Dispute in this writ petition relates to genuineness of the list of members of the General Body. Petitioners have questioned the order passed by the respondent no. 4 who vide his order dated 1.6.2007 has rejected the list submitted by the petitioners and affirmed the list submitted by the respondent no. 6. Question that fall for consideration in this writ petition is as to whether the District Inspector of Schools (in short DIOS) could examine the validity of the members constituting the General Body of the electoral college of the Society for the election of the Committee of Management.
The Jawahar Inter College is an Educational Institution (hereinafter referred as 'Institution') which is run and managed by the Committee of Management elected in accordance with the scheme of Administration, which is duly approved by the Director of Education. It is contended by learned counsel for the petitioners that he was elected as Manager of the Institution from 1996-03. Petitioner was elected as Manager on 16.10.2002 which was again subject matter of challenge before the appropriate authority. Regional Committee after examining the rival contention of the parties accorded sanction for recognition of the Managing Committee of the Institution headed by the petitioner. It is from here the litigating process was set in motion at the behest of respondent no. 6. He questioned the order of the Regional Committee. First impediment in the Constitution of this Committee was initiated by the Joint Director who vide his communication dated 16.8.2003 in asking the petitioners to appear before him. This order was questioned by the petitioners in Civil Misc writ Petition No. 34956 of 2003. Appointment of the petitioner as Manager of the Committee was questioned by the respondent no. 6 in Civil Misc Writ Petition No. 34780 of 2003. An order of injunction came to be passed by this Court on 13.8.2003 staying the order dated 25.6.2003 passed by the DIOS in attesting the signature of the petitioners. Special Appeal bearing No. 806 of 2003 was preferred by the petitioners and the Division Bench of this Court directed the learned Single Judge to dispose of both the writ petition. Learned Single Judge vide his order dated 21.11.2006 dismissed both the writ petition as having become infructuous. It seems that one more writ petition was filed by the respondent no. 6 bearing Civil Misc Writ Petition No. 66992 of 2006 which was finally disposed of directing the DIOS to decide the representation of the respondent no. 6 filed on 26.4.2006. This direction of the learned Single Judge was considered by the respondent no. 4 who after inviting objection from both the parties issued the impugned order dated 1.6.2007. It is this order which is subject matter of challenge before this Court.
During pendency of the present writ petition certain developments have taken place which are referred herein below for adjudication of the present case.
It appears that after the impugned order was passed a direction was issued by the DIOS appointing the Authorised Controller to hold the election of the Committee of Management of the Institution. The said order was challenged by the petitioner and was stayed by order dated 13.6.2007. A Civil Misc Writ Petition bearing No. 30219 of 2007 was filed by the Committee headed by respondent no. 6 seeking a direction for approval of the Committee of Management. The said writ petition was dismissed which was questioned in the Special Appeal. It was contended by the respondent no. 6 that the election was held on 12.6.2007 in which the Committee of management was constituted and was sent for approval to the Regional Committee. Division Bench of this Court held that the filing of the separate writ petition was uncalled for and it directed that the stay granted in the writ petition filed by the petitioner be taken up for consideration. Learned Single Judge on 2.4.2009 stated that since the matter for granting sanction to the newly constituted Committee is pending before the competent authority therefore the impugned order passed on 13.6.2007 would not come in the way of the authorities concerned to pass appropriate order in respect of the election held after the order impugned dated 1.6.2007 was passed. In pursuance to the direction, Committee of Management of Respondent no. 6 has been recognised by the Joint Director of Education and pursuant thereof the said Committee is functioning in the Institution. Elections were held under the supervision of the DIOS as erstwhile Managing Committee had completed its tenure at that point of time. Accordingly, it is stated that the duly elected Committee was constituted on 3.6.2010 and papers for recognition of the said committee was referred to the Competent Authority.
Now the question that arise for consideration is as to whether the election held in pursuance to the direction issued on 1.6.2007 can be questioned in the present writ petition as the new Committee of management has been put in saddle in the year 2010.
In order to appreciate and to understand the controversy raised by both the parties certain facts are required to be noted.
