The Committee of Management of an educational institution along with its Manager has preferred this writ petition for issuance of a writ of certiorari to quash the order dated 17th October, 2012, whereby the District Inspector of Schools, Mirzapur has recognised the respondent no. 4 as Manager of the Committee of Management and attested his signature.
The essential facts are that Ballabh Bhai Patel Inter College, Gangpur Chunar, District Mirzapur (for short, the "Institution") is an Institution recognised under the provisions of the Uttar Pradesh Intermediate Education Act, 1921. It receives aid out of the State fund. It is governed by the provisions of the Uttar Pradesh Intermediate Education Act, 1921 and the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of the Teachers and other Employees) Act, 1971. The Institution has its Scheme of Administration, which has been duly approved by the competent authority. The affairs of the Institution are managed by a Committee of Management. The Scheme of Administration provides that term of the Committee of Management is three years.
It is stated that the last undisputed election of the Committee of Management of the Institution was held on 04th October, 2009, wherein the petitioner no. 2- Sri Man Singh was elected as Manager and his signatures were attested by the District Inspector of Schools on 04th October, 2009 itself.
On 24th February, 2010 a resolution was taken by the Committee of Management for enrolling new members in the General Body of the parent Society, which has established the Institution. In this regard, a public notice was issued in the daily newspaper 'Dainik Aaj' on 27th February, 2010. In the notice it was mentioned that the application for membership along with membership fee would be deposited between 27th February, 2010 to 01st March, 2010. It is averred in the writ petition that in pursuance of the said public notice 350 Life Members were enrolled after approval from the Committee of Management and this fact was intimated to the District Inspector of Schools, Mirzapur and the concerned Joint Director of Education.
As the term of three years of the Committee of Management was about to be completed, an election programme was published/ issued on 11th August, 2012, whereby 23rd September, 2012 was fixed for filing nomination paper and, if required, election was to be held on 30th September, 2012. This programme was published in the widely circulated newspaper 'Dainik Jagran'.
The respondent no. 4 challenged the election programme before this Court by way of Writ-C No. 46233 of 2012 (Radhey Shyam Singh v. State of U.P. and others) inter alia on the ground that 350 members were illegally enrolled without following the provisions of the Scheme of Administration. Said writ petition was dismissed on 12th September, 2012 as premature and this Court left it open to raise the objection with regard to membership at the appropriate stage. A copy of the order of this Court dated 12th September, 2012 is on the record as annexure-8 to the writ petition.
From the records it transpires that an application was moved by the respondent no. 4 before the Prescribed Authority on 13th September, 2012 under Section 25 (1) of the Societies Registration Act, 1860 to the effect that fresh election may be held on the basis of the electoral roll comprising of 551 Life Members, on the basis of which the previous election of 2009 was held. A prayer had also been made that membership of fresh members enrolled by the other faction may be cancelled. On the said application, the Prescribed Authority has passed an order on 13th September, 2012 that if more than 551 members have been made, then they may not be allowed to participate in the election. The Prescribed Authority fixed 20th September, 2012 as the next date.
Dissatisfied with the order of the Prescribed Authority dated 13th September, 2009 the petitioners preferred Writ-C No. 48522 of 2012 (Man Singh, Manager Ballabh Bhai Patel Inter College v. State of U.P. and others). This Court vide its order dated 20th September, 2012 allowed the writ petition and set aside the order of the Prescribed Authority dated 13th September, 2012 on the ground that said order is indefensible in law. This Court further held that the order of the Prescribed Authority dated 13th September, 2012 was absolutely without jurisdiction as it interfered with the election process and that too by the Sub-Divisional Magistrate, who has no authority to pass such orders with regard to the elections of the Management of an Inter College.
