Allahabad High Court
The Committee Of Management, Janta ... vs The Deputy Director Of Education on 10 July, 1995
Equivalent citations: AIR1996ALL65, (1995)2UPLBEC1270, AIR 1996 ALLAHABAD 65, 1996 ALL. L. J. 330 (1995) 2 IJR 745 (ALL), (1995) 2 IJR 745 (ALL)
ORDER
1. These two writ petitions are connected concerning the same educational institution challenging the orders of the D.I.O.S. and Dy. Director of Education in managerial dispute between the parties. The parties have exchanged affidavits. The learned standing counsel has not filed any counter affidavit and does not propose to file any counter affidavit. He stated that the writ petitions be decided on the basis of the affidavits filed by the contesting private parties. Thus I consider it appropriate that instead of passing formal orders for admission the petitions may be finally disposed of with the consent of the parties.
2. Writ Petition No. 34553 of 1994 has been filed by Sri Praveen Singh Tyagi as President of the Committee of Management of Janta Ucbchattar Madhyamik Vidyalaya, Mahuwa, district Bijnor challenging the order dated 12-10-1994 passed by the Dy. Director of Education by which he directed for appointment of authorised controller empowering him with the powers of committee of management and also for holding the election of the committee of management. The election dated 29-4-1994 claimed to have been held electing (sic).
3. An application under 0. 1, R. 10, C.P.C. was filed by Sri Rajendra Singh, who had claimed himself to be a life member of the general body. The said application was allowed by the order dated 27-10-1994. The said application was moved through Sri Ashok Bhushan, who had already filed caveat on behalf of Prakash, Jaswant Singh, Mahesh Chandra and Rajendra Singh. Rajendra Singh was not initially arrayed as O.P., who has been added as O.P. on his application for impleadment.
4. The writ petition was not admitted and the parties were directed to exchange the affidavits. By the interim order dated 27-10-1994 the operation of the order dated 12-10-1994 impugned in the writ petition was stayed.
5. Writ Petition No. 36777 of 1994 was filed by Sri Rajendra Singh by which a writ of certiorari was prayed for quashing the order dated 1-10-1994 passed by the District Inspector of Schools, Bijnor, Annexure-5 to the writ petition. By the impugned order the D.I.O.S. has approved the election of officebearers held on 29-4-1994.
6. After hearing Sri Ashok Bhushan, learned counsel for the petitioner in Writ Petition No. 36777 of 1994 and Sri Shashi Nandan, learned counsel for the petitioner in Writ Petition No. 34553 of 1994 the fact that the Janta Uchchattar Madhyamik Vidyalaya, Mahuwa, district Bijnor is a recognised institution under the provisions of the Intermediate Education Act, 1921 and is governed by the Scheme of Administration approved by the Dy. Director of Education is admitted. It is also admitted by the parties that the last election of the committee of management was held on 17-3-91 in which Sri Girish Chandra was elected as Manager and Sri Praveen Singh Tyagi as President of the committee of management.
7. According to the Scheme of Administration clause 8 the tenure of the committee of management is three years. It is also provided in the Scheme that if a new committee of a management does not take charge within the said period of three years, the term of committee of'management will automatically come to an end after expiry of three years and one month.
8. It is also not disputed that the tenure of the elected committee of management, which took place on 17-3-1991 came to an end of 16-4-1994. It is also settled law that within one month from the expiry of the term of committee of management, the newly elected office-bearers may take over charge of the management. The petitioner pleads and appears as a fact from the order of the D.I.O.S. that the committee of management which took over charge on the basis of election dated 17-3-1991 had not been able to take steps for holding fresh election within the prescribed period as provided in the Scheme of Administration.
9. The respondents claim to have got the election of the committee of management held on 29-4-1994 an the election of the officebearers in the said election was approved by the D.I.O.S. by his order dated 12-8-1994.
10. A writ petition, being writ petition No. 28426 of 1994 was filed before this Court challenging the recognition and approval of the election of office-bearers of the committee of management held on 29-4-1994. After exchange of affidavits in the said writ petition Hon'ble B. K. Singh, J. was pleased to allow the writ petition quashing the order of the D.I.O.S. dated 12-8-1994 approving and recognising the election of office-bearers of the committee of management held on 29-4-1994. This Court was pleased to direct that the D.I.O.S. shall consider the recommendation of the observer and election officer and also pass a speaking order about the correctness of the election of the office-bearers within a period of one month from the date of filing of a certified copy of the High Court's order. The order of the High Court dated 31-8-1994 is Annexure 3 to the writ petition.
