. Committee of Management, Shri Mad Brahmanand Inter College, Aligarh & Ors., 2009 (8) ADJ 7
507. It is for this reason that he has submitted that a direction should be issued to the authorities to approve the elections of the Committee of Management of the Institution held on 16th January, 2005 and 3rd February, 2008. It is his submission that once the election held on 3rd February, 2002 is approved, the Committee of Management of the Institution elected in 2005 and 2008 should be approved since the Committee of Management elected in 2002 has held the subsequent elections.
Sri Pankaj Kumar Upadhayay, learned counsel appearing for the private respondents in both the petitions, however, contended that there is no infirmity in the order dated 17th November, 2004 passed by the Joint Director of Education and since the term of the Committee of Management earlier elected in 1999 had come to an end, the Joint Director of Education was justified in appointing the Prabandha Sanchalak for holding the elections of the Committee of Management of the Institution. He further submitted that mere stay of the order dated 17th November, 2004 does not mean that the Committee of Management with Parmanand as the Manager can continue since there is no order of any authority approving the elections of the Committee of Management of the Institution held on 3rd February, 2002 in which Parmanand claims to have been elected as the Manager. It is, therefore, his submission that the subsequent elections could not have been held by the said Committee of Management in 2005 and 2008 and in support of his contention he has placed reliance upon the decisions of this Court in Committee of Management, Sukhpura Inter College, Ballia & Anr. Vs. Alleged Committee of Management, Sukhpura Inter College, Ballia & Ors., 1997 AWC (Supp.) 592; Committee of Management, Pt. Jawahar Lal Nehru Inter College, Bansgaon, District Gorakhpur & Anr. Vs. Deputy Director of Education, Gorakhpur Region, Gorakhpur & Ors., (2005) 1 UPLBEC 85 and Rajpati Vs. Regional Committee, Vindhyachal Mandal, Mirzapur & Ors., 2007 (6) ADJ 733.
I have carefully considered the submissions advanced by the learned counsel for the parties.
The dispute in Writ Petition No.55706 of 2004 is about the elections of the Committee of Management of the Institution held in the year 2002.
By the order dated 17th November, 2004, the Joint Director of Education has not approved either of the two elections claimed to have held 8 by Parmanand or Shambhu Dutt Shukla. A finding has been recorded that both the elections were not held in accordance with the Scheme of Administration of the Institution and doubts have also been raised about the validity of the lists of the members of the General Body who had participated in the elections. It is for this reason that the Joint Director of Education appointed a Prabandha Sanchalak to hold the elections of the Committee of Management of the Institution within four months since the term of the earlier Committee of Management elected on 20th January, 1999 had come to an end. Writ Petition No.55706 of 2004 had been filed for quashing the aforesaid order dated 17th November, 2004 passed by the Joint Director of Education and on 5th January, 2005 this Court had only stayed the operation of the order dated 17th November, 2004 passed by the Joint Director of Education by which none of the two elections were approved. Mere stay of this order does not mean that the Court had approved the elections of the petitioner-Committee of Management of the Institution. Till date the petitioner-Committee of Management said to have been elected on 3rd February, 2002 has not been approved.
It is the contention of Sri R.K. Ojha, learned counsel appearing for the petitioners that the Joint Director of Education committed an infirmity in not approving the said elections. It needs to be considered whether after almost eight years, this Court should examine the validity of the elections said to have been held in 2002 and that too when the Joint Director of Education had appointed a Prabandha Sanchalak for holding the elections of the Committee of Management of the Institution. Much time has lapsed after the holding of the elections in 2002. Keeping this in mind and the fact that the term of the Committee of Management is three years, it will not be desirable to examine whether the decision taken by the Joint Director of Education not to approve any of the two elections and for holding of the fresh elections by Prabandha Sanchalak is correct or not.
Learned counsel for the petitioners has relied upon the decisions of this Court in Adarsh Shiksha Samiti (supra) and Om Prakash Sharma (supra). In the former case, the Court had passed an interim order of status quo in favour of the Committee which was functioning on the date of passing of the interim order. The Committee of Management, therefore, which was functioning on the date of passing of the interim order could have 9 held the election but in the present petition only the operation of the order dated 17th November, 2004 passed by the Joint Director of Education had been stayed. Mere stay of that order, may be at the behest of the petitioners, will not mean that there is some sort of approval by the Court to the elections of the Committee of Management held by the petitioners. In Om Prakash Sharma (supra) also there was an order of status quo. The decisions relied upon by the learned counsel for the petitioners, therefore, do not apply to the facts of the present case.
Learned counsel for the respondents has placed reliance upon the decision of this Court in Sukhpura Inter College (supra) wherein it has been held that the Committee of Management whose election had been declared to be illegal and invalid by the Joint Director of Education and whose term of office had come to an end, had no authority to hold fresh elections. In a Full Bench decision of this Court in Pt. Jawahar Lal Nehru Inter College (supra), it was clearly held that the concerned authority can proceed to appoint an Authorised Controller once it is found that the elections are invalid and the directions can also be given to the Authorised Controller to hold fresh elections.
It is the case of the petitioners that the elections of the petitioner- Committee of Management held on 3rd February, 2002 should be approved and after that the elections held by it on 16th January, 2005 and 3rd February, 2008 should also be approved.
In the facts and circumstances of the present case, as noticed hereinabove, no useful purpose would be served by sending the matter back to the Joint Director of Education to settle the rival claims of the parties since more than eight years have lapsed. The Joint Director of Education has appointed an Authorised Controller by the order dated 5th April, 2010 who has been directed to hold the elections of the Committee of Management of the Institution. It would, therefore, be in the fitness of things that the Prabandh Sanchalak should hold the elections of the Committee of Management of the Institution in accordance with the Scheme of Administration of the Institution within a period of two months.
Writ Petition No.21209 of 2010 seeks to challenge the orders dated 16th March, 2010 and 5th April, 2010 by which the Authorised Controller appointed by the order dated 17th November, 2004 has been changed. The 10 submission of the learned counsel for the petitioners is not that the Authorised Controller could not have been changed but his submission is that the Authorised Controller could not have been appointed. This submission has been considered.
Thus, for all the reasons stated above, both the writ petitions are liable to be dismissed and are, accordingly, dismissed subject to the observations made above.
Date: 12.07.2010 GS