Allahabad High Court
C/M, Pandit Jawahar Lal Nehru Inter ... vs Regional Joint Director Of Education & ... on 4 May, 2017
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 04.04.2017 Delivered on 04.05.2017 Court No. - 26 Case :- WRIT - C No. - 27814 of 1998 Petitioner :- C/M, Pandit Jawahar Lal Nehru Inter College, & Another Respondent :- Regional Joint Director Of Education & Others Counsel for Petitioner :- Ashok Khare Counsel for Respondent :- S.C.,A.B.Singh,Dr. R.G. Padia connected with Case :- WRIT - C No. - 28101 of 1998 Petitioner :- C/M Pandit Jawahar Lal Nehru Inter College, Bansgaon & Ors. Respondent :- District Inspector Of Schools, Gorakhpur And Others Counsel for Petitioner :- A.B.Singh Counsel for Respondent :- S.C. and Case :- WRIT - C No. - 42776 of 1998 Petitioner :- C/M,Pt. J. L. Inter College,Bansgaon Thru Its Manager &Others Respondent :- D.I.O.S. & Others Counsel for Petitioner :- A.B. Singh Counsel for Respondent :- S.C. and Case :- WRIT - C No. - 9637 of 2001 Petitioner :- C/M, Bansgaon Anglo Vernacular Society & Others Respondent :- Assistant Registrar, Firms, Society, Chits & Others Counsel for Petitioner :- Awadh Behari Singh, Ashok Bhushan Counsel for Respondent :- C.S.C.,Ashok Khare,S.C. Dwivedi,S.D. Dwivedi,S.D. Shukla,S.D. Singh,S.P.K.Tripathi and Case :- WRIT - C No. - 60595 of 2005 Petitioner :- Rajesh Singh & Another Respondent :- Regional Education Committee & Others Counsel for Petitioner :- S.P.K. Tripathi Counsel for Respondent :- C.S.C.,A.B. Singh Hon'ble Mrs. Sangeeta Chandra,J.
1. Writ petition Nos. 28101 of 1998 and 42776 of 1998 and 9637 of 2001 have been filed by one Sanjay Singh alleging himself to be an elected Manager of Committee of Management of Pandit Jawahar Lal Nehru Inter College, Bansgaon, Gorakhpur. Writ Petition Nos 27814 of 1998, 60595 of 2005 have been filed by Rajesh Singh, who also similarly alleges himself to be elected Manager of the Committee of Management of Pandit Jawahar Lal Nehru Inter College.
2. The facts relevant for decision of the controversy involved in these bunch of writ petitions can be stated, in brief, are as follows:
3. There is a Society registered under the Society Registration Act in the name of Bansgaon Anglo Vernacular Society, Gorakhpur, which was initially registered on 24.02.1943. This Society runs an Institution in the name of Pandit Jawahar Lal Nehru Inter College, Bansgaon Gorakhpur imparting education from Class VI to XII under the provisions of U.P. Intermediate Education Act. The Payment of Salary of Teachers and other Staff Act, 1971 and UP Secondary Education Selection Commission Act, 1982 are applicable to the Institution, which is an aided Institution.
4. Initially when the bye-laws of the Society were framed, the term of Committee of Management was five years, which was renewed from time to time. One Ram Awadh Singh, father of Sanjay Singh was the founder of the Institution and the society, which was registered in his name and he continued to remain the Manager of the Society till his death on 21.02.1987. The last election held during the lifetime of Ram Awadh Singh was in the year 1984 and after his death, the charge of post of Manager was given one Jangsher Singh for the remaining period and the next election was held on 12.11.1989, in which one Kashi Singh was elected as Manager. Again after a period of five years, election of the Committee of Management was held on 16.01.1995.
5. It is the case of Sanjay Singh in the writ petitions filed by him that after election was held on 16.01.1995, Sanjay Singh became patron member of the Society by depositing a fee of Rs. 1000/- (rupees one thousand) on 09.05.1995, but Shri Kashi Singh interpolated the records and removed evidence of deposit of fees by Sanjay Singh. Shri Kashi Singh also forged the minutes of the meeting alleged to have been held by the Committee of Management on 06.07.1997. On the basis of these minutes of the meeting, two letters were sent by Kashi Singh to the District Inspector of Schools (hereinafter referred as "DIOS") to send his supervisor for election to be held on 19.10.1997. The DIOS was not convinced with the information sent by the Committee of Management under Kashi Singh that under the Amended Scheme of Administration, the term of Committee of Management had been reduced from five years to three years and, therefore, DIOS did not send any supervisor.
