JUDGMENT Janardan Sahai, J.
1. This, broadly speaking, is the third round of litigation in this* Court about the management of an educational institution run by a society registered under the Societies Registration Act, 1860 known as Janki Higher Secondary School Society. The society is governed by its byelaws known as the Constitution of the Society. The structure of the society under the Constitution consists of two bodies- a general body known as the School Samiti consisting of maulik sadasyas and other categories of members and a committee of management known as a I Prabandh Samiti, It is not in dispute that the office of the President was held for life under the Constitution by Smt. Jariki Devi one of the founder members who had made significant grants for the establishment of the institution, which has since grown into an intermediate college. The office of the Manager was held for life by her son-in-law Madho Prasad. The President and Manager had a right to nominate their successors.
2. On Janki Devi's death in 1957 Madho Prasad relying upon her will, assumed the office of President in addition to that of the Manager already held by him. Disputes between rival groups laying claim to the management of the institution then arose. One group that of Bhawani Shanker alleged that Madho Prasad has been expelled from the office of Manager by a resolution of the committee of management. Madho . Prasad on the other hand claimed that the rival group of members of the committee had been expelled by him. This dispute gave birth to two civil suits. One was Original Suit No. 916 of 1960 filed by Madho Prasad seeking amongst other reliefs, a declaration of his right as President and Manager of Janki Devi Higher Secondary School and an injunction restraining the other members of the committee alleged to I have been expelled by him from interfering with his rights to function as Manager. The other suit No. 279 of 1960 was filed by Bhawani Shanker claiming to be the Manager inducted after Madho Prasad had been expelled. Although this suit was for recovery of money from I Madho Prasad's son a contractor who was impleaded as a defendant in the suit alongwith Madho Prasad the question of Bhawani Shanker's right to maintain the suit as Manager was also involved. In the meanwhile, a scheme of administration had been framed in which provision was made for an elected committee of management haying a, term of three years.
3. The suit No. 916 of 1960 filed by Madho Prasad was partly decreed by the trial court and it was held that Madhav Prasad was the manager and President of the School and the resolution expelling him from the post of Manager was illegal. The expulsion of other members of the committee of management by Madho Prasad was also held to be invalid. The other suit No. 279 of 1960 filed by Bhawani Shanker was 9 dismissed on the ground that he was not the lawful Manager and had no right to maintain the suit. This gave birth to three appeals. One of these was Appeal No. 90 of 1969 filed by Madho Prasad against the decree passed in the suit No. 916 of 1960 filed by him Bhawani Shariker also filed two appeals one being Civil Appeal No. 101 of 1969, which was a cross appeal against the decree in the suit of Madho Prasad and the other being Civil Appeal No. 62 of 1960 against the decree in his own suit. The Appeal No. 62 of 1960 filed by Bhawani Shanker dismissing his suit was dismissed. The other appeal No. 101 of 1969 of Bhawani Shanker was also dismissed except to the extent that it was held that Madho Prasad could not hold both the offices of President and Manager | together and that he would have to nominate some other Manager within a reasonable time failing which a Manager would be elected. The appeal filed by Madho Prasad was partly allowed. The declaration regarding the plaintiffs office of President and Manager was maintained subject to the aforesaid condition of nomination of another person as Manager. It was held that the scheme of administration bad-been submitted and got approved by a group of persons in the capacity I of the committee of management the rights of which were under adjudication in the civil suit and that only a validly constituted management committee was competent to submit the scheme and it would have been for Madho Prasad the President and Manager to summon a meeting to submit a scheme. It was also directed that the plaintiff will continue till the revised scheme of administration is submitted by the duly constituted managing committee. Two-second appeals nos. 1242 of 1970 and 1521 of 1970 were filed in this court by Bhawani Shanker and were decided by the judgement and decree of this Court on 12.8.1971. It was held that the expulsion of Madho Prasad from the post of Manager by the management committee was illegal and so too was the expulsion of the members of the committee by Madhho Prasad. It was also held that in the circumstances the submission of the Scheme of Administration by the de facto management committee could not be said to be an incompetent act. This court dismissed the Second Appeal No. 1242 of 1970 with the modification in the decree of the lower appellate court that while the plaintiff would continue as President of the Society the administration of the school shall continue to run under the scheme of administration in force till some other amended scheme is approved by the Director of Education. The other Second Appeal No. 1521 of 1970 was allowed and the suit decreed and it was held that the de facto manager Bhawani Shanker was entitled to institute the suit. An application under Section 151 Civil Procedure Code for clarification/modification was filed against the judgement by Madho Prasad, which was dismissed.
