(Per : Dr D Y Chandrachud, CJ) The special appeal1 has arisen from a judgment of a learned Single Judge dated 3 November 2015 by which a writ petition filed by the fourth to ninth respondents ("the original petitioners"), has been allowed by setting aside an order dated 5 May 2014 of the Regional Level Committee2.
The companion special appeal3 arises from an order of the learned Single Judge dated 3 November 2015 disposing of a companion writ petition challenging an original order of the RLC dated 30 August 2013, which was subsequently reviewed on 5 May 2014.
In order to appreciate the subject matter of dispute, a brief reference to the factual background would be in order. The matter pertains to the elections to the Committee of Management of Chaudhary Charan Singh Brij Khand Inter College, Bathain, District Mathura. Elections to the Committee of Management not having been held after the expiry of its term on 25 June 2007, proceedings were initiated before this Court. They culminated in an order of the Division Bench of this Court dated 5 April 2011 in Tej Ram vs. State of U.P & Ors.4. The Division Bench by its order issued the following directions while disposing of the special appeal :
"Considering the above and as the Committee of Management has to be elected we issue the following directions:
1. The Prabandh Sanchalak to hold elections in terms of Scheme of Administration and complete the process within three months from the date a copy of this order is submitted by the petitioner to the Prabandh Sanchalak.
2. The Prabandh Sanchalak to notify a draft electoral list, call for objections and thereafter finalise the same and proceed to hold the elections in terms of the list as is finalised."
An election was conducted under which, the appellant represented by its Manager seeks to assert a claim. The election was disapproved by the RLC to whom the dispute in regard to the validity of the elections was referred for adjudication by the District Inspector of Schools. The RLC disapproved of the elections by its order dated 30 August 2013 on the ground that the elections had not been conducted in accordance with the scheme of administration. This order was reviewed by the RLC on 5 May 2014. In its order in review, the RLC came to the conclusion that elections to the Committee of Management had been held in accordance with the scheme of administration and would, accordingly, stand approved. In those elections, Mr Doonger Singh was elected as President and Mr Tej Ram as the Manager. The order of the RLC was challenged before the learned Single Judge in writ proceedings by the fourth to ninth respondents. Another writ petition was filed before the learned Single Judge by Tej Ram, the Manager who claims under the elections which were held to the Committee of Management for challenging the original order of the RLC dated 30 August 2013 which had set aside the election which was held on 14 April 2013. This writ petition5 was instituted on or about 25 September 2013 but the writ petition was registered in 2014. Both the writ petitions were disposed of by separate orders of the learned Single Judge dated 3 November 2015.
On the writ petition which was filed by the fourth to ninth respondents, the learned Single Judge came to the conclusion that (i) the RLC had no substantive power of review and hence the order passed on 30 May 2014 reviewing its earlier order dated 30 August 2014 was without jurisdiction; (ii) the elections to the Committee of Management had been held in violation of the order passed by the Division Bench of this Court on 5 April 2011 because the elections had not been held by the Authorized Controller as directed; (iii) before the election was held, neither was a list of members finalised or approved after the order of the High Court which had clearly envisaged the notification of a draft electoral list, calling for objections and finalization of the electoral list; and (iv) the Election Officer published the notice of holding elections on 14 April 2013 in the newspapers on 1 and 5 April 2013 and hence, there was no valid notice of one month as required by the scheme of administration. These being the findings, the learned Single Judge held that the order which was passed in review was without jurisdiction and it was, accordingly, set aside. The original decision of the RLC disapproving the elections relied upon by Tej Ram, has been upheld on the ground that the election was held contrary to the provisions of the scheme of administration and in breach of the directions which were issued by the Division Bench in its judgment dated 5 April 2011.
Hence, two special appeals have been filed. The first arises out of the judgment of the learned Single Judge allowing the writ petition challenging the review order of the RLC and the second is out of the order of the learned Single Judge arising from the writ petition filed to challenge the original order of the RLC disapproving of the elections.