6. It is alleged by Sanjay Singh that a fictitious election was held by Kashi Singh, in which he showed his grandson Rajesh Singh elected as Assistant Manager, whereas one Ravinder Singh had been shown as officiating President. However, this election was not recognized by the DIOS, Gorakhpur. Kashi Singh died on 04.06.1998 and after his death, charge was given to Sanjay Singh, who had already been elected Assistant Manager in the election held on 16.01.1995 to work as Manager for the remaining term of five years of the Committee of Management.
7. Writ Petition No. 21772 of 1998 by Sanjay Singh claiming therein that the Committed of Management had resolved to let him act as Manager on the death of the Kashi Singh, but his papers have not been processed by the DIOS. Rajesh Singh filed a Writ Petition No. 24149 of 1998 before this Court seeking a direction to the DIOS to hear him also while deciding the representation of Sanjay Singh.
8. This Court disposed of both the writ petitions with the direction to the DIOS, Gorakhpur to hear both the parties while deciding the dispute with regard to validity of their respective claims. In pursuance of the directions issued by this Court on 10.07.1998 and 30.07.1998 in the aforesaid two writ petitions, the DIOS heard both the parties, i.e. Sanjay Singh, and Rajesh Singh. The DIOS proceeded on the assumption that the tenure of the Committee of Management had been curtailed from five years to three years by amendment carried out in the Scheme of Administration on the directions issued by the Deputy Director of Education and from the date of undisputed election on 16.01.1995, three years when calculated came to end on 16.01.1998, hence election should be held before 16.01.1998. He discarded elections said to be held by three factions on 16.10.1997, 27.12.1997 and 21.01.1998 as no officer of the Education Department participated as supervisor. The DIOS in his order dated 19.08.1998 held that undisputedly the last election which was recognized by the Education Authorities was held on 16.01.1995 and Sanjay Singh was officiating as Manager. After death of Kashi Singh, he shall continue as officiating Manager, but at the same time list of valid members of the Society should be sent to the office of the DIOS for verification within 15 days and election should be held thereafter for electing a new Committee of Management within two months.
9. It was this order dated 19.08.1998, which was challenged by Rajesh Singh by filing Writ Petition No. 27814 of 1998. In this writ petition, the case of Rajesh Singh, (the grandson of Kashi Singh) as set up by him was that the society's bye-laws envisaged two Executive Bodies under the name of Prabhandhakiya Parishad and Karya Samiti. The Prabandhakiya Parishad was a body consisting of 44 members elected from amongst the members of General Body of the Society, Prabandhakiya Parishad then elected the members of the Executive Committee from amongst themselves, as per the unamended bye-laws of the society. The term of office bearers was five years. This society, i.e. Bansgaon Anglo Vernacular Society, Gorakhpur, ran the Institution in the name of Pandit Jawahar Lal Nehru Inter College, which is managed by the Committee of Management in accordance with the Scheme of Administration approved by the Education Authorities under the Intermediate Education Act. The term of the Committee of Management is the same as the term of Prabandhakiya Parishad and Karya Samiti of Bansgaon Anglo Vernacular Society, Gorakhpur.
10. It has been further pleaded by Rajesh Singh that after the enforcement of U.P. Act No. 1 of 1981, bringing into force section 16 CC and section 16 CCC and the Third Schedule of the Intermediate Education Act, a Model Scheme of Administration was circulated by the Government, copy whereof was sent by the Regional Deputy Director of Education to the Committee of Management of the Institution proposing to curtail the term of the Committee of Management from five years to three years. The election of Prabandhakiya Parishad and Karya Samiti of the Society and the Committee of Management of the College was held in September, 1984, wherein Ram Avadh Singh was elected as Manager, Kashi Singh was elected as Assistant Manager. After the death of Ram Avadh Singh on 21.02.1987, Shri Jangsher Singh was authorised to function as Manager, but he was not keeping well and then a resolution was passed by the Committee of Management authorising Kashi Singh to function as Manager. An intimation was sent to the DIOS to attest the signature of Kashi Singh.
11. As per the Amended Scheme of Administration, the term of Committee of Management was to come to an end in September, 1989, but due to flood in district Gorakhpur, the DIOS granted permission for holding election in November, 1989. On 12.11.1989 election was held in which Shri Mahaveer Prasad was elected as President and Shri Kashi Singh was elected as Manager. Rival claim was set up by Jangsher Singh and Kalawati Devi and the DIOS referred the dispute to the Deputy Director of Education under section 16-A (7) on 10.9.1992. Feeling aggrieved by the order dated 10.09.1992, the Committee of Management of which Kashi Singh was the Manager, filed Writ Petition No. 35267 of 1992, in which an interim order was granted on 22.09.1992, as a consequence of which the Committee of Management with Kashi Singh as Manager continued to function.
