JUDGMENT Arun Tandon, J.
1. Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena, Advocate on behalf of petitioners, Sri Ashok Khare, Senior Advocate assisted by Sri S.D. Shukla, Advocate on behalf of respondent No. 6 and learned Standing Counsel on behalf of respondent Nos. 1,2,3 and 5.
2. Khair Industrial Society is a society registered under the Societies Registration Act, 1860. The said society has established an institution in the name of style of Khair Industrial Higher Secondary School, Basti (hereinafter referred to as the 'institution'). The said institution is a recognised minority institution under the provisions of the U.P. Intermediate Education Act, 1921. Under the approved scheme of administration, the Committee of Management comprises of 11 members including the Principal and two teachers of the institution.
3. The scheme of administration provides that Sri Mohd. Abul Khair, who had donated his properties for establishing the said institution, would be the first President/Manager/Treasurer, during his life time.
4. Sri Mohd. Abul Khair, continued as the first President/Manager/Treasurer, till 19th January, 1992, when he expired. Thereafter one Sri Abdul Wahid Siddiqui claimed to have been selected as Manager. Vide order dated 16th April, 1998, the Regional Joint Director of Education, Basti Region, Basti appointed an Authorised Controller in the institution on the ground that valid elections of the Committee of Management have not taken place within time. This order was recalled on 14th July, 1998 on the ground that no Authorised Controller can be appointed in a minority institution.
5. At this stage three rival claimants set up their independent claim as manager of the institution, (a) First faction headed by Sri Hamiddulah Khan claimed to have elected as Manager in the election dated 21st April, 1998 (b) second faction headed by Sri Abdul Wahid Siddiqui claimed to have elected as Manager in the election's dated 22nd April, 1998. However, said Abdul Wahid Siddiqui was subsequently replaced by one Sri Syed Allauddin and (c) third faction headed by Mustaq Ahmad Khan alleges that after election dated 22nd April, 1998, Sri Abudul Vahid Siddiqui was removed on 24th May, 1998 and in his place, Sri Mustaq Ahmad Khan has been appointed as Manager.
6. One of the aforesaid Claimants, Sri Mustaq Ahmad Khan approached this Court by means of the Civil Misc. Writ Petition No. 24328 of 1998 challenging the order of the Regional Joint Director of Education dated 16th April, 1998 whereby Authorized Controller was appointed in the institution. The writ petition was disposed of vide judgment and order dated 4th August, 1998 directing the parties to appear before the District Inspector of Schools on the date fixed. The Court also restrained the contesting parties from managing the affairs of the School till final orders are passed.
7. The District Inspector of Schools in compliance of the order of this Court dated 4th August, 1998, vide order dated 17th October, 1998 refused to recognise the claims set up by the all the three factions and came to the conclusion that there was no valid Committee of Management and only option left, was to appoint an Authorised Controller, who will verify the validity of the membership of the general body and then constitute a Committee of Management of the institution in accordance with the scheme of administration.
8. This order of the District Inspector of Schools dated 17th October, 1998 was challenged by Sri Hamidullah Khan and Zameel Ahmad by means of Civil Misc. Writ Petition No. 42365 of 1998 in which Abdul Waheed Siddiqui and Mustaq Aahmad were arrayed as respondents. Another Civil Misc. Writ Petition No. 18438 of 1999 was also filed for same relief. Both the writ petitions were clubbed together and dismissed under judgment and order dated 18th August, 1999 with a finding that the dispute was purely factual in nature and therefore, parties may get their rights adjudicated by a Civil Suit. The order of the Single Judge was challenged by means of Special Appeal No. 989 of 1999. The Special Appeal was also dismissed vide Judgment and Order dated 18th February, 2001. The Judgment and order of the Division Bench passed in the said Special Appeal was questioned before the Hon'ble Supreme Court of India by means of Special Leave Petition. The said Special Leave Petition was also dismissed by the Hon'ble Supreme Court vide judgment and order dated 20th July,2001.
