Hon'ble A.P. Sahi,J Heard Sri Anil Tiwari, learned counsel for the petitioners who has filed a supplementary affidavit and Sri Ashok Khare, learned Senior Counsel for the caveator alongwith Sri Sudip Dwivedi. The learned Standing Counsel is representing the respondents 1 to 4.
This is a dispute relating to the holding of elections of a Committee of Management coupled with the status of the Scheme of Administration according to which the elections are to be held. The petitioners contend that the Scheme of Administration of the Institution was approved on 27th December, 1971 where the tenure of the Committee was three years and the elected office bearers are to continue till fresh office bearers are elected. This Scheme continued till recently when fresh elections are stated to have been held on 27th December, 2008, in which the petitioner was elected as the Manager and his signatures were accordingly attested by the District Inspector of Schools on 23rd January, 2009. This Committee appears to have tabled a resolution for bringing about an amendment in the Scheme of Administration by extending its tenure from three years to five years. The resolution appears to have been passed on 25th December, 2010 by the Committee and was ratified on 3rd October, 2011. The documents were dispatched to the Joint Director of Education for approval and the same awaited approval. The tenure of the Committee which was elected on 27th December,2008 was to come to an end on 26th December, 2011. The Committee however did not choose to hold elections according to the old scheme as their stand was that the Committee had already resolved to extend the tenure of the Committee under the resolution mentioned above.
The Joint Director of Education granted approval to a five year tenure of the Committee through the amendment as proposed vide order dated 21st December, 2011. The said document has been brought on record as Annexure 8 to the writ petition. It is at this stage that the dispute appears to have commenced between the petitioner and the caveator. The District Inspector of Schools sent letters to the petitioner's committee on 21.12.2011 and again on 26.12.2011 calling upon it to hold elections as per the old scheme, inasmuch as, the tenure of three years had admittedly expired. The petitioners through their reply dated 6.1.2012 and 9.1.2012 resisted the same on the ground of the amendment having been approved by the Joint Director of Education referred to hereinabove. The District Inspector of Schools does not appear to have accepted the said position and he imposed an order of single operation on 13th January, 2012 which came to be challenged by the petitioner-Committee in writ petitioner no. 4392 of 2012.
The petition was allowed on 24th January, 2012 on the ground of violation of principles of natural justice with a direction to the District Inspector of Schools to decide the matter again. The District Inspector of Schools withdrew the order of single operation on 20th March, 2012. However, on 23rd March, 2012 the District Inspector of Schools passed another order directing the Committee of Management to hold the elections of the Committee of Management within one month as the tenure had already expired. The petitioner appears to have not held the elections as per the aforesaid directions as a result whereof the District Inspector of Schools proceeded to pass an order appointing the Principal, Government Intermediate College as the person authorized to hold the elections of Committee of Management on 18th May, 2012 who in turn fixed the elections schedule according to which the elections are to be held on 22nd July, 2012. The District Inspector of Schools has further passed an order of single operation again on 22nd June, 2012 on the same ground that the petitioner-committee has already outlived its tenure. The challenge in this petition is to the orders passed by the District Inspector of Schools dated 23rd March, 2012, 18th May, 2012 and the order of single operation dated 22nd June, 2012.
Sri Anil Tiwari has primarily raised a three fold submission. His first submission is that the impugned order of the District Inspector of Schools whereby he has proceeded to assume that the tenure of the committee has expired is erroneous, inasmuch as, once the Joint Director of Education exercising the powers of the Director of Education has already extended the tenure of the Committee then it is beyond the authority of the District Inspector of Schools to have interpreted it otherwise.
As a natural corollary to this argument, Sri Tiwari further contends that the District Inspector of Schools being a subordinate authority had no power to review the aforesaid order of the Joint Director of Education dated 21st December, 2011. He therefore submits that the impugned order of the District Inspector of Schools treating the tenure of the Committee to have come to an end is without authority and on an erroneous interpretation of law.
He further contends that if the District Inspector of Schools had any doubt about the tenure of the Committee of Management then he could have sought a clarification from the Joint Director of Education and he could not have sat in appeal over the order of the Joint Director of Education.