12. During the pendency of the aforesaid writ petition, the elections took place on 16.01.1995 in which Mahaveer Prasad was elected as President and Kashi Singh was elected as Manager. The next election as per the Amended Scheme of Administration was due to be held before January, 1998 and, therefore, the Committee of Management with Kashi Singh as Manager requested the DIOS through letters dated 27.09.1997 and 08.10.1997 to send a supervisor. These letters remained unheeded and, therefore, election was held on 19.10.1997.
13. It is the case of Rajesh Singh that although DIOS did not recognise the election held on 19.10.1997, yet he allowed Kashi Singh to function as Manager and to operate the accounts of the Institution with regard to payment of salary etc. Kashi Singh, however, expired on 04.6.1998 causing casual vacancy of Manager in the Institution. Karya Samiti of the society on 09.06.1998 resolved that Rajesh Singh (who had earlier been elected as Assistant Manager in the election held on 19.10.1997) should function as Manager for the remaining term of the Committee of Management.
14. The case set up by Rajesh Singh in Writ Petition No. 27814 of 1998 was that on the basis of resolution passed by the Karya Samiti of the Society, he was functioning as Manager of the Institution and discharging all his duties and was in total effective control of the Institution and Sanjay Singh, who was not the member of the General Body of the Society could not have been allowed to continue as Manager by the DIOS in his order dated 19.8.1998. It is the case set up by Rajesh Singh that Sanjay Singh had been enrolled as an ordinary member in 1995 as is evident from the list of members dated 10.01.1995, on the basis of which election was held on 16.01.1995, and since the term of ordinary member is only for three years, it lapsed and Sanjay Singh was no longer member of the General Body.
15. Sanjay Singh in Writ Petition No. 28101 of 1998 challenging the same order of the DIOS dated 19.08.1998 has stated that he had deposited Rs.1000/-(rupees one thousand) and had been enrolled as Patron member of the Society in May, 1995, but Kashi Singh with an intention of putting Rajesh Singh, his grandson, in control of the Institution had interpolated the list of members so as to remove the name of Sanjay Singh, as Patron member and all evidence of his having deposited the fee in May, 1995 for being enrolled as Patron member had also been removed by him.
16. It is the case of Rajesh Singh in Writ Petition No. 27814 of 1998 that the DIOS has wrongly referred to three elections allegedly held on 19.10.1997, 27.12.1997 and 11.01.1998. In fact, there was only two rival elections held on 19.10.1997 and 11.1.1998 and in case there were two rival elections, the DIOS should have referred the matter to the Deputy Director of Education/Joint Director of Education for adjudication under section 16-A (7) of the Intermediate Education Act. The DIOS could not have himself decided the claim set up by the rival Committees of Management, and also that the DIOS in his order dated 19.08.1998 had not given any reason for discarding the election held on 19.10.1997 and had passed the order on erroneous consideration. More so when the term of Committee of Management, which was elected on 16.01.1995 had come to an end on 16.01.1998 much before passing of the order dated 19.08.1998.
17. Sanjay Singh has set up a case that there could not have been an automatic amendment in the Scheme of Administration and after the undisputed election on 16.01.1995, in which Kashi Singh was elected as Manager and Sanjay Singh was elected as Assistant Manager, Kashi Singh died suddenly on 04.06.1998 and, therefore, it was resolved by the Committee of Management that Sanjay Singh be allowed to continue for the rest of the term as next election was due in January, 2000. The DIOS wrongly rejected the claim of Sanjay Singh with regard to term of the Committee of Management being five years and had wrongly directed verification of list of members and holding of election within two months.
18. When no interim orders were passed staying the operation of the order dated 19.8.1998 passed by the DIOS, Gorakhpur in either of the writ petition, the DIOS sent a letter to the Committee of Management, led by Sanjay Singh to comply with his earlier order dated 19.08.1998 and send the list of valid members of the society. The DIOS thereafter passed an order on 25.11.1998 asking the petitioner to hold election within a period of one month. This order dated 25.11.1998 was challenged by Sanjay Singh by filing Writ Petition No. 42776 of 1998.