4. It is alleged in this writ petition that on the death of Bhawani Shanker, Bhagwati prasad Pandey was elected as Manager. Two rival sets of elections were set up. The matter regarding the recognition of the committee of management came up before the District Inspector of Schools who finding that there were rival claims being made referred the matter under Section 16-A(7) of the Intermediate Education Act, 1921 for decision to the Deputy Director of Education. Thus began the second round of litigation. The Deputy Director of Education by his order dated 20.2.1982 held that the elections relied upon by Bhagwati Prasad Pandey were not valid. He. found that Bhawani Shanker after whom Bhagwati Prasad became Manager himself had no right to be the Manager of the institution in view of the decision in the civil suit that the expulsion of Madho Prasad from the post of Manager was invalid. The Deputy Director of Education found that the elections of the committee relied upon by Bhagwati Prasad Pandey alleged to have been held on 27.6.1965, 4.7.1968, 29.9.1971 and 24.6.1979 were invalid as hone of these were held in accordance with the Scheme of Administration by the society. The Deputy Director of Education further found that the rival committee of which Govind Narain son of Madho Prasad is the Manager and Ramesh Chandra Srivastava, the Deputy Manager is the valid committee. The decision of the Deputy Director of Education was challenged by Bhagwati Prasad Pandey in Writ Petition No. 508 of 1981. The learned Single Judge dismissed the writ petition and upheld the findings recorded by the Deputy Director of Education. It was held as follows;
"In view of this matter the Deputy Director of Education was justified in ignoring the alleged elections held on 27.6.1965, 7.7.1968, 20.9.1971 and . 24.6.1979 set up by Bhagwati Prasad Pandey, inasmuch as these elections were not held in ' accordance with the scheme of administration. If on these facts the Deputy Director of Education granted recognition to the Managing Committee constituted on 15.6.1980, he did not commit any illegality".
The matter was carried in special appeal. The special appeal remained pending for a long time and ultimately was disposed of by an order- dated 22.3.2001. As the interpretation of this order and the effect which it has upon the decision in the writ petition and consequently upon the claim of the parties for recognition is the main issue in the present writ petition, it is necessary to set out below the order that was passed.
"We, have heard Sri P. N. Saxena, learned Advocate for the appellants and Sri U.K. Pandey, learned Standing Counsel for the respondents.
The special appeal has become infructuous by long lapse of time. Since the term of the Manager has expired long time back no fruitful purpose will be served by going into the controversy raised in this case. It is made clear that the adjudication made in the writ petition has no effect at this state. Accordingly, the appeal is dismissed."
5. After the dismissal of the special appeal as infructuous the District" Inspector of Schools passed an order dated 16.5.2001 in favour of Radhey Lal who according to the respondent's case had become the Manager after Govind Narain and recognised him to be the Prabandhak on the basis of the decision of the Deputy Director of Education in the year 1982, which was up held by the Single Judge in the writ petition. The present writ petition has been filed against this order of the District Inspector of Schools and this is the third round of litigation.
6. I have heard Sri P. N. Saxena, learned counsel for the petitioners and Sri B. Dayal, learned counsel for the respondent No. 1.
7. It is submitted by Sri Saxena that in view of the decision in the special appeal the District Inspector of Schools could not have recognised the respondent on the basis of the order passed by the Deputy Director in 1982 or on the basis of the decision of the single judge in the writ petition and that the decision in the Second Appeal, which is in favour of the petitioners would govern the rights of the parties. He submits that in the special appeal it was held that the adjudication made in the writ petition has no effect at this stage and the court had declined to go into the controversy and that the findings of the Single Judge have been obliterated and could not have been made by the District Inspector of Schools, the basis of upholding the claim of the respondent. On the other hand it is contended by Sri B. Dayal that as the special appeal was dismissed the order of the learned Single Judge stands. He also disputes the contention of Sri. Saxena that the decision in the second appeal was in favour of the petitioner or adverse to the respondents.
