Allahabad High Court
Suresh Pal Singh And 9 Others vs State Of U.P. And 3 Others on 2 September, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON 9.5.2021 DELIVERED ON 2.9.2022 Court No. - 5 Case :- WRIT - C No. - 24648 of 2021 Petitioner :- Suresh Pal Singh And 9 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Jain,Arvind Srivastava Iii Counsel for Respondent :- C.S.C.,Narendra Deo Upahdayay,Prabhakar Awasthi,Vinay Bhushan Upadhyay Hon'ble Salil Kumar Rai,J.
1. The present petition has been filed challenging the order dated 4.8.2021 passed by the Regional Level Committee, Saharanpur Region, Saharanpur and also for a direction quashing the election dated 14.6.2021 of the Committee of Management of Jai Kisan Shakumbhri Devi Inter College, Fatehpur Kalan, District-Saharanpur (hereinafter referred to as, ''Institution'). Through order dated 4.8.2021, the Regional Level Committee has recognized the elections of the Committee of Managemnt held on 14.6.2021 electing one Gajendra Singh Chauhan as Manager of the Committee of Management of the Institution.
2. The facts relevant for decision of the present petition is that Jai Kisan Shakumbhri Devi Vidyalaya Sadharan Sabha, Fatehpur Kalan, Saharanpur (hereinafter referred to as, ''Society') is a Society registered under the Societies Registration Act and runs the Institution which is governed by U.P. Intermediate Education Act, 1921 (hereinafter referred to as, ''Act, 1921'). The Scheme of Administration of the Institution provides that the members of the Committee of Management and its office bearers shall be elected by members of the General Body of the Society. Clause 5(6) of the Scheme of Administration provides that the election programme to elect the Committee of Management of Society and its office bearers shall be decided by the Committee of Management for which the meeting of the Committee of Management shall be requisitioned by the Manager after approval of the Chairman of the Society. Clause 5(6) further provides that the aforesaid meeting shall be called three months before the date when the term of the previously elected Committee of Management expires and notice of the said meeting shall be sent to the members by registered post, if the total number of members of the Society is 100, and by publication in a local newspaper as well as by Post (UPC) if the total number of members of the Society is more than 100. Clause 5(6) further provides that the said meeting shall be for the purposes of publishing the list of members of the Society, appointment of Election Officer, date, time and place of Election, Nomination etc. which shall be published in a newspaper.
3. It has been stated in the petition that at present there are 327 valid members of the General Body of the Society and the previous election of the Committee of Management of the Institution was held on 24.6.2018. The term of the previous Committee of Management was to expire on 23.6.2021 and, therefore, the Committee of Management of the Institution vide its resolution dated 20.3.2021 decided to hold fresh elections and finalized the list of members of the General Body. It has been further stated that in the aforesaid meeting a panel of three persons to be appointed as Election Officer was prepared and the District Inspector of Schools (hereinafter referred to as, ''D.I.O.S.') was asked to appoint an Observer for the election. The D.I.O.S. vide his order dated 31.3.2021 approved the list of 327 members of the General Body and also appointed the Election Officer as well as Observer for the elections. It has been stated in the writ petition that initially the election programme was published in two newspapers namely ''Janvani' and ''Punjab Kesari' notifying 13.6.2021 as the date for election. The election programme was subsequently changed by the Election Officer and 14.6.2021 was notified as the date for election. Fresh notification was published in the Hindi Daily Newspaper Amar Ujala dated 3.6.2021. It has been further stated in the writ petition that the amended election programme was not sent to the members of the General Body by post and the amended election programme was not published in any newspaper having vide circulation because of which many members of the General Body who are residents of District-Ghaziabad, NOIDA, Haryana and Uttrakhand did not have notice of the revised election programme and, therefore, could not participate in the election. The petitioners participated in the election held on 14.6.2021 and Shri Gajendra Singh Chauhan, respondent No. 4 was declared elected as Manager of the Committee of Management of the Institution defeating petitioner No. 4. It has been further stated in the writ petition that major irregularities were committed in the election which vitiated the elections. It has been stated that the nomination papers of different candidates were finalized without considering and deciding the objections raised on it, no records were prepared by the Election Officer regarding the number of printed ballot papers and number of ballot papers used in the election, the voter list was not prepared by the Election Officer and the identity cards of voters was not verified by the Election Officer. It has also been stated that because of the aforesaid irregularities many persons who were not members of the General Body of the Society were able to cast votes. It has also been stated that the Ballot Boxes were not sealed either before the voting or after the voting despite repeated request for the same by the members of the Society, the records of election proceedings were not maintained by the Election Officer in his election diary, counting was not done in a fair manner and records relating to elections were not kept in safe custody. It has also been alleged in the petition that a torn ballot paper which was liable to be rejected has been counted in favour of the candidate elected for the post of Manager. It has been further stated that the aforesaid objections were raised by the petitioners before the Election Officer who paid no heed to the objections of the petitioner and objections were also filed by the petitioners before the D.I.O.S. It has been stated that from the report of the Election Officer, it is evident that only 294 members out of total 327 members had cast their votes, but no record has been maintained of the unused and rejected ballot papers.
