These three writ petitions relate to the dispute of control over the Management by a validly constituted Committee of Janta Inter College, Nagla Mohan, District Etah, which is a recognized institution under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder, and is governed by the provisions of the Scheme of Administration framed for the said purpose.
The last undisputed elections of the Committee of Management were held on 27th February, 2005, in which Sukhvir Singh was elected as a Manager. These elections were recognized by the Competent Authority on 03.06.2005, which was subjected to a challenge by one Sri Kotwal Singh and Turram Singh Yadav in Civil Misc. Writ Petition No. 50404 of 2005. A stay order was granted on 21.07.2005. The writ petition was however dismissed on 17.10.2005 as Turram Singh Yadav denied having joined in the petition.
The Committee through Mr. Sukhvir Singh, Manager was managing the institution when Mr. Kotwal Singh filed another writ petition being Civil Misc. Writ Petition No. 68465 of 2005 for the same relief to quash the recognition order of the Committee of Management headed by Mr. Sukhvir Singh. The writ petition was dismissed on 20.04.2006 with the observation that the party aggrieved can file a civil suit. However, while proceeding to decide the matter a further direction was issued to appoint an authorized controller till the dispute is finally decided by the civil court. Aggrieved by the aforesaid direction of appointment of authorized controller a Special Appeal No. 406 of 2006 was filed by Mr. Sukhvir Singh and the aforesaid direction for appointment of authorized controller was set aside by a Division Bench on 18.05.2006.
The Joint Director of Education passed an order on 3rd June, 2006 interfering with the rights of the Management of the institution to operate the finances on a complaint of one Mr. Tara Chandra, who is the petitioner no. 2 in Civil Misc. Writ Petition No. 54001 of 2010. The District Inspector of Schools passed an order of single operation on 28/29.06.2006 without giving any notice or opportunity, as a result whereof, both the orders of the Joint Director of Education and the District Inspector of Schools were assailed in Civil Misc. Writ Petition No. 43218 of 2006 and an interim order was passed on 17th August, 2006 whereby the Committee of Management through Mr. Sukhvir Singh was permitted to operate the bank salary accounts.
During the pendency of the said writ petition the authorized controller/Prabandh Sanchalk came to be appointed on 4th July, 2008 on the basis of a decision taken by the Regional Level Committee on 25.06.2008. By this order the appointment of authorized controller was sought to be justified on the ground that the previous tenure of the Committee of Management, which had been elected on 27.02.2005 and which was for a period for three years, had expired, therefore, a Prabandh Sanchalk was being appointed to hold fresh elections. A challenge was raised to the order dated 04.07.2008 in Civil Misc. Writ Petition No. 36581 of 2008 and an interim order was passed on 7th August, 2008. This was a time bound order, which was extended on 25.09.2008 whereafter the matter remained pending without any further orders.
It is further to be noticed that the Scheme of Administration was sought to be amended by the Committee and the amendment was approved on 10th January, 2008 whereby the tenure of the Committee of Management was extended to a period of five years instead of three years. A complaint was made by Mr. Tara Chandra and on his complaint, the said order was stayed by the Regional Joint Director of Education on 11th April, 2008.
It appears that the Committee headed by Mr. Sukhvir Singh again made an attempt for the amendment of the Scheme of the Administration for extending the tenure to five years, which was approved by the Joint Director of Education on 17th August, 2009.
The said Committee appears to have held elections on 21st February, 2010, in which one Mr. Sunil Kumar was elected as President and Mr. Sukhvir Singh was elected as Manager. A rival election has been set up on the same day with Mr. Kotwal Singh as President and Mr. Tara Chandra as Manager. It is to be noted that the outgoing Manager was Mr. Sukhvir Singh and not Mr. Tara Chandra. Faced with two rival elections, the District Inspector of Schools on 16th March, 2010 referred the dispute to be resolved by the Regional Level Committee. The Joint Director of Education under the orders dated 20th June, 2010 has acknowledged the elections held by the Committee of Mr. Sukhvir Singh to be valid and has rejected the claim of Mr. Tara Chandra. This has given rise to the third writ petition namely Civil Misc. Writ Petition No. 54001 of 2010 filed by Mr. Tara Chandra.