8. It is not in dispute between the parties that ever since 1982 when the Deputy Director of Education had passed his order separate elections were periodically held by the petitioners on the one hand and by the group of Madho Prasad now represented by the respondent No. 1 on the other hand. In the special appeal it was held that as the term of the Manager has expired long time back no fruitful purpose would be served by going into the controversy raised in the case. Undisputedly, the committee of management which was recognised by the Deputy Director of Education in the year 1982 had run out its term.
9. The order passed in the special appeal is one of dismissal of the appeal and not of the writ petition. The decision of the Single Judge in the writ petition has not been set aside. The dismissal of the appeal cannot be interpreted to mean that in effect the decision of the Single Judge has been set aside. In the circumstances the observation made in the special appeal would mean that the court has taken note of the situation that rights decided in the writ petition have ceased to have any bearing upon the status of the appellant on account of a long passage of time during which successive elections have taken place and a new foundation for the claim of the present committee of management has come into existence and therefore the appeal does not survive for decision. In other words that the points in issue have become of academic importance only and do not effect the position of the parties as they' stand in the present. This is implicit in the order passed in the special appeal. If the rights of the parties decided by the order appealed against continue to effect adversely the position of the appellant or the decision has the effect of unsettling the acts and transactions performed by the appellant the controversy would be alive and an appeal would not become infructuous. It is for the appellant committee of management the term of which had run out and which in the ordinary course of events would not have any interest in the litigation to bring to the notice of the court that the adjudication made in the writ petition continues to affect its position and that the appeal has not become infructuous. If the appellant acquiesces in the dismissal of the appeal as . infructuous it is not open to it to turn around and say in a subsequent round of litigation that by the appeal becoming infructuous the adjudication of rights of the parties by the Single Judge has been set at naught. If this were so it would be easy for a party to prolong the decision of the appeal to a date when fresh elections have been held and to obtain an order of dismissal of the appeal as infruduous and to start claiming that the decision of the Single Judge has in effect been set aside. If in the opinion of the present petitioner, which is relying upon the earlier adjudication made in the Second Appeal in 1971 as governing the rights of the parties, the rights adjudicated upon by the Single judge were continuing to effect its status and that the appeal had not become infructuous it was for the petitioner to have challenged the order passed in the special appeal either by review or before the Apex Court. Where the term of a committee is over and fresh elections according to the own case of the outgoing committee are held the committee whose term has run out cannot get any relief for its continuance and therefore a pending case may become infructuous as the outgoing committee may not have any interest left in the litigation. Then again there may be cases where adjudication of the right of management of the outgoing committee may on account of subsequent events have no effect upon the validity of the subsequently constituted committee- as where the scheme of administration provides an alternative mode for a meeting to be convened for holding elections, to the committee on the request of the members of the general body in the event of the Manager not calling a meeting and such an alternative course is adopted for inducting the new committee; or where subsequent elections are held by a Prabandh Sanchalak under a scheme which provides for such a course where the outgoing Committee has not held the elections within time* or where after the adjudication in favour of the outgoing committee a motion of no confidence if permissible under the scheme is passed removing the old members; or where several successive elections of a rival group have been held and recognised without being challenged by the committee in whose favour there has been previous adjudication and there is thus an acquiescence on its part. In all such cases, and the examples could be many more, the foundation of rights of the subsequently elected committee is based upon an event, which has wiped out the effect of the adjudication in a writ petition and the appeal would become infructuous. The validity of the elections of a successor committee can be challenged on innumerable grounds ranging from the ground that no meeting at all was held in which the elections allegedly took place to a breach of the provision of the scheme or the ground that the party elected is not in effective control besides the ground that the person who convened the meeting was not competent to do so because of a previous adjudication adverse to his rights. The rights adjudicated in a previous litigation as I have already said would not necessarily determine in all cases the validity of the successor committee as the subsequent events may make the adjudication stale. The party appealing knows its position best and if it does not put forward its stand that the findings of the single judge on the point as to who was the validly elected Manager or committee of management would adversely affect it as these findings would determine which was the party competent to convene the meeting in which the subsequent elections were held or acquiesces in an order by which its appeal is dismissed it cannot turn around and say 'that it is not 'bound by the findings recorded against it in the order appealed from.