4. After the petitioners filed their objections before the D.I.O.S., the matter was referred to the Regional Level Committee vide letter dated 8.7.2021 of the D.I.O.S. The petitioners, the Election Officer, the Observer as well as the elected candidates and other members of the General Body filed their representations/claims before the Joint Director of Education, which was placed before the Regional Level Committee. The Regional Level Committee vide its impugned order dated 4.8.2021 has recognized the elections held on 14.6.2021. The said order has been challenged in the present petition on the ground that the irregularities mentioned in the writ petition, which were also alleged in the representations submitted by the petitioners and other members of the Society before the Regional Level Committee have not been considered by the Regional Level Committee and no findings have been recorded by the Regional Level Committee on the allegations made by the petitioners. With the aforesaid averments, the present petition has been filed praying for the reliefs mentioned above.
5. The respondent No. 4 has filed its counter affidavit, which has been sworn by the newly elected Manager of the Committee of Management. In its counter affidavit, the respondent No. 4 has raised a preliminary objection that the petitioners are members of the Society and, therefore, the writ petition is not maintainable at their instance in light of the judgement and order dated 7.9.2010 passed by this Court in Rajveer Singh Vs. State of U.P. & Others (Special Appeal No. 1380 of 2008) as well as the judgement of this Court reported in Dr. P.P. Rastogi & Others Vs. Meerut University, Meerut & Another reported in (1997) 1 UPLBEC 415. It has also been stated in the counter affidavit that as the petitioners had participated in the elections they are estopped from challenging the procedure adopted to hold the elections after having lost in the election. It has been further stated in the counter affidavit that admittedly 294 out of 327 members of the Society had participated in the elections, i.e., almost 90% members had participated in the elections, therefore, any irregularity in the procedure adopted for holding the elections did not materially affect the elections and can not be a ground to challenge the same. In its counter affidavit, respondent No. 4 has further alleged that all the members of the Society had information of the amended programme of the election and no objections were raised by anybody against the nomination papers filed by different candidates in the elections. In its counter affidavit, respondent No. 4 has denied that any irregularity vitiating the elections had taken place and has also alleged that no objections were raised either by the petitioners or any other member of the General Body regarding the ballot papers or ballot boxes either before or after the votes cast. Respondent No. 4 has also denied the allegations made in the petition that identity cards of the voters was not verified by the Election Officer. In its counter affidavit, respondent No. 4 has also denied that any torn ballot paper had been counted which could have vitiated the elections of the office bearers of the Committee of Management. In short, the respondent No. 4 has denied the allegations made in the petition regarding any irregularity in holding the elections and has averred that the allegations are only in the nature of Peshbandi and the writ petition lacks merit and is liable to be dismissed.
