Allahabad High Court
Committee Of Management, Janta Inter ... vs Joint Director Of Education, Merrut And ... on 20 November, 1998
Equivalent citations: 1999(1)AWC879, (1999)1UPLBEC170
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. One Haji Yasin, had moved Writ Petition No. 23615 of 1998 challenging the election of Committee of Management of Janta Inter College, Sultanpur, district Haridwar held on 29.6.1998 on the ground that the said election was illegally and irregularly held and that the said election was objected to by him before the District Inspector of Schools. The said writ petition was disposed of by an order dated 24.7.98 by directing the D.I.O.S. to pass appropriate reasoned order on the objection of the petitioner within a period of 15 days. Despite the said order having been communicated to the D.I.O.S., while granting recognition to the Committee of Management elected in the election held on 29.6.98, the objection of said Haji Yasin was not attended to, and overlooking the objection so raised, recognition was granted by the D.I.O.S. illegally. Subsequently, respondent No. 4 Bashir Ahmad filed Writ Petition No. 24599 of 1998 alleging that the recognition granted to the Committee of Management of the said school pursuant to the election held on 29.6.98 was invalid since it has not considered the objections raised by Haji Yasin. The said Writ Petition No. 24599 of 1998 was disposed of by an order dated 31.7.98 with an observation that if the petitioner approaches the Joint Director of Education, Meerut with his representation. In that event, in his administrative capacity, the Joint Director shall decide the same after hearing both the parties taking into consideration the materials that may be placed before him. Accordingly, the representation of Bashir Ahmad was disposed of by an order dated 29.10.1998, by the Joint Director. By the said order dated 29.10.98 while cancelling the recognition of the Committee of Management granted on 23.7.1998 by the D.I.O.S., the Joint Director had held the election invalid and had also recommended appointment of authorised controller, who may, after finalising the members-list, hold a fresh election within three months for constituting the Committee of Management. This order has since been challenged by the Committee of Management through its Manager Israr Ahmad in the present writ petition.
2. Mr. Shashi Nandan, learned counsel for the petitioner contends that the said decision is wholly outside the scope and ambit of Section 16A (7) of the U. P. Intermediate Education Act, 1921. He further contends that in exercise of the power conferred on the Joint Director since used to be designated as Regional Deputy Director of Education formerly, under Rule 16 (8) of the Education Code, does not extend to declare an election invalid, which otherwise could not be gone into even under Section 16A (7) which permits only incidental examination of validity of the election. If the situation is not permitted under Section 16A (7), the same cannot be bye-passed by virtue of the power conferred on him permitting only general supervision under Rule 16 (8) which cannot be utilised to the extent to contradict the powers conferred by the Act itself. By means of framing rules, the scope and ambit of the Act cannot be stretched to the extent to frustrate the purpose of the scheme postulated in the Act itself. He next contends that even if it is assumed that four members were debarred from participating in the election, even then it would not have affected the outcome of the election in view of the votes polled by the respondent No. 4 who participated in the election itself. Mr. Shashi Nandan had also drawn my attention to the relevant materials in support of his contention and had relied on some decisions to strengthen his contentions.
3. Mr. P. C. Srivastava assisted by Mr. Ramji Srivastava, learned counsel for the respondent, relying on a few decisions contended that by reason of the power conferred under Rule 16 (8) of the Education Code, the Joint Director may examine validity of the election and can go into the said question in the cases where there is any irregularity in holding the election even in the absence of any rival committee on the objection raised by an individual member since there is not other alternative remedy available to such aggrieved member. He also contends that if the election is held illegally and irregularly, in that event, it is immaterial where members were prevented from participating in the election, that it would materially affect the result of the election or not. Inasmuch as according to him, election is a democratic process. Deprivation of democratic right of one of the members in fact destroys the inherent principles of the democracy lying behind holding of election which cannot be ignored. He also points out that such objection was raised before the D.I.O.S., but the D.I.O.S. having ignored the same, it is only the Joint Director, having supervisory powers by reason of Rule 16 (8) of the Education Code, who can very well look into the same question. He also relies on some decisions of this Court.
4. Mr. A. K. Mehrotra, learned counsel had supported the order passed by the Joint Director and opposed the contention of Mr. Shashi Nandan.
5. I have heard all the learned counsel at length.
6. It appears that the order dated 29.10.1998 is based on the fact that four persons, namely. Syed Ahmad Pradhan, Ahkam Ali, Nafees alias Munna driver and Haji Mohd. Yasin were prevented from participating in the election. It appears from Annexure-3 to the writ petition being a chart showing respective votes polled by respective candidates, that respondent No. 4 Bashir Ahmad polled 61 votes while Israr Ahmad petitioner No. 2, had polled 83 votes. Thus, the difference is more than four votes which could materially affect the result of the election. Even if the said four persons were allowed to participate and had cast their votes in favour of Bashir Ahmad, though it is not known that they would have voted in favour of Bashir Ahmad, it is clear that It may not affect materially the result of the election even if they were allowed to participate in the election.