11. The D.I.O.S, by the impugned order dated 1-10-1994, Annexure 5 to the writ petition, after hearing the parties, arrived at a conclusion that the observer in the election held on 29-4-1994, was appointed and no objection had been filed by the committee of management or any member about the election officer. The election was held without any contest. The election officer and the observer had submitted a report about the unopposed election of the office-bearers. He referred to the names of office-bearers and members in the order and also referred to Cls. 4, 7, 8 and 9 of the Scheme of Administration and also observed that in case of dispute about membership or office-bearers the President's decision shall be final. He also observed that in case there was dispute about rival committees of management, in such circumstances on a reference by the D.I.O.S. under S. 16A(7) the Regional D.D.E. shall consider and decide such dispute.
12. The learned counsel for the petitioner submitted that the D.I.O.S. after quashing of his earlier order had not adverted to the legal question that required consideration and adjudication by him. He submitted that the election of the office-bearers was held contrary to the provisions of the Scheme of Administration. He submitted that the last election having been held on 17-3-1991, the tenure expired on 16-3-1994 and the election held on 29-4-1994 was beyond the compet ence of the out-going committee of manage ment.
13. The learned counsel for the petitioner Sri Ashok Bhushan placed reliance on the decisions reported in 1993 (1) UPLBEC 344, Ram Kirpal Singh v. Committee of Management, Uchchattar Madhyamik Vidyalaya, Newarhia, District Jaunpur; 1994 (3) UPLBEC 1728 (DB), Committee of Management, Brig. Hoshiar Singh Inter College, Shamli District Muzaffarnagar v. Dy. Director of Education 1st Region, Meerut (DB) and 1994 (2) UPLBEC 800, Committee of Management, Brig. Hoshiyar Singh Memorial Uchchattar Madhyamik Vidyalaya Shamli v. Dy. Director of Education (DB) for the proposition that the outgoing committee of management of an educational institution governed. under S. 16A of the Intermediate Education Act, 1921 could only hold election for the committee of management within the period of three years one month. From the facts of the case it is clear and also finding of the D.I.O.S. that last election of the committee of management was held on 17-3-1991 and the election of committee of management under consideration was held on 29-4-1994, the only conclusion possible is that three years period from 17-3-1991 would expire on 16-3-1994 and additional one month period would extend it maximum to 17-4-1994. From these facts it is abundantly clear that the election held on 29-4-1994 was beyond three years one month period. In view of the settled law of this Court the order of the D.I.O.S. approving the election of the committee of management held on 29-4-1994, on the said date on the basis on uncontested election as reported by the observer and the election officer cannot be sustained in law. The election held on 29-4-1994 was patently beyond the prescribed period as provided in the Scheme of Administration approved under S. 16A of the Intermediate Education Act. This period could not be extended and the alleged unopposed and uncontested election held on 29-4-1994 allegedly held by the out-going committee of management is wholly without authority and its competence.
