Andhra HC (Pre-Telangana)
G.J.R. Sunand vs Convention Of Baptist Churches Of ... on 24 January, 2003
Equivalent citations: 2003(2)ALT261, AIRONLINE 2003 AP 20
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, N.V. Ramana
JUDGMENT B. Sudershan Reddy, J.
1. The 3rd respondent in Writ Petition No. 18537 of 2002 is the appellant in this writ appeal. The learned Single Judge allowed the writ petition filed by respondents 1 and 2 herein directing the Commissioner and Director of School Education (4th respondent herein) to pass appropriate orders in the matter of recognition of the 2nd respondent herein as the Convener of the Education Committee of the C.B.C.N.C within a period of two weeks from the date of receipt of the order. The learned Single Judge also held that the 2nd respondent deserves to be recognised as Convener. However, such recognition shall be without prejudice to the rights of the parties or others to approach any court of competent jurisdiction and seek appropriate declaration and consequential relief.
2. Before adverting to the question as to whether the judgment under appeal suffers from any infirmities requiring any correction as such by this Court in exercise of its jurisdiction under Clause 15 of the Letters Patent, it may be necessary to notice the relevant facts leading to filing of the writ petition and as well as this writ appeal.
3. The dispute essentially centres round the issue as to who is to be recognised as the Convener of the Education Committee of the Convention of the Baptist Churches of the Northern Circars (for short 'the Convention'). The 2nd respondent herein invoked the jurisdiction of this court under Article 226 of the Constitution of India seeking a direction to the Commissioner and Director of School Education to issue necessary orders under Section 24 of the A.P. Education Act, 1982 (for short 'the Act') recognising him as the Convener of the Education Committee of Convention. A declaration is also sought to the effect that the enquiries directed to be held in pursuance of the orders of this Court in various writ petitions have become unnecessary in view of the expiry of the term of the appellant herein (3rd respondent in the writ petition) as the Convener.
4. The learned Single Judge noticed the facts in detail and we do not propose to reiterate the same in our judgment except a very brief reference to only such of the facts, which are relevant for the purpose of disposal of this writ appeal.
5. The Convention is running number of educational institutions in the northern coastal districts of the State of Andhra Pradesh. It functions through several committees constituted in accordance with the Convention. There is no dispute in so far as the educational matters are concerned, they are conducted through Education Committee.
6. In the elections that were held in the year 1997, one S.M. Kantharaju and the appellant herein were elected as President and Convener of the Education Committee respectively for a period of five years. The Commissioner and Director of School Education vide proceedings dated 23-9-1997 appointed the appellant herein as the Convener of Education Committee of C.B.C.N.C. and accordingly issued instructions to all the District Educational Officers to recognise the correspondents nominated by the appellant herein.
7. One P. Paulus (impleaded as the 5th respondent in this writ appeal) preferred revision petition to the Government challenging the said proceedings of the Commissioner and Director of School Education. The same was dismissed by the Government vide its orders in G.O.Rt.No. 1113 dated 31-8-1998.
8. Writ Petition Nos. 25865, 27028 and 27447 of 1998 were filed in this Court challenging the Government's decision and all of them were dismissed by a Division Bench of this Court vide orders dated 19-4-2000. This Court observed that the action of the Commissioner and Director of School Education noting the intimation that the appellant herein has been elected as the Convener of the Education Committee does not amount to infringement of any of the fundamental rights of the petitioners. "Somebody has to be recognised as a representative to interact for the performance of the rights and duties under A.P. Education Act, 1982 and the rules framed thereunder and other legal provisions, if any and it is not that either the Commissioner and Director of School Education or the Government have appointed Mr. C.J. Ratna Sunand as Convener. As such, we reject the contention that there is any infringement of fundamental rights of the petitioners or the institutions run by C.B.C.N.C".