Sri Ashok Khare, learned Senior Counsel appearing on behalf of the alleged Committee of Mr. Tara Chandra contends that the proceedings before the authority are in violation of principles of natural justice, inasmuch as, the matter was heard on 17th May, 2010 on which date both the parties were directed to submit their response in writing to the representations of either sides. Sri Khare contends that Mr. Sukhvir Singh submitted his response, about which his client has no knowledge and the same has been done after the hearing was closed on 17th May, 2010. He submits that no further hearing took place and, therefore, the procedure adopted by the Regional Joint Director of Education in entertaining the written submissions along with the annexures filed on behalf of the respondents is in violation of principles of natural justice. He relies on the decision in the case of Jainmati Ujagarmal Jain Vidyalaya Trust, Ghaziabad and another Vs. State of U.P. and others (Civil Misc. Writ Petition No. 39796 of 2010) decided on 19th July, 2010.
The second submission of Sri Khare is that the issue of effective control decided in favour of Mr. Sukhvir Singh has taken into consideration the period during which Mr. Sukhvir Singh was not entitled to function as a Manager and the authorized controller had been appointed. He, therefore, submits that in view of the law laid down by the Full Bench in the case of Committee of Management Vs. Deputy Director of Education and others reported in 2004 (4) ESC 2257. the finding on the question of effective control is erroneous and, therefore, the impugned order is liable to be set aside.
The third submission of Sri Ashok Khare is that Mr. Sukhvir Singh himself has now conceded and acquiesced to the amendment in the scheme of administration as mentioned by the Joint Director of Education on 17th August, 2009. He, therefore, submits that once the aforesaid scheme has been approved then the provisions relating to the tenure of the Committee of Management become operative to the extent that as soon as, the tenure comes to an end, an authorized controller can be appointed and no election could have been held by Mr. Sukhvir Singh on 21st February, 2010.
He submits that the amended scheme of administration, therefore, does not allow any Committee to continue or hold elections after the tenure has admittedly come to an end.
In the instant case, according to him the scheme was approved on 17.08.2009 and at the most, the elections ought to have been held within one month thereafter. That having not been done, the authorized controller has to step in to to get the elections held for the constitution of the Committee of Management. Thus, on all three counts, the impugned order is unsustainable and deserves to be set aside.
He further submits that all said and done if the other grounds are unsustainable the writ petition should be allowed on the short ground of violation of principles of natural justice as submitted hereinabove and the matter should be remanded back for decision afresh.
Replying to the arguments advanced by Sri Ashok Khare and the last alternative argument raised by him, Sri P.N. Saxena, learned Senior Counsel submits that his client Mr. Sukhvir Singh was the outgoing Manager and he was entitled to continue in terms of Clause 5 (7) of the unamended Scheme of Administration, till the successors are chosen upon a new election. Sri Saxena submits that either way the office bearers were to continue till fresh elections were held under the old scheme or if the new scheme is accepted then in that view of the matter, the tenure of the elections held on 27.02.2005 was yet to expire and, therefore, the elections were rightly held on 21st February, 2010. According to him, the elections are within time as per the extended tenure and even otherwise, the authorized controller could not have been appointed in view of Clause 5 (7) of the old scheme as it is the outgoing Committee which has to hold elections . It is that Committee which has convened the meeting in which Mr. Sukhvir Singh has been elected as Manager.
Sri Saxena further submits that the action taken by the Joint Director of Education on prior occasions in appointing the authorized Controller was without jurisdiction and against the Scheme of Administration and the Committee of Management of Mr. Sukhvir Singh has been rightly found to be in effective control in the order dated 28th June, 2010. He, therefore, submits that the said order does not call for any interference. He further submits that there was nothing new in the submissions raised and both the parties were allowed to submit their reply within a week of the last date of the hearing on 17.05.2010. It is, therefore, submitted that there is no violation of principles of natural justice and the arguments advanced on behalf of Mr. Khare do not stand substantiated from the facts that emerge from the records. He further submits that the finding on effective control is perfectly justified, inasmuch as, Mr. Sukhvir Singh continued to function as Manager administratively as well as by exercising financial control.