19. Thereafter the DIOS issued an order dated 14.12.1998 for single operation of the salary account of the Institution. Sanjay Singh moved an amendment application in Writ Petition No. 42776 of 1998, which was allowed by this Court on 18.12.1998. This Court in its order dated 18.12.1998 referred to the argument made by Shri A.B. Singh, counsel for Sanjay Singh that the Scheme of Administration could not be said to be automatically amended, and the life of the Committee of Management was still five years. Relying upon the judgement rendered by this Court in the case of Committee of Management, Shahid Mangal Pandey Inter College Nagwa, District Ballia and others Vs. State of UP and others, reported in 1994 (2) UPLBEC 1348, this Court observed that admittedly two writs involving same group of parties were pending namely Writ Petition Nos. 27814 of 1998 and 28101 of 1998. This Court stayed the operation of the order dated 25.11.1998 directing Sanjay Singh to hold election within one month. However, no further interim relief was granted staying the order of single operation passed by the DIOS dated 14.12.1998.
20. In the counter affidavit filed to this writ petition, Rajesh Singh alleged that Scheme of Administration stood amended in view of the letters sent by the Deputy Director of Education, Gorakhpur region on 16.08.1981, 19.12.1983 and 24.08.1984. Perusal of these letters show that in his letter dated 16.08.1981 the Deputy Director of Education had referred to a letter sent by the Committee of Management wherein it had proposed to continue with the term of five years. The Deputy Director of Education in his letter stated that by letter dated 03.08.1981 the model Scheme of Administration was proposed to be amended and the term of the Committee of Management was curtailed from five years to three years. This letter had been issued by the office in view of the amendment carried out in Intermediate Education Act, 1981, wherein it was mentioned that no Scheme of Administration can be allowed to continue if it is inconsistent with the provisions of the Third Schedule to amended Act, hence directions were issued that already approved Scheme of Administration be amended accordingly and term of Committee of Management be reduced from five years to three years.
20. The perusal of the letter dated 19.12.1983 sent by the Deputy Director Gorakhpur Region would show that it refers to letter dated 03.08.1981 sent by the office of the Deputy Director of Education earlier and the reply submitted by the Committee of Management but says that till date amendment directed to be carried out in the letters dated 03.08.1981 and 16.08.1981 had not been carried out, and if the same was not carried out latest by 21.08.1983, then the Scheme of Administration shall be amended by the Deputy Director of Education and Committee of Management shall be intimated thereafter accordingly.
21. In the letter dated 24.08.1984 a mention was made of earlier correspondence with regard to carrying out amendment in the Scheme of Administration and also to the provision of amended Intermediate Education Act and it was said that amendment had been carried out by the Deputy Director himself and directs "rnkuqlkj la'kks/ku dh izfr vkidks bl vk'k; ls izsf"kr gS fd bls iz'uxr ;kstuk ds lfEcU/kr vuqNsnksa esa ;Fkk LFkku lfEefyr djus dk d"V djsaA" Copy of this letter has been endorsed to the DIOS with the directions that amendment carried out in the Scheme of Administration be ensured to be incorporated in the Scheme of Administration of the Institution concerned, and action be taken in accordance with the amended Scheme of Administration.
22. Sanjay Singh has thereafter filed one more writ petition namely Writ Petition No. 9367 of 2001, in which he has challenged the order dated 8.3.2001 passed by the Assistant Registrar, Chits, Societies and Firms under Section 4 of the Society Registration Act recognizing the papers submitted by Rajesh Singh and allowing the renewal of society with Rajesh Singh as Manager. Sanjay Singh has pleaded in this writ petition that when the order dated 19.08.1998 passed by the DIOS directing the Committee of Management to hold election within one month was stayed by this Court on 18.12.1998, Sanjay Singh continued to function as Manager and on 13.01.2000 he requested the DIOS for sending an observer for election proposed to be held on 23.1.2000, and the DIOS himself supervised the election on 23.01.2000, and attested the signature of Sanjay Singh thereafter on 27.10.2000. Sanjay Singh continued as Manager and was operating all other accounts of the Institution concerned except the salary account which was under single operation in view of the order passed by the DIOS on 14.12.1998 which had not been stayed by this Court and was in full control of the administration of the Institution.
23. On 10.10.2000 Sanjay Singh submitted papers for renewal of Bansgaon Anglo Vernacular Society, Gorakhpur with Sanjay Singh as Manager and on 14.12.2000 Principal of the Institution concerned sent a report that Sanjay Singh was operating all accounts and was in full control of the administration of the Institution, but only because of the order of single operation dated 14.12.1998 passed by the DIOS, which was not stayed by this Court, in earlier writ petitions, the salary account continued to be under single operation. The Assistant Registrar, Chits, Societies and Firms proceeded to pass an order recognizing the claim of Rajesh Singh and renewed the society with Rajesh Singh as Manager even though rival claim for election had been set up before him by both Rajesh Singh and Sanjay Singh. It has been contended that the Assistant Registrar should have referred the matter to the Prescribed Authority under section 25(1) of the Society Registration Act.
