Allahabad High Court
Committee Of Management Sri Kashiraj ... vs Joint Director Of Education, ... on 23 March, 2005
Equivalent citations: 2005(2)ESC1522
Author: A.K. Yog
Bench: A.K. Yog
JUDGMENT A.K. Yog, J.
1. 'Committee of Management Shri Kashiraj Mahvidyalaya Inter College Aurai', referred to as COM, and its Manager,( Appellants No. 1 and 2 respectively, before us), have filed above intra-court Special Appeal under Chapter VIII Rule 5 Rules of the Court to assail judgment and order dated April 22, 2003 passed by learned of Single Judge, dismissing writ petition No. 544 of 2003 (Committee of Management Shri Kashiraj Mahavidyalaya Inter College and another versus Joint Director of Education, Vindhyachal Region, Mirzapur and others).
2. The appellants filed above writ petition claiming following reliefs:
"(i) a writ order or direction in the nature of certiorari quashing the order dated 21.12.2002 (Annexure No. 17 to this writ petition) passed by respondent No. 2.
(ii) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice.
(iii) award cost of the petition to the petitioner.
We may first, in brief, sum up relevant facts of the case.
3. Shri Kashiraj Mahvidyalaya Inter College is a recognized Inter College (on grant in aid list of the State Government), governed by the provisions of the U.P. Intermediate Education Act, 1921, the Regulations framed thereunder, U.P. High schools and Intermediate Colleges (Payment of Salaries of teacher and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971), and U.P: Secondary Education Service Selection Board Act.
4. COM of the above College passed resolution dated June 2, 2002 and decided to initiate disciplinary proceedings against Jai Narain Pandey (the then Principal) and Daya Shanker Singh (the then Clerk) of the College) (respondents 3 and 4). On 03.06.2002, COM suspended them. As required under Section 16-G (7) of U.P. Intermediate Education Act (hereinafter called the "Act") papers were submitted to the District Inspector of Schools (called' DIOS') for approval.
5. The DIOS in turn, issued notices to show cause dated July 8, 2002, and directed respondent nos. 3 and 4 to explain as to why suspension order be not approved. According to the Committee of Management, no reply was submitted. The DIOS, vide order dated 1/8/2002 approved decision of suspension taken by the COM (Annexures 8 and 9). Eater, respondent No. 3, submitted objections dated August 7, 2002.
6. In the meantime DIOS vide letter October 2, 2002 directed COM to submit its reply against aforesaid objections filed by the respondents 3 and 4.
7.The DIOS, however, vide order dated 21.12.2002 Annexure 17 to the writ petition) revoked suspension order dated 3.6.2002 passed by COM against respondents No. 3 and 4 ; directed COM amongst others to initiate action against other four persons who were, according to him, involved in the alleged financial irregularities along with respondents No. 3 and 4. The DIOS, at the same time directed Respondents 3 and 4 also to produce relevant documents in their possession and cooperate in the disciplinary proceedings initiated by COM.
8. Feeling aggrieved, COM filed above referred writ petition No. 544 of 2003 seeking to challenge aforesaid order dated 21.12.2002.
9. Parties exchanged counter and rejoinder affidavits. After hearing learned counsels for the respective parties, this Court passed an interim order staying operation of the impugned order dated 21.12.2002, and complete inquiry proceedings expeditiously
10. COM Meanwhile claims to have completed Inquiry and submitted papers to D.I.O.S., who did not forward the same to the Board for approval as required under U.P. Secondary Education Services Selection Board (UPSESSB). The COM filed a supplementary affidavit praying for writ of mandamus to the D.I.O.S. to forward papers to UPSESSB for consideration.
11. Learned Single Judge dismissed the above writ-petition vide judgment and order dated 22.2.2004,which is under challenge in the present special appeal.
12. We have heard the learned counsel for the parties at length and perused the record of the case.
13. In the impugned judgment learned Single Judge observed "It is well settled that once the term of committee of Management expires it becomes defunct and can not continue to Junction as Committee of Management unless fresh election is recognized by the authorities in such a situation it is always open to the Joint Director of Education to appoint Prabandh Sanchalak in the Institution to look after the affairs of the Institution."
14. The preposition, "It is well settled that once the term of Committee of Management expires, it becomes defunct. ...." without referring to specific provision of U.P. Intermediate Education Act, Regulations framed thereunder or the 'Bye laws' of the Society owning the College or particular provision of duly approved Scheme approved Scheme to" Administration of the College (contemplated under UFIE Act), is too wide to entertain in law Respondents' counsel has also failed to show us any statutory provision to support the above preposition or any provision contemplating such a situation under legal fiction.
15. With respect, we are unable to subscribe to the above 'settled' preposition Such an observation is neither contemplated in law nor there is Judicial precedent to that effect Such a conclusion is perverse and conjectural.