The Authorised Controller was in saddle at the time the dispute between the parties was pending during period form 2003-06 who was to determine the genuineness of the members of the Society. In case there is no Managing Committee in existence the Authorised Controller can perform all the function which includes initiation and conducting of the election process. A direction issued by this Court in Civil Misc Writ Petition No. 66992 of 2006 clearly makes a mention that 'Prabandh Sanchalak' has been appointed who is to determine the issue of initiation and conducting of the election. The direction also mandates that Prabandh Sanchalak will decide the list of membership constituting the general body and their entitlement to participate in the election of the Committee of Management. Direction issued to the DIOS was to decide the representation of the petitioner in accordance with law before initiating the proceedings for undertaking the election. This direction contemplates the two things:-
a) They will examine the representation filed by the respondent no. 6.
b) That the mode of determination would relate to examining of the list of membership constituting the General Body and their entitlement to participate in the election of the Committee of Management.
What is conceived by the order is that the authorised controller will have right to examine the rival claim of the members constituting the General Body and decide this issue before the elections are held.
In the light of this direction, respondent no. 4 while examining the rival contentions of the members constituting the General Body has passed the impugned order. Case of the petitioners is (a) that the issue with regard to eligibility of the members of the General Body stood determine and on the basis of this petitioner was appointed as Manager from 1996-03. A fresh appraisal of this issue which was already concluded was uncalled for; (b) that the petitioner was not given an opportunity to defend his case as the communication sent on 27.5.2007 was received by the petitioner only after the impugned order dated 1.6.2007 was passed.
On the other hand stand of the respondent is that the present writ petition has become infructuous as new Committee stands already constituted. Electoral college of 24 members was affirmed in the year 1993 and it is on the basis of this that the respondent no. 4 has accepted the list of members for electing the Committee of Management.
I have heard learned counsel for the parties and perused the material on record.
What emerges from the controversy raised is that the issue with respect to the eligibility of the members of the General Body has been decided by the respondent no. 4. Under the scheme of Act respondent No. 4 has been conferred with the powers to recognise the Committee of Management for attesting the signatures of the Manager. The purpose of conferring this power on the respondent no. 4 is to enable him to pay the salaries of the teachers on the bills submitted by the Manager.
Section 5 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereafter referred to as the '1971 Act') deals with the procedure for payment of salary in the case of certain institution and sub section (1) & (2) which are relevant for the purpose of controversy involved in the present petition are as follows:-
Procedure for payment of salary in the case of certain institutions.--(1) The management of every institution shall for the purposes of disbursement of salaries to its teachers and employees open in [a scheduled bank or a co-operative bank] a separate account to be operated jointly by a representative of the management and by the Inspector or such other officer as may be authorised by the Inspector in that behalf:
Provided that after the account is opened the Inspector may, if he is, subject to any rules made under this Act, satisfied that it is expedient in the public interest so to do, instruct the bank that the account shall be operated by the representative of the management alone, and may at any time revoke such instruction:
Provided further that in the case referred to in the proviso to sub-section (2), or where a difficulty arises in the disbursement of salaries due to any default of the management, the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may at any time revoke such instruction.
(2) The management shall deposit in the said account by such date as may be specified by general or special orders by the Inspector, eighty per cent, or where the State Government or an officer authorised by the State having regard to the money required to be disbursed, directs a higher percentage, then such higher percentage as it or he may direct, of the amount received from students as fees which in accordance with the general or special orders of the State Government in that behalf [and for so long as such orders are not made, in accordance with the directions of the Inspector] form part of the maintenance fund:
Provided that where the said percentage of fees is not deposited as aforesaid the Inspector may by order prohibit the management from making any realisation of fees from the students, and thereupon the Inspector may recover the fees (either through the teachers of the institution or in such other manner as he thinks fit) directly from the students and shall deposit the fees so recovered in the said account."
Import of the this Section reveals that double operation of account of the management contemplates that both the Management as well as the DIOS will jointly operate this account.
Respondent no. 4 is authorised to order for single operation of the account in case he is satisfied that it is expedient in the public interest to do so. The very nature of the powers to be exercised by the DIOS indicates that it is only to satisfy himself that the Managing Committee is legally constituted and recognised by the competent authority which would deal with the DIOS in operation of this account. It authorises the DIOS to examine the validity of the said Committee, which is a power incidental to the one conferred by Section 5 of the Act. It is in this area that prima face conclusion has to be drawn by the DIOS in examining the validity of the election of the Committee of Management. However, this power cannot be exercised in respect to all possible dispute which may arise amongst members of the Society relating to the eligibility of its members, mode and method in which the election is conducted and eligibility of the management of Committee constituted in such election. There are some disputes which are exclusively referable to forum constituted under the Act of 1921 as also under the Registration of Societies act 1860.