24. An interim order was granted by this Court on 26.03.2001 in Writ Petition No. 9637 of 2001 staying the order dated 08.03.2001 passed by the Assistant Registrar. A counter affidavit along with stay vacation application was filed by the Assistant Registrar in which he has also disputed the claim of Sanjay Singh with regard to continuance of the unamended Scheme of Administration after amendment being carried out in the Intermediate Education Act, and Model Scheme of Administration being circulated curtailing the term of the Committee of Management to three years. The Assistant Registrar discarded the election held on 23.3.2000 by Sanjay Singh under the supervision of DIOS, Gorakhpur on the ground that the DIOS had continued with the single operation of the salary account of the Institution even after elections held on 23.03.2000, which supports the version of Rajesh Singh that the Scheme of Administration had been amended by the letter of the Deputy Director of Education, Gorakhpur Region and had been curtailed from five years to three years.
25. While these writ petitions remained pending, the Committee of Management of Sanjay Singh is said to have held an election on 27.02.2005, which was referred by the DIOS to the Joint Director of Education on the objection of Rajesh Singh for appointment of Authorized Controller. The Regional Level Committee thereafter passed an order dated 09.08.2005 in favour of Sanjay Singh holding the elections of 1995 and 2000 to be valid and further recording a finding about the term of Committee of Management to be five years and holding that there could not have been any automatic amendment in the Scheme of Administration.
26. The order dated 09.08.2005 passed by the Joint Director of Education as Chairman of Regional Level Committee was challenged by Rajesh Singh in Writ Petition No. 60595 of 2005, wherein no interim order was granted.
27. The Regional Level Committee held that there could not have been any automatic amendment in the Scheme of Administration and Committee of Management's term continued to be five years. The order dated 08.03.2001 passed by the Assistant Registrar, Chits, Societies and Firms recognising the faction led by Rajesh Singh has been disregarded by the Regional Level Committee on the ground that in Writ Petition No. 9637 of 2001, the operation of the order dated 08.03.2001 has been stayed by this Court and that the Regional Level Committee on the basis of the papers submitted before it can decide as to who is in actual control of the Institution. Sanjay Singh seemed to be in actual control and therefore, he was recognized as Manager. It was also reiterated that the Education Authorities may have written letters in 1981, 1983 and 1984 for carrying out suitable amendments in the Scheme of Administration, but such amendments were never carried out and were never enforced and Education Authorities themselves had continued with the presumption that term of Committee of Management remained five years as after these letters were issued elections were held in 1984, 1989 and 1995, which were recognised.
28. Rajesh Singh in his Writ Petition No. 60595 of 2005 has challenged the finding given by the Regional Level Committee and also the observation that Scheme of Administration of the Institution could not be said to have been automatically amended by saying that these findings have been arrived at without any basis.
29. At the time of arguments, Shri Ashok Khare, learned Senior Advocate appearing for Rajesh Singh and Shri A.B. Singh, learned counsel appearing for Sanjay Singh have both relied upon certain judgments of this Court and argued that in case two rival claims had been set up regarding elections, the DIOS could not have passed the order dated 19.08.1998, but should have referred the matter to the Joint Director under section 16-A (7) of the Act. Also, that the Assistant Registrar having found two alleged elections held by two rival Committees of Management should have referred the matter to the Prescribed Authority under section 25(1) of the Societies Registration Act for adjudication.
30. The issue with regard to term of Committee of Management and whether the same can be automatically curtailed is the main issue in this writ petition.
31. It is the case of Sanjay Singh that his grand-father Ram Awadh Singh had been elected as Manager in 1984 and after his death on 21.02.1987, Kashi Singh became Manager and he held an election in January, 1989. Had the letters of Deputy Director of Education VIIth Region, Gorakhpur dated 16.08.1981, 19.12.1983 and 24.08.1984 been given effect to and the term of Committee of Management would have been treated to have been automatically curtailed from five years to three years, then next election would not have been held in the year 1989. It was because the Scheme of Administration as proposed to be amended by the letter of the Deputy Director of Education dated 24.08.1984 was not finally approved, the elections of 1984 were followed by the elections of 1989 and thereafter, by election in January, 1995. The Education Authorities at that time did not object to holding of these elections of 1989 and 1995, in which official observers were sent. The DIOS concerned had wrongly observed in his order dated 19.08.1998 that the term had been curtailed to three years and this order having been challenged in writ petition was stayed by the High Court. As such, the next elections were held in January, 2000 and then in February 2005 by Sanjay Singh.