16. On the contrary, in absence of a specific statutory provision, a Committee of Management of a College shall not be rendered defunct even after its normal term is over. Office bearers of an out going COM of college, normally continue to discharge functions till new COM is constituted and takes charge.
17. In the present case, we find educational authorities, ( DIOS, Joint Director, etc.). the concerned banks, students-Guardians, members of leaching, Non-Teaching staff as well as respondent Nos. 3 and 4 themselves raised no objection to the working of appellants COM and treated it as de-facto COM, continued to deal with it as valid COM, which apparently has complete control and charge of the affairs of the college. This aspect can not be over looked, Sweeping observation in the impugned judgment in writ petition is devoid of merit and without basis.
18. Otherwise also, to conceive that Management of the Collage may be treated in, 'abstract' or 'vacuum' is not practical approval of permissible in law. Management of College, its staff and students, its assets movable and immovable, its funds Bank Account etc. can not be expected to be in air. Doctorine of 'Defacto' existence and working of COM is attracted.
19. No one, in the present case, claimed appointment and working of Authorized Controller as COM of the College. No legal provision brought to our notice contemplating automatic appointment of Authorized controller.
20. Where normal term of a Committee of Management comes to an end while educational authorities also fail to appoint Prabandh Sanchalak and on the other hand, old COM continues to control and manage the College (and all concerned deal with it as such), law recognizes its existence as 'Defacto Management'.
21. Law does not permit abstract preposition which is froth with practical anomalies, viz. rendering uncertainties and as a consequence of it leaving management of college in lurch. Teaching and non teaching staff, students, educational authorities etc. (responsible to ensure payment of salaries to its employees, and disciplinary control over its staff, students and protect college assets) shall all be seriously jeopardized. All these various aspects, need to be kept in mind.
22. Learned Counsel for the appellants (petitioners) placed reliance upon following decisions:
(1)Committee of Management, Brig. Hoshiar Singh Memorial Inter College, Shamli and Anr. v. Deputy Director of Education, Ist Region, Meerut and Ors. (1994) 3 UPLBEC 1728) in which a Division Bench of this Court vide para 4 of the reported judgment observed:
"......Taking over the charge' of the College by the newly elected committee is not dependent on the recognition by the D.I.O.S. The term of the newly elected Committee begins immediately on the expiry of the term of the outgoing Committee and if the Committee of Management is not elected before the expiry of the term of the outgoing Committee, Regional Deputy Director of Education is required by the Scheme itself to appoint an Administrator for holding election of a new committee and till then to manage the affairs of the college. It is thus, obvious that commencement of the term of the newly elected Committee of Management does not depend on the recognition by the D.IOS. Recognition and attestation of the signature of the manager of the newly elected Committee is only for the purpose of payment of salary of employees of the College.......''
23 The relevant extract of para 5 of the case reported in Committee of Management, Jangali Baba Intermediate College Gurwar District Ballia and another v. Deputy Director of Education Vth Region, Varanasi and Ors., (1991) 2 UPLBEC 1183 is as below:
"............Attestation is only for the purposes of distribution of salary under the payment of Salary Act. It is true that the functioning of the committee of Management is varied and is not confined merely for the purposes of distribution of the salary and thus the attestation of the signatures by the District Inspector of Schools could not be the starting point of the life of the Committee of Management.............. "
24. It has been consistently held by Courts, as is evident from the aforementioned decisions on that functions of Committee of Management are not dependent upon 'attestation' of signatures by District Inspector of Schools which is for operating 'salary payment' account under Payment of salaries Act, 1971. It is only one of the obligations of COM. Otherwise COM and its Manager are obliged to deal with and perform many functions and duties in law including operation of Bank accounts viz. Boys fund, Maintenance fund, which require no attestation Manager's signatures by DIOS.
25. The learned Single Judge further went on to observe ' in such a situation it is always open to the Joint Director of Education to appoint Prabandh Sanchalak in the Institution to look after the affairs of the Institution"
26. Again, above observation is both out of context and irrelevant. The observations made by learned Single Judge itself show that no one claimed to be rival COM. Learned Single Judge has also not recevied finding on the question whether 'Authorized Controller' was ever appointed or functioned . There was no occasion for the' learned Single Judge to assume -- a non existing 'status' regarding management of the College.
27. Learned Single Judge failed to appreciate that it was not open for him to make a new case. Learned Single Judge to this extent committed manifest error apparent on face of record in deciding the case on supposition of facts. Learned Single Judge also failed to take note that respondent can not be allowed to resort to 'collateral challenge'.