Sri Saxena further submits that Mr. Tara Chandra had no right to hold elections nor any such election has ever been held which has rightly been discarded by the Regional Joint Director of Education. Even otherwise, the meeting of the election as claimed by Mr. Tara Chandra was neither validly convened or held with valid participation as it was against the scheme. He therefore submits that the order dated 28.06.2010 does not call for any interference on any of the grounds raised in writ petition.
Coming to the first writ petition namely Civil Misc. Writ Petition No. 43218 of 2006, the same had been filed for quashing the order dated 3rd June, 2006 and the order of the District Inspector of Schools imposing single operation of accounts. This order was admittedly in respect of the tenure of the Committee of Management, which had been elected on 27.02.2005. The said tenure has expired and, therefore, the relief claimed in the said writ petition has been rendered infructuous. Thus, the same stands accordingly disposed of without prejudice to the rights of the Committee which was in effective control.
Coming to the second writ petition namely Civil Misc. Writ Petition No. 36581 of 2008, the said writ petition assailed the orders passed by the Joint Director of Education calling upon the Authorized Controller so appointed to hold elections and the order by which the approval to the amended Scheme of Administration had been withdrawn. Suffice is to say that in view of the subsequent amendment in the Scheme of Administration, vide order dated 17.08.2009, the dispute relating to the earlier order of the Joint Director of Education dated 11.04.2008 whereby the approval dated 10.01.2008 had been withdrawn does not need any adjudication and has become infructuous. Sri P.N. Saxena submits that in view of the subsequently approved amended scheme the aforesaid dispute no longer survives as both parties accept the amendment as approved on 17.08.2009.
The question relating to the appointment of the Authorized Controller also becomes academic, inasmuch as, the Joint Director of Education in view of the interim orders passed and the effective control of the Committee of Management of Mr. Sukhvir Singh, the aforesaid issue of appointment of authorized controller becomes otiose. Apart from this, the findings and conclusions given hereinafter in relation to the provisions of the scheme even otherwise the appointment of the authorized controller for holding of elections was unjustified. The second writ petition also therefore does not survive for any further adjudication.
The third writ petition (Civil Misc. Writ Petition No. 54001 of 2010) in which the contest has been put forth by the parties will have to be first decided on the issue relating to the tenure of the Committee of Management and the impact of the order dated 17.08.2009 whereby the Scheme of Administration has been amended keeping in view the fact that it is the admitted case of the parties that the last elections were held on 27.02.2005 and the fresh elections are being claimed on 21.02.2010.
Having heard learned counsel for the parties, the facts that emerge from the pleadings are that the elections dated 27th February, 2005, which were subject matter of litigation as narrated in the opening paragraphs of this judgment, came to be adjudicated in favour of the Committee of Management headed by Mr. Sukhvir Singh. The control of the said Committee was interfered with by imposing restrictions on the finances of the institution, which was removed by the stay order dated 17.08.2006 in Civil Misc. Writ Petition No. 43218 of 2006. The Committee therefore continued to operate the accounts throughout. Thus, the said Committee was in effective control by virtue of the elections held on 27th February, 2005 and the said elections have neither been set aside by any authority or disbelieved by the Court. Once this is the position then it is the said outgoing Committee of Management which had the authority to claim control and also the right to hold future elections.
It appears that the old scheme was approved on 24th June, 1975. The tenure of the Committee of Management is prescribed as three years with a rider that the term of the office bearers shall be deemed to continue till their successors are chosen. This provision contained in Clause 5 (7) of the Original Scheme was sought to be amended by extending the tenure of three years to five years for which papers were submitted on 25th October, 2007 before the competent authority. The Regional Joint Director of Education approved the said amendment extending the tenure from three years to five years on 10th January, 2008. It is, therefore, clear that the said approval had been granted prior to the expiry of the tenure of the Committee, which was to come to an end on 26th February, 2008.
It is also evident from the records that a complaint was made in relation to the said approval of amendment by Mr. Tara Chandra upon which the Regional Joint Director of Education stayed the approval on 11th April, 2008. The Prabandh Sanchalk was appointed for holding of fresh elections by the order dated 4th July, 2008 on the ground that the tenure had come to an end, which was subject matter of challenge in Civil Misc. Writ Petition No. 36581 of 2008 and an interim order was passed on 07.08.2008, which was extended on 25.09.2008 till the next date of listing whereafter no orders were passed. From the records it remains undisputed that the Committee of Mr. Sukhvir Singh continued to be in effective control, which finding has also been recorded in the impugned order dated 28.06.2010.