32. The Regional Level Committee in its findings has approved the submissions made by Sanjay Singh and I do not think there is any infirmity in the reasoning of the Regional Level Committee when it says that under the Intermediate Education Act, sections 16 CC and 16 CCC do not provide any fixed term for the Committee of Management, but only provide that the Scheme of Administration shall be amended after approval of the Director, and there shall not be any provision in the Scheme of Administration, which could be said to be inconsistent with the provisions of the Third Schedule added by the amendment of 1981.
33. It has been observed by the Regional Level Committee that after the letter dated 24.08.1984 was issued by the Deputy Director of Education, VIIth Region, Gorakhpur, actual amendment of Scheme of Administration was never done. The proposed amendments under the Scheme of Administration as was sent by Deputy Director, were never incorporated in the Scheme of Administration and none of the parties to the dispute have produced the amended Scheme of Administration incorporating the curtailed term of three years.
34. I also find that even the alleged minutes of the meeting dated 16.07.1997, (seriously disputed by Sanjay Singh), say that next election will be held after three years, which means three years from the date the meeting was held i.e. in the year 2000, and not as alleged by Rajesh Singh to be held in 1997 itself.
35. It is also evident from the record that the then DIOS, who had been requested for sending official observer in September, 1997 by Kashi Singh had not sent any official observer for the elections alleged to be held in October, 1997. He had also not recognized elections held in October, 1997, but Kashi Singh continued to function as Manager on the basis of elections held undisputedly in January 1995 till his death in June, 1998. After the death of Kashi Singh, Sanjay Singh was recognized as officiating Manager by the then DIOS, but he had wrongly directed for holding of elections within two months on 19.08.1998 and therefore, this Court had granted an interim order staying the operation of the order directing holding of elections within two months.
36. The documentary evidence that has been produced by both the parties i.e. the orders passed from time to time by the Education Authorities, the Deputy Director of Education VIIth Region, Gorakhpur and the Regional Level Committee all go to show that but for the order dated 19.08.1998, in which the DIOS directed for holding of elections in the next two months, the approach has been consistent in holding that the Scheme of Administration actually was never amended, even though letters were sent by the Deputy Director for amending the same in terms of Government Order dated 16.12.1981 and Model Scheme of Administration circulated by it. Actual amendment not being incorporated in the Scheme of Administration and this fact being taken into account by the Regional Level Committee, leave no manner of doubt in my mind that the elections held in 1984, 1989, 1995, 2000 and 2005, firstly by the undisputed founder Manager of the Institution Late Ram Awadh Singh, and then by his grand son Sanjay Singh should have been recognized by the Education Authorities and were rightly recognized by the Regional Level Committee to be elections held in accordance the the approved Scheme of Administration.
37. With regard to judgements cited on either side by the learned counsel for the parties, it would be relevant to mention that the judgment rendered in the Committee of Management, Shahid Mangal Pandey Inter College, Nagwa, District Ballia and others vs State of U.P. and others reported in 1994 (2) UPLBEC 1348, has been considered by the Hon'ble Single Judge in the case of Committee of Management, Mohd. Hasan Inter College, Jaunpur through its Manager Abu Mohammad and another vs State of U.P. and others, reported in 2006(5) ADJ 332, but the Hon'ble Single Judge taking into account the different fact situation of the case, he was deciding as distinguished the said judgment without disapproving the same, or referring it to a Larger Bench.
38. Paragraph 6 of the judgment rendered in the case of Committee of Management, Shahid Mangal Pandey Inter College (supra) is being quoted herein-below:
"6. It may be observed that Regulation 15 of Chapter I of the Regulation made under the U.P. Intermediate Education Act, 1921 prescribes a time schedule, within which the draft Scheme of Administration is either to be approved or returned to the management with suggestions, if any, for alteration or modification under Section 16-C (1) of the Act and Regulation 16 prescribes the period of three months from the date of receipt of the communication of the Director during which the management may file representation against the suggested alterations or modifications in the scheme of administration. But nothing contained in the Act or the Regulations suggests any automatic amendment of the already approved Scheme of Administration as per alterations or modifications suggested by the Director."
39. In the case of Committee of Management, Mohd Hasan Inter College (supra), this Court was considering a situation where despite repeated directions for amendment of Scheme of Administration, the Committee of Management of the Institution concerned was not complying with the same and also with the question whether the Education Authorities were rendered powerless in such a situation. The learned Single Judge concerned held that even if the Management refuses to accept the amendments proposed by the Education Authorities, the Director of Education is not powerless and can take action under section 16-D to enforce amendment to the Scheme of Administration as proposed by the Education Authorities.
