JUDGMENT Rakesh Tiwari, J.
1. Sri Durgaji Inter College Chiotidan, Nai Bazar, Mau is a recognized and aided institution governed by the provision of U.P. Intermediate Education Act, 1921 (U.P. Act No. 24 of 1971). The institution has an old scheme of administration approved by the Deputy Director of Education for its management. Clause 10 of the old scheme of the management provides filling of casual vacancy and Clause 11 empowers the President under the scheme to convene the meeting on the written proposal of 4 members and the procedure with regard to conduct of any meeting under Clause 12.
2. The undisputed election of the Committee of Management took place in the year 2003. In the said election Sri Salik Ram Upadhyaya was elected as President/Manager and the petitioner Sri Uttam Nisad was elected as Vice President whereas the respondent No. 5, Sri Rajendra Prasad Naik was elected as member of the Executive Committee. The said election was granted recognition by the educational authorities. Clause 10, 11 and 12 of the old scheme of administration is as under:
10 mik/;{k&v/;{k dh vuqifLFkfr vFkok infjDr dh fLFkfr esa /kkjk & dh mi/kkjk ¼1½ ls ¼7½ rd esa mfYyf[kr vf/kdkjksa dk mi;ksx dj ldsxk vFkok d`R;ksa dk lEiknu djsxk A 11- v/;{k vkSj mik/;{k dh vuqifLFkfr esa izca/k lfefr dh cSBdksa dh v/;{krk ea=h dh izkFkZuk ij dksbZ lnL; dj ldsxk A 12- izca/k lfefr dh izfr N% ekg vkSj laLFkk ds lnL;ksa dh lkekU; lHkk dh izfr nks o"kZ de ls de ,d ckj cSBd vo'; gksxh A ;fn cSBd u cqyk;h tk; rks fdlh Hkh lnL; dks vf/kdkj gksxk fd og cSBd cqyk;s A
3. Shri Salik Ram Upadhyaya expired on 5.1.2005. This created a casual vacancy for the post of President/Manager. The petitioner claims that an Agenda notice was issued by the Vice President on 6.1.2005 for convening meeting on 10.1.2005 for the purpose of filling up casual vacancies caused due to death of Shri Salik Ram Upadhyaya. It is alleged by the petitioner that in the meeting of the Committee of Management on 10.1.2005, decision was taken electing petitioner as President/Manager against the aforesaid casual vacancy. It is also claimed that consequently Agenda notice dated 15.1.2005 was issued for convening meeting on 20.1.2005 in order to take decision with regard to holding of fresh elections. The District Inspector of Schools by his order dated 11.10.2005 appointed election supervisor for holding of the fresh elections and accordingly election schedule was also published in the newspaper on 21.10.2005. The D.I.O.S. vide his order dated 24.10.2005 suspended his earlier order dated 11.10.2005 whereby he had appointed Election Supervisor for holding fresh elections.
4. Writ Petition No. 78373 of 2005 appears to have been filed by the petitioner Shri Uttam Nishad challenging the order passed by D.I.O.S. on 24,10.2005 which was disposed of with the following directions: -
During pendency of writ petition before this Court, it transpires that elections have been held on 01.01.2006, After issuance of Government Order dated 19.12.2000, such election will get life only if it is accorded recognition by Regional Committee constituted under Government Order dated 19.12.2000. Till date election dated 01.01.2006 has not at all been accorded recognition and the papers are lying with the District Inspector of Schools, as per information furnished. Petitioner is assailing validity of the said election on the ground that at no point of time, the person who has convened meeting and held election had any authority to hold election, and further, at no point of time he had ever been asked to function as Working President, and the resolution appointing him as Working President is totally manipulated document, as such no credibility can be attached to the same. It has been contended that elections have not been held as per provisions contained in the Scheme of Administration and valid members have not participated and in spite of the fact that petitioner, Uttam Nisad, who happens to be Vice President of the Management, no agenