Court No. - 19
Case :- WRIT - C No. - 19410 of 2018 Petitioner :- C/M Abhai Nandan Inter College And Another Respondent :- State Of U P And 7 Others Counsel for Petitioner :- Santosh Kumar Srivastava,Sri Ashok Khare(Senior Advocate) Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Manoj Kumar Gupta,J.
By impugned order dated 16.5.2018, issued under signatures of the Joint Director or Education, the third respondent, election dated 17.9.2017 has been declared invalid and a further direction has been issued for appointment of Associate District Inspector of Schools, as Authorised Controller, in purported exercise of power under Section 6 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971.
The election in question was of the Committee of Management of Abhai Nandan Inter College, a recognised minority institution under the U.P. Intermediate Education Act, 1921. The said institution is admittedly governed by a Scheme of Administration approved under Section 16-CC. The petitioners claim that they were duly elected in the said election. Respondent no.8, who claim himself to be a life member, filed objection against the election alleging that it was held from a forged and manipulated list, by excluding his name. He also levelled allegations of financial irregularities against the petitioners. Acting on the same, impugned order came to be passed.
The impugned order records that in the election held on 17.9.2017, out of 28 members of the general body, 17 are related to each other, which is contrary to Regulation 4 of Ch.III of the Regulations framed under the Act. The Regional Level Committee has also placed reliance on a government order dated 25.8.2011, which requires the management to adopt the Model Scheme of Administration. Clause 6(4) of the Model Scheme of Administration contains a prohibition regarding members of the Committee of Management being related to each other. Accordingly it has been held that the electoral college from which the election has been conducted, was not valid. The order also hold that election dated 17.9.2017 was not held in the presence of any observer, which is also contrary to the model Scheme of Administration. It is also observed that the Committee has become time barred. The order further proceeds to point out certain financial irregularities, placing reliance on a report of Finance Controller (Secondary) and consequently, power under Section 6 of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 has been invoked in appointing Associate District Inspector of Schools as an Authorised Controller.
Sri Ashok Khare, learned senior counsel appearing on behalf of petitioners submitted that under the approved Scheme of Administration, there is no prohibition for members of the General Body or Committee of Management being related to each other. He further submitted that Regulation 4 of Ch.III prohibits appointment of a teacher in the institution, in case any relative of such teacher is in the Managing Committee. Thus, according to him, it would not apply. He further submitted that unless Model Scheme of Administration is adopted, it would not become applicable. He further points out that government order dated 25.8.2011, on which impugned order is based, has already been quashed by this Court. In support of said contention, he has placed reliance on judgement of this Court dated 17.10.2014 in Writ-C No.69096 of 2011 C/M Lala Babu Baijal Memorial Inter College and another vs. State of U.P. and others. In the said writ petition, same government order dated 25.8.2011 was under challenge. It was quashed by this Court holding that the government, in exercise of its executive power under Article 162 of the Constitution cannot frame a model Scheme of Administration, nor compel its enforcement, unless the Act itself is amended. It is further submitted that the last election was held on 17.9.2017 strictly in accordance with the approved Scheme of Administration. It is urged that there is no provision in the same, for election being held in the presence of an observer.
A supplementary affidavit has been filed bringing on record the order of the Joint Director of Education, approving amendment in the Scheme of Administration, according to which, the term of the Committee of Management is five years. It is thus submitted that the findings in the impugned order that the Committee has become time barred, is manifestly illegal.
Learned counsel for the petitioners also submitted that the dispute was taken up for consideration by the Regional Level Committee in pursuance of order of this Court dated 13.12.2017 in Writ-C No.45104 of 2017, whereby the petitioners challenged order of the District Inspector of Schools dated 15.9.2017, by which he stayed the election process. The writ petition was disposed of with direction to the third respondent to examine the papers presented by the petitioners relating to election including objections relating to validity of the electoral college before recognising the election. The submission is that the dispute before the Regional Level Committee was with regard to membership and the validity of the election of the Committee of Management. It is submitted that the Regional Level Committee while deciding these issues was not competent to examine the allegations of financial irregularities. It is urged that the petitioners were never put to notice that the matter relating to financial mis-management was also under consideration. It is thus, submitted that the order appointing Authorised Controller has therefore been passed in gross violation of the principles of natural justice.
Sri Arun Kumar, learned counsel appearing on behalf of respondent no.8 does not dispute that the matter came up for consideration by the Regional Level Committee on the objections filed by respondent no.8 in relation to his membership but the impugned order does not at all deal with the said issue. He also does not dispute that under the approved Scheme of Administration, there is no provision similar to clause 6(4) of the government order dated 25.8.2011. It is also not disputed that the said government order was quashed by this Court in Writ-C No. 69096 of 2011. He therefore, very fairly submitted that the matter be remitted back to respondent no.2 for fresh consideration.
Learned standing counsel states that respondent no.2 would take fresh decision within two months.
Accordingly and in view of statement made by learned counsel for respondent no.8, the impugned order passed by respondent no.2/3 dated 16.5.2018 is quashed. The matter is remitted to the second respondent for taking fresh decision in the light of observations made above, expeditiously, preferably within a period of two months from the date of production of a certified copy of this order. In case respondent no.2/3 proposes to exercise power under Section 6 of the Act, the petitioners shall be put to notice thereof, before exercising such power.
The writ petition stands disposed of accordingly.
Order Date :- 30.5.2018 skv (Manoj Kumar Gupta, J.)