9. The Convention represented by its President Rev. S.M. Kantha Raju and as well as the 5th respondent herein filed Writ Petition No. 14287 of 2000 seeking a Writ of Mandamus declaring the action of the Commissioner and Director of School Education in not passing orders on the proposals sent by the Convention in the matter of recognising the person as Convener of Education Committee of C.B.C.N.C. as being arbitrary, illegal and violative of Articles 14 and 30 (1) of Constitution of India. This Court by its orders dated 24-10-2000 allowed the said writ petition directing the Commissioner and Director of School Education to consider the proposals sent by the President of C.B.C.N.C requesting approval of appointment of Mr. P. Paulus as Convener of Education Committee after providing an opportunity of being heard to all the parties to put forth their case and in the light of G.O.Rt.No. 1113 dated 31-8-1998 and the judgment of this Court dated 19-4-2000 in Writ Petition No. 25865 of 1998 and batch. It is further observed that till a final decision is taken, the Correspondents/Secretaries of all the schools under C.B.C.N.C shall continue to discharge their functions in accordance with the provisions of the Act and the rules issued in G.O.Ms.No.1, Education (P.S.2), dated 1-1-1994.
10. The appellant herein filed a review W.P.M.P.No. 31293 of 2000 and the same has been disposed of by a learned Single Judge of this Court vide orders dated 19-2-2001. The review petition has been disposed of in terms of the following order:
"The learned counsel for the petitioner has also pointed out that as held by the Division Bench as well as the judgment in K. Rama Sastry v. Government of A.P. and Ors. when there is a dispute as to the right to management of an Educational Institution, the Director of School Education Committee or any other competent authority has no power or jurisdiction to resolve the dispute. It can only be decided in a Civil Court. There is no dispute with regard to the legal position. When the President of the C.B.C.N.C. has requested the Government to accept the proposal of appointing a Convener of the Education Committee and when the Government or a competent authority considered the same, the Government or the Director or the competent authority would not be resolving any dispute as to the right to management or the right of the Convener to appoint a Correspondent. It is only for the purpose of recording to bestow legitimacy of actions taken by the Convener of the Education Committee. When this Court directed by Clause (i) of the directions to consider the proposal dated 2-2-2000, this Court never intended to direct Government authorities to adjudicate the dispute as to right to management of C.B.C.N.C".
11. The Commissioner and Director of School Education through his proceedings dated 29-7-2000 intimated the concerned District Educational Officers that the appellant herein was continuing as the Convener of the Education Committee and as against the same the Convention and Mr. P. Paulus preferred a revision to the 3rd respondent herein wherein an order of stay was granted. The stay was vacated in view of the orders passed by this Court in Writ Petition No. 14287 of 2000. The Convention as well as the said Paulus filed Writ Petition No. 22054 of 2000 challenging the action of the Government in vacating the stay without any notice to them. The said writ petition was dismissed by this Court by order dated 24-1-2001. The same has become final.
12. The Commissioner and Director of School Education pursuant to the directions of this Court in Writ Petition No. 14827 of 2000 passed orders dated 2-1-2001 in favour of the appellant herein. The Convention represented by Rev. S.M. Kantha Raju and Mr. Paulus filed Writ Petition No. 2397 of 2001 challenging the orders of the Commissioner and Director of School Education and remanding the matter for fresh consideration.
13. The Government vide its memo dated 28-8-2002 declared that the appellant herein has no legal sanctity to act as Convener of Education Committee in view of the fact that his term expired by 2-1-2002. The concerned District Educational Officers were accordingly directed to maintain 'status quo' as regards appointment, transfer and promotions of teaching and non-teaching staff in respective institutions.
14. In the meanwhile, one Matta Rajakara Rao claiming to be the Secretary of the Convention filed Writ Petition No. 7067 of 2002 seeking a Writ of Mandamus declaring the action of the respondents therein in continuing the appellant herein as Convener of the Educational Committee of the Convention after 31-1-2002 as illegal and arbitrary. This Court by its order dated 7-8-2002 dismissed the said writ petition in the following manner:
"The order of the Commissioner and Director of School Education recognizing the 10th respondent as the Convener incorporates no tenure as such. If by any subsequent electoral process or otherwise of the convention, the 10th respondent has not been found acceptable for continuance as Secretary that does not ipso facto bring to an end his tenure as Correspondent in view of the order of the competent authority recognising him as a Correspondent. It is open to the petitioner, if he claims to be the current elected Secretary and therefore entitled to be considered as Correspondent under Section 24 of the Act to make an appropriate representation to the State for his being substituted and recognised as Correspondent in lieu of the 10th respondent. Till another person is recognized as a Correspondent by the competent authority in terms of Section 24 of the Act, the 10th respondent continues to be the correspondent and no mandamus can be issued as sought by the petitioner. The writ petition is misconceived and it is accordingly dismissed."