14. The argument of the learned counsel for the respondent Sri Shashi Nandan that the last election of the committee of management held on 17-3-1991 was approved on 24-4-1994 on which date the committee of management took over charge would be the date for calculating the period for holding the election. The submission of the learned counsel for the respondent that the D.I.O.S. had passed orders on 29-4-1994 appointing observer and election officer for holding election. One person was nominated by the D.I.O.S. who had died and it was on 26-4-1994 another person, namely, Narain Singh, was nominated by the D.I.O.S. and election was held on 29-4-1994 in presence of the aforesaid persons who submitted report to the D.I.O.S. The question whether the date of approval of the last election by the D.I.O.S. would be relevant for consideration for calculating the period and competence of outgoing committee of management was considered by the Division Bench in the case reported in 1994 (3) UPLBEC 1728 (supra). In part 4 of the said judgment the Division Bench considered the decision of the earlier Division Bench, reported in 1991 (2) UPLBEC 1183, Committee of Management v. Dy. Director of Education V. Region, Varanasi. The Division Bench in the case reported in 1994 (3) UPLBEC 1728 was pleased to observe that under the Scheme of Administration of the College the recognition of the new committee of management by the D.I.O.S. was necessary, as held in the case reported in 1991 (2) UPLBEC 1183. In the present case the learned counsel for the respondent has not placed any document to show that there was any clause in the Scheme of Administration of the institution, which may provide that the term of committee of management would begin from the date of approval of the D.I.O.S. for the election of office-bearers. A copy of the Scheme of Administration has been annexed to the writ petition as Annexure 1. Clause 7 of the Scheme of Administration is reproduced as under:
"(8). Pratham Samiti Ka Karyakal:
Padadhikari Evam Samiti Ke Sadasyon Ka Karyakal Teen Varsh Hoga. Karya Avadhi Samapt Hojane Par Agle Ek Mas Tak Hi Padadhikari Bane Reh Sakenge. Yadi Teen Varsh Ke Bad Ek Mah Ke Andar Nav Chainat Samiti Kkryabhar Grahan Nahin Karti To Teen Varsh Ek Mah Bad Kalatit Samiti Ka Karyakal Swatah Samapt Samjha Jaiga Aur Sambhagiya Up Shiksha Nideshak Dwara Manoneet Ek Vyakti Prabandha Sanchalak Karyarat Mana Jaiga Jise Prabandhadhikaran Ke Poorn Adhikar Honge. Vah Prabandha Sanchalak Nav Chayanit Samiti Ko Shighratishighra Karyarat Karayega Aur Yadi Chunao Nahi Hua Hai To Chunao Karake Chayanit Samiti Ko Karyarat Karayega Aur Yadi Prabandha Samitiyon Main Adhikar Ka Cawa Hai To Jiske Paksh Main Sambhagiya Up Shiksha Nideshak Ka Nirnaya Ho Use Karyarat Karaiga."
15. Thus the argument of the learned counsel for the respondent has no merit and is liable to be repelled in view of the above clause in the Scheme of Administration.
16. After considering the submissions of the learned counsel for the parties, I am of the definite opinion that the order of the D.I.O.S. approving the election of the office bearers elected on 29-4-1994 is liable to be quashed. Thus the writ petition No. 36777 of 1994 is liable to be allowed and the order dated 1-10-1994, Annexure 5 to the writ petition is quashed.
17. In Writ Petition No. 34553 of 1994 filed by Sri Praveen Singh Tyagi challenging the order dated 12-10-1994 passed by the D.D.E. appointing authorised controller for holding the election of the office-bearers of the committee of management, Sri Shashi Nandan, learned counsel for the petitioner, submitted firstly that when the D.l.O.S. had not made any reference under S. 16A(7) of the Intermediate Education Act or under Cl. (B) of the Scheme of Administration to the D.D.E., the order of the D.D.E. dated 12-10-1994 appointing authorised controller for holding election of office-bearers of the committee of management is without jurisdiction and patently illegal. Secondly, Sri Shashi Nandan submitted that the observations in the order of the Dy. Director of Education that the persons participating in the election held on 29-4-1994 were not competent members of the committee and they were related to each other. It is said that if members submitted objection dated 3-10-1994 and the D.E.F. found that the election held on 29-4-1994 was not held in accordance with Chapter III, R.4 and was in violation of para (6) of the Scheme of Administration. Sri Praveen Singh President is father of Sri Satish Chandra, member of the committee. Sri Praveen Singh President is uncle of Sri Girish Chandra, treasurer is uncle of Sri Subodh Kumar. Sri Ram Niwas Tyagi is a previous convict under S. 436, I.P.C. and is not eligible to be a member of the committee of management in accordance with para 7(a) of the Scheme of Administration. It was also submitted before the D.D.E. that the election held beyond three years one month was wholly void.
18. Sri Shashi Nandan submitted that the D.D.E. was not the appellate Tribunal for examining the legality and correctness of the order passed by the D.I.O.S. approving the election of the committee of management held on 29-4-1994.
