This petition has been filed by a Committee of Management, Aley Ahmad Girls Inter College, Amroha, J.P. Nagar, which is a minority institution governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder, through Rehan Ali Naqvi as the Manager. The petitioner assails the order dated 11th February, 2011 passed by the District Inspector of Schools rejecting the elections set up by the petitioner on 31st October, 2010 and accepting the elections of the respondent no. 5 as held on the same date.
Sri W.H. Khan, learned Senior Counsel has advanced his submissions on behalf of the petitioners and Sri Shashi Nandan, learned Senior Counsel assisted by Sri Arun Kumar Singh, Advocate for the respondent no. 5 and the learned Standing Counsel for the respondent nos. 1 to 4.
Sri W.H. Khan submits that the impugned order is without jurisdiction, inasmuch as, such a dispute could have been decided by the Regional Level Committee chaired by the Joint Director of Education in terms of the Government Order dated 20.10.2008 read with the Government Order dated 19.12.2000. He further submits that even otherwise, in view of the provisions of sub-section (7) of Section 16-A of the U.P. Intermediate Education Act, 1921 whenever there is a rival calim or dispute with regard to lawful effective control over the affairs of the institution, the matter has to be decided by the Joint Director of Education, who is the authority now competent under the aforesaid provisions to resolve such disputes. Accordingly, the judgment of this Court dated 1.12.2010 passed in Writ Petition No. 69838 of 2010 cannot be construed to confer a jurisdiction on the District Inspector of Schools to decide the same, more so, when the learned single Judge himself has directed that a decision shall be taken by the District Inspector of Schools as may be warranted in accordance with law and in terms of the Government Order applicable. Sri Khan, therefore, submits that this does not amount to conferring a jurisdiction on the District Inspector of Schools to decide the dispute.
Sri Khan further contends that the respondent no. 5 claims elections on the strength of a membership which is not the valid electoral college and 11 persons shown in the Committee of the respondent no. 5 are not even members of the general body. For this he submits that since they are not the members of the parent society, therefore, they could not have been included as members of the general body in the light of the Government Order dated 21.11.2008.
He further contends that the existence of two bank accounts, which has been discussed in the impugned order, has also been made the basis of rejecting the claim of the petitioners on the ground that the Account No. 9033 is in the personal name of the petitioner. Sri Khan submits that the aforesaid conclusion is wrong, inasmuch as, the account is in the name of the petitioner in the capacity of the Manager of the institution and hence merely because another account has been opened, the same does not invalidate the membership of 44 members out of whom 33 participated in the elections of the petitioner. He, therefore, contends that the finding of the District Inspector of Schools is erroneous who has malafidely proceeded to pass orders completely ignoring the impact of the order of the Regional Level Committee dated 31st March, 2006. It is further submitted that merely because the letter of the acting Principal indicating the elections did not reach the office of the District Inspector of Schools, cannot be a basis for holding the elections to be invalid when the District Inspector of schools himself has found that the proceedings have been carried out for holding of the elections in accordance with the Scheme of Administration.
Sri Khan further submits that the circumstances as stated in the writ petition would indicate that the order dated 3rd November, 2010 had been passed in a back dated manner which also reflects on the malafides of the District Inspector of Schools.
Sri Khan lastly submits that the finding of the District Inspector of Schools that the petitioner had got the previous list of members approved on the basis of false documents was nobody's case and the District Inspector of Schools on his own carved out the same. He has further invited the attention of the Court on this issue to the findings recorded in the judgment dated 28.10.2009 in Writ Petition No. 11590 of 2009 decided along with other connected petitions, to urge that it is not open to the District Inspector of Schools to comment upon the membership list that was earlier finalized, as the elections held on the basis of such lists have already been upheld by this Court.
Shri Shashi Nandan has proceeded to support the impugned order on the ground that the petitioner Rehan Ali Naqvi having found himself in a minority in the elections, which were held on the same date, left the premises but the election proceedings were concluded and the answering respondent was elected as a Manager. He further submits that the elections were held from amongst those valid members whose membership fee has been deposited in the trustee's account bearing Account No. 7417 including those members who were validly continuing till today. He further contends that these persons, who had been show to have participated in the elections of the petitioner, have given their affidavits that Rehan Ali Naqvi had left the meeting place and that it was the respondent Ali Makin Naqvi, who was elected as Manager. Sri Shashi Nandan has also invited the attention of the Court to the photostat copies of the bank accounts which has been filed by the petitioners, to urge that the bank account allegedly operated by the petitioner is his personal account and has got no relation to the management and affairs of the institution.
Learned Standing Counsel has also supported the impugned order and it is urged that the petitioner is not entitled to assail the validity of the elections in view of the findings of fact recorded in the impugned order.
