Heard Sri Umesh Chandra, Senior Advocate assisted by Sri Somesh Tripathi, learned counsel for the petitioner and Mr Anil Kumar Tiwari, Senior Advocate assisted by Sri Hira Lal Srivastava, learned counsel for the respondent as well as learned Standing Counsel.
Instant writ petition is directed against the order dated 28.2. 2012, passed by the District Inspector of Schools, Lucknow ( In short D.I.O.S.).
By means of order impugned the D.I.O.S. has approved the election of Committee of Management of Sindhi Vidyalaya Girls Inter College ( In short College) held on 22.9.2011 and issued directions to certify the signature of Parmanand Khatri as Manager/ Secretary of the Committee of Management of the College.
Upon perusal of the record, it appears that the dispute of the election of the Committee of Management earlier reached this Court through the W.P.No. 7116 (MS) of 2011. This Court by means of an order dated 25.11.2010 disposed of the same with the direction to the authority concerned to consider and dispose of the representation. Pursuant to which the DIOS by means of his order dated 9th December, 2011 decided his representation whereby he had -2- disapproved the election of the Committee of Management held on 22.9.2011. However, the opposite party no. 5 moved a representation before the DIOS on 13.12.2011 to take a fresh decision as according to him the decision dated 9th December, 2011 was made in violation of the principles of natural justice. At that time opposite party no. 5 placed a decision of the Division Bench of this Court and submitted that the controversy involved in the matter has already been settled by the Division Bench of this Court in the case of Committee of Management of Beghum Khair Girls Inter College, Basti Vs. State of U.P. and submitted that had this judgment been before the D.I.O.S. earlier at the time of taking decision, the order would have been passed otherwise. Considering which the DIOS took up the matter again and reconsidered it in light of the said judgment. Accordingly he has approved the election of the Committee of Management held on 22.9.2011.
Learned counsel for the petitioner, Mr Umesh Chandra learned Senior Advocate submitted that the DIOS had exercised the administrative power in taking decision on 9th December, 2011. The administrative authorities are not empowered to review their order passed in the administrative capacity unless the said power is vested with them by some statute . In the present case the Committee of Management is constituted under the terms of scheme of administration of the College which receives statutory strength from the U.P. Intermediate Education Act, 1921( in short ''the Act') but this Act does not vest power of review with the DIOS. He further -3- submitted that Section 16-CC of the Act provides that the scheme of administration of the College shall not be inconsistent with the principles laid down in the third schedule as provided under Section 16-CC of the Act. The third schedule laid down the principles on which the approval to a scheme of administration shall be accorded. It lays down that no scheme of administration shall contain the provisions creating monopoly in favour of any particular person, caste, creed or family. He further stated that clause 5 of the scheme of administration of the college provides the criteria of the eligibility of the members and along with other eligibility criteria it provides that no member shall be inducted in the society to create a monopoly of an individual, caste or family. The said criteria of eligibility is in consonance of the third schedule . Petitioner has brought on record the list of office bearers of the society to establish that it is constituted by members of one community more so most of the members belong to the one family. Accordingly they maintain monopoly of one family and same caste in the general body of the society. It is stated that in the Committee of Management also situation is similar as most of the members belong to one family and same caste. Therefore, the Committee of Management constituted through the election held on 22.9.2011 is not in accordance with law whereas the DIOS has failed to appreciate the objections raised by the petitioner and by means of order impugned he has held the election of Committee of Management held on 22.9.2011, a valid election.
Respondent No. 5 came forward to contest the matter and filed counter affidavit. Through the counter affidavit it is stated that the College in question is a minority institution as it is established by Sindhi community . All the members of the general body of the society, i.e, the Sindhi Society Shiksha Parishad belongs to Sindhi family.
Learned counsel for the respondents submitted that the DIOS took a decision on 9th December, 2011 without providing opportunity of hearing to the opposite party no.5 whereas he is a necessary party in the matter. Thus, the order dated 9th December, 2011, passed by the DIOS was an ex parte order. The answering respondent moved the application for recalling of the same on the ground that the order has been passed in violation of the principles of natural justice as well as it ignores the settled view of the Division Bench of this Court on the point involved for consideration. Considering the submission of the respondent, the DIOS recalled his order dated 9th December, 2011 and passed the fresh order impugned. Therefore, objection raised by the petitioner against the jurisdiction of the DIOS is unsustainable.