At the outset, it must be noted that the submission of the learned senior counsel appearing on behalf of the appellant, is that the issue as to whether the RLC had a power of substantive review would shade into the background and would cease to have any practical significance since the appellant has challenged the original order of the RLC before the learned Single Judge in writ proceedings. Hence, the submission on the part of the appellant is that the elections which were held to the Committee of Management were due and proper and ought not to have been interfered with by the RLC in its original order dated 30 August 2013.
Having due regard to the ambit of controversy, it now appears clear on all counts that the RLC when it passed its order dated 30 May 2014, reviewing its earlier order dated 30 August 2013, acted without jurisdiction. Now, it must be noted that the Division Bench of this Court had passed an order on 5 April 2011 for the holding of elections to the Committee of Management. Tej Ram filed a writ petition6 in 2014 seeking a decision by the Director of Education, Allahabad on a representation submitted on 9 September 2013. The Court was apprised that a notice had been issued from the office of the Director calling for a hearing. In this view of the matter, the writ petition was disposed of with a direction to the Joint Director of Education to pass an order after affording an opportunity to all concerned parties. This order of the learned Single Judge dated 15 January 2014 cannot by any stretch of imagination be construed as conferring a substantive power of review upon the RLC. As a matter of fact, when the RLC passed an order on 5 May 2014, it made a reference to the fact that this order was being passed on the directions of the Director which had been issued to the Committee of Management. There is a clear distinction in law between a procedural review and a substantive review. The power of substantive review has to be conferred by a specific statutory provision. The RLC, hence acted without jurisdiction in substantively reviewing its earlier order dated 30 August 2013 on 30 May 2014. The learned Single Judge cannot be held to be in error in setting aside the order of the RLC dated 5 May 2014 on the ground that it lacks a substantive power of review.
That leaves the Court with the basic issue in dispute in regard to the legitimacy of the elections which were held by the appellant, since it is the contention of the appellant that those elections were proper and were wrongly held to be illegal by the RLC in its original order dated 30 August 2013.
Now, it must be noted that the scheme of administration makes the following provisions for the conduct of the elections :
"5&izcU/k lfefr ds fuokZpu dh izfdz;k %& ¼1½ izcU/k lfefr ds dk;Zdky dh lekfIr ds 3 ekg iwoZ lk/kkj.k lHkk ds uohu ,oa iqjkus lnL;ksa dh lwph dks vfUre:i fn;k tk;sxkA mlh le; lk/kkj.k LkHkk ,d rnFkZ fu/kkZpu vf/kdkjh fu;qDr djsxh tks izcU/k lfefr ds fuokZpu dh dk;Zokgh iw.kZ gksus rd dk;Z djsxkA lk/kkj.k lHkk dk lHkkifr lnL;ksa dh vfUre lwph dh ,d izfr fuokZpu vf/kdkjh dks mldh fu;qfDr ds ,d lIrkg ds vUnj miyC/k djk nsxk rFkk lwph dh ,d izfr ftyk fo|ky; fujh{kd dks Hkh nsxkA fuokZpu ls iwoZ lnL;rk lwph lHkh lnL;ksa dks nsus gsrq NiokbZ tk;sxhA ftlesa lnL; dk uke firk dk uke LFkk;h irk lnL;rk dk izdkj ,oa lk/kkj.k lnL;ksa ds lEeq[k o"kZ ftlds fy, og lnL; cus gS] Hkh vafdr fd;k tk;sxkA fuokZpu vf/kdkjh fuokZpu dh frfFk fuf'pr djds pquko dh frfFk] le; ,oa LFkku dh lwpuk fu/kkZfjr frfFk ls de ls de 1 ekg iwoZ lHkh lnL;ksa dks lnL;rk lwph dh ,d izfr lfgr iathd`r Mkd }kjk nsxk rFkk ,sls LFkkuh; fgUnh lekpkj i= esa Hkh foKfIr djk;sxk ftldk tuin esa i;kZIr izpyu gksA----"
There was a direction which was issued by the Division Bench on 5 April 2011 by which the Authorized Controller was directed to hold elections in terms of the scheme of administration. Moreover, the Authorized Controller was directed to notify a draft electoral list, call for objections and thereafter finalise the same. This procedure for notifying a draft electoral list and calling for objections is also provided for in the scheme of administration which is extracted above. Moreover, the scheme also envisages that after the finalization of the objections, a notice of one month has to be issued and to be duly advertised.