Having heard learned counsel for the parties the first issue relating to jurisdiction deserves to be dealt with. The provisions of Section 16-A (7) of the U.P. Intermediate Education Act, 1921 are gainfully reproduced herein for ready reference:
"(7) Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education upon such enquiry as is deemed fit to be in actual control of its affair may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise:
Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representations in writing."
The aforesaid provision makes it clear that there is a statutory forum prescribed for resolution of disputes whenever there is a dispute of rival claims for lawful effective control over the management subject to the decision of a court of competent jurisdiction. This provision is supplemented by the Government Order dated 19.12.2000 and the subsequent Government Order dated 20.10.2008. The Government Order dated 19.12.2000 in order to regulate this procedure makes a provision that the authority shall be assisted in proceeding to take a decision by a three member Committee comprising of the Joint Director of Education, the Deputy Director of Education and the District Inspector of Schools concerned. This three member Committee was, therefore, enjoined with the duty to resolve such disputes pertaining to the recognition of committees of colleges recognized under the Act. The subsequent Government Order dated 20.10.2008 modified the same to the extent that in the event there is no dispute or legal impediment, the District Inspector of Schools can proceed to pass an appropriate order for recognition. The rider was however put in that in the event there is any legal impediment then the matter will have to go to the Regional Level Committee. The scheme of the aforesaid provisions therefore leaves no room for doubt that the statutory authority to decide a dispute of rival claims vests in the Regional Level Committee chaired by the Regional Joint Director of Education. The District Inspector of Schools has no authority under the provisions of the 1921 Act to decide a dispute of rival claims.
In the instant case, the contention of the respondent no. 5 is that the petitioner himself acquiesced to the judgment dated 1st December, 2010 and hence such a issue cannot be raised through arguments. A reference to the said judgment is necessary. This Court quashed the order of the District Inspector of Schools dated 3rd November, 2010 and directed the District Inspector of Schools to re-examine the papers qua the elections held by the rival parties and then to take a necessary decision that may be warranted in law and in terms of the Government Orders applicable. He was required to pass a reasoned and speaking order. The District Inspector of Schools admittedly has not adverted to this issue.
Sri Shashi Nandan contends that the petitioner did not raise this issue before the District Inspector of Schools and, therefore, the petitioner should also be presumed to have acquiesced to the same.
The question of jurisdiction goes to the root of the matter and the same can be raised at any stage of the proceedings even though a person complaining of want of jurisdiction should ordinarily raised it at the first instance. It is true that the petitioner does not appear to have raised this issue before the District Inspector of Schools and, therefore, he may not be allowed the entire relief as claimed. Nonetheless, the issue having been raised before this Court, the position of law has to be clarified. The power to decide rival claims squarely vests in the jurisdiction of the Joint Director of Education and the Regional Level Committee as indicated above. In such a situation, the District Inspector of Schools was required to refer to the Government orders as directed by this Court in the judgment dated 1.12.2010. It was the duty of the District Inspector of Schools to have addressed himself to the said issue.
The learned single Judge who has delivered the judgment dated 1st December, 2010 has himself taken the aforesaid view in the case of Committee of Management, Sri Rameshwar Prasad Balika Higher Secondary School, Rasra, Ballia and another Vs. Joint Director of Education, Azamgarh Region, Azamgarh/Recognition Committee under the Chairmanship of Joint Director of Education, Azamgarh Region and others reported in (2005) 2 UPLBEC 1220.
The next question is with regard to the finding recorded by the District Inspector of Schools on the issue of the bank accounts. The District Inspector of Schools while deciding the issue of membership has compared the status of the bank accounts whereas he ought to have concentrated more on the issue of the validity of enrollment of members. For this a mere deposit in one account or the other was not the only factor to be heavily relied on. What was more relevant was the past litigation in this regard culminating in the judgment dated 28.10.2009 that was required to be noticed by the District Inspector of Schools while deciding the question of membership including the impact of the decision of the Regional Level Committee dated 31.3.2006 upholding the elections dated 4.11.2005. Writ Petition No. 24566 of 2006 filed against the said order, was dismissed on 28.10.2009. This in the opinion of the Court would have a direct bearing on the issue of validity of the electoral college as the said elections would also reflect the list of the members of the general body. The consistent stand of the petitioner is that there were only 44 members surviving out of whom 33 have participated in the elections held on 31.10.2010. The District Inspector of Schools while proceeding to decide the issue of membership ought to have verified as to whether these 33 members were the same or had been enrolled thereafter by the Committee which was in effective control. The District Inspector of Schools has failed to advert to this aspect of the matter. In the opinion of the Court, the finding cannot be said to be conclusive as it fails to advert to the aforesaid aspect that was necessary.