40. The same Hon'ble Single Judge in the case of Committee of Management, Bhartiya Adarsh Inter College, Gautam Budh Nagar vs State of U.P. and others, reported in 2005(2) ESC (All)964 has again relied upon the judgment rendered in the case of Committee of Management, Shahid Mangal Pandey Inter College (supra) in holding that the amendment of Scheme of Administration shall become applicable only after approval was granted to the same.
41. In the case of Committee of Management, Shahid Mangal Pandey Inter College (supra), the Institution was already recognized on the date of commencement of U.P. Act No. 35 of 1958, by which section 16 A relating to Scheme of Administration was introduced. The relevant extract of section 16-A is being quoted herein-below:
"16-A. Scheme of Administration.-
(1) Notwithstanding anything in any law, document, or decree or order of a Court or other instrument, there shall be a Scheme of Administration (hereinafter referred to as the Scheme of Administration) for every institution, whether recognised before or after the commencement of Intermediate Education (Amendment) Act, 1958. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. The head of the institution and two teachers thereof, who shall be selected by rotation according to seniority, in the manner to be prescribed by regulations, shall be ex officio members of the Committee of Management with a right to vote."
* * * * * * "16-A(5) The Scheme of Administration of every institution shall be subject to the approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without the prior approval of the Director.
Provided that where the Management of an institution is aggrieved by an order of the Director refusing to approve an amendment or change in the Scheme of Administration, the State Government, on the representation of the Management, may, if it is satisfied that the proposed amendment or change in the Scheme of Administration is in the interest of the institution, order the Director to approve of the same, and thereupon the Director shall act accordingly."
"16-A(6) Every recognised institution shall be managed in accordance with the Scheme of Administration framed under and in accordance with sub-section (1) to sub-section (5) and Section 16-B and 16-C."
"16-A(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 affairs may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs 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."
42. In the case at hand, Bans Gaon Anglo Vernacular Educational Society was recognised in 1943 and it was running an Institution by the name of Pandit Jawahar Lal Nehru Inter College since before the introduction of the chapter relating to Scheme of Administration in the Intermediate Education Act in 1958. This Scheme of Administration with the Committee of Management's term being five years had already been approved before the Act was amended w.e.f. 11.02.1981, and section 16-CC and 16-CCC were added. In terms of provisions of amended section, the Committee of Management was duty bound to incorporate the proposed amendment and curtail the term of Committee of Management, but it did not do so within the time schedule provided by the Deputy Director, VIIth Region, Gorakhpur, still neither the Deputy Director nor Director of Education made any recommendation for appointment of Authorized Controller to the State Government at any point of time. The Committee of Management continued to run the Institution as if the Scheme of Administration had not been amended and continued to hold election in the year 1989, 1995, 2000, 2005, 2010 and 2015 and Sanjay Singh continued to be recognised for all intents and purposes to be in actual control of the Institution.
43. In the case of Pandit Jawahar Lal Nehru Inter College, the Regional Deputy Director of Education in terms of Government Order dated 16.12.1981, after amendment to the Act and addition of section 16 CC and 16 CCC w.e.f. 11.02.1981, had in his letter issued in August, 1981 and December, 1983, disapproved the proposal of the then Committee of Management to continue with the five years term of Committee of Management as per already approved Scheme of Administration, he had sent proposed amendments by his letter dated 19.12.1983, 24.08.1984, but these amendments were not incorporated in the approved Scheme of Administration. This incorporation had necessarily to be made in terms of the provisions of section 16 CC and 16 CCC of the Act, which provide as follows:
"16-C (1) Subject to the regulations governing the principles for according approval to the Scheme of Administration, the Director shall within such period of time as may be prescribed, either approve the draft Scheme of Administration submitted under Section 16-B, or suggest any alteration or modification therein. Whenever the Director shall so suggest any alteration or modification in the Scheme of Administration he shall send a copy of the same to the institution giving his reasons therefor and affording an opportunity to the institution to make a representation, within such period of time as may be prescribed :
Provided that if the Director does not suggest any alteration or modification in the draft Scheme of Administration within the period of time prescribed by regulations, the draft Scheme of Administration shall be deemed to have been approved.