6. It has been argued by the counsel for the petitioners that the petitioners were candidates in the election held on 14.6.2021 and, therefore, the writ petition challenging the order dated 4.8.2021 passed by the Regional Level Committee is maintainable at the instance of the petitioners. It was further argued by the counsel for the petitioner that the records of the case reveal that major irregularities had been committed in holding the elections which vitiated the election and, therefore, the election dated 14.6.2021 could not have been recognized. It was argued that Gajendra Singh Chauhan, the newly elected Manager of the Committee of Management, was declared elected by one vote after a torn ballot paper was counted in his favour. It has been further argued that fresh election programme amending the election schedule was notified by the Election Officer without consent of the then existing Committee of Management. It was argued that the Election Officer had no power to amend the election schedule which under Clause 5(6) could have been done only by the existing Committee of Management. It was further argued by the counsel for the petitioners that the Regional Level Committee in its impugned order dated 4.8.2021 has not considered the objections raised by the petitioners in their representations made before the D.I.O.S. and before the Regional Level Committee and, further, the order dated 4.8.2021 passed by the Regional Level Committee is a non-speaking order. It was also argued that records and evidence submitted by the Election Officer and the Observer to the D.I.O.S. were not supplied to the petitioners and, therefore, the order dated 4.8.2021 passed by the Regional Level Committee has been passed in violation of principles of natural justice. It was argued that the elections were not held in accordance with Clause 5(6) of the Scheme of Administration of the Institution and were therefore liable to be cancelled. It was argued that for the aforesaid reasons, the order dated 4.8.2021 passed by the Regional Level Committee is liable to be quashed. In support of his contentions, the counsel for the petitioners has relied upon the following judgements :-
(a) Chintamani Upadhyaya Vs. State of U.P. and 5 others 2016 (8) ADJ 135,
(b) Committee of Management Vs. Deputy Director of Education & Others, 2004 (4) ESC (All) 2257,
(c) Committee of Management, Janta Inter College Sohsa- Mathia (Kushi Nagar) & Another vs. Joint Director of Education-VII, Gorakhpur Region, Gorakhpur & Others, 2005 (5) AWC 4520,
(d) Deoria Kasia Zila Sahkari Bank Ltd. Vs. State of U.P. & Others, 2005 (5) AWC 4522,
(e) Lokendra Kumar & Other Vs. State of U.P. & Others, 2005 (5) AWC 4713,
(f) Surya Kant Ojha & Others Vs. State of U.P. & Others, 2005 (5) AWC 4716; and
(g) Bua Ram Shukla Vs. District Inspector of Schools, Chitrakoot, 2004 (3) UPLBEC 2865
7. Rebutting the argument of the counsel for the petitioners, the counsel for the respondent No. 4 has argued that the writ petition is not maintainable in light of the judgements of this Court in Dr. P.P. Rastogi (Supra) and Rajveer Singh (Supra). It was further argued that the petitioners had participated in the elections and had not raised any objections regarding the amended programme of the elections and were therefore estopped from challenging the same after having lost in the elections. It was further argued by the counsel for respondent No. 4 that the irregularities mentioned by the petitioners in their representations and the writ petition are without any evidence and there is no record even prima facie substantiating the allegations made in the same and, therefore, the allegations did not require a detailed consideration by the Regional Level Committee. It was argued that the Regional Level Committee is not a Tribunal and can not direct recount of the votes cast in the elections, therefore, the Regional Level Committee has no jurisdiction to consider the grievance of the petitioners raised in their representations and the petitioners have the remedy to either file a suit or an election petition challenging the election dated 14.6.2021. It was argued that for the aforesaid reasons, the petition is not maintainable and is liable to be dismissed. In support of his contention, the counsel for the respondent has relied upon Full Bench judgement of this Court in Committee of Management Vs. Deputy Director of Education & Others, 2004 (4) ESC (All) 2257.
8. I have considered the submissions of the counsel for the parties.
9. It is not disputed that petitioner No. 4 Surendra Kumar was a candidate for the post of Manager of the Committee of Management. In view of the aforesaid, the judgements of this Court relied upon by the counsel for the respondents in Dr. P.P. Rastogi (Supra) and Rajveer Singh (Supra) are not applicable in the present case and the preliminary objection of counsel for the respondent that the petition is not maintainable in light of the aforesaid judgements of this Court stands rejected.
10. Section 16-A(7) of the Act, 1921 provides that whenever there is a dispute with respect to the Management of an institution, person 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 Act, 1921 be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise. The provision further provides that the Regional Deputy Director of Education shall, before making an order under the aforesaid provision shall afford reasonable opportunity to the rival claimants to submit their representations in writing.