Two sets of disputes are required to be decided by the Prescribed Authority. One relates to the inter-se dispute between the rival managing committee who seek control of affairs of the Committee and other is in respect of the dispute raised by any member of the society regarding the constitution of managing committee by the General Body of the Society. Both kind of disputes relate to the manner in which the election of managing committee is conducted and its authenticity. Section 16-A(7) of the 1921 Act confers power on the Joint Director (Education) to resolve the dispute between the two rival committees seeing control of management.
In order to reach to a decision, with regard to actual control of the affairs, he has to incidentally decide the question about the validity of the elections. Power to determine the validity of the election is incidental and is circumscribed by the vary nature of the language used in the said section. Section does not empower the authority to set aside the election nor to upheld the same. The authority does not have power to entertain any application on behalf of the individual member or group of members questioning the election of managing committee. Limited powers to be exercised by the authority are in respect of the validity of the election and is only to record a finding as to which of the rival claimants is prima facie validly elected in accordance with the scheme of administration and not to entertain the plea of stranger. The entire enquiry into the validity of the election is incidental only to find out whether the persons claiming control have been validly elected or not.
While dealing with the question as to who actually control the affairs of the Society, the area of determination shall remain confined to the issue relating to legality of the election process which has been undertaken by the rival committees. What are the possible disputes which can be raised before the said authority. Two types of authorities are required to conduct the election of Managing Committee. One is the existing Managing Committee recognized by the DIOS and other by the Authorized Controller. Once the elections are conducted by the Managing Committee than the only area of dispute which can be raised (a) that the elections have been conducted in violation of the Scheme of Administration; (b) that the authorized Managing Committee suffers from any legal impediment in conducting the election; (c) that the members of the Committee have not been allowed to participate in the said election process whose authenticity stands verified by the concerned authority; (d) that the Managing Committee has initiated the election process after their tenure was over. These will be the issues which shall be determined on the basis of the record. It is only in this area that the dispute can be determined by the authority. Regional Committee constituted under the Government Order dated 19.12.2000 is required to give approval to the decision taken by the Joint Director. While doing so the following things are required to be examined i.e. handing over of the Managing Committee and attestation of the signatures of the Manager. While deciding the issue of actual control the following things which are required to be considered in this behalf i.e. (a) control over the funds of the Institution and Administration; (b) receipts of the Income from its properties; (c) While dealing with the issue of actual control which permits the authority incidentally to examine the validity of the election shall always have reference to the control of the Managing Committee on its Administration and funds as also receipts of Income received by such Society. This determination is subject to any decision taken by competent Court of jurisdiction. It is only to record a prima facie view as to which of the Managing Committee is in actual control and the area of determination would be what has been stated herein supra. Any dispute with respect to the membership shall be determined by Civil Court and till such decision is taken the Joint Director is competent to determine as to which of the rival claimants are in control of the managing Committee.
The powers which is required to be exercised by the DIOS are not statutory. He is nominated by the Government to be a Prescribed Authority for the purpose of according recognition to the validly constituted managing Committee. As already stated herein supra the power to be exercised by the said authority is in relation to dealing with managing committee which is a validly constituted for the purpose of managing the financial affairs of the society. It is only for the purpose of administrative convenience that the Prescribed Authority is required to ascertain the genuineness and validity of the Managing Committee with whom he is required to deal. Correctness and legality of the Managing Committee is incidental to the one required to be exercised under Section 5 of the Act. He can entertain a dispute raised by any member or group of the members of the society who questions the validity of the election conducted by the Society. He lacks the power to determine the dispute raised by two rival managing committee seeking control of the management. While deciding the question of validity of the managing committee he is required to exercise the same powers as is to be done by the Joint Director (Education ) under Section 16-A(7) of the Act. In both the situation, validity of the election becomes the core of the dispute. What are the possible disputes which can be raised and the nature of the right the claimant seeks to enforce is required to be indicated. The possible dispute which a member can raise is (a) that the election have not been conducted in accordance with the scheme of administration; (b) that the members who are eligible to vote and whose authenticity stands affirmed have not been allowed to caste their vote; (c) that the managing committee had outlived its tenure; (d) and bogus members have been allowed to participate in the election process; (e) incapacity of the office bearers to be appointed by the Managing Committee, what is the nature of determination required to be done by the said authority; (a) that whether the election had been conducted in accordance with the scheme of administration for the purpose of which stipulation in the scheme of administration is required to be examined; (b) whether members whose authenticity stands confirmed by the Prescribed Authority under any statute have been allowed to caste their vote or not; (c) whether members whose authenticity is not being certified by any authority have been allowed to caste their vote or not. These are only illustrative not exhaustive. What is specifically being debarred is (a) legality or otherwise of an election; (b) it cannot declare any election to be valid or invalid; (c) it cannot determine as to whether a particular member is eligible to vote or whether a person has been denied to vote claiming to be member of the society. These are all issue which are required to be determined in a different forum.
