Heard Shri Pranav Agarwal learned counsel for the petitioners, Shri M. B. Singh, learned counsel who has put in appearance on behalf of the proposed opposite parties no.4 to 10 and has moved an application for impleadment as well as a separate preliminary objection regarding maintainability of the writ petition and the learned Standing for the respondents no.1, 2 and 3.
By means of the instant petition, the petitioners assails the impugned order dated 25.09.2020 passed by the Joint Director Education, Region 6th, Lucknow whereby in exercise of power under Section 6(3) of U. P. High School and Intermediate Colleges (payment of salaries to Teachers and other employees) Act of 1971 (hereinafter referred to as the Act of 1971) an Authorized Controller has been appointed in respect of the Janpath Inter College, Harchandrapur, Raebareli after suspending the Committee of Management.
Before adverting to the merits of the matter, this Court notices the averments made in the application for impleadment moved by Shri M. B. Singh. In the said application which is duly supported by an affidavit, it has been averred that the proposed opposite parties no.4 to 10 are members of the general body of the society which runs the Janpath Inter College, Harchandrapur, Raebareli in terms of the scheme of administration. It is the members from the general body of the parent society who are elected as members of the governing body of Janpath Inter College.
It has further been submitted that the alleged last election which is said to have been held on 15.02.2015 is also dispute before the Deputy Registrar and since the members of the general body has right to participate in the election in respect of the managing committee of the institution, thus they have a right to contest the petition.
The learned counsel for the petitioners opposes the said application and submits that the petitioners are merely assailing the order dated 25.09.2020 by which the Authorized Controller has been appointed wherein the proposed opposite parties no.4 to 10 have no locus to intervene.
The Court has considered the submission and also from the perusal of the averments made in the application for impleadment, this Court finds that since the proposed opposite parties no.4 to 10 are members of the general body and a fact which is not disputed that the list of the general body is yet not finalized and still disputed before the appropriate authority, hence at this stage, it cannot be said that the private opposite parties no.4 to 10 are not the members, hence for the limited purpose of considering the instant petition, this Court finds that the opposite parties no.4 to 10 can be impleaded and accordingly the application for impleadment is allowed.
The learned counsel for the petitioners shall carry out the necessary amendment and implead private opposite parties no.4 to 10 during the course of the day.
Sri M. B. Singh has raised a preliminary objection regarding the maintainability of the above petition and it has been submitted that as per the petitioners, the last election took place on 15.02.2015. Term of the committee was for a period of five years which came to an end on 14.02.2020. In terms of the scheme of administration, it is provided that the out going committee of management shall initiate the election process three months prior from the date when the term of such committee is coming to an end. However, in case if the election is not held within the aforesaid period plus grace of one month as provided in the scheme of administration the committee become time barred.
It is further submitted that admittedly the election of the last committee as per the petitioners could not take place within the period of five years and one month and since thereafter the committee has become time barred. Far all practical purposes, it came to an end and therefore the Joint Director Education by means of the impugned order has rightly appointed the Authorized Controller. In such a situation where the erstwhile committee had become time barred, it does not have the locus or right to maintain the aforesaid petition.
The learned counsel for the petitioners refuting the aforesaid submission has urged that from the perusal of the impugned order, it would indicate that the Joint Director Education, Region 6th Lucknow has exercised the power for appointment of the Authorized Controller in terms of Section 6(3) of the Act of 1971. It is also urged that for invocation of the aforesaid Section there has to be subjective satisfaction to the effect that there is mismanagement or financial irregularities in the institution and unless such a satisfaction is recorded the Joint Director is not within his domain to appoint the Authorized Controller. He has further submitted that the background of the above dispute relates only to the fact that term of the committee of management which was last elected on 15.02.2015 had become time barred and in such a situation if at all the Joint Director had to exercise its power, it is only referable to power conferred under Section 16-D (vi) of the Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as the Act 1921). However, even in terms of the aforesaid section, the Joint Director Education does not have the power to appoint the Authorized Controller rather he has right to make a recommendation which is to be considered by the State Government who in turn if accepts the recommendation would appoint the Authorized Controller.
In the aforesaid situation where neither there is a satisfaction regarding invocation of Section 6(3) of the Act of 1971 nor there is proper adherence to the process and the manner of appointment in terms of Section 16-D of the Act of 1921 the impugned order is de horse the provisions of law and accordingly is liable to be set aside.
The Court has considered the rival submissions and has also perused the record.
Before dealing with the aforesaid submissions, it will be necessary to notice certain facts for effectual adjudication of the controversy involved in the above petition.
One Janpath Vidhyalaya a registered society in terms of the Society Registration Act, 1860 runs and manages an institution namely Janpath Inter College Hasanpur, Village Hasanpur, District Raebareli.