7. Be that as it may, it appears that the objection to the election was filed before the D.I.O.S. prior to grant of recognition to the. Committee of Management by Haji Yasin. He had obtained the order dated 24.7.98 passed on his Writ Petition No. 23615 of 1998. If the recognition was granted allegedly ignoring the objection of Haji Yasin, it was for him to espouse his cause because it was his democratic right which was not allowed to play its full part. Admittedly, respondent No. 4 Bashir Ahmad had participated in the election and was one of the contestants, who polled 61 votes and had lost the race. The prevention to participate in the election does not affect the respondent No. 4-Bashir Ahmad personally with regard to any of his democratic right in participating in the election itself. Haji Yasin has not espoused his cause any further after his objection was allegedly ignored by the D.I.O.S. None of the other three persons had raised any objection on account of deprivation of their democratic right. None of these four persons were parties in the writ petition filed by Bashir Ahmad being Writ Petition No. 24599 of 1998. No right was available to Bashir Ahmad to expouse the cause of non-participation of those four persons in order to achieve some oblique gain, i.e., to gain the lost ground.
8. Once having participated in the election itself and having lost, if he has any right, he has to challenge the election either through the procedure laid down within the scope and ambit of Intermediate Education Act and the Rules and Regulations framed thereunder or under Societies Registration Act if the said school is a society registered under the said Act or otherwise as may be advised or may file a suit which was open to him. The allegation that four persons were prevented from participating in the election, cannot be a ground personal to him which he could have espoused to his own advantage. Then again, from the order dated 31.7.98, it appears that the ground on which the said order was passed, was that the petitioner was debarred illegally from exercising his right to vote. It was on this premise that the said order was passed. Whereas Mr. P. C. Srivastava, learned counsel for the respondent in his usual fairness, submits that the respondent No. 4 had participated in the election and had exercised his right of franchise. In the writ petition, the ground was that there were illegality or irregularity in holding of the election, in that in depriving the said four persons of their right of franchise.
9. Be that as it may, once the order was passed and the same having not been challenged, the Joint Director had acted pursuant to the order dated 31.7.98 which had empowered him to decide the question. But the fact remains that the said order did not permit him to exceed his jurisdiction as conferred on him by reason of the provisions contained either in the Intermediate Education Act or the Rules or Regulations relating thereto.
10. Section 16A (7) refers to a dispute between two rival committees. Admittedly, in the present case there was no rival committee. Thus, as rightly contended by Mr. Shashi Nandan, Section 16A (7) cannot be attracted In order to empower the Joint Director to exercise his jurisdiction even to go incidentally about the validity of the election. Now the question remains, as ably argued by Mr. P. C. Srivastava. as to whether Rule 16 (8) of the Education Code would empower the Joint Director to go to the extent, to which the order dated 29.10.1998 is stretched.
11. Admittedly, by reason of Rule 16 (8), the Joint Director is empowered with the jurisdiction to exercise general control and supervision over the functions of the D.I.O.S. Rule 16 prescribes administrative functions. When the power under Section 16A (7) is in the nature of quasi-judicial which cannot be treated at par with the actions which are administrative in nature it is very difficult to accept the contention that it can be stretched to such an extent as to override Section 16A (7) to the extent of deciding each and every dispute raised by an individual member, The scheme of the Act envisages a dispute with regard to recognition of the Committee of Management between two rival claimants. In case such dispute is stretched or extended to the right of each individual member. In that event, if any member raises such dispute then the whole administration is expected to collapse since the Joint Director would remain busy and preoccupied with deciding such disputes which may he raised by any individual. In case one defeated person intends to, he may mastermind or manage a number of individual members to set up one after another to challenge the election and then bring the administration into a deadlock creating unnecessary exercise by opening up a flood gate through administrative process, a concept which appears to be wholly im-practicable rendering the whole scheme unworkable. Deprivation of such right does not amount to deprivation of democratic right which can be asserted either through the procedure laid down in the provisions contained in the Societies Registration Act, if a person is so aggrieved he may assert his right through a civil suit establishing his civil right, as the case may be. But it cannot be permitted to be brought within the purview of scope and ambit of the jurisdiction conferred on the Joint Director by virtue of Section 16A (7). Then again, rule cannot come in conflict or contradict with the Act Itself nor it can widen or stretch the area of a particular subject to the extent which is not envisaged within the scope and ambit of the Act itself. The rules are supposed to be framed for proper working and implementation and effective application of the provisions contained in the Act itself. What has not been provided in the Act itself, cannot be provided through framing of the Rules. Therefore, Rule 16 (8) of the Education Code cannot be Stretched to such an extent which might have an effect of introducing something more In Section 16A (7) to the extent that apart from the rival committees, an individual can also raise such dispute within the meaning of Section 16A (7). If such interpretation is accepted, in that event it will be an indirect legislation through interpretation which is otherwise impermissible being outside the jurisdiction of the Court.
