Allahabad High Court
Vaibhav Jain vs State Of U.P. And Others on 2 February, 2015
Bench: Dilip Gupta, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- WRIT - C No. - 7241 of 2011 Petitioner :- Vaibhav Jain Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pramod Narayan Shahi, P.N. Saxena, Amit Saxena Counsel for Respondent :- C.S.C., C.B. Yadav, Addl. Advocate General, Shashank Shekhar Singh, Additional Chief Standing Counsel. *** Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Dilip Gupta,J.
Hon'ble Suneet Kumar,J.
Oral Judgment.
(Per Dr Justice D Y Chandrachud, Chief Justice) This reference to the Full Bench has been occasioned by a referring order dated 9 February 2011.
Jain Kanya Pathshala Inter College, Muzaffarnagar is a recognized and aided institution governed by the provisions of the U.P. Intermediate Education Act, 19211. Clause 7 of the scheme of administration as originally framed provided for the following term for members of the committee of management:
"7. Term of members:- The term of office bearers and members other than ex-officio members shall be three years form the date they are chosen provided that the term of every office bearer shall be deemed to have continued till his successor is chosen."
The scheme of administration was subsequently amended on 14 December 1983. As amended, the scheme of administration substituted original clause 7 for the following:
"7- izcU/k lfefr dk dk;Zdky% orZeku izkfo/kku fujLr fd;k tkrk gSA iwoZ izkfo/kku ds LFkku ij fuEukafdr izkfo/kku jgsxkA inkf/kdkjh ,oa lfefr ds lnL;ksa dk dk;Zdky rhu o"kZ dk gksxkA dk;Zvof/k lekIr gks tkus ij vxys ,d lky rd gh vifjgk;Z dkj.kksa ls inkf/kdkjh cus jg ldsaxsA ;fn rhu o"kZ i'pkr ,d ekl ds vUnj uop;fur lfefr dk;ZHkkj xzg.k ugha djrh gS rks rhu o"kZ ,d ekl i'pkr dkykrhr lfefr dk;Zdky Lor% lekIr le>k tk;sxk vkSj e.Myh; mi f'k{kk funs'kd }kjk izcU/k lapkyd fu;qDr------------------------ftls izcU/kkf/kdj.k ds iwoZ vf/kdkj gksxsaA ;g izcU/k lapkyd uop;fur lfefr dks ¼pquko u gksus dh fLFkfr esa pquko djkdj½ 'kh?kzkrh'kh?kz dk;Zjr djk;sxkA ;fn ,d ls vf/kd izcU/k lfefr vf/kdkj dk nkok djs rks izdj.k mi f'k{kk funs'kd dks izLrqr fd;k tk;sxk ftldk fu.kZ; vfUre gksxkA"
The Prabhandh Sanchalak, who was managing the institution, got the elections conducted, in the circumstances disclosed in the petition and the results were declared on 28 October 2007. Objections were raised and ultimately, the Regional Level Committee approved the election on 9 April 2008 after which, the committee of management represented by the fourth respondent started functioning. A writ petition was filed seeking a mandamus to the Joint Director of Education to appoint an authorized controller under the amended scheme of administration with a direction to hold the elections for a new committee of management. The case of the petitioner was that under amended clause-7 of the scheme of administration, the term of the committee of management is three years together with a grace period of one month after which, if no committee of management is elected, the Joint Director of Education is authorized to appoint an authorized controller to hold elections. Accordingly, it was urged that the period of three years would commence from 28 October 2007 when the results were declared and after the expiry of the term of the committee of management, an authorized controller ought to be appointed for conducting the elections.
Reliance was placed by the petitioner on a judgment of a Division Bench of this Court in Vaibhav Jain v. State of U.P.2 in which, the submission that the term of the committee of management would commence from the date of assumption of charge of office was negated. This Court in a judgment of a Division Bench in a special appeal held that the term of the committee of management would start from the date of its election even if the elected body has started functioning much after the declaration of the results of the elections. The judgment of the Division Bench dated 4 January 2011 is extracted hereinbelow:
"This appeal has been filed against the judgment and order dated 26th August, 2008 by which the writ petition has been dismissed. The dispute before the Hon'ble Single Judge was with respect to the validity of the election held on 28.10.2007 of which Sri Praveen Kumar Jain was elected as Manager. It is submitted that the term of Committee of Management is three years. Although it is contended by learned counsel for the appellant that the term shall start running from the date of assuming the charge of office of the Manager but the law is settled in this regard that the term of Committee will start from the date of its election even if the elected body has started its functioning much after the declaration of the result of election of Committee of Management.
In view of that, no useful purpose will be served in deciding the case on merit.
The special appeal is dismissed."
When reliance was placed on the aforesaid decision, the learned Single Judge was of the view that the Division Bench had failed to notice an earlier decision in Committee of Management, Jangali Baba Intermediate College Garwar District Ballia v. Deputy Director of Education, Vth Region, Varanasi3. Hence, the reference.
The issue which falls for determination before this Court is as follows:
Whether the judgment of the Division Bench in Vaibhav Jain v. State of U.P. (Special Appeal No.1283 of 2008, decided on 4 January 2011) lays down the correct position in law when it holds that the term of the Committee of Management will start from the date of its election even if the elected body has started functioning much after the declaration of the results of the election.