9. During this period the District Inspector of Schools as well as the Regional Joint Director of Education have passed various orders either appointing the Authorised Controller or withdrawing the same. These orders were challenged by means of various writ petitions being (1) Civil Misc. Writ Petition No. 32824 of 1999 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Mustaq Ahmad Khan and Anr. v. State of U.P. and Ors. (2) Civil Misc. Writ Petition No. 43611 of 1999 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Sri Hamidullah Khan and Anr. v. Joint Director of Education, Basti Region, Basti and Ors. (3) Civil Misc. Writ Petition No. 44814 of 1999 (The Committee of Management, Khair Industrial Higher Secondary School, city and District Basti through its President/Manager Mustaq Ahmad Khan son of Sri Fateh Mohammad Khan and Anr. v. Joint Director of Education, Basti Region, Basti and Ors. (4) Civil Misc. Writ Petition No. 2691 of 2000 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its Manager and Anr. v. District Inspector of Schools, Basti and Ors. (5) Civil Misc. Writ Petition No. 16464 of 2000 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Sri Mustaq Ahmad Khan and Anr. v. State of U.P. and Ors., (6) Civil Misc. Writ Petition No. 32460 of 2000 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Hamidullah Khan and Anr. v. Joint Director of Education, Basti Region, Basti and Ors., (7) Civil Misc. Writ Petition No. 46686 of 2000 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Sri Mustaque Ahmad Khan and Anr. v. The State of U.P. and Ors., (8) Civil Misc. Writ Petition No. 4969 of 2003 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Syed Alaluddin and Anr. v. Joint Director of Education, Basti Region, Basti and Ors., (9) Civil Misc. Writ Petition No. 5175 of 2003 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Hamid Ullah Khan and Anr. v. Joint Director of Education, Basti Region, Basti and Ors., (10) Civil Misc. Writ Petition No. 41890 of 2003 (The Committee of Management, Khair Industrial Higher Secondary School, Basti through its President/Manager Mustaq Ahmad Khan son of late Fateh Ahmad and Anr. v. State of U.P. and Ors., and (11) Civil Misc. Writ Petition No. 47909 of 2003 (Zameel Ahmad son of late Sri Maqbool Ahmad, Secretary, Committee of Management, Khair Industrial Higher Secondary School, Basti permanent Resident of near Town Club, Gandhi Nagar, Basti v. State of U.P. and Ors..
10. All the writ petitions were clubbed together and were decided by a common judgment dated 23rd February, 2004. It would be worthwhile to reproduce the following paragraphs of the judgment and order dated 23rd February, 2004 passed in aforesaid 11 connected writ petitions, which read as follows:
It may be mentioned here that it is not in dispute that the rival factions have not set up any elections held by them after 17th October. 1998 i.e.. the date of the order passed by the District Inspector of Schools. Thus, there was no occasion for the District Inspector of Schools to either refer the matter to the Joint Director of Education under Section 16-A(7) of the U.P. Intermediate Education Act, 1921 or to seek any guidance. It was for the Administrator/Authorised Controller to have decided the controversy and to act in accordance with the order dated 17th October. 1998. In the absence of any elections held/set up after 17th October. 1998. the Joint Director of Education did not have the jurisdiction to decide as to which is the validly elected Committee of Management of the School. Thus, the order dated 10th January. 2003 passed by the Joint Director of Education recognising the Committee of Management headed by Mustaq Ahmad Khan cannot be sustained.
So far as the question that this Court ought not to exercise its discretion under Article 226 of the Constitution of India is concerned, suffice it to mention that the order passed by the Joint Director of Education is in the teeth of the judgment dated 28th February, 2001 passed by this Court in Special Appeal No. 957 of 1999. This Court had already found that there is no factual or legal error In the order of the District Inspector of Schools. Therefore, this question should have been decided by the Authorised Controller/Administrator and not by the Joint Director of Education. As the Joint Director of Education has usurped the jurisdiction, the Court cannot be mute spectator. Thus, the Court is inclined to exercise its discretion and to interfere in the matter.
As the Administrator/Authorised Controller is yet to go into the question of validity of the membership of the General Body, the Court is not going into the question as to whether the amendments made in the scheme of administration in the meeting held on 15th September 1984 is valid or not It will be open to the parties to raise this plea before the Administrator/Authorised Controller.
11. Against this order of the learned Single Judge dated 23rd February, 2004, one of the faction headed by Sri Mustaq Ahmad Khan filed Special Appeal No. 259 of 2004. The Division Bench of this Court vide order dated 12th March, 2004 after admitting the case, passed following interim order:
We are informed by the learned Counsel for the respondents that on 28th February, 2004, the Administrator has already taken over charge of the college in question. In that view of the matter, let the Administrator proceed to take all steps to manage the affairs of the college in question. He is also permitted to proceed with the selection of the Committee of Management but no final selection shall be made until further orders.
12. Learned Counsel for the partes agree that the word 'selection' mentioned in the interim order dated 12th March, 2004 has wrongly been transcribed. They further agree that the Division Bench of this Court permitted the Authorised Controller/Administrator to take over charge for initiating the process for constitution of the Committee of Management, however, he was restrained from holding final elections itself.