The aforesaid position on facts, therefore, indicates that if the scheme which had been amended and the approval to the same was stayed on 11th April, 2008, the consequence is that the office bearers of the Committee of Management continue in terms of Clause 5 (7) of the old Scheme of Administration. It is to be remembered that there was no stay order passed by this Court against the order dated 11.04.2008. It was only the order dated 04.07.2008, which was stayed by this Court.
The continuance of the said office bearers, therefore, remained intact and they were in control when a subsequent proposal was made for amending the Scheme of Administration. This amendment was again of a similar nature, that is for extension of the tenure of the Committee of Management from three years to five years. The approval to the said scheme recites that the previous approval or amendments would stand cancelled and it is only these provisions which will now operate as the Scheme of Administration.
The interesting part to note is that neither Mr. Tara Chandra nor any other person has questioned the said amendments, approved on 17th August, 2009 and are accepted by both the parties. Sri Ashok Khare, learned Senior Counsel for Mr. Tara Chandra could not dispute this position and his entire submissions are founded on the presumption that the new scheme having been enforced, it is only the Prabandh Sanchalk, who could have held elections and any meeting convened by Mr. Sukhvir Singh or his faction is invalid. It is, therefore, clear that the parties has acquiesced to the amendments as approved on 17th August, 2009.
With the aforesaid conclusion one will have to proceed further to gauge the impact of the said acquiscence. The said amendment was undoubtedly at the instance of Mr. Sukhvir Singh. It is only a lawful Committee which can undertake such an exercise as indicated above. The office bearers of the Committee elected on 27.02.2005 were entitled to continue and it is they, who have proposed for the amendment, which has been accepted by the Regional Joint Director of Education. Once Mr. Tara Chandra accepts the said amendment, it has to be necessarily inferred that the action of the Committee of Management seeking approval to the amendments to the Scheme of Administration has been accepted to be a lawful act by a validly constituted committee, which was continuing by virtue of the provisions of the then existing Scheme of Administration.
Having found so the inescapable conclusion is that the outgoing Committee was entitled to hold elections. A request was made for sending an observer to the District Inspector of Schools but on account of his non-availability, an observer was appointed and the elections were duly held in accordance with the Scheme of Administration on 21st February, 2010. The outgoing Committee had the authority to convene the meeting and get the elections held as they were continuing by virtue of the old scheme. Sri P.N. Saxena, learned Senior Counsel is right in his submission by placing reliance on the judgment in Special Appeal No. 841 of 2008 (Sati Kumar Verma Vs. State of U.P. and others) decided on 22.07.2008.
The additional reason for the aforesaid conclusion is that the extension of period of the Committee of Management to five years would apply to a Committee elected after the said amendment has been enforced. This proposition need not detain this Court in view of the Division Bench judgment of this Court in the case of Committee of Management, Arya Kanya Inter College, Bulandshahar and another Vs. State of U.P. and others reported in 2009 (1) ESC 371. The incorporation by way of amendment extending the tenure would apply not to the existing Committee of Management, which has brought about the amendment but to the new elected Committee, which would come into existence upon fresh elections.
The natural corollary to this is that the clause introduced for appointment of authorized controller after one month of the expiry of the tenure, which is also part of the same clause, would operate after fresh elections are held and will be applicable to the new tenure. The argument of Sri Khare that with the amendment of the scheme on 17.08.2009, the aforesaid clause can be invoked to appoint authorized controller cannot be accepted, inasmuch as, there was no such provision in the unamended scheme. There cannot be contemplated a partial operation of the said clause relating to the tenure as it would bring about an anomalous result impinging upon the rights of the office bearers of the outgoing committee to continue.