In the present case the DIOS has affirmed the list of members of the general body submitted by the respondent no. 6 and rejected the same filed by the present petitioner. This is an area which prescribed authority has no competence to do as it requires a determination in an area where personal rights of a member were sought to be recognised. Participation either by contesting election or exercising right of franchise is not fundamental right but merely a common right originating from statutes or the rules and by-laws of the society. Breach of statutory right under the rules and regulations can be redressed by the available remedy under the statute or by-laws or by a civil suit. Infringement of rights under the by-laws of the society can only be enforced by filing a civil suit. Issue with respect to the determination of the eligibility of the members cannot be decided either by the DIOS or by the Joint director (Education) in exercise of power under Section 16-A(7) of the Act. If any such dispute arise same is required to be resolved by reference under Section 4 of the Registration of the Societies Act. Section 4 of the Act reads as under:
4. Annual list of managing body to be field.-- Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of Joint- stock Companies, of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.
Section 4 of the Act provides a mechanism by virtue of which any alteration in the Constitution of the General Body of the Society or its Counsel or its managing committee is required to be brought to the notice of the Registrar of the Society. The revised list of the members of the society or managing committee is required to be filed before the Registrar only after it is affirmed in the annual general meeting of the society or in any other mode provided by the Rules of the Society. The list before its filing is authenticated by the general body or any other person as provided under the rules of the society. Section 4 only mandates the society to inform the Registrar regarding any addition or alteration in its Constitution. It is mandate of statute which is required to be complied with by all the societies. Registrar does not have the power to determine the validity of such list in case any such dispute is raised. He is empowered to refer it to the Prescribed Authority who shall hear and decide the same in a summary manner. In case of any doubt or dispute in respect of the election or continuance of the office bearers of the society he may pass pass order in respect thereof as he deems fit. This is provided by Section 25 of the Registration of the Society Act 1860. Prescribed Authority is the Joint Director and the DIOS depending upon the nature of the dispute which both the authorities are required to determine as discussed herein supra. Validity of the list of members submitted by the petitioner and respondent no. 6 cannot be determined by such authority. It involves the determination of personal right of an individual member. Any right which may flow from the by-laws of the Society such right admittedly cannot be determined by the DIOS or the Joint Director (Education). This is required to be determined by the Court of competent jurisdiction.
Therefore, determination made by the DIOS on 1.6.2007 was without jurisdiction. The question that arise in this writ petition as to what is the relief claimed by the petitioners. Two fold prayer has been made by the petitioners i.e. (I) for quashing the impugned order dated 1.6.2007 passed by the District Inspector of Schools, Gautam Buddh Nagar disapproving the list of members submitted by the petitioners; and other for commanding the respondents not to proceed with the election process of Committee of Management of Sri Jawahar Inter College, Maincha, District Gautambuddh Nagar which is scheduled to be held on 12.6.2007 on the basis of the impugned order dated 1.6.2007 approving the list of members submitted by the respondent no. 6.
So far as the first question is concerned same stands allowed. In respect of second prayer, it be seen that two elections have been conducted one in the year 2007 and other in the year 2010 which is not subject matter of challenge before this Court. Election process stands over as such the second prayer cannot be granted by this Court. Consequence of setting aside the impugned order dated 1.6.2007 would be that the voter list on the basis of which elections were held which was affirmed by authority who was not competent to do so. Any election which had been conducted on the basis of said list cannot be sustained. In this behalf petitioner can approach the proper authority for seeking quashment of the election based upon the voter list dated 1.6.2007 which stands already quashed by this Court. Since the elections have not been questioned in this writ petition as such no direction can be given for setting aside the same. Prescribed authority will examine this controversy only in the light of the direction issued by this Court that the order dated 1.6.2007 stands quashed. He will pass an order after hearing the parties in this behalf within a period of two months from the date of production of certified copy of this order. In case the conclusion of the enquiry is that the subsequent election held thereof is bad in law he will direct the authorised controller to have the voter list certified in accordance with law and thereafter direct the election to be held within two months thereafter.
With aforesaid observation the writ petition is disposed of finally.
Order Dated:- 22.12.2011 RKS/ (Justice Sunil Hali)