It is stated that the Joint Director of Education, in compliance of the order of this Court, issued a direction to the District Inspector of Schools on 22nd September, 2012 mentioning that prima facie it would be appropriate to stay the election scheduled to be held on 23rd September, 2012 and fresh election be held legally after examining the matter, so that no legal impediment may come in the way. In compliance thereof, a public notice was published in Hindi daily 'Aaj' on 23rd September, 2012 to postpone the election, which was scheduled for nomination on 23rd September, 2012 and for polling on 30th September, 2012. It is stated that a resolution was also passed by the Committee of Management on 22nd September, 2012 to postpone the election as no Observer was appointed by the District Inspector of Schools and there was a dispute of membership also. The District Inspector of Schools thereafter did not take any step to hold fresh election.
It is alleged that, however, in the meantime on 28th September, 2012 the President of the Committee of Management Sri Anant Ram Singh requested the District Inspector of Schools to appoint an Observer for holding the election of the Committee of Management and also sought his permission to publish the election programme on 30th September, 2012, thereby fixing the date for nomination on 14th October, 2012 and, in case of necessity, for polling on 21st October, 2012.
The grievance of the petitioners is that all these proceedings regarding election were undertaken behind the back of the petitioners and consequently, an unanimous election is alleged to have been held on 14th October, 2012, wherein Sri Anant Ram Singh was elected as President and Sri Radhey Shyam Singh, the respondent no. 4, as Manager. Said election has been recognised by the District Inspector of Schools vide impugned order dated 17th October, 2012. Dissatisfied with the impugned order, the petitioners have preferred this writ petition.
At the time of entertaining this writ petition, on 05th November, 2012 this Court, after hearing the counsel for the contesting respondent no. 4 also, has passed an interim order and stayed the operation of the impugned order dated 17th October, 2012 passed by the District Inspector of Schools. Said interim order is still in operation.
A counter affidavit has been filed on behalf of the respondent no. 4. The stand taken therein is that last election was held on 04th October, 2009, wherein the petitioner no. 2 was elected as Manager and Sri Anant Ram Singh was elected as President. Said election was recognised. Before the term was over, a notice was published under the signature of petitioner no. 2, the Manager, and Sri Anant Ram Singh, the President, to hold the fresh election and dates were fixed for publication of list of members, filing of nominations and holding election. The respondent no. 4 challenged the said election programme by filing Writ-C No. 46233 of 2012 on the ground that the election schedule published by the outgoing Committee of Management was not valid as no provision was made therein for inviting objections against the list of members so published. Said writ petition was dismissed by this Court vide order dated 12th September, 2012 observing that the list of members was to be published on 16th September, 2012 and the nomination was to take place on 23rd September, 2012 and, as such, there was a gap of one week in between, during which objection to the list could be filed. Thereafter the respondent no. 4 moved an application before the Prescribed Authority and, as stated above, the order of the Prescribed Authority was set aside by this Court.
It is stated in the counter affidavit that in the meantime an emergent meeting was held on 17th September, 2012 and after examining the entire records, the Committee of Management found that the list of 350 members was wholly fictitious and they were never enrolled as members of the General Body. A copy of the resolution dated 17th September, 2012 has been brought on the record as annexure-2 to the counter affidavit. It is stated that on the date of election, as was published earlier, the Institution was locked and the Manager and the Principal were not present and no nomination papers were supplied and only the President of the outgoing Committee of Management Sri Anant Ram Singh was present. 147 members, who had gathered in the college premises for participating in the nomination, made a representation to the President to direct the Manager to notify fresh election schedule, failing which the President himself was authorized to publish fresh election schedule calling a meeting of the General Body for electing a Committee of Management. A copy of the said representation has been brought on record as annexure-3 to the counter affidavit.
It is averred in the counter affidavit that there is a specific provision in the Scheme of Administration that in case the Manager and the President do not call the meeting of the General body for election, one-third members of the General Body may call upon the Manager and the President to call the meeting. Thus, on the basis of the said representation made by 147 members, the President published a fresh election schedule fixing 14th October, 2012 as the date for filing the nomination and 21st October, 2012 as the date for meeting of the General Body to hold the election. It is stated that this agenda for election meeting was sent to all the members by post and was also published in the newspaper. It is stated that on 14th October, 2012 nominations were filed before the Election Officer and since there were single nomination for each post, unanimous election was held, which has been recognised by the District Inspector of Schools by the impugned order. In the counter affidavit, said election has been tried to be justified.
