Heard Sri Anil Bhushan learned counsel for the petitioner and the learned standing counsel for the respondent nos. 1,2 and 3.
In view of the nature of the order that is proposed to be ,passed it is not necessary to issue any notice to the respondent no.4 at this stage.
Needless to mention that the petitioner had earlier filed Writ Petition No. 10093 of 2011 which was dismissed as withdrawn with liberty to file a fresh writ petition keeping in view the order dated 8.7.2008 and this writ petition has been filed assailing the said order dated 8.7.2008.
The present writ petition assails the order dated 28.1.2011 whereby Committee of Management has been superseded in exercise of powers under Section 6(3) of the Payment of Salary Act under U.P.Act No.24 of 1971 on the ground that the Committee which had been validly elected in Jan.,2006 had not been recognised and an oder has been passed on 8.7.2008 refusing to grant recognition. Accordingly the said Committee has no right to continue. The period of the Committee of Management according to the approved Scheme of Administration is three years which has already expired, therefore an Authorised Controller has to be appointed to hold fresh elections.
Accordingly the complaint of the respondent no.4 has been accepted and a direction has been issued to the District Inspector of Schools , Gorakhpur to act as Prabandh Sanchalak with a further direction to hold the elections in terms of the government order dated 21.11.2008.
Sri Anil Bhushan learned counsel for the petitioner contends that the impugned order is in violation of principles of natural justice inasmuch as according to the impugned order itself the petitioner had not responded to the aforesaid claim. Learned counsel for the petitioner further submits that as a matter of fact no notice was ever served upon the petitioner therefore the impugned order deserves to be set aside on this ground alone.
The second submission of Shri Bhushan is that the order has been passed in exercise of powers under U.P.Act No.24 of 1971 which is totally unconnected with the ingredients that are available in the aforesaid Act for the purpose of superseding the Committee of Management. Sri Bhushan relies on the judgment in the case of Committee of Management, Shahid Sansmaran Inter College, Sherpur and another Vs. Deputy Director of Education Varanasi and another reported in 1993 ALJ 318.
The third submission of Sri Bhushan is that even otherwise the order dated 8.7.2008 is incorrect inasmuch as the same was passed behind the back of the petitioner. For this he submits that the petitioner no.2 has continued to pass salary bills and to function as Manager in the Institution through out and therefore the order dated 10.8.2008 was never executed. It is therefore submitted that passing of an order to appoint an Authorised Controller under the Payment of Salary Act in such circumstances is wholly unjustified.
On the other hand learned standing counsel submits that the position as admitted on today is that the amendment in the Scheme of Administration as alleged extending the tenure to 5 years has not been approved by any competent authority and such an amendment is invalid keeping in view the provisions of Section 16-A (5) of the U.P. Intermediate Education Act, 1921. In absence of that approval the proposal cannot be relied upon by the petitioner and the tenure of the petitioner cannot be treated to be five years. Learned standing counsel further contends that mere continuance of the petitioner and passing of salary bills does not amount to a lawful effective control of the petitioner so as to claim further continuance and the District Inspector of Schools had already rejected the the elections of 2006. In such a situation the impugned order cannot be faulted with.
So far as the question of violation of principles of natural justice is concerned,learned Standing Counsel contends that in view of the Full Bench decision in Committee of Management, Pt.Jawahar Lal Nehru Inter College Vs.Dy.Director of Education and others reported in 2005(1) UPLBEC 85 the petitioner Committee has to be superseded for holding of free and fair elections as no elections had been admittedly held within time.
Having heard learned counsel for the parties, the contention raised by the learned counsel for the petitioner that Section 6(3) of the U.P.Act No.24 of 1971 could not have been invoked for superseding the Committee of Management, appears to be correct. There has to be default in the payment of salary as held in the case of Committee of Management, Shahid Sansmaran Inter College (supra). Learned counsel for the petitioner contends that there was no default in the payment of salary and there are decisions which hold that if there is no validly elected Committee of Management then in such circumstances an order of single operation may be passed pertaining to the salary of staff and other employees of the institution. Sri Anil Bhushan then contends that in view of the provisions relating to the tenure of the Committee of Management as contained in clause 8 of the Scheme of Administration the earlier office bearers are entitled to continue. Clause 8 of the Scheme of Administration is quoted below:
^^izca/k lfefr ds inkf/kdkfj;ksa rFkk lnL;ksa dk dk;Zdky insu lnL; dks NksMdj muds fuokZfpr frfFk ls mudk dk;Zdky rhu o"kZ dk jgkA fdUrq iqjkus lnL; rc rd dk;Z djrs jgsaxs tc rd fd muds LFkku ij u;s fuokZpu lkslkbVh }kjk u gks tk;sA^^ This provision was also dealt with in para 38(3) by the Full Bench decision in the case of Committee of Management, Pt. Jawahar Lal Nehru Inter College (supra) . In such a situation the petitioner committee of management cannot continue perennially without holding of elections and the tenure of the Committee of Management as prescribed in the Scheme of Administration has to be honoured and respected in letter and spirit. It is the admitted case of the petitioner that no elections have been held. The proposed amendment in the Scheme of Administration has not been approved.
Accordingly it is hereby declared that the power invoked by the Regional Joint Director of Education under Section 6(3) of the U.P.Act No.24 of 1971 was not available as there was no default in payment of salary.
Nonetheless in view of the reasons recorded herein above and in view of the decision of the Full Bench of this Court as indicated above the Committee of Management could not have continued without holding elections. Accordingly the Regional Joint Director of Education shall allow the District Inspector of Schools to continue as the Authorised Controller in view of the conclusions drawn herein above and the District Inspector of Schools shall now proceed to hold elections after finalisation of the electoral college in accordance with law within a period of three months.
The writ petition is disposed of.
3.3.11 mna