15. The 3rd respondent herein vide its Memo dated 5-9-2002 purporting to act under the directions of this Court in Writ Petition No. 7067 of 2002 dated 7-8-2002 cancelled its earlier memo dated 28-8-2002 whereunder directions were issued to the Commissioner and Director of School Education directing him to issue necessary instructions restraining the appellant herein not to take up any policy matters like transfer of teachers, promotions and appointment of teaching and non-teaching staff and maintain status quo till the matter is decided by the Commissioner and Director of School Education, Hyderabad. The same was issued in pursuance of the directions of this Court in Writ Petition No. 2397 of 2000 dated 8-2-2002.
16. The memo dated 5-9-2002 cancelling the memo dated 28-8-2002 is also challenged in Writ Petition No. 18537 of 2002.
17. The 1st respondent herein filed Writ Petition claiming that he was elected as President of the Convention initially in the year 1992, thereafter in the year 1997 and for the third term in the elections that were conducted from 14th to 16th January, 2002. It is also his case that the Executive and Finance Board (for short 'the Board') of the Convention appointed one Paulus as the Convener and on submission of his resignation, the 2nd respondent herein was appointed as Convener of the Education Committee. The same was brought to the notice of the Government as well as the Commissioner and Director of School Education through letters dated 2-8-2002 and 7-9-2002 and in spite of the same no action has been taken. It is also his case that the term of the appellant herein has finally expired in January, 2002 and in the circumstances various directions of orders made by this Court have become superfluous. The appellant herein cannot be recognised as Convener of the Educational Committee is the case set up by the 1st respondent. It is under those circumstances, appropriate directions are sought to recognise the 2nd respondent herein as the Convener. The appellant herein filed a detailed counter-affidavit, inter alia, stating that Kantha Raju ceased to be the President of the Convention with effect from 5-6-1998. Elections to the Convention were not held between 14th to 16th January, 2002 in C.B.N Church, Vijayawada as claimed by respondents 1 and 2. On the other hand, elections were held between 28th to 30th January, 2002 and in the said elections one T.C.S. Imannual was elected as President and himself as the Secretary of the Convention and Convener of the Educational Committee. It is his case that the post of Convener is an elective one and, therefore, the question of a person being appointed to it does not arise.
18. The Government filed a very formal counter-affidavit and it is not necessary to notice the contents thereof in detail and we shall refer to such of those averments which are necessary for the purpose of disposal of this Appeal at the appropriate stage.
19. The learned Single Judge after referring to Article III of the Constitution of the Education Committee and Article XIII and as well as the relevant Articles of the Constitution of the Convention of the Baptist Churches of Northern Circars came to the conclusion that:
(a) The authority, which is conferred with the power to form or constitute Education Committee is the Executive and Finance Board.
(b) The office of the Convener is not Elective;
(c) The term of the office of the Convener is five years;
(d) The Education Committee is conferred with the status of the Convention Committee.
20. The learned Single Judge accordingly held that the office of the Convener is not an elective office. The learned Single Judge after taking variety of factors into consideration arrived at the conclusion that the 2nd respondent herein deserves to be recognised as Convener. It is, however, observed that mere recognition of a Convener does not amount to a pronouncement on the validity or otherwise of the elections of the Convention.
21. Sri B. Adinarayana Rao, learned counsel appearing on behalf of the appellant submitted that the dispute between the parties is essentially a dispute that may have to be resolved in a common law proceedings and the public law remedy is ill-suited for resolution of such dispute. It is submitted that both the parties have already moved the Civil Court, each one of them claiming appropriate relief. Sri Rao alternatively contends that if at all the competent authority under the Act could have been directed to make an appropriate enquiry for the limited purpose of recognising somebody as the Convener of the Education Committee. It is further submitted that the writ petitioner suppressed the relevant facts and approached the Court with unclean hands and the writ petition ought to have been dismissed on the simple ground of suppression of facts. The writ petitioner, according to the learned counsel, took inconsistent pleas.