In the earlier decision of the Division Bench in Jangali Baba (supra), the Court noted that the period prescribed for the committee of management under the scheme of administration was three years. The term of a validly elected committee of management would automatically come to an end after one month thereafter. The Division Bench held as follows:
"However, we feel after perusing the Scheme of Administration, the various provisions of the Act and the Rules that its period would start running either from the date of election validly held where the period of earlier Committee of Management has already come to an end prior to this date and there being no dispute or from the date the elected Committee of Management takes over the charge of the Management."
The Division Bench was of the view that if, for some reason, after the election the newly elected committee of management is not permitted to take charge from the earlier committee or from the Prabandh Sanchalak, the period of three years of the newly elected committee of management would commence after it has taken over charge and commences functioning.
This decision of the Division Bench in Jangali Baba was followed by another Division Bench of this Court in Ratan Kumar Solanki v. State of U.P.4 After noting the law on the subject, the Division Bench held as follows:
"40. The above discussion makes it clear that the term of Committee of Management would commence when the Committee of Management starts functioning as a result of the election. If a Committee of Management which is already existing and the same Officer Bearers have come to be elected in the new election, if the election has been held after expiry of the term of the earlier Committee of Management, the newly elected Committee of Management can start function from the date its result is declared but where Office Bearers are different, for newly elected Committee of Management the same can be said to have taken over charge after the term of the earlier Committee is over and newly elected Committee is allowed to function. However where the newly elected Committee of Management is not able to function not on account of any lapse on its part, but for the reasons beyond its control, namely, some order issued by the educational authorities restraining it from functioning or an order by the Court or similar other circumstances, the term of the Committee of Management would commence after it takes over charge and starts function. We make it clear that there may be a case where despite a new election having taken place, the term of the earlier Committee of Management is over, and, in the absence of any prohibitive order by any competent authority, Committee of Management newly elected does not take any step on its own to take over charge of the management of the College, in that case we are clearly of the view that the lapse on the part of the newly elected Committee of Management would not give it any advantage to defer or postpone the commencement of the period inasmuch it cannot be allowed to take advantage of its own wrong but where despite efforts etc., the rival Committee or the Authorised Controller, as the case may be, has not permitted the newly elected Committee of Management to function, in that case the dictum as laid down above that the term would commence from the date of taking over the charge would apply."
The judgment of the Division Bench in Vaibhav Jain (supra) has evidently not taken note of the earlier judgments of the Division Bench in Jangali Baba (supra) and in Ratan Kumr Solanki (supra).The judgment of the Division Bench in Vaibhav Jain proceeded on the assumption that it is a 'settled principle of law' that the term of the committee of management will commence from the date of election even if the elected body has started functioning much after the declaration of result. In fact the settled position in law was as reflected in the decisions in Jangali Baba and Ratan Singh Solanki. Hence a clear distinction exists between a case where the elected committee of management has been unable to take charge due to a circumstance outside its control like an order of restraint of a competent authority or court and a case where the elected committee has been in default in taking charge in spite of the absence of any legal hurdle. In the former case, the term would commence when the committee takes charge to start functioning. In the latter case the elected committee will not have that benefit since the failure to take charge has been due to its own default, without a restraint or legal prohibition.
The judgment of the Division Bench in Ratan Kumar Solanki (supra) has been followed by a judgment of a learned Single Judge comprised of one of us (Hon'ble Dilip Gupta, J) in Dr. Mahendra Pratap Singh v. State of U.P.5 Clause 7 of the amended scheme of administration provides for a term of three years for the committee of management. A further period of grace of one month is provided. If the new committee of management does not take over charge on the expiry of a period of three years and one month, the term of the earlier committee would ipso facto come to an end. Thereupon, the Joint Director of Education is authorised to appoint a Prabandh Sanchalak. The Prabandh Sanchalak, in turn, is duty bound to conduct elections as expeditiously as possible, so that the newly elected committee of management can be handed over charge. The actual handing over of charge is what merits emphasis. In the event of a dispute, a provision has been made for its resolution by the Deputy Director of Education. A newly elected committee of management may be unable to take charge in a given case despite the election which has been conducted by the Prabandh Sanchalak for a reason not bearing on its own default. In such a case, the term of office of the committee of management would commence with effect from the date on which it has taken over charge. However, where despite the absence of any hurdle, the newly elected committee of management fails to take over charge due to its own default, its term of office of three years would commence with effect from the date of declaration of the result of the election and would not be postponed to the date on which it takes over charge. The judgment of the Division Bench in Vaibhav Jain (supra) lays down a principle contrary to what has been explained above in the earlier judgments of the Division Benches in Jangali Baba and in Ratan Singh Solanki. The decision in Vaibhav Jain (supra) would not be construed as laying down the correct principle of law.
We, accordingly, answer the reference in the aforesaid terms. The writ petition shall now be placed before the regular court for disposal in the light of the reference, as answered.
Order Date :- 2.2.2015 RKK/-
(Dr. D.Y. Chandrachud, CJ) (Dilip Gupta, J) (Suneet Kumar, J)