The learned Single Judge has come to the conclusion that this procedure has not been followed.
The submission which has been urged on behalf of the appellant is three fold and which now falls for consideration. Firstly, it has been urged that though the election was not conducted by the Authorized Controller, the Authorized Controller had appointed an Election Officer whose appointment had been approved by the District Inspector of Schools. Hence it was urged that this amounts to sufficient compliance with the direction issued by the Division Bench in its order dated 5 April 2011. Secondly, to meet the objection that there was no finalization of the voters' list by calling for objections and evaluating them, reliance was sought to be placed on a communication of the Deputy Registrar, Agra dated 30 April 2009. This was relied upon to submit that the requisite procedure had been followed. Thirdly, in regard to the paucity of notice of one month, it was sought to be urged that out of the list of 164 members, 8 had died and out of the remaining 156 members as many as 145 had participated in the election. Hence, it was submitted that the election result should not be allowed to be questioned merely on account of insufficiency of notice and in this regard, reliance was placed on Ground (III) of the memo of appeal.
While dealing with the submission, it would be necessary to note at the outset that the judgment of the Division Bench of this Court dated 5 April 2011 specifically directed that the election has to be conducted by the Authorized Controller. In the present case, the election was held by an Election Officer. But more significantly, the basic flaw in the entire election process was the failure to finalise the list of voters by considering objections to the voters' list. The order of the Division Bench dated 5 April 2011 specifically directed that the Authorized Controller shall notify a draft electoral list, call for objections and thereafter finalise the same upon which he would proceed to hold the election in terms of the list as is finalised. The communication of the Deputy Registrar, Agra which is relied upon by the appellant is dated 30 April 2009 which is much prior, in fact merely a year and half prior to the order of the Division Bench dated 5 April 2011. Hence, it is evident on the basis of the material on the record that after the judgment of the Division Bench dated 5 April 2011, the draft electoral list was not notified nor were objections called and invited. Any process which had taken place prior to the order of the Division Bench would not come to the aid of the appellant even if the notification took place thereafter as submitted for the simple reason that the process of finalization of the voters' list had to take place in compliance with the order of the Division Bench which was not done. This being the position, we find from the record that the basic directions which were issued by the Division Bench in its order dated 5 April 2011 which we have noted above and which were in accordance with the plain meaning of the scheme of administration, were not fulfilled. Having due regard to this aspect, the learned Single Judge has found against the appellant on three counts namely, (i) the failure of the Authorized Controller to hold the elections; (ii) the failure of the Authorized Controller to publish a tentative list of voters, to call for objections and after the finalization of objections to notify the final list of voters; and (iii) the elections having been held barely two weeks after the date of publication of the advertisement in the newspaper in breach of the binding terms of the scheme of administration. These findings are justified and proper.
For these reasons, we see no merit in these special appeals. The special appeals shall, accordingly, stand dismissed.
There shall be no order as to costs.
Order Date :- 12.2.2016 RK (Yashwant Varma, J) (Dr D Y Chandrachud, CJ) C.M. Delay Condonation Application No. 23315 of 2016 Case :- SPECIAL APPEAL DEFECTIVE No. - 57 of 2016 *** Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
The delay of eleven days in filing the special appeal is condoned since sufficient cause has been shown in the affidavit filed in support of the delay condonation application.
The application is, accordingly, disposed of.