10. Learned counsel for the respondents relied upon two decisions. One is the Division Bench decision of this Court in 1997 A.W.C. (Supplementary) 592 Committee of Management, Sukhpura Inter College, Ballia and Anr. v. Alleged Committee of Management, Sukhpura Inter College, Ballia and Ors. in which almost in a similar situation the Division Bench took the view that the dismissal of the writ petition as infructuous would have the effect of reviving the earlier order of the Deputy Director of Education holding certain elections-the committee to be invalid and any subsequent elections held by such an invalid committee found to induct a successor would also be invalid. The other is Sheodan Singh v. Daryao Kunwar, 1966 SC 1332. That was a case in which in the appeal the paper books were not printed or the appeals were filed beyond the period of limitation and the-appeals were dismissed on such technical grounds. It was held that the dismissal of the appeal even otherwise than on merits and on the ground of limitation or on technical ground would not have the effect of the matter in issue not being finally heard or decided and would not prevent the application of principles of res judicata when the trial court had decided the suit on merits. This case is not directly on the point.
11. There is another aspect of the matter. The special appeal having been dismissed, no right of appeal was available to the respondents to challenge the order before the Apex Court. To place an interpretation upon the order in the Special Appeal that although it had been dismissed but in effect it had set aside the findings that were recorded by the Single Judge in favour of the respondent without adjudication and without giving him a right to challenge it would be unjust. When a court decides a case in favour of a party a vested right is created in. its favour. These rights cannot be taken away without a finding that the decision appealed against is erroneous. There is yet another reason to hold that the decision of the single judge holds good. When an appeal is preferred the general rule is that the decision of the trial court merges in the order in appeal. But the doctrine of merger is not of universal application. The decision of the Apex Court Kunhayammed v. State of Kerala and Anr., (2000) 6 SCC 359 has laid down the law upon the point. In paragraph 28 of the report the Apex Court has referred to its previous decision in Shankar Ramchandra Abhyankar A.I.R. 1970 SC 1 and has pointed out that three preconditions for applicability of the doctrine were laid down in Abhyankar's case - one of them being that the appellate jurisdiction must have been exercised after a full hearing in presence of both the parties. While referring to the effect of an order on the application of leave to appeal to the Supreme Court and an order passed in the appeal after the leave is granted the Apex Court in the same paragraph 28 observed "it is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of the appeal reopens the issues decided and this court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction." If the appellate courts hold that the appeal has become infructuous it does not decide the appeal- that is the issues involved in it are not decided and the doctrine of merger would not apply as the findings in the order challenged are not being scrutinised. In para 44 of its judgement the Apex Court has held;
"44(1) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies', reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."
12. The order passed in the special appeal neither reverses nor modifies nor affirms "the decision put in issue" and in fact no decision has been given in the appeal and therefore the doctrine of merger does not apply to it. If the dismissal of the appeal is however taken as affirmance of the order challenged and therefore a merger which is not how I would interpret the order in the appeal, then too the findings recorded by the single judge would stand. I am therefore of the view that the rights of the parties up to the period they were decided in the . writ petition have became final.
13. This bring us to the next contention of the learned counsel for the petitioner that the order of the District Inspector of Schools has been passed without application of mind. I am of the view that this contention does have some force. The order of the District Inspector of Schools has been passed mechanically on the basis of the previous order of the Deputy Director of Education passed in the year 1982. Successive elections after that order have been held and if claims by two rival sets of persons to function as the committee of management have been set up the matter was required to be adjudicated upon. But the District Inspector of Schools has no jurisdiction to take any decision as to which of the two committees is the valid committee and in such a case the matter has to be referred under Section 16-A(7) of the Intermediate Education Act, 1921. If the District Inspector of Schools finds that there were two sets of committees claiming to the management of the institution it is incumbent upon the District Inspector of Schools to refer the matter under Section 16-A7. Under that provision the Deputy director would have to decide the dispute on the basis of proof of effective control. The question of Validity of the election can also be gone into incidentally. The order of the District Inspector of Schools is, therefore, liable to be quashed on this ground.
14. In the result, the writ petition is allowed. The order of the District Inspector of schools dated 16.5.2001 is quashed. He is directed to pass appropriate order in the light of the observations made in this order.