(2) The Director shall consider any representation made in accordance with the provision of sub-section 91) and may approve the Scheme of Administration in its original form or subject to the alteration and modification suggested under the said sub-section or with any other changes as may appear to him to be just and proper:
Provided that where the Director proposes to make a new alteration or modification in the Scheme of Administration he shall give an opportunity to the institution to make a representation to him within such period of time as may be prescribed.
16-CC. The Scheme of Administration in relation to any institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1980, shall not be inconsistent with the principles laid down in the Third Schedule.
16-CCC (1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 16-A or Section 16-B or Section 16-C, at any time before the commencement of the Intermediate Education (Amendment) Act, 1980, and such Scheme of Administration is inconsistent with the provisions of this Act, the Director shall send, within a period of three months from such commencement, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh Scheme of Administration or to amend or alter the existing Scheme.
(2) While making any suggestion in the Scheme of Administration under sub-section (1), the Director shall give his reasons therefor and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice.
(3) The Director shall consider any representation made in accordance with sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or changes as may appear to him to be just and proper:
Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him."
44. As is evident from a bare reading of section 16 CC and section 16 CCC, the Director, if he disapproved the action of the Committee of Management in not incorporating the amendments as proposed by the Department he could have take action under section 16-D, which provides that the Director may refer the case for withdrawal of such Institution or make a representation to the State Government to appoint Authorised Controller for that Institution.
45. It is true that the Deputy Director, VIIth Region, Gorakhpur had issued a letter dated 16.04.1984, but it is also true that he did not recommend to the State Government for taking action under section 16-D (4). No Authorized Controller was appointed, even though, the then Committee of Management refused to submit amended Scheme of Administration and undisputedly elections were held after five years in 1989 and again in 1995. Both these elections were recognized by the Education Authorities and by the Registrar, Chits, Societies and Firms.
46. The action of Education Authorities as well as Registrar under the Society Registration Act speak for themselves and need no further proof that the proposed amendments in the Scheme of Administration were never brought into effect, and the term of Committee of Management was never curtailed from five years to three years.
47. Shri A.B. Singh, learned counsel for the petitioners has argued and has submitted documentary evidence along with his written arguments, that not only Regional Level Committee recognized the elections held by Sanjay Singh on 09.08.2005, as the person in actual control of the Institution, but the elections held thereafter in 2010 and 2015 by Sanjay Singh have also been given recognition by Education Authorities. The Education Authorities only recognise election held for Committee of Management of the Institution on an adhoc basis and this recognition cannot be said to be final till the proper adjudication is done by the Prescribed Authority in terms of the Society Registration Act.
48. With regard to action of the Assistant Registrar in recognising the papers for renewal submitted by Rajesh Singh, this Court is of the firm opinion that the Registrar could not have passed such an order when he had before him two rival claims set up of two elections alleged to be held by two rival factions of Committee of Management, headed by Sanjay Singh and Rajesh Singh. The Assistant Registrar could have and should have referred the matter to the Prescribed Authority under section 25(1) for settlement of dispute after proper adjudication as has been held by this Court in several decisions, only one of which need be cited i.e. 2004 (4) ESC 2444, Committee of Management, Ashok Educational Society Gram Barpar (Araipar) and others vs Assistant Registrar, Firm, Societies and Chits, Gorakhpur and others.
49. In the result, the Writ Petition Nos.28101 of 1998 and 42776 of 1998 are allowed. The order of the DIOS dated 19.08.1998, 25.11.1998 and 08.12.1998 insofar as they hold that the term of Committee of Management stood curtailed to three years after amendment to Scheme of Administration was proposed by Deputy Director, stand quashed.
50. Writ Petition No. 27814 of 1998 filed by Rajesh Singh stands dismissed as also Writ Petition No. 60595 of 2005 challenging the order of Regional Level Committee as communicated by the Joint Director of Education recognising the faction led by Sanjay Singh to be in actual control of the Institution.
51. Writ Petition No.9637 of 2001 challenging the order of the Registrar dated 08.03.2001 is allowed. The order dated 08.03.2001 is quashed. The Assistant Registrar is directed to refer the matter to the Prescribed Authority under section 25(1) of the Society Registration Act within one month of the date a certified copy of this order is produced before him. Sanjay Singh shall be allowed to function as Manager of the Committee of Management in terms of election said to be held by him in 2015 till the decision of the Prescribed Authority on the Reference under section 25(1) of the Society Registration Act. The Education Authorities shall abide by the decision taken by the Prescribed Authority in terms of the Law laid down by this Court in the case of Committee of Management, Raja Tej Singh Vidyalaya; Aurandh vs DIOS Mainpuri, 2000 (2) UPLBEC 993.
Dated: 04.05.2017 Sazia