19. Sri Ashok Bhushan, learned counsel for the respondent in Writ Petition No. 34553 of 1994, submitted that in view of the decisions referred to in the earlier part of the judgment concerning the connected writ petition the election held beyond three years one month period was wholly illegal and without authority of the outgoing committee of management. Sri Ashok Bhushan submitted that under clause 8 of the Scheme of Administration the D.D.E. was wholly competent to invoke a jurisdiction in such matter. He submitted that the election held beyond three years one month period was void. Sri Ashok Bhushan relied on a decision reported in 1988 (2) UPLBEC 1057, Committee of Management, Shri Gandhi Inter College v. D.D.E. and referred to para 4 of the said judgment quoted as under:
"The power to appoint Prabandh Sanchalak depends upon the existence of conditions, namely, (i) if there is no election for constituting committee of management within one month from the date of the expiry of the term of the previous Committee of Management; and taking over charge by the newly elected committee of management within the same period. In fact, either of these two conditions is the condition precedent of exercise of power by the Regional Deputy Director of Education to appoint Prabandh Sanchalak for the institution. For that purpose, necessarily the Regional Deputy Director of Education has to make enquiry if the conditions aforesaid exist for exercise of power to appoint Prabandh Sanchalak, or not. But learned counsel for the petitioners argues that if election was held even after the expiry of the prescribed time limit, the Regional Deputy Director of Education has no jurisdiction to adjudicate upon the legality or otherwise of the election. It is a settled law that when an authority is given power to do certain act on existence of certain circumstances, there is an implied power to make an enquiry as to whether those circumstances exist or not. The enquiry in regard to the existence of those circumstances is included in the grant of power. In other words, the power of making enquiry in regard to the existence of those circumstances flows as necessary means to accomplish the end. In fact, the enquiry is something essential for proper and effectual performance of duty assigned. The Regional Deputy Director of Education had to be satisfied as to whether any election had taken place within a period of one month from the date of the expiry of the term of the previous Committee of Management or not, and in case he finds that no election had taken place within the prescribed time, he is empowered to appoint Prabandh Sanchalak to hold election for constituting Committee of Management for the institution. In the enquiry if the Regional Deputy Director of Education finds that election had taken place after the one month of the expiry of the term of the previous Committee of Management, he has necessarily to adjudicate upon the validity of the said election as under Cl. 8 of the Scheme of Administration, no such election is permissible, and the power to appoint Prabandh Sanchalak is attracted. In the present case, the term of the previous Committee of Management expired on 18-6-1988. It was required that the election should be held within one month of the said date i.e. by the 17th of July, 1988. The election of the petitioner Committee of Management was held on 14-8-1988 which was much after the time stipulated in clause 8 of the Scheme of Administration. Such an election cannot be said to be an election in the eye of law, the Regional Duputy Director of Education has rightly gone into the question of the validity of the election and correctly held that the said election was illegal. Under Cl. 8 of the Scheme of Administration such an election shall be deemed to have been held by the person who was not authorised to do so, and no sanction or sanctity can be attached to that election under the law. In fact, such an election has to be ignored, with the result that the only thing left for the Regional Deputy Director of Education is to appoint Prabandh Sanchalak who may get election held in accordance with the provisions of the Scheme of Administration. Since the election of the petitioner Committee of Management was illegal and void, the question of curtailment of its term does not arise as the proceedings of the said election were illegal being taken by persons who were not authorised to hold the election. In the present case, the Regional Deputy Director of Education was exercising power under Cl. 8 of the Scheme of Administration and not under S. 16A(7) of the Act."
20. The argument of Sri Shashi Nandan is negatived by the decisions reported in 1988 (2) UPLBEC 1057 (supra). I have no hesitation in holding that in view of the aforesaid judgment and also in view of the provisions of Cl. 8 of the Scheme of Administration the D.D.E. was fully competent to exercise jurisdiction for arriving at a correct legal decision.
21. According to S. 19A read with S. 28 of the U.P. General Clauses Act ancillary powers were there with the D.D.E. The provisions of S. 19A of the U.P. General Clauses Act are quoted as under :
"19A Where, by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers shall be deemed also to be given as are necessary to enable that person, officer or functionary to do or enforce the doing of the Act or thing."
22. After considering the factual and legal position in the present writ petition I have no hesitation in holding that the D.D.E. was fully competent and within the jurisdiction of authority to have power to appoint authorised controller to manage the affairs to hold the election of the committee of management in the facts and circumstances of the present case. The judgment and order impugned passed by the D.D.E. is perfectly legal and just and calls for no interference. The Writ Petition No. 34553 of 1990 is liable to be dismissed.
23. The result is that Civil Misc. Writ Petition No. 36777 of 1994 is allowed and the Civil Misc. Writ Petition No. 34553 of 1994 is dismissed. The parties shall bear their own costs.
24. Order accordingly.