12. That apart, if such an interpretation is accepted, in that event, Rule 16 (8) of the Education Code would mean to empower the Joint Director to go into the question of validity of an election, which is even impermissible under Section 16A (7), under which such a question could be gone into only incidentally. The Joint Director was never conferred with any right to decide the question of validity of an election independently. At the same time, such an interpretation of Rule 16 (8) of the Education Code would result into conferring a right upon each individual member to challenge an election. Virtually in such an event, the Joint Director would become an election tribunal. When the Act itself consciously did not confer on the Joint Director any such power and has not postulated deciding the question of validity of an election in the manner as is done through the election Tribunal a power consciously omitted to be incorporated in the Act Itself. Thus, such interpretation would not only confer a special authority or jurisdiction conspicuously absent on the whole scheme of the Act and a right on each individual member deliberately omitted to be incorporated in the scheme of the Act itself. What could not have been done directly or even indirectly, the same cannot be done through interpretation of the rule framed for implementation or application of the Act itself. The power of general control and supervision does not mean that the Joint Director, in exercising such power of general control and supervision over the functions of D.I.O.S., would usurp the authority and jurisdiction of the election tribunal and itself decide election dispute raised by an individual member. Even under Section 16A (7) resolution of the election disputes has not been envisaged. The Legislature had deliberately omitted to confer on any of the authorities under the Act any such jurisdiction with regard to the decision of election disputes raised by either rival committee or by an individual while circumscribing the scope and ambit of deciding dispute with regard to recognition of the Committee of Management having regard to determination of the question as to which committee is in actual control over the affairs of the school. When providing for such limited scope which has been interpreted by this Court to mean that the said provision empowers the authority under the said section to go into the question of validity of the election only incidentally and not as an election tribunal determining the question of validity of election as a whole. The procedure contemplated under Section 16A (7) being in the nature of summary process or procedure, it is not possible to conceive that it would involve determination of validity of election in detail. When providing for a particular procedure limiting the scope and ambit when it was open to the Legislature to incorporate a forum for deciding election disputes, the intention appears to be clear and unambiguous. No interpretation can be made to negate the Intention of the Legislature in omitting to provide for forum, procedure, authority and jurisdiction of deciding election disputes. It is not for the Court to supply the same and in that enter into the arena of Legislature through indirect legislation. In case such decision on the question of election dispute had been envisaged. In that event. Legislature was free to Introduce the forum, procedure, method, manner, authority and jurisdiction with regard to deciding election disputes and would have conferred such a right on each individual member, who admittedly are members of the society subject to Societies Registration Act providing for limited scope relating to election dispute envisaging such disputes to be thrashed out through civil in civil court. Thus, despite vehement argument advanced by Mr. Srivastava, it has not been possible for this Court to accept or accede to his contention which he had supported by citing the decisions which are being dealt with immediately hereafter.
13. Mr. C. P. Srivastava had relied on the decision in the case of Committee of Management of Shri Gandhi Maha Vidyalaya (Higher Secondary School), Malayangar Malap, district Ballia and another v. District Inspector of Schools, Ballia and another, 1981 UPLBEC 328, in support of his contention that the Joint Director is empowered under Rule 16 (8) to exercise general power of superintendence and control over the functions of the D.I.O.S. The said judgment deals with completely a different question. The scope of the said decision was confined within the ambit of facts involved in the said case. The facts on which the said decision was given was that two rival claimants had been claiming to have been elected as Managers of respective Committee of Management. One was claiming to have been elected in the meeting held on 26.2.1978 and the other on 14.10.1979. Thus, there were two rival Committees of Management claiming against each other within the ambit of Section 16A (7) of the U. P. Intermediate Education Act. Inasmuch as the D.I.O.S. had recognised the Committee of Management constituted on 14.10.1979. This was challenged in a writ petition. The Court had no occasion to consider Jurisdiction of the Regional Deputy Director (now Joint Director) either under Section 16A (7) of the U. P. Intermediate Education Act or Rule 16 (8) of the U. P. Education Code. Therefore, the said decision in the facts and circumstances of the present case, does not help Mr. Srivastava to support his contention as indicated above. On the other hand, relying on the decision in the case of Jaswant Singh v. D.I.O.S., 1980 ALJ 174, it was observed in the said judgment that the enquiry with regard to holding of election is confined to the question as to whether a fresh election has taken place and if so, who are the persons elected to constitute the committee. While exercising power to grant recognition to the Committee of Management, the D.I.O.S. is never called upon to decide validity of the election. While granting such recognition, the D.I.O.S. does not exercise any jurisdiction or power as an election tribunal. The U. P. Intermediate Education Act or the Regulations framed thereunder, has not empowered the D.I.O.S. to decide election disputes in the nature as is involved in the present case.