28. The learned single Judge, missed to note on that no Educational Authority (particularly, the District Inspector of Schools), impliedly or expressly, raised this question. On the other hand these Authorities recognized and dealt with Appellant COM as real management in de facto control of College affairs for all practical purposes.
29. Learned single judge further observed, "Even if the petitioners are in effective control of the institution or the salary is being paid under his signatures, it would not confer any right on the petitioners to continue as Committee of Management of the Institution, as it ceases to he in control of the institution after the expiry of three years and one month from the date of last election ".
30. We fail to appreciate that said observation which suffers from manifest contradiction. The learned single judge refers to no legal fiction wherein a committee of management, after its term is over, be automatically ceases or gets extinct automatically. The learned single Judge, interestingly noted that salary (to the staff of the college) was paid through the appellant COM. As noted above, College is on grant in Aid, and provisions of U.P. High Schools and Intermediate Colleges (Teaching and Other Staff) Payment of Salary Act 1971 are applicable to the College. This indicates that the appellant- COM /Manager, in practice and day to day working, for all intents and purposes was recognized and dealt with as such by the Educational Authorities and others concerned, e.g. Teachers, other employees and students etc..
31. The learned Single Judge has referred to the case of Nand Deo Pandey versus Committee of Management Pt. Jawahar Lal Nehru Uchchatar Madhyamik Vidyalaya and others (1991) 1 U.P.L.B.E.C. 549).
32. We have carefully perused the said judgment and find that the case of Nand Deo Pandey (supra) is distinguishable. Perusal of paras 5 and 6 of the said reported judgment shows that there was impending dispute between two rival groups claiming right to function as 'Committee of Management'. There is also nothing in the said reported decision to show that anyone of them was in de facto control or otherwise recognized or dealt with as COM of college in question by educational authorities.
33. In the matter of appointment or disciplinary proceedings an employee can not be allowed to raise question of validity of COM , with which it has been dealing-on the principle that law does not permit 'collateral challenge'. The said principle has been consistently reiterated by Courts.
(1) In A.I.R. I981 S.C. 1473 (para 4) Gokaraju Rangaraju Appellant versus State of Andhra Pradesh held "We are unable to agree with the submissions of the learned counsel for the appellants. The doctrine is now well established that" The acts of the officers defacto performed by them within the scope of their assume official authority, in the interest of the public or third persons and not for their own benefit, are generally, as valid and binding, as if they were the acts of the officers de jure" (Pullin Behari v. V King Emperor, (1912) 15 Cal LJ 517 at p. 574). As one of us had occasion to point out earlier "doctrine is founded on goods sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaps. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de fact are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de fact doctrine" (vide Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh, AIR 1976 Andh. Pra 193)".
(2) In AIR 1987 S.C. 2111 (para 12) Beopar sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors., the Court observed ".........Therefore, the accused who had preferred, the Criminal Revision and the Criminal Appeals respectively raised a contention before the High Court that judgments rendered against them by the concerned Additional Session's Judges were void and should, therefore, be set aside. The High Court rejected the contention on the ground that the Additional Sessions Judges had held their offices under lawful authority and not usurpers and, therefore, the judgements rendered by them were valid and could not be questioned in collateral proceedings. Against the judgment of the High Court the accused preferred appeals by special leave to this Court and those appeals were dismissed by this Court on the ground the 'de facto doctrine' was clearly attracted........."
(3) In (1998) I UPLBEC 576 (para 3) Committee of Mnagement Dayanand Arya Kanya Degree College, Moradabad and Ors. v. Director of Higher Education, Allahabad and Ors., Supreme' Court observed "............. There is also no dispute to the fact that at the relevant time when the Managing Committee had accepted the said resignation, the said Managing ('ommittee was in office both de facto and de jure by virtue of the interim order passed by the High Court in the writ proceedings in favour of the Managing Committee. In the aforesaid circumstances, the High Court, in our view, has gone wrong in proceedings on the footing that the authorized controller had not accepted the resignation tendered by Smt. Manju Saraswat because the authorized controller was not in office at the relevant time when the voluntary resignation was accepted by the Managing Committee which was lawfully discharging the duties and functions of the Managing Committee ............."
(4) In 1968 A.L.J 877 Jai Kumar v. State a Full Bench of this Court by majority held: 'We also hold that the twin rules discussed above preclude a collateral challenge to the appointment of the Assistant Sessions Judge and the Sessions Judges who rendered the judgments impugned in the Criminal Revisions and that even if it be assumed that their appointments are invalid, the impugned judgment are not liable to beset aside on that ground, inasmuch as the de facto colour under which they functioned in office had not been exposed when the judgments were rendered."
