Heard Sri Ashok Khare, learned Senior Counsel and Sri Irshad Ali for the petitioners, Sri M.A. Qadeer, learned Senior Counsel for the respondent no. 5 and the learned Standing Counsel for the respondent nos. 1 to 4.
Learned Standing Counsel has not filed any counter affidavit in spite of the pendency of the writ petition for the past seven years and in spite of the fact that time had been granted to the State to file a counter affidavit. A counter affidavit has been filed by the respondent no. 5 and a rejoinder affidavit in reply to the same has also been filed on behalf of the petitioners. Learned counsel including the learned Standing Counsel have advanced their submissions on the issues raised and have agreed that the matter be disposed of finally without awaiting any further affidavits. Accordingly, the writ petition is disposed of with the consent of the parties in accordance with the Rules of the Court.
The petitioner-Committee has come up before this Court assailing the order of the respondent no. 3-Regional Joint Director of Education dated 25th October, 2004 contending that the said order proceeds on erroneous assumptions with regard to the tenure of the Committee of Management and further there was no occasion for the Regional Joint Director of Education to have treated the Committee of Management to have become defunct on the basis of such assumption. Hence, the impugned order deserves to be quashed.
Learned counsel for the petitioners submit that the resolution was passed as per the Scheme of Administration on 2nd March, 2003 for bringing about an amendment and such a resolution was passed when the tenure of the earlier Committee was subsisting. Needless to mention that the petitioners contend that the last elections had been held on 27th August 2000 and prior to the expiry of the tenure for three years, the said resolution had been passed whereby the tenure of the Committee of Management was extended to five years. The said resolution dated 2nd March 2003 came to be approved by the Regional Joint Director of Education on 8th April, 2003 granting extension to the tenure of the Committee of Management from three years to five years.
The respondent no. 5 and others appears to have objected to the said amendment contending that no such resolution had been validly passed or even proposed by the valid office-bearers and as such, the very basis of the alleged resolution is non-existent. It was further urged by the said respondent that the resolution by itself did not grant any extension to the existing tenure of the Committee of Management and at the best, it was an intention expressed for proceeding to take appropriate steps to bring about an amendment in the Scheme of Administration.
The respondents set up an election dated 22.09.2003 claiming that fresh elections had been held within three years whereas the petitioners contended that they were continuing on the basis of the resolution dated 2nd March, 2003. The Joint Director of Education passed an order on 27th April, 2004 rejecting the contentions of either side and appointed a Prabandh Sanchalak and a consequential order was passed by the District Inspector of Schools on 29th April, 2004. These orders came to be challenged by the petitioners in Writ Petition No. 18380 of 2004 and the same was allowed clearly indicating that the Joint Director of Education ought to have addressed himself to the issues relating to the amendment brought about in the tenure of the Committee of Management and also the claim of extension of the tenure of the petitioners and their continuance by virtue of the resolution dated 2nd March, 2003. The impugned order dated 25th October, 2004 has been passed thereafter.
Learned counsel for the petitioners contends that the tenure of the Committee of Management would be five years in view of the Division Bench judgment of this Court in the case of The Committee of Management, HMI Inter College, Nohtour, Bijnor Vs. Deputy Director of Education 10th Circle Moradabad and others reported in 1994 (3) ESC 176 as followed by this Court in a subsequent judgment in the case of Committee of Management, Bhartiya Adarsh Inter College, Gautam Budh Nagar Vs. State of U.P. and others reported in 2005 (2) AWC 1728.
Learned counsel for the petitioners further submits that the circular of the Joint Director of Education dated 4th August, 2003 came up for consideration before a Division Bench 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 where it has been held that the 'Director' being the 'Principal Authority' was empowered to issue such a circular and, therefore, any condition imposed in the order passed by the Joint Director of Education as a delegatee for applying the said amendment prospectively was a valid exercise of power. It is, therefore, submitted on behalf of the petitioners that the amendment, which has been approved on 8th April, 2003 during the period of the tenure of the then Committee which was subsisting, would apply for the same Committee, inasmuch as, the circular dated 04.08.2003 would not apply retrospectively and even otherwise, in view of the judgment referred to herein above, the tenure of three years to five years would take effect immediately upon the amendment, that is, from the date of approval, and would consequently enure to the benefit of the existing Committee. In view of the aforesaid submissions, it is contended that the impugned order proceeds on erroneous assumptions of law and, therefore, deserves to be set aside.
Sri M.A. Qadeer, learned Senior Counsel submits that the Division Bench judgment in the case of Committee of Management Arya Kanya Inter College (supra) clearly specifies the law in paragraph 30 that even otherwise such a provision which brings about an amendment to the tenure, would apply prospectively, and would be applicable in respect of future elections, and not for the existing Committee. He further contends that this ratio was pronounced after noticing the Division Bench judgment as relied upon by the petitioners in the case of The Committee of Management, HMI Inter College (supra). He therefore, contends that the tenure of five years would be applicable not to the then existing Committee but to that committee to be elected in future and, therefore, the conclusion drawn does not suffer from any error.
Sri M.A. Qadeer has further vehemently urged that the resolution dated 2nd March, 2003 was never passed and it is not a valid resolution and he has invited the attention of the Court to the contentions so raised before the Joint Director of Education and noticed in the judgment of this Court dated 12th May, 2004. He has further invited the attention of the Court to such issues having been specifically raised before this Court in paragraph 11 of the counter affidavit to contend that 6 out of the 11 living members of the general body have represented the matter that no such resolution had been passed. He further submits that in effect the conclusion drawn by the Joint Director of Education treating the amendment to be disputed cannot be faulted with.
Learned Standing Counsel also proceeds to raise submissions on the same line of Sri M.A. Qadeer and contends that the impugned order does not suffer from any infirmity.
Having heard learned counsel for the parties, it is evident that the issue, which was remitted back to the Joint Director of Education for consideration, was the validity of the amendment which in effect would be the determinative factor to conclude as to whether an authorized controller could be appointed or not. In such a situation, the first issue that ought to have been addressed to by the Regional Joint Director of Education, was the validity of the resolution dated 2nd March, 2003 under which the alleged amendment is stated to have been proposed. The order impugned dated 25th October, 2004 nowhere even remotely addresses itself to the validity of the resolution dated 2nd March, 2003. The contention and the objections raised in this regard have not been either discussed nor any finding recorded thereon. It is, therefore, clear that the Joint Director of Education has not proceeded to decide the matter in the light of the directions issued in the judgment dated 12th May, 2004 and the order impugned is therefore vitiated.
The issue is with regard to the tenure of the Committee of Management. The tenure would be dependant upon the interpretation of the resolution passed on 2nd March, 2003. If the resolution dated 2nd March, 2003 is construed to be a resolution for bringing about an amendment then the impact of the approval dated 8th April, 2003 will have to be considered.
Apart from this, the impact of the circular of the Director dated 4th August, 2003 will have to be adjudicated as to whether the said circular will apply in relation to an amendment already carried out prior to the issuance of the circular. It is at that stage that the Regional Joint Director of Education will also have to consider the impact of the judgments that have been relied upon by the learned counsel for the petitioner in order to apply the law for the purpose of construing as to whether the amendment would apply prospectively for future elections or would enure to the benefit of the existing Committee of Management. This exercise having not been undertaken, the impugned order cannot be sustained.
Accordingly, the writ petition is allowed and the order dated 25th October, 2010 is quashed.
The matter stands remitted back to the Regional Joint Director of Education to decide the matter afresh in the light of the observations made hereinabove within a period of three months from the date of presentation of a certified copy of the order before him.
Dt. 01.03.2011 Akv