14. The power conferred under Rule 16 (8) relating to exercising general supervision and control, has to be interpreted within the extent of the power conferred on the D.I.O.S. in the matters of grant of recognition. If the D.I.O.S. is not empowered to decide election disputes, then in the name of exercising general supervision or control over his functions in granting recognition, the Joint Director cannot exercise a grater power or could be authorised to extend the scope of such functions or enlarge or widen the scope or the extent of power conferred on the D.I.O.S. In the matter of grant of recognition to the Committee of Management. If it is so, in that event, the Joint Director cannot act as an election tribunal or go into the question of validity of the election in the manner which has been gone into in the name of exercising power of general supervision and control over the functions of the D.I.O.S. Such power has to be reconciled with entire scheme of the 1921 Act and the Regulations framed thereunder. The power of general supervision and control cannot confer a new power in the Joint Director when such power is absent in the D.I.O.S. when granting recognition to a Committee of Management.
15. Mr. Srivastava had also relied on the decision in the case of Shandar Husain v. Deputy Director of Education XIIth Region, Moradabad and others, (1995) ACJ 1244. In the said case, Rule 16 (8) of the Education Code was dealt with in the context of facts and circumstances of the said case which is distinguishable from those of the present case. In the said case, the D.I.O.S. had refused to grant recognition to the Committee of Management elected in the election held on 20.6.1993 and had directed holding of fresh election. On a representation by the then Manager, the Deputy Director had examined the records and found that election was held on 20.6.1993 in accordance with the scheme of administration and that the newly elected Committee of Management was in effective control of the institution, and therefore had set aside the order dated 29.7.1993 refusing to grant recognition to the newly elected committee and directed the D.I.O.S, to attest signatures of the Manager who had been elected on 20.6.1993. In the said case, thus it appears, that validity of the election was not decided in a manner as is to be decided by the election tribunal as in the present case. On the other hand, the Deputy Director had exercised the power under Section 16A (7) to find out effective control and in order to find out such effective control he has gone into the question of election incidentally, to the extent of finding out as to whether the election was so held. It was not a case where the election itself was being disputed and the decision oriented by a dispute with regard to validity of the election itself. It was not disputed that election was not held on the said date, in the present case, but it was contended that a few of the members were precluded from participating in the election. The order of Joint Director in the present case virtually has decided validity of the election itself, unlike the decision in the case of Shandar Husain (supra) wherein it was only for the purpose of finding out as to who was in effective control and while determining it has come to a finding incidentally that the election was held validly on 20.6.1993. Admittedly, in the said case the dispute was not referred under Section 16A (7) by the rival committee but by the committee itself which was elected on 20.6.1993 when the D.I.O.S. refused to recognise the election. Therefore, it was not a dispute with regard to the election but it was confined to grant or refusal of recognition which is well within the ambit and scope of jurisdiction conferred on the D.I.O.S. Therefore, such function is amenable to the power of general supervision and control under Rule 16 (8) of the Education Code.
16. Decision has to be read in the context of facts on which the said decision was given. The ratio decided in such decision cannot travel beyond the scope and ambit of the facts involved and the question which the Court was called upon to answer.
17. The grant or refusal of recognition is an administrative function of the D.I.O.S. without involving deciding a election dispute and if refusal of recognition is patently erroneous as in the case of Shandar Husain (supra) in that event, it is open to the Regional Deputy Director under Rule 16 (8) of the Education Code to exercise his power of supervision and control over such functions. The said decision is not a case to support that the Deputy Director is empowered to act as election tribunal for determining validity of the election itself raised by a person interested on the ground that he was precluded from participating in the election illegally.