Rejoinder affidavit has been filed on behalf of the petitioners, wherein the statements made in the counter affidavit have been denied.
I have heard Sri G.K. Singh, learned Senior Advocate, assisted by Sri R.M. Saggi, learned Counsel for the petitioners, Sri P.N. Saxena, learned Senior Advocate, assisted by Sri R.S. Umrao, learned Counsel for the respondent no. 4, and learned Standing Counsel for the State functionaries.
Sri G.K. Singh, learned Senior Counsel appearing for the petitioners, submits that the impugned order passed by the District Inspector of Schools recognising the election of the respondent no. 4 is illegal and has been passed in violation of the principles of natural justice. He further submits that under the Scheme of Administration, the President has no authority to issue agenda and hold the election. He urged that earlier the election was postponed by the Joint Director of Education with a direction to the District Inspector of Schools to examine the dispute before holding the fresh election, however, the District Inspector of Schools without giving any notice to the petitioner no. 2 and other members has permitted the President alone to hold the election. He lastly urged that in fact, no election was held, which is evident from the records as 14th October, 2012 was the date fixed for nomination and on the same date, unanimous election has been held without any knowledge to the members of the General Body.
Sri P.N. Saxena, learned Senior Counsel appearing for the respondent no. 4, submits that the election was held after the permission was granted by the District Inspector of Schools and in the election the Observer appointed by the District Inspector of Schools was present. He further submits that 350 members enrolled by the petitioners were illegal and the present election has been held on the basis of the electoral roll, on the basis of which election of 2009 was held. Sri Saxena has tried to justify the action of the President, whereby he alone had issued the agenda without signature of the Manager to hold the election on 14th October, 2012.
Learned Standing Counsel has adopted the submissions of Sri Saxena and tried to defend the impugned order.
I have considered the rival submissions advanced by the learned Counsel appearing for the respective parties and perused the record.
The previous election of the Committee of Management was held on 04th October, 2009, wherein admittedly the petitioner no. 2 was elected as Manager. The respondent no. 4 had lost the said election. Said election was recognised by the District Inspector of Schools. The dispute arose in the year 2010 when drive for enrollment of new members was initiated. According to the petitioners, 350 members were enrolled following the procedure prescribed in the Scheme of Administration and the election programme was published on 11th August, 2012. Said election programme was challenged by the respondent no. 4 by means of Writ-C No. 46233 of 2012, but it was dismissed as premature on 12th September, 2012. After the dismissal order, the respondent no. 4 filed an application before the Prescribed Authority and obtained an order restraining the 350 members from participating in the election. Said order was set aside by this Court in Writ-C No. 48522 of 2012 on 20th September, 2012. The election programme was stayed by the Joint Director of Education vide his order dated 22nd September, 2012.
The grievance of the petitioners is that once the election was stayed by the Joint Director of Education with a direction to the District Inspector of Schools to hold the election after determining the dispute, the District Inspector of Schools was not justified in permitting the President to hold a fresh election without any resolution of the Committee of Management and without opportunity to the petitioner no. 2, who was an elected Manager in the previous election. It is also their grievance that the petitioner no. 2 and other members were not given any opportunity by the District Inspector of Schools when the said alleged election was held with his permission.