22. Sri M. Chandra Sekhar Rao submits that the issue as to whether the appellant or the writ petitioner is the Convener is not finally decided by this Court. The learned Single Judge in the facts and circumstances of the case and in the interest of the educational institutions run by the Convention made some sort of tentative arrangement. It is also submitted that no case is made out by the appellant herein of his re-election or nomination as the case may be as the Convener of the Educational Committee of the Convention. The learned counsel submitted that the order under appeal has been passed by the learned Single Judge in the interest of the institutions and it calls no interference by this Court in exercise of its Letters Patent jurisdiction.
23. In our considered opinion, it is not really necessary to decide as to whether the office of the Convener of the Education Committee is an elective or nominated one in this proceeding under Article 226 of the Constitution of India. It is also not necessary to go into the question and express any opinion whatsoever as to whether S.M. Kantha Raju has been duly elected as the President of C.B.C.N.C. in the elections held on 14-1-2001 for a period of five years. The said S.M. Kantha Raju filed O.S.No. 516 of 2002 on the file of the learned Junior Civil Judge, Kakinada on 29-5-2002 and the same is pending consideration before the said Court. The appellant herein filed O.S.No. 18 of 2002 on the file of the learned IV Additional District Judge, Kakinada and the same is also pending on the file of the said Court. The appellant herein obtained an interim injunction on 28-8-2002 restraining respondent No. 1 herein and others from interfering with his functions as Secretary and Convener in any manner whatsoever. It is, however, brought to our notice that the said injunction order is kept under suspension by this Court in C.M.P.No. 507 of 2003 in C.M.A.No. 122 of 2003.
24. It is thus clear that the question as to whether the appellant herein was elected as Secretary, C.B.C.N.C. Convention and also as a Convener of the Educational Committee of the Convention and further question as to whether the said S.M. Kantha Raju has been elected as President of the Convention is required to be gone into by the Civil Court since the appellant as well as the respondents have already availed appropriate common law remedies. In fact, that is only the proper remedy available for them to get the issues resolved. It is also not necessary to go into the question as to whether P. Paulus has been properly nominated as Convener of Education Committee and also about his resignation. We do not propose to express any opinion as to whether the 2nd respondent herein has been appointed as Secretary and Convener, Education Committee of C.B.C.N.C. under the proceedings dated 2-8-2002. These are all the questions that are required to be resolved in the civil suits already filed by the parties.
25. It is very well settled that writs or directions under Article 226 of Constitution of India should ordinarily not be issued where an alternative remedy, equally efficient and adequate, exists, unless there is any exceptional reasons for dealing with the matter under writ jurisdiction.
26. It is equally well settled that the proceedings under Article 226 of Constitution of India are of summary in nature and are not suitable for agitation of disputed questions of fact.
27. The claims and counter claims by the parties in the instant case cannot be conveniently determined in this summary proceedings. The questions raised in this writ petition are pure questions of facts and it is not possible for this Court to go into disputed questions of fact in writ proceedings.
28. The further question as to whether T.C.H. Imannual has been properly elected, as the President of the Convention also cannot be gone into by this Court in this proceeding. There are several conflicting claims put forth by more than one individual, each one of them claiming to be recognised as the Convener of the Education Committee of the Convention.
29. The whole of the claim of the appellant is based upon of his having been elected as the Secretary of the Convention as well as the Convener of the Education Committee in the elections held between 28th and 30th January, 2002. The case of the appellant is that the office of the Convener is elective in nature and the question of the General Body or any other Body appointing any individual, as Convener does not arise. The learned counsel highlighted various averments made in the affidavits and petitions filed by the respondents themselves clearly admitting the office of the Convener of Education Committee to be an elective office. Both sides placed reliance upon Articles of the Constitution of the Education Committee as well as the Articles of the constitution of the Convention.
30. The Articles of the Constitution of the Education Committee as well as the Convention are in the nature of bye-laws. They have no statutory flavour and they cannot be characterised as instruments having statutory flavour and statutory underpinnings. The infraction of any of those Articles of Association, in our considered opinion, cannot give rise to any cause for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. The subject matter of the petition mainly comprises dispute between two sets of private individuals unconnected with any State action.