11. Through a Government Order dated 19.12.2000, it has been provided that all disputes relating to Management of an Institution governed by the Act, 1921 shall be decided by the Committee presided over by the Regional Joint Director of Education. The Regional Deputy Director of Education and the concerned D.I.O.S. shall be member of the Committee. The Government Order dated 20.10.2008 provides that where there is some difficulty in recognizing a Committee of Management of the Institution and in attesting the signatures of the allegedly elected Manager of the Committee of Management, the D.I.O.S. shall refer the matter to the Regional Level Committee constituted under the Government Order dated 19.12.2000 which shall decide the dispute if any within one month from the date of reference.
12. It is true, as argued by the counsel for the respondent No. 4, that the Deputy Director of Education or the Regional Level Committee constituted under the Government Order dated 19.12.2000 is not a Tribunal and has no power to take evidence on oath. Under Section 16-A(7) of the Act, 1921 any decision regarding actual control of the Committee of Management of the Institution is not final and is subject to a decision by a Court of competent jurisdiction. However, as held by the Full Bench of this Court in Committee of Management (Supra) while deciding the dispute referred to it, the Regional Level Committee is required to act fairly, reasonably and to follow the principles of natural justice. The order of the Regional Level Committee is to be supported by reasons, is to be passed after considering the relevant material and should be based on objective considerations. Any inquiry regarding actual control of the affairs of the Institution under Section 16-A(7) necessitates an inquiry into the prima facie validity of the elections and to find out whether persons claiming control have been validly elected. It was held by the Full Bench of this Court that the Regional Deputy Director of Education while deciding a dispute under Section 16-A(7) of the Act, 1921 exercises quasi judicial powers and must decide the questions of validity of the elections prima facie. The issue in the present case is as to whether the order dated 4.8.2021 passed by the Regional Level Committee satisfies the tests formulated by the Full Bench in its judgement reported in Committee of Management (Supra).
13. For reasons stated subsequently, the impugned order dated 4.8.2021 does not satisfy the tests prescribed in the Full Bench judgement of this Court.
14. Section 16CC of the Act, 1921 provides that the Scheme of Administration of any Institution shall not be inconsistent with the principles laid down in the Third Schedule of the Act, 1921. Third Schedule provides for the principles on which approval to a Scheme of Administration shall be accorded. One of the principles prescribed in the Third Schedule is that every Scheme of Administration shall provide that all decisions shall be taken by the Committee of Management and powers of delegation, if any, shall be limited and clearly defined.
15. Clause 5(6) of the Scheme of Administration of the present Institution prescribes the procedure for holding elections to elect the members and office bearers of the Committee of Management. Clause 5(6) of the Scheme of Administration provides that a meeting of the Committee of Management shall be called to prepare the election programme and the said meeting shall be held three months before the date on which the term of the existing Committee of Management expires. The clause further provides that notice of the said meeting shall be sent by registered post if the members of the Society are less than 100 but shall be published in newspapers and shall also be sent by post (UPC) if there are more than 100 members. The clause further provides that the list of members shall be published/notified in the said meeting, the Election Officer shall be appointed and the date, time and place of the election as well as date for nomination and scrutiny as well as for withdrawal of nomination shall be published in the newspaper. The list of valid members shall also be sent to the departmental authorities and pasted on the notice board of the Institution. A reading of the provision also shows that the election programme is not required to be sent to the members by post, but is required to be published only in the newspapers. The clause only requires that the notice of the meeting of the Committee of Management to prepare the election programme is to be published in the newspaper and be sent by post, whether by UPC or registered post depending on the number of members of the Society. In view of the aforesaid, the contention of the counsel for the petitioners that the elections held on 14.6.2021 were not valid because notice of the election programme was not sent by post, but was only published in the newspaper is not acceptable.