Apart from this, the enrollment of a member has to be construed in accordance with the provisions of Scheme of Administration as applicable to an institution. The Institution is a minority institution. The District Inspector of Schools, therefore, ought to have referred to the relevant clauses relating to the procedure prescribed for enrollment and then should have recorded his conclusions. A mere deposit of money in one account or the other cannot itself be a conclusive evidence of enrollment of membership.
This aspect was also to be examined by the District Inspector of Schools as the petitioner had clearly set up a claim that the 11 persons of the alleged Committee of the respondent no. 5 were not members of the general body. There is no specific finding on each of 11 persons who were categorically referred to in the objection of the petitioner.
Apart from this, other objections had also been raised. The District Inspector of Schools, therefore, should have glanced at the background of the case which discloses that the petitioner was elected previously on 15.12.2002 which elections were approved on 22.7.2003 and he was in the effective control. A Writ Petition No. 37694 of 2003 was filed assailing the said elections that did not yield any result and was admittedly dismissed as infructuous. There was no interim order in the said writ petition.
The said Committee passed a resolution for extending the tenure from three years to five years which was approved by the Joint Director of Education. The Joint Director of Education illegally recalled the order of approving the extension of tenure which was quashed on 28.10.2009 at the instance of the petitioner.
Not only this, the fresh elections of the Committee dated 4.11.2005 were approved by the Joint Director of Education which was recalled and the same was set aside, vide judgment dated 19th January, 2006. The Regional Level Committee again decided the matter in favour of the petitioner on 31st March, 2006, as a result whereof, the petitioner continued to be in effective control. A petition filed against the same was dismissed as infructuous.
Subsequently an order of single operation was also passed which was also set aside at the instance of the petitioner on 28.10.2009. Not only this, the dispute relating to the elections set up by the respondent on 18.12.2008 was also decided in favour of the petitioner by this Court on 28.10.2009 clearly holding that the District Inspector of Schools had committed an error by recognising the respondent no. 5 on 15.1.2009. The said order dated 15.1.2009 was even otherwise recalled by the District Inspector of Schools himself.
Apart from this, the dispute relating to the Principal of the institution namely Smt. Parveen Fatima which was approved by the District Inspector of Schools on 11.12.2009 has also been stayed by this Court in Writ Petition No. 70085 of 2009, vide order dated 23.12.2009. A Special Appeal No. 75 of 2010 filed against the said interim order has also failed, vide order dated 16.09.2010.
The aforesaid background, therefore, discloses the claim of effective control of the petitioner. The District Inspector of Schools has recorded a finding that the petitioner was the outgoing Committee and that the procedure adopted for holding of the elections was also followed by the petitioner in accordance with the Scheme of Administration.
In such a situation, in the opinion of the Court, the issue of jurisdiction is important. It has been settled in a series of decisions that a jurisdiction cannot be usurped by an authority, if it is not possessed of the same and the same can also not be conferred through any judicial intervention or by consent of parties. The aforesaid view in relation to the disputes of the present nature has been dealt with by a Division Bench judgment of this Court in the case of Udit Narain Kshetriya High School Padrauna Deoria through its Secretary, Sri Ram Pratap Narain Singh and others Vs. District Magistrate, Deoria reported in 1993 (2) ACJ 1293.
In view of the conclusions drawn herein above even though there was a direction of this Court to the District Inspector of Schools to decide the matter, in the opinion of the Court, the same ought to have been referred by the District Inspector of Schools to the Regional Level Committee. The order of the District Inspector of Schools is Coram Non Judice.
Since the petitioner did not raise this issue before the District Inspector of Schools, therefore, it will not be appropriate to interfere with the impugned order dated 11.2.2011 so as to jeopardise the functioning of the institution in its entirety at this stage.
However, in view of the reasons given herein above, the matter has to be dealt with by the Regional Level Committee and for that a direction is hereby issued that upon a presentation of a certified copy of this order, the respondent no. 2 shall summon the entire records relating to the said recognition and the Regional Level Committee shall proceed to decide the dispute afresh without being influenced by the impugned order of the District Inspector of Schools in accordance with law and in the light of the observations made hereinabove within a period of two months from the date of production of a certified copy of the order before the respondent no. 2.
The respondent no. 5 during the interregnum period shall not be entitled to take any decision pertaining to the appointment or even otherwise of the principal, teachers and other employees of the institution and shall be obliged to seek permission from the District Inspector of Schools for spending any amount above Rs. 500/- during the period of the dispute before the Regional Joint Director of Education. The respondent no. 5 shall however be entitled to operate the salary account but the same shall not be a reason for construing the effective control of the respondent no. 5.
The writ petition stands accordingly disposed of.
Dt. 04.03.2011 Akv