Indisputably, the President alone has taken the decision to hold the fresh election on 14th October, 2012 and unanimous election is set to have taken place. The only issue, which arises in the present writ petition, is whether the President had power to initiate the process of election. Clause-5 of the Scheme of Administration provides the procedure for election. For the sake of convenience, relevant part of Clause-5 is extracted herein-below:
"pquko izfdz;k %& pquko ds fy;s lk/kkj.k lHkk dh cSBd izca/kd ,oa v/;{k feydj cqyk;saxsA cSBd dh uksfVl ij nksuksa ds gLrk{kj gksxsaA ;fn og ,slk ugha djrs rks lk/kkj.k lHkk ds [email protected] lnL; v/;{k ,oa izcU/kd dks lk/kkj.k lHkk dh cSBd cqykus ds fy;s fuosnu djsaxsaA ;fn bl ij Hkh lk/kkj.k lHkk dh cSBd ugha cqykbZ tkrh rks bldh lwpuk fujh{kd dks nsdj fujh{kd dh vuqefr ls lk/kkj.k lHkk dh cSBd cqyk ldsxsaA bl ifjfLFkfr esa lnL; vkil esa feydj ,d dks cSBd dk v/;{k cuk;sxsa rFkk pquko vkfn dh izfdz;k ,oa frfFk fu/kkZfjr djsaxsaA"
From the aforesaid clause it would be seen that the procedure prescribed in Clause-5 requires that a meeting of the General Body shall be convened for election and the agenda shall be jointly signed by the Manager and the President. In case they refuse to call the meeting, then one-third members of the General Body will make a request to the President and Manager for convening the meeting of the General Body. If the request is ignored by the Manager and the President, then one-third members shall approach the District Inspector of Schools and with his permission the meeting of the General Body shall be called. The members present shall request a Member to preside the meeting and in the said meeting the date of the election shall be fixed. In the present case, admittedly no such procedure has been followed. There was no permission of the District Inspector of Schools before convening the meeting. In the counter affidavit it is mentioned that one-third members of the General Body have made a request to the President and the President on the basis of their representation fixed the date 14th October, 2012. For the sake of convenience, extract of said pleading, as made in the counter affidavit, is reproduced hereunder:
"03. i. .......... The President on the basis of representation made by 147 members (out of 551 old members only 390 are surviving). Who constitute more than 1/3, published a fresh election schedule for filing nominations on 14.10.2012 and a meeting of the General Body holding election on 21.10.2012. This agenda for election meeting was sent to all members by post and was also published in newspaper and was also submitted to the Educational Authorities including the District Inspector of Schools."
It is evident from the aforesaid pleading that neither there was any permission of the District Inspector of Schools to hold the meeting of the General Body nor any such meeting was convened. The President alone fixed 14th October, 2012 for nomination, on which date election took place.
In my view, the aforesaid action of the President to fix the date for the election was wholly contrary to Clause-5 of the Scheme of Administration of the Institution. Clause-5 of the Scheme of Administration enjoins that said decision shall be taken by the General Body and not by the President alone. Therefore, the election held at the instance of the President alone on 14th October, 2012 was illegal. A Division Bench of this Court in the case of Shiv Nath Singh and others v. State of U.P. and others, 2008 (9) ADJ 540 (DB), had the occasion to deal with the similar issue. The Court held that if any action has been taken in non-compliance of the Scheme of Administration, it is illegal.
The Supreme Court in the case of B.S. Minhas v. Indian Statistical Institute and others, (1983) 4 SCC 582, has taken the view that bye-laws of a Society is binding on its members. It is significant to mention that the Scheme of Administration has been framed under Section 16-A(7) of the U.P. Intermediate Education Act, 1921 and it has statutory flavour, therefore, any action taken in violation of the Scheme of Administration is illegal.
In view of the said facts, the impugned order dated 17th October, 2012 passed by the District Inspector of Schools is unsustainable and it is, accordingly, quashed. The matter is remitted to the Joint Director of Education to appoint an Authorized Controller to hold the election. The Authorized Controller shall publish a tentative electoral roll inviting objections and after giving opportunity, he shall decide the objections, if any, and thereafter shall hold the election. Said exercise shall be completed within a period of three months from the date of communication of this order.
Thus, the writ petition is allowed.
No order as to costs.
Order Date :- 30 May, 2014 SKT/-
Hon'ble Pradeep Kumar Singh Baghel, J.
The writ petition is allowed.
For order, see my order of the date passed on the separate sheets (ten pages).
Dt. 30.05.2014.
SKT/-