34. Respondents stand on much weaker footing inasmuch as the respondent No. 3 (as is evident from various documents filed along with the writ petition and the counter affidavit) had attended meetings of the Appellant Committee of Management and acquiesced to the jurisdiction authority of the Appellant - COM. Even the DIOS, in its impugned order dated 21.12.2002 (while revoking suspension order) directed these respondents No. 3 and 4 to appear before the sad appellant-Committee of Management.
35. In view of the above we find that the judgment and order dated 22.3.2004 passed by the learned Single Judge, dismissing the writ petition can not be sustained in law. The said impugned order deserves to be set aside and special appeal deserves to be allowed.
36.Normally, case should be remanded back to Learned Single Judge for fresh decision of the writ petition. However, considering inevitable delay in giving finality to the disciplinary proceedings, which causes irreparable injury and untold hardships both to the COM and the respondent Nos. 3 and 4, and also that the learned counsels for the parties expressed their agreement, we have proceeded to decide the writ petition finally and because particularly no arguments are required since impugned order dated 21.12.2002 (Annexure 17 to the writ petition) passed by the District Inspector of Schools, on the face of it, suffers from manifest error apparent on the face of record.
37. The District Inspector of Schools failed to appreciate that order of suspension could not be revoked on the ground that four other persons involved in the 'charge' were not made to face disciplinary inquiry and charge sheeted and ha COM should also proceed against them if at all, he should have looked in to this while granting approval and COM's order of suspension. The DIOS in any case, assuming that he was correct, ought to have directed the Management to proceed against those four persons also but in no view of the matter, he could revoke, on this ground, suspension order against Respondent Nos. 3 and 4. The District Inspector of Schools in respect of respondents No. 3 and 4 (Jai Narain Pandey and Daya Shanker Singh), in the impugned order made observation which shows that he was satisfied that they were not cooperating in the disciplinary proceedings and hence he directed them to cooperate with the disciplinary proceedings.
38. Section 16-G (8) of the U.P. Intermediate Education Act contemplates that the District Inspector of schools can, after giving opportunity to the COM, revoke order of suspension on being satisfied, that disciplinary inquiry was delayed malafide with an intention to harass employees in question. The DIOS has not applied his mind to the said ingredient of Section 16-G (7) of U.PI.E. Act and revoked suspension order on irrelevant considerations.
39. Sri G.K. Singh, learned Counsel for the appellant, submitted that the appellant/Committee of Management has been finally recognized and that order is under challenge by one Prabhu Nath Mishra but there is no interim order passed by this court in that writ petition and referred to the judgment and order dated 06.02.2004 passed by this Court in Civil Misc. Writ No. 2597 of 2004, copy of which has been filed as annexure C.A. "1" to the counter affidavit filed by respondent No. 4 in the present special appeal. Order of District Inspector of Schools dated 21.12.2002 (impugned in writ petition) also cannot be sustained.
40. Be that as it may, the learned counsel for the appellant/petitioner and respondents No. 3 and 4, considering the fact and cumstances of the case, agreed that this Court may pass an order balancing the equities of both the parties.
41. On behalf of respondent Nos. 3 and 4 it is stated that they should be allowed to participate in the disciplinary proceedings and an order be passed after they are also given opportunity to defend themselves. The learned counsel for the appellant-COM and Manager submits that they are prepared to give an opportunity.
42. In view of the above, we direct that any proceedings which have taken place so far, shall not be given effect to, the Committee of Management of the College shall proceed afresh with the disciplinary proceedings if so advised against respondents No. 3 and 4, who shall cooperate in ensuring to conclude disciplinary proceedings within 4 months from today, COM shall not be allowed to delay decision on the allegations of respondents 7 and 8 not cooperating since COM can proceed exparte. On the other hand, respondents 7 and 8 shall not be allowed to plead that they have not been allowed to put in their defence. They can put in their defence as contemplated under law, if prevented, to the concerned District Inspector of School. As soon as decision is taken papers shall be submitted to the District Inspector of schools who shall forward the same within three week of receipt of the same to the Board, for dealing with the matter in accordance with Law. The Board shall have six weeks from the date of receipt of the same to take final decision in the matter and inform ail concern of its decision forthwith by registered Post AD.
43. In the result the impugned order dated 21.12.2002 (Annexure 17 to the writ petition is hereby set aside, the writ petition No. 544 of 2003 stands allowed subject to the directions given above.
44. We further direct that Management shall not obstruct and the concerned Educational authorities shall ensure payment of salary in future to the respondents 3 and 4 treating them in service subject, owever, to the condition that the employees shall not force themselves upon the Management for taking work. The question of payment of arrears of salary for the past shall be subject to the decision of COM and the Board as per the requirement of law.
45. Learned counsel for the appellant undertakes to inform this court decision in the special appeal as well as the writ petitions to the concerned authorities without delay.
46. Special Appeal allowed subject to the above directions.
47. No order as to costs.