He further submitted that once the College, being the minority institution, is governed by particular community , it is very natural that the persons belonging to the said community shall be the members of the society to constitute the committee of management and the office bearers of the committee of management shall be -5- elected from amongst the members of the general body of the society, meaning thereby from amongst the members of the said community.
So far as the allegation to maintain the monopoly of particular family and caste in the committee of management is concerned, he placed the list of the elected office bearers for the identification of their patronage to establish that no members belong to the same family. Thus, it is stated that there is no violation of the provisions of third schedule framed under Section 16 -CC of the Intermediate Education Act as well as the terms of scheme of administration of the College.
Mr Anil Kumar Tiwari, learned Senior Advocate appearing for respondent no. 5 cited a case ,i.e, Begum Khair Girls Inter College , Basti and another Vs State of U.P. and others 2008 (5) AWC 4587 which has been considered by the DIOS in making his decision impugned.
Mr Tiwari, learned Senior Advocate submitted that the status of the Sindhi community has been considered by Hon'ble the Supreme Court in the case of Sindhi Education Society and another Vs. Chief Secretary, Government of NCT of Delhi and others(2010) 8 SCC 49 in which Hon'ble the Supreme Court has recognized it as a linguistic minority community and held that a minority institution has right to administer its affairs in such a manner so as to conserve their socio-economic and cultural character.
Articles 29 and 30 of part III of the Constitution of India
-6 -
protect the interest of the minorities as well as creates their right to establish and administer educational institution. Those are reproduced hereunder:
"29. Protection of interests of minorities (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2)No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on ground only of religion, race,caste, language or any of them.
(30)Right of minorities to establish and administer educational institutions (1) All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1 A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause(1) the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the guaranteed under that clause.
(2)The State shall not , in granting aide to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."
Section 16-A of the Act provides that there shall be a scheme of administration for every institution which shall amongst other matters provide for the constitution of a committee of management vested with the authority to manage the conduct and affairs of the institution. Section 16 -CC of the Act provides that the scheme of administration in relation to an institution whether recognized before or after commencement of the Intermediate Education ( amendment) Act, 1980 shall not be inconsistent with the principles laid down in third schedule.
Third schedule lays down the principles on which approval to a -7- Scheme of Administration shall be accorded. It is reproduced hereunder;
" Every Scheme of Administration shall-
(1)Provide for proper and effective functioning of the Committee of Management;
(2)provide for the procedure for constituting the Committee of Management of periodical elections;
(3)provide for the qualifications and disqualifications of the members and office bearers of the Committee of Management and the term of their offices:
Provided that no such Scheme shall contain provisions creating monopoly in favour of any particular person, caste, creed or family.
(4)provide for the procedure of calling meetings and the conduct of business at such meetings;
(5)provide that all the decisions shall be taken by the Committee of Management and powers of delegation, if any, shall be limited and clearly defined;
(6)ensure that the powers and duties of the Committee of Management and its office-bearers are clearly defined;
(7)provide for the maintenance and security of property belonging to the institution and also for the utilization of its funds and for the regular checking and auditing of accounts."
The society in question framed scheme of administration to govern the functions of its College, in which it has laid down eligibility criteria of the members for constitution of Committee of Management of the Institution. The sub-clause ''Ra' of clause 5 of the Scheme of Administration provides that there shall be no members in the Committee of Management to create a monopoly of any particular person, caste or family. There is no doubt that this provision has been inserted in the Scheme of Administration pursuant to the provisions of third schedule of the Act.
Learned counsel for the respondents has placed before me a letter of declaration dated 22.9.2011, that is in the forum of declaration made by all the members. Through the aforesaid -8- declaration all elected members of the Committee of Management had declared that they are not related to each other. Their declaration in regard to relationship is meant for the relationship of one family, caste and group, creed etc. He has also placed another list which indicates their patronage, upon perusal of which, I find that all the members belong to different family. Begum Khair Girls College's ( supra) was the matter for adopting Scheme of Administration as is provided under Section 16-CC. In this case also, the College was a minority institution and it had to amend its scheme of administration in accordance with Section 16 -CC. The Scheme of Administration, as was approved for the institution, contained following two conditions being violative of the provisions of Section 16-CC of the Act. Those are as under;
(1)That there is no procedure for constituting Committee of Management by periodical elections;
(2)Scheme contains the provisions in respect of a particular person, caste, creed or family.