16. However, a reading of Clause 5(6) also shows that it is the existing Committee of Management of the Institution which is empowered to prepare the election programme. The Election Officer is enjoined to hold the elections in accordance with the programme prepared by the Committee of Management of the Institution. There is no provision in the Scheme of Administration which indicates that the power of preparing the election programme could be delegated to the Election Officer. No such provision has been brought to the notice of the Court by the counsel for the respondents. It is not denied by the respondents that in the election programme initially prepared by the Committee of Management, the elections were to be held on 13.6.2021. It is the case of the petitioners that the Election Officer subsequently amended the election programme and notified 14.6.2021 as the date for voting. It is also the admitted case of the parties that the term of the existing Committee of Management was to expire on 23.6.2021, i.e., after the date on which the elections were held. The issue as to whether the Committee of Management had delegated its powers prescribed under Clause 5(6) to the Election Officer and whether it could have so delegated its powers has not been decided by the Regional Level Committee in its impugned order dated 4.8.2021. In case the Committee of Management was not empowered to delegate its functions/powers to prepare the election programme to the Election Officer or if so empowered had not delegated its functions/powers to the Election Officer, the elections held on 14.6.2021 can not be considered as valid elections inasmuch the same would be contrary to the Scheme of Administration of the Institution. The said issue had to be decided by the Regional Level Committee. A perusal of the different representations submitted by the petitioners and other members of the Society before the D.I.O.S. as well as the Regional Level Committee indicate that the aforesaid issue was raised by the petitioners before the said authorities. The order dated 4.8.2021 passed by the Regional Level Committee is conspicuously silent on the aforesaid issue.
17. It is further noticeable that allegations were made by the petitioners and other members of the Society before the Regional Level Committee regarding certain irregularities in the elections. The irregularities pointed out by the petitioners was that the ballot boxes were not sealed either before or after casting of votes, no records of the election proceedings were maintained by the Election Officer and a torn ballot was also counted by the Election Officer in favour of Gajendra Singh Chauhan. A perusal of the representations submitted by the petitioners also show that the petitioners had also alleged before the D.I.O.S. as well as the Regional Level Committee that certain imposters who were not members of the Society were able to cast votes because the identity cards of the voters was not verified by the Election Officer. It was alleged by the petitioners that the Election Officer did not maintain any records as to how many ballots were printed, how many ballots were used and the number of unused or rejected ballots. A reading of the order dated 4.8.2021 passed by the Regional Level Committee shows that no findings have been recorded by the Regional Level Committee on the aforesaid allegations of the petitioners. The Regional Level Committee has recorded its finding only on the allegations of the petitioners that a torn ballot was counted by the Election Officer in favour of Gajendra Singh Chauhan. The said finding has also been recorded by mechanically accepting the statement of the Election Officer. The counsel for the respondents may be right in his submission that the Regional Level Committee is not empowered to recount the ballots as it is not a Tribunal. However, the Regional Level Committee was required to look into the validity of the elections, prima facie, as held by the Full Bench of this Court in Committee of Management (Supra). In case the allegations of the petitioners that the ballot boxes were not sealed either before or after the elections, no records regarding the number of ballot printed and number of ballots used or rejected was maintained by the Election Officer and persons who were not members of the Society were able to cast votes in the elections as there was no identity verification of the voters, then the elections were a farce and could not have been recognized by the Regional Level Committee. The Regional Level Committee in its order dated 4.8.2021 has not recorded any findings on the aforesaid allegations of the petitioners.
18. A perusal of the order dated 4.8.2021 passed by the Regional Level Committee shows that after reproducing the contents of the representations and the counter representations submitted by the petitioners and the respondents, the Regional Level Committee has not given any reasons for either rejecting the different allegations made by the petitioners in their representations or accepting the objections to the representations of the petitioners submitted by the elected office bearers. The order dated 4.8.2021 is a non-speaking order inasmuch as no reasons have been given by the Regional Level Committee for recognizing the respondent No. 4 as the validly elected Committee of Management and for rejecting the representations of the petitioners. The contents of the order indicate a complete non-application of mind by the members of the Regional Level Committee.
19. For the aforesaid reasons, the order dated 4.8.2021 passed by the Regional Level Committee is not in accordance with law and is liable to be quashed and the matter is to be remitted back to the Regional Level Committee to pass fresh orders in accordance with law and in light of the observations made above.
20. The order dated 4.8.2021 passed by the Regional Level Committee is hereby quashed. The matter is remitted back to the Regional Level Committee to pass fresh orders in accordance with law within a period of one month from today.
21. With the aforesaid direction, the writ petition is allowed.
22. Let this order be communicated to the Regional Level Committee, Saharanpur Region, Saharanpur by the Registrar (Compliance) within 24 hours.
Order Date :- 2.9.2022 Anurag/-