18. By reason of Rule 16 (8) of the Education Code, no extraordinary power could be conferred on the Deputy Director which has not since been conferred by the Act or the Regulations framed thereunder, the only scope which is available is under Section 16A (7). If a particular case does not fall within the scope and ambit of Section 16A (7), in that event, even if any such question can be gone into by the Deputy Director, in that event, it can be within the scope and ambit of Section I6A (7) and not beyond. In series of decisions, this Court had held that under Section 16A (7) the Regional Deputy Director does not act as an election tribunal though however while deciding as to who is in effective control, it can go into the question incidentally. Thus, the Jurisdiction was restricted to an extent without conferring any jurisdiction to act as election tribunal. If the scheme of the Act itself had deliberately omitted to confer any such Jurisdiction on the Deputy Director, then such power cannot be conferred by means of the rules widening the scope and ambit of the scheme of the Act itself which deliberately confined the scope within the ambit of Section 16A (7) as discussed above.
19. In the said judgment, in the case of Shandar Husain (supra), it was held that the Deputy Director of Education in appropriate cases and on limited grounds as indicated in the said judgment, can interfere in the order passed by the D.I.O.S. and can correct any error therein exercising limited jurisdiction contemplated under Rule 16 (8) of the U. P. Education Code. Thus, the ratio decided therein has also described the supervisory power under Rule 16 (8) as limited to the extent indicated in the said judgment which was confined with the question as discussed hereinbefore. Whereas in the present case, the power that has been exercised by the Joint Director is not of limited jurisdiction nor rests on limited grounds. Thus, the decision in the case of Shandar Husain (supra) also does not support the contention of Mr. Srivastava.
20. Mr. Shashi Nandan, learned counsel for the petitioner had relied on the decision in the case of Basant Prasad Srivastava, and another v. State of U. P. and another, 1993 (2) UPLBEC 1333. In the said case, it was held that once the election process starts, it should be allowed to come to its logical conclusion by declaration of result and the aggrieved person may challenge such election by filing election petition or civil suit in accordance with law and such election may not be set aside unless illegality or irregularity materially affects the result. But the said decision was given in the context of challenging the election process after it was initiated but before it has reached it logical conclusion. The said decision, therefore, does not help Mr. Shashi Nandan to counter the contention of Mr. P. C. Srivastava, though however he banked upon the observation made in the said case that the aggrieved person may challenge the election by filing election petition or civil suit in accordance with law and contended that once election reaches its logical conclusion, the same can only be challenged through a civil suit or election dispute as provided in law, According to him, the U. P. Intermediate Education Act having not provided any procedure for determining election disputes, it is only by means of civil suit that such election can be disputed or if it is a society, it can be referred to the prescribed authority under Section 25 of the Societies Registration Act subject to decision by the civil court If the decision under Section 25 is so challenged.
21. But then, such question is not relevant for the purpose of deciding the issue involved in the present case as to whether under Rule 16 (8) of the Education Code, election dispute could be decided by the Regional Deputy Director of Education. Still then it may be pointed out that election involving preclusion of some members, it is only those members who have been precluded, have a right to espouse their cause which is absolutely personal to them, since in the case of Nanhoo Mal and others v. Hira Mal and others, AIR 1975 SC 2140, it was held that the right to vote or stand to the election for office, is a creature of the statute and must be subject to the limitations imposed by the statute. The right to vote having been a right personal to the person excluded, their cause of action cannot be espoused by any person other than these who have been so precluded.
22. In the present case, the alleged persons who have been precluded have not approached this Court. The present writ petition moved by the petitioner who himself participated in the election and contested for the post of office bearer unsuccessfully and therefore, he cannot maintain this writ petition. If there is any right to challenge the election, it is for the members who have been precluded, to approach the prescribe authority under Section 25 of the Societies Registration Act or through filing a civil suit.
23. For all these reasons, it appears that the order dated 29.10.98 is outside the scope and ambit of jurisdiction of the Joint Director to the extent to which it has been stretched in the impugned order dated 29.10.98 and at the same time even assuming that there was irregularity, the same would not materially affect the result of the election, and as such there was no justification in setting aside the election in the said order.
24. Be that as it may, the above finding with regard to factual aspect of the case, is tentative so far as those four members who have been alleged to have been deprived of their right of franchise, who may espouse their cause before appropriate forum if they are so advised and if it is so available to them according to law. But it may be observed that the respondent No. 4 cannot claim a right out of such situation in order to achieve the goal indirectly which he did not think of before Writ Petition No. 24599 of 1998 was filed by raising objection before the D.I.O.S. By reason of taking up of the cause of Haji Yasin, he cannot use the same to his own advantage for oblique motive to compensate his loss in the election itself.
25. In the result, the writ petition succeeds and is allowed. The order dated 29.10.1998 is hereby quashed. Let a writ of certiorari do accordingly issue. There will however be no order as to costs.