The old scheme clearly authorizes the office bearers to continue till their successors are chosen. It is undisputed that the successors of the office bearers elected on 27.02.2005 were elected for the first time according to the case of both the rival parties on 21st February, 2010 and not prior to that. Accordingly, the new clause as brought by way of amendment on 17.08.2009 would apply prospectively after the fresh elections held on 21.02.2010 and not prior to that. The new amendment does not take away the rights of the old office bearers continuing to hold fresh elections. The intervention of the Joint Director of Education on earlier occasions also for appointment of authorized controller therefore was wholly unjustified.
It is also to be noted that it is a lawful Committee which is enjoined with certain statutory duties to function in the institution. If the argument of Sri Khare is accepted then all actions taken by the Committee after the expiry of the term would be invalid. Such is not the position in the present case keeping in view the recital of the continuance of the office bearers till their successors are chosen as contained in the unamended Scheme of Administration.
However, the position now changes with the amended scheme as contained in Clause 10 where the tenure of the Committee of Management has been prescribed as five years and the office bearers would continue only for a period of one month. In the absence of any new Committee, the outgoing Committee will be treated to have lapsed by operation of the said clause and the District Inspector of Schools would be entitled to recommend for the supercession of the Committee of Management. Any further interpretation of the said clause is not warranted at this stage in view of the conclusions drawn hereinabove.
The question relating to effective control need not detain this Court as in view of the parameters laid down in the Explanation appended to Section 16-A (7) of the U.P. Intermediate Education Act, 1921, it has been found as a matter of fact that the Committee of Management of Mr. Sukhvir Singh was throughout in effective control including administration and financial powers. Sri Khare has been unable to create any dent in the aforesaid finding on the basis of the documents, which are on record, and, therefore, the aforesaid finding cannot disturb on any count. Sri Khare while concluding his arguments repeatedly hammered on the issue relating to the violation of principles of natural justice in the proceedings before the Regional Joint Director of Education heading the Regional Level Committee. He submits that no hearing was conducted after the reply was submitted by the opposite party on 17th May, 2010 and even otherwise, the Regional Joint Director of Education himself could not have carried out all the proceedings. Sri P.N. Saxena has clarified that there is no Deputy Director of Education in the region and, therefore, the charge was being held by the Regional Joint Director of Education and the matter was heard with the assistance of the District Inspector of Schools. The aforesaid position, therefore, indicates that there was no invalidity in the constitution of the Regional Level Committee hearing the matter.
The liberty of submitting a reply after the oral hearing concluded on 17th May, 2010 was permitted by the Regional Joint Director of Education to both the parties. This was necessary as both of them had filed written submissions and, therefore, they were given an opportunity to file representations, if any, raising objections to their submissions. No separate oral hearing was provided thereafter to either of the parties. The Regional Level Committee headed by the Joint Director of Education is not under any obligation for providing oral hearing as it is not a sine qua non in order to proceed with the matter. Nonetheless in order to ensure principles of fair play, oral hearing in this matter has been provided to both the parties, which simultaneously came to an end on 17.05.2010. There is nothing to indicate that any additional evidence was admitted behind the back of either of the parties. The subsequent representations, which have been filed reiterate the stand taken by them earlier. The facts have been again narrated to justify what had been pleaded earlier. There is absolutely no prejudice caused in the assessment of the Court on any of the facts which have been stated in the subsequent written statements filed after 17th May, 2010.
The impugned order dated 28th June, 2010 has proceeded to consider both the representations and nothing has been shown by Sri Khare which may prejudice the cause of either of the parties. Sri Khare inviting the attention of the Court to the representation filed by Mr. Sukhvir Singh, contends that some annexures have been appended along with the representation. It is evident that the only annexure, which was pointed out, was the judgment in Civil Misc. Writ Petition No. 50404 of 2005 and rest of the contents are in relation to the validity of the elections and membership, which had been earlier contested up to the stage of oral hearing on 17.05.2010. In the absence of any such new material, the said contention of Sri Khare does not hold water. The reliance placed by him on the judgments with regard to the procedure adopted will, therefore, not apply on the facts of the present case.
Accordingly, Civil Misc. Writ Petition No. 54001 of 2010 does not call for any interference for the exercise of discretion under Article 226 of the Constitution of India and is hereby dismissed.
All three writ petitions, accordingly, stand disposed of with no order as to costs.
Dt. 20/09/2010 Akv