The said society was last renewed on 10.10.2015 for a period of five years. Even the institution i.e. Janpath Inter College it last election were held on 15.02.2015. In terms of the scheme of administration which has been brought on record as annexure S.A.-2 with the supplementary-affidavit dated 17.02.2021 indicates that its term is for a period of five years. Clause 10 of the aforesaid scheme of administration provides that the out going committee shall hold the election and shall initiate the process three months in advance from the date the terms of the committee is to come to an end and shall hold the election up to one month of the expiry of the term. In view of the aforesaid clause 10 as the last election was held on 15.02.2015 the terms of the committee would have ordinarily expired on 14.02.2020 but in terms of clause 10 of the scheme of administration the election could have been conducted by the out going committee latest by 14.03.2020.
Apparently in the instant case, the election could not be held within the aforesaid period. It is only in the month of August, 2020 that the petitioner no.2 had written a letter to the District Inspector of Schools, a copy of which has been annexed as annexure no.11 with the writ petition indicating that the election could not be held within the aforesaid period thereafter on account of COVID-19 Pandemic, all the proceedings had come to a stand still in view of the lock down imposed by the Government and by means of the said letter it was urged that once the unlocking of economy has taken place certain directions be issued to enable the out going committee to hold the election.
It is submitted that in furtherance thereto a letter was also written to the Joint Director who issued a show cause notice to the petitioners on 17th of August, 2020, a copy of which has been brought on record as annexure no.9. The petitioners replied to the said show cause notice on 20th of August, 2020 which was considered by the Joint Director Education by means of its letter dated 01.09.2020, a copy of which has been brought on record as annexure no.12. By means of said letter, the Joint Director Education found that the concerned raised by the petitioners was genuine and accordingly it directed the District Inspector of Schools to provide for an observer for the purpose of conducting the election.
It has also been submitted and brought to the notice of the court that in furtherance of the aforesaid letter dated 01.09.2020 the District Inspector of Schools appointed an observer for holding the election on 27th of September, 2020. It is submitted that though the elections were held on 27th of September, 2020 but two days prior thereto by means of impugned order dated 25.09.2020 the Joint Director of Education took a turn and reviewed its his own order dated 01.09.2020 and appointed an Authorized Controller in terms f Section 6(3) of the Act 1971.
It is in the aforesaid backdrop that the impugned order has been assailed primarily on the ground that the order passed by the Joint Director dated 25.09.2020 is nothing but a review of the order dated 01.09.2020 which is not permissible since no power of review is conferred under the Act on the said authority, hence the order is bad.
The other ground of challenge is that in case if the parameters of Section 6(3) of the Act, 1971 is noted then the impugned order lacks the necessary satisfaction which is required to be recorded and in absence thereof the impugned order cannot be sustained.
The third ground of challenge is that from the perusal of the impugned order, it would indicate that the reasons for appointment of Authorized Controller is that the term of the committee of management had expired and since the elections were not conducted, in such a situation the institution was functioning through a committee which was contrary to the terms of scheme of administration. Under such circumstances, the power which are vested with the Joint Director Education in terms of Section 16-D (vi) of the Act 1921. Since under the aforesaid Section, the Joint Director Education only has been conferred with the power to make a recommendation to the State Government which has not been done rather the Joint Director has appointed the Authorized Controller himself which is in excess of jurisdiction vested in him, consequently for all the aforesaid reasons the impugned order cannot be sustained.
The learned Standing Counsel though made a feeble attempt to justify the order but could not dispute the fact that the order lacks the necessary ingredient and reasoning for appointment of the Authorized Controller; inasmuch as if the ground of the committee having become time barred is to be taken then the power of the Joint Director seized by making the recommendation to the State but it could not have appointed the Authorized Controller himself and in case if the order is treated to be in terms of section 6(3) of the Act of 1971 then also the aforesaid order lacks the necessary ingredients and recording of satisfaction regarding financial irregularities.
Be that at it may, the fact which could not be disputed by either of the parties is that the terms of the committee which was elected on 15.02.2015 its terms has expired on 14.02.2020. Even under scheme of administration the election could have at best be held by 14th of March, 2020. Admittedly, no election that taken place. The question whether Authorized Controller could be appointed in terms of Section 6(3) of the Act, 1971 or in terms of Section 16-D (vi) of the Act of 1921 is a subject matter which is to be decided by the appropriate authority only after comply with the necessary requirement as provided in law. Nonetheless, it will be noticed that the manner in which the Joint Director Education has exercised the power and has passed the impugned order cannot sustain judicial scrutiny, for the reason that in case if a statute provides for passing of an order in a particular manner or the power has to be exercised in a prescribed manner or work is to be done in a particular manner then it has to be done in that manner or not at all.
Having said that this Court is of the view that the impugned order cannot be sustained and is liable to be set aside. However, since admittedly the committee has become time barred in the aforesaid facts and circumstances, this Court directs the Joint Director Education to take note of already prevailing circumstances including that the alleged election said to have been conducted on 27.09.2020 was after the impugned order was passed on 25.09.2020 and to take a fresh decision on the entire issue within a period of two weeks from today and in case if any recommendation is made to the State in terms of Section 16-D of the Act of 1921, then the same shall be forwarded also within the aforesaid period and the State shall also take a decision thereon expeditiously within a further period of two weeks.
In view of the aforesaid, the impugned order dated 25.09.2020 is set aside and with the aforesaid, the writ petition is allowed subject to the aforesaid directions. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 22.2.2021 ank