13. In compliance of the interim order of the Division Bench of this Court dated 12th March, 2004, the District Inspector of Schools, who was the Authorised Controller at the relevant time, issued notices to the parties for the purposes of finalizing the list of members of the general body vide letter dated 10th March, 2004. Parties claim to have submitted their papers in compliance thereof. The District Inspector of Schools in his capacity as Authorised Controller passed an order dated 16th April, 2005, whereby he has held that the scheme of administration approved on 22nd January, 1964 continued to be operative and the Committee of Management constituted with Sri Mustaq Ahmad Khan as Manager on 24th May, 1998 is the lawful Committee of Management. It has lastly been recorded that the said order is being passed in compliance of the order of the Hon'ble High Court dated 23rd February, 2004 passed in Civil Misc. Writ Petition No. 4969 of 2003 referred to above.
14. This order of the District Inspector of Schools has been challenged by the Committee of Management with Sri Syed Allauddin as the Manger/President, by means of the present writ petition.
15. This Court on 5th May, 2005 stayed the operation of the order of the District Inspector of Schools dated 16th April, 2005 having regard to the order of the Division Bench of this Court referred to above.
16. Affidavits have been exchanged between the parties and with the consent of the parties the present writ petition is being disposed of finally at the admission stage itself.
17. It is contended on behalf of the petitioner that the order passed by the District Inspector of Schools in his capacity as Authorised Controller/Administrator dated 16th April, 2005 is in clear defiance of the interim order of the Division Bench of this Court passed in Special Appeal No. 259 of 2004. Even otherwise, it is submitted that the same is in defiance to the judgment of this Court passed in Civil Misc. Writ Petition No. 32824 of 1999 and connected writ petitions. Further the District Inspector of Schools in fact reviewed his earlier order dated 17th October, 1998 whereby he refused to accept the elections set up by the parties including those of Mustaq Ahmad Khan pertaining to the year 1998. The earlier order of the District Inspector of Schools dated 17th October, 1998 had been affirmed upto the Hon'ble Supreme Court of India and therefore, the impugned order dated 16th April, 2004 cannot be permitted to stand. It is lastly contended that admittedly the Authorised Controller has not constituted any fresh Committee of Management in any accordance with the directions issued by this Court under judgment dated 23rd February, 2004 till date.
18. Sri Ashok Khare Senior Advocate, on behalf of respondent No. 6 submits that the District Inspector of Schools who was also the Authorised Controller has acted in strict compliance of the judgment of this Court dated 23rd February, 2004, he has recorded a finding of fact that the scheme of administration approved in the year 1964 has not been amended. The Committee of Management as per the provisions of the scheme of administration (Reference Clauses 4,5 and 6) with Mustaq Ahmad Khan as the President/Manager was in effective control of the affairs of the institution, therefore, the election dated 24th May, 1998, wherein Mustaq Ahmed Khan was elected as Manager again are valid.
19. Lastly it is contended that the order passed by the District Inspector of Schools is in pursuance to the interim order of the Division Bench of this Court dated 12th March, 2004 passed in Special Appeal No. 259 of 2004 and is based on true and correct interpretation of the provisions of the scheme of administration.
20. I have heard counsel for the parties and have gone through the records of the writ petition.
21. During the arguments, it has been brought to the knowledge of this Court that Special Appeal No. 259 of 2004 has since been withdrawn and therefore, the interim order passed therein ceases to exist in the eyes of law.
22. From the facts as noticed herein above, it is apparently clear that the rival factions had set up a right to manage the affairs of the institution on the basis of their respective elections i.e. (a) first headed by Hamiddulah Khan dated 21st April, 1998 (b) second headed by Sri Abdul Wahid Siddiqui dated 22nd April, 1998 and (c) third by Sri Mustaq Ahmad Khan on 24th May, 1998. All the three elections were subject matter of consideration in Civil Misc. Writ Petition No. 24328 of 1998, which was decided under judgment and order dated 4th August, 1998, whereby a direction was issued to the District Inspector of Schools to adjudicate upon the respective claims after affording opportunity of hearing to the parties concerned. The District Inspector of Schools vide order dated 17th October, 1998 held that none of the elections were legal and valid and recorded a finding that it was necessary to appointment an Administrator/Authorised Controller to verify the list of the members of the general body and to constitute the Committee of Management afresh thereafter. This order of the District Inspector of Schools dated 17th October, 1998 has become final between the parties upto the Hon'ble Supreme Court of India (details whereof have been recorded above) and therefore, none of the parties can now be permitted to fall back upon the elections of the year 1998.