Questions which arose before the Division Bench of this Court were (a) Whether the scheme of administration of minority institution must provide for periodical elections and for that purpose constitution of general body for institutions and;
(b) Whether there can be any restriction upon monopoly being created in favour of a particular person, caste, creed or family qua a minority institution.
In the context of present case only second point is relevant for -9- the consideration. The Division Bench of this Court held that the right to choose its managing and governing body is one of the basic rights included in the right to administer an educational institution. Any imposition of new members or Committee of Management contrary to the wishes of the founder and the provisions contained in the scheme formulated for the purpose would have the effect of violating the fundamental rights guaranteed under Articles 29 and 30 of the Constitution of India and have the effect of taking away right of management of its choice. Hon'ble Court further held that in such a institution it is wishes of the founders of the institution to have a management of its choice which may confine to the members of a particular family for establishing institutions or for persons belonging particular caste or creed alone being made of office bearers of the institution. Such a choice of the management is in conformity with the article 29 and article 30 of the Constitution of India and therefore no statutory provisions can be made for taking away the said constitutional right.
The Division Bench of this Court further held that the provisions of schedule III prohibiting monopoly in favour of any creed held to be applicable to a minority institution would be ultra vires to Article 30 of the Constitution of India.
Mr Umesh Chandra, learned Senior Advocate submitted that the provisions of the Scheme of Administration as is inserted in its clause(5) is in consonance with the third schedule and till it is amended or rescinded, the society has to follow the same. No doubt -10- the proviso of clause (3) of the third schedule has been interpreted by a Division Bench of this Court as the same is not applicable for the minority institution but upon perusal of the said proviso it is evident that for application of the same, no reservation is provided to the minority institution and the institution in question has to adopt the same through its Scheme of Administration. Therefore, the intention of the society is very much clear for not to create monopoly of one family, caste, creed in the committee of the management of the institution. If the society in question intends to delete aforesaid provisions , it has to refer the matter to the DIOS, who in turn has to refer the same to the State Government to amend the third schedule accordingly but till the said proviso exists in the schedule and is adopted by the society in dispute, it cannot be ignored.
So far as the submission of learned counsel for the petitioner as above is concerned, after reading the provisions of third schedule, I am of the view that the proviso of clause (3) of the third schedule has been inserted to apply in all kind of institutions either it is a minority institution or non minority institution. However, with respect to the minority institution it has to be interpreted in such manner as it may be workable. The institute in question is governed by the Sindhi Community . All the members of the society belong to a particular community. Therefore, the office bearers of the Committee of the Management have to be elected from amongst its members and in such a situation as has been held by the Division Bench of this Court -11- in Beghum Khair's case (supra), I am of the view that the Constitution of Committee of Management by the members of a particular community is not unlawful.
Upon perusal of the documents placed before me, I find that the petitioner has not been able to establish that the office bearers of the committee of management are related to each other being members of one family.
So far as the question of jurisdiction of the DIOS to exercise its power to review its earlier order which was administrative in nature is concerned, I am of the view that at the time of making decision earlier by him the relevant material as well as judgment of this Court was not before him.
In the case of Direct Recruits Class II Engineering Officers' Association Vs. State of Maharashtra and others reported in (1990) 2 Supreme Court Cases 715 and D. Ganesh Rao Patnaik and others Vs. State of Jharkhand and others (2005) 8 Supreme Court Cases 454, Hon'ble the Supreme Court has held that there is no legal bar or prohibition against an administrative body in seeking to review its earlier order/decision provided the parties likely to be affected by such a decision are afforded an opportunity of hearing.
In light of the aforesaid judgment, I do not find jurisdictional error in exercising the power of the review by the DIOS of its own order, as I find that earlier no opportunity of hearing was provided to the respondent. Therefore, the order impugned does not suffer from -12-
jurisdictional error.
I also find that the DIOS has correctly appreciated the judgment of the Division Bench of this Court held in Beghum Khair's case ( supra). Therefore, no interference is warranted.
Accordingly the writ petition stands dismissed.
29.5.2012 Tripathi