Sri Tiwari further contends that the Division Bench judgment in the case of Committee of Management, Aryakanya Inter College, Bulandshahar and another Vs. State of U.P. and others, 2009 (1) ESC 371 would not be applicable in the present controversy keeping in view the factual status of the manner in which the Committee resolved to extend its tenure and the order passed pursuant thereto whereby the amendment was brought into effect immediately.
I am unable to agree, inasmuch as, the Division Bench in the aforesaid judgment in paragraph 30 has clarified the aforesaid position as well which clearly militates against the petitioner as explained hereinafter.
His second submission is that the order of single operation cannot be passed on a ground which is not available under the U.P. Act No. 24 of 1971, inasmuch as, the petitioner-Committee admittedly was in effective control and there was no complaint with regard to the default in payment of salary. In such circumstances, his contention is that the impugned order of single operation is contrary to the provisions of 1971 Act deserves to be set aside.
The third submission of Sri Anil Tiwari is in relation to the procedure adopted by the respondent authority in getting the elections held treating the tenure of the Committee of Management to have come to an end. The submission is that the outgoing Committee is entitled to hold elections after deciding the electoral college and therefore any procedure adopted by the respondents otherwise is contrary to the Scheme of Administration, hence, the entire election programme as published is vitiated. He therefore submits that on all three counts, the impugned orders are unsustainable and deserve to be quashed.
He further prays that it is the petitioner-Committee who is entitled to organize the elections and hold the same even assuming though not admitting that the term of the petitioner-Committee has come to an end. For this he submits that if the earlier committee existed and according to the District Inspector of Schools was allowed to continue then in terms of the earlier Scheme of Administration the petitioner-Committee would continue for the purpose of holding of fresh elections.
On the other hand Sri Ashok Khare, learned Senior Counsel for the caveator contends that the first submission of Sri Tiwari already stands answered by the Division Bench judgment in the case of Committee of Management, Arya Kanya Inter College, Bulandshahar and another Vs. State of U.P. and othes, 2009 (1) ESC 371. He submits that the approval order passed by the Joint Director of Education in no way extends the tenure of the then existing Committee of Management and the recital and ratio of the said judgment as contained in paragraphs 29 and 30 thereof is a complete answer to the same. He further submits that the District Inspector of Schools was not sitting in appeal over the order of the Joint Director of Education and his opinion is an interpretation and not an adjudication which is in consonance with the law laid down in the decision relied upon by the learned counsel for the respondent.
So far as the order of single operation is concerned, learned counsel submits that once the petitioner-committee is not entitled to function on account of the expiry of its tenure then the salary of the employees of the Institution cannot be hampered merely because the Committee had failed to hold its elections. In the circumstances, even otherwise the order of single operation is justified as it would facilitate the payment of salary, so long as a new Committee is not recognized.
On the third submission relating to the procedure being adopted for holding of the elections, Sri Khare submits that the election programme has been published and that the General Body has taken a decision to hold the elections. In such circumstances, the petitioner-Committee which has already outlived its tenure cannot now exercise any authority over and above the general body to claim that it has the authority to hold elections. He further submits that the District Inspector of Schools had already given an opportunity to the petitioner to get the elections held which was not utilized by the petitioner Committee and to the contrary they have resisted the holding of the elections time and again. In the circumstances, there was no option but to adopt the procedure under the new Scheme of Administration and as a matter of fact the appointment of the Principal of the Government Intermediate College to hold elections is in conformity with the same. He submits that in the absence of any right subsisting in the petitioner-Committee it is no longer open to the petitioner-Committee to raise any dispute with regard to the procedure of holding of elections.
Learned Standing Counsel also adopts the same arguments as Sri Khare for the caveator.
Having heard learned counsel for the parties, the first argument in relation to the applicability of the Scheme of Administration need not detained by this court any longer in view of the ratio of the decision in the case of Committee of Management, Arya Kanya Inter College (supra). This Court has to simply extract the ratio of the said decision which answers the said proposition. Accordingly, paragraphs 29 and 30 of the said judgment which are quoted hereinunder would indicate that the Scheme of Administration once amended would apply prospectively in relation to any elections which are to be held in future.