23. This Court under judgment and order dated 23rd February, 2004 passed in Civil Misc. Writ Petition No. 32824 of 1999 and other connected writ petitions referred to above in its operative portion directed as follows:
Before parting with the case, the Court feels it necessary and in the interest of the institution which is run by a minority community, that the dispute should be resoled as early as possible. In this view of the matter, the Court directs the District Inspector of Schools to act in accordance with the directions given by his predecessor in the order dated 17th October, 1998 and the Administrator/Authorised Controller who has taken over the charge, to decide the validity of the members of the General Body of the Society and to constitute a Committee of Management in accordance with the scheme of administration, as is applicable to the Institution in accordance with law after giving an opportunity of hearing to all the rival factions, within three months from the date a certified copy of this order is filed before the Authorised Controller/Administrator.
24. This order of the learned Single Judge has been challenged by both the factions (petitioner and respondent No. 6) by means of special appeal No. 259 of 2004 and other connected Special Appeals, (which have since been withdrawn) and has become final between the parties.
25. Thus under the aforesaid order of this Court the Authorised Controller has to constitute a fresh Committee of Management after finalizing the list of the members of the general body. He was also required to decide the question as to whether the amendments claimed by the rival factions in scheme of administration had been affected in the scheme of administration or not after affording opportunity of hearing to the parties concerned.
26. In paragraphs 16,17,18 and 19 of the present writ petition it has been stated that the District Inspector of Schools in his capacity as Administrator/Authorised Controller, in compliance of the order of this Court dated 23rd February, 2004, issued notices to the partis to submit papers regarding membership of the society only. A copy of the notice has been enclosed as Annexure-5 to the writ petition to which reply was filed in writing. At no point of time any notice was issued in respect of amendments in the scheme of administration or for personal hearing in the matter nor the parties were permitted exchange the documents and to file reply to the case set up by the other contesting party.
27. In the counter affidavit filed by the District Inspector of Schools, who was acting as the Authorised Controller, contents of paragraphs-18 and 19 of the writ petition have been replied by way of Paragraph-7, which reads as follows:
7. That the contents of paragraph Nos. 18 and 19 of the writ petition, as stated, are not admitted, incorrect and as such, the same are denied. It is wrong to say that no opportunity of hearing has been given to the petitioner and the order has been passed by the deponent without any authority of law. The deponent has issued the notices to the petitioner and Ors. on 10.03.2004 in response to which the petitioner Alauddin have submitted his reply and evidence on 17.03.2004. The deponent after considering the submission of the petitioner as is clear from the impugned order. Thus, the allegations of passing the order without affording any opportunity of hearing to the petitioner, is totally incorrect." From the aforesaid paragraph No. 7 it is apparently clear that the notice referred to in paragraph-7 is the notice dated 10th March, 2004, copy whereof has been enclosed as Annexure-4 to the writ petition, which is confined to the issue of membership only. In response whereof records of the membership alone were submitted before the District Inspector of Schools.
28. The District Inspector of Schools has not afforded any opportunity of hearing to the parties nor he permitted exchange of the documents which were filed by other side and in any view of the matter there was no opportunity for establishing the valididty of the amendments made in the scheme of administration as claimed by the rival factions. It is needless to point out that this Court vide judgment and order dated 23rd February, 2004, required the Authorised Controller/District Inspector of Schools to decide the issue of membership as well as amendments made in the scheme of administration after affording opportunity of hearing to the parties as would be apparent from relevant portion of the judgment and order of this Court dated 23rd February, 2004 quoted herein above.
29. It may be also recorded that on the validity of the amendments, said to have been made in the scheme of administration is dependent the issue of validity of the members, enrolled for the general body and, legality of election is dependent upon validity of the membership of the general body, which constitutes the electoral college for the elections of the office bearers of Committee of Management of a intermediate college.
30. The Authorised Controller/District Inspector of Schools could not have re-examined the elections set up by Sri Mustaq Ahmad Khan dated 24th May, 1998 which had already been held illegal under order of the District Inspector of Schools dated 17th October, 1998 specifically when the order had been affirmed upto the Hon'ble Supreme Court of India.
31. In the totality of the circumstances as noticed herein above, the order of the District Inspector of Schools dated 16th April, 2005 cannot be legally sustained and is hereby quashed. The District Inspector of Schools/Authorised Controller/Administrator of the institution in question is directed to act in strict compliance of the judgment and order of this Court dated 23rd February, 2004 passed in Civil Misc. Writ Petition No. 32824 of 2004 and other connected writ petitions. The aforesaid exercise may be completed within eight weeks from the date a certified copy of this order is filed before the District Inspector of Schools.
32. Till such action of the Authorised Controller/District Inspector of Schools shall manage the affairs of the institution.
33. Writ Petition is accordingly allowed.