31. Section 24 of the A.P. Education Act, 1982 deals with appointment and removal of Manager of private institutions. Subsection (2) of Section 24 of the Act mandates that the management shall, for the purposes of the Act, nominate a person to manage the affairs of the institution, whether called by the name of Secretary, Correspondent or by any other name, and intimate such nomination within thirty days thereof to the competent authority. A plain reading of subsection (2) of Section 24 of the Act makes it clear that it is the management that is required to nominate a person to manage the affairs of the institution and intimate such nomination to the competent authority. The competent authority itself does not appoint or nominate any person to manage the affairs of the institution. Such nomination to manage the affairs of the institution is the privilege of the management. The competent authority merely receives the intimation of such nomination for the purposes of the Act. The competent authority deals and interacts with such nominated person whether called by name of Secretary, Correspondent or any other name. There is no provision in the Act, which enables the competent authority to make any further probe into the matter as to whether the nominated person to manage the affairs of the institution is a fit person or whether he has been properly nominated by the Management. The competent authority is merely clothed with jurisdiction to receive such intimation and record the same.
32. In such view of the matter, it is clear that neither the Government nor the 3rd (sic. 4th) respondent have any authority or jurisdiction to make any enquiry into the question as to whether the appellant and the 2nd respondent has been elected/ nominated as the Convener of the Education Committee of the Convention. Such election or nomination of an individual as the Convener of the Education Committee is purely an internal affair of the Convention.
33. For the aforesaid reasons, we are of the considered view that the learned Single Judge for any purposes whatsoever even prima facie ought not have recorded any finding holding that the 2nd respondent deserves to be recoginsed as the Convener.
34. There is no provision in the Act, which enables the competent authority to recognise any person as Convener. There is no dispute before us that the Convener of the Education Committee appoints the Correspondents in respect of each of the institution under the management of the Convention and accordingly intimates the same to the competent authority as is required under Section 24 of the Act. Obviously, the Convener exercises the power of 'Management' in this regard. There is nothing on record to suggest that the appellant herein himself has been acting as the Correspondent of all the Educational Institutions that are under the management of the Convention. No doubt, during the course of hearing of this Writ Appeal, the learned counsel appearing on behalf of the appellant has gone to the extent of saying that the appellant has been appointed as Correspondent of all the Educational Institutions under its management. There is no basis for making such statement. There is no proceeding available on record revealing that he has been appointed as the Correspondent of any Educational Institution. The distinction between the Convener of the Education Committee to be elected/nominated as the case may be and the Correspondent of an institution who is required to be appointed by the management has been lost sight of in the earlier proceedings. The Court in Writ Petition No. 7067 of 2002 proceeded on the assumption as if the appellant herein has been appointed as Correspondent and recognised as such by the Commissioner and Director of School Education. The whole of the claim of the appellant is that he has been elected as the Convener of the Education Committee and in his capacity as a Convener is entitled to nominate and appoint Correspondents/Managers to each of the institutions under the management of the Convention.
35. For the aforesaid reasons, we are of the opinion, that it is not a fit case where this Court is required to exercise its jurisdiction under Article 226 of the Constitution of India to resolve the dispute, which essentially arises in private law domain.
36. The interest of justice requires that O.S.No. 18 of 2002 on the file of the learned IV Additional District Judge, Kakinada and O.S.No. 561 of 2002 on the file of the learned Principal Junior Civil Judge, Kakinada are to be heard and disposed of together. O.S.No. 561 of 2002 on the file of the learned Principal Junior Civil Judge, Kakinada shall stand transferred to be heard along with O.S.No. 18 of 2002 on the file of the learned IV Additional District Judge, Kakinada. Both the suits shall be clubbed together for hearing and disposal in accordance with law within a period of three months from the date of receipt of a copy of this order. The suits shall be disposed of by the learned Judge without being influenced by the observations if any made in this order and as well as the observations made by the learned Single Judge while disposing of the writ petition. The learned trial Judge shall not consider any unreasonable request for adjournment/postponement of hearing of the matters. In the meanwhile, it shall also be open to the parties to obtain such further appropriate interim orders and directions as may be necessary so that the interest of the institution under the management of the Convention may not suffer in view of the on going conflict between the parties.
37. The Correspondents/Secretaries of all the Schools and Educational Institutions under C.B.C.N.C. already nominated and functioning shall continue to discharge their functions in accordance with the provisions of the Act and the Rules issued thereunder until disposal of both the suits referred to above. The order under appeal is accordingly modified.
38. The writ Appeal is accordingly disposed of. No order as to costs as such as on to-day.