"Paragraph 29: In our considered opinion, the power of the Director (Principal) as contained in the statutory provisions under Section 16-A (5) qua approval of the scheme of administration as well as amendments proposed therein, is not lost only because such power has been delegated to the Regional Joint Director of Education under relevant Government Order. Principal i.e. Director still retains his statutory power under Section 16-A (5) of Act, 1921 subject however, to the condition that once the power has been exercised by the delegatee, the Principal i.e. Director will have no power of superintendence/review over such order of the Regional Joint Director Education. [Committee of Management Vs. Rama Shankar Singh and others, 2008 (8) ADJ 514 (DB).
Paragraph 30: Even otherwise, we feel that it is appropriate and it is fitness of things that the Committee of Management, which is elected in accordance with the provisions of the scheme of administration must be permitted to continue only for the term, which was applicable at the time of the elections. The extension of the term so provided by seeking permission of its own term and by suggesting amendments in the scheme of administration cannot be approved of by this Court and therefore, we have little hesitation to hold that the provision as contained in the circular/letter of the Director dated 4th August, 2003 as also in the condition imposed in the order of the Regional Joint Director of Education dated 3rd September, 2007, while approving the amendments in the scheme of administration with the extended term applicable only in respect of Committee of Managements, which are elected subsequent to the date of the approval order, is fair and just. Such orders do not warrant any interference in equitable jurisdiction under Article 226 of the Constitution of India."
In the circumstances, the contention raised by Sri Tiwari that it would apply to the existing committee as well does not appear to be correct and it would be contrary to the ratio of the decision aforesaid.
So far as the issue of single operation is concerned, it is correct to argue that an order of single operation has to be passed in order to facilitate the payment of salary if there is a default on the part of the management in making such payment. This is by now well settled and has the support of several decisions including the decision in the case of Committee of Management, Sahid Sansmaran Inter College, Sherpur and another Vs. Deputy Director of Education, Varanasi and another, reported in 1993 ALJ 318.
In the the instant case, however, it is correct that there was no default in payment of salary by the Committee of Management, but the Committee itself had outlived its tenure. It is admitted to the Committee that the new scheme has already been enforced. Once the new scheme has been enforced then no Committee of Management can continue except without any appropriate and valid election in accordance with the said scheme.
Undisputedly, no fresh elections have been held and the earlier Committee has outlived its tenure with the enforcement of the new scheme. The office bearers of the earlier committee cannot be permitted to continue on the strength of the provisions of the old scheme of administration. In the circumstances there is a vacuum and accordingly an order of single operation is the only option left for facilitating the payment of salary to the employees. I am therefore not inclined to interfere with the impugned order of single operation.
The third issue relates to the procedure being adopted which is being disputed by the learned counsel with the aid of the supplementary affidavit. Learned counsel submits that those who are opposing the Petitioner-Committee have manipulated another electoral college which has swelled to the effect of twice the number of the existing members of the electoral college. He therefore contends that any enrollment of the membership contrary to the scheme of administration or setting up of additional members otherwise has to be adjudicated before any elections are held. The argument that the elections have to be held on the basis of a valid electoral college is correct, however the elections have already been announced. In such circumstances, I am not inclined to interfere with the election process at this stage leaving it open to the petitioner-Committee to contest the position of membership or even the procedure so adopted by the District Inspector of Schools for holding of the elections as alleged by Sri Tiwari. This aspect can be raised by way of an objection before the elections are formally recognized.
Accordingly, this writ petition is disposed of with liberty to the petitioner to raise objections in relation to the procedure adopted for holding an election including the issue of the validity of the electoral college before the Joint Director of Education. The respondent-District Inspector of Schools shall ensure that after the elections are held as scheduled on 22nd July, 2012, he shall furnish the entire documents alongwith his report before the Regional Level Committee chaired by the Joint Director of Education of the region concerned. The Regional Level Committee shall before proceeding to grant any recognition to the elections held shall give an opportunity of hearing to the petitioner who shall be entitled to file his objections and the recognition shall only be granted after disposal of the objections in accordance with law as expeditiously as possible preferably within a period of eight weeks from the date of dispatch of the election documents which are scheduled to be held on 22.7.2012.
With the aforesaid directions, the writ petition stands disposed of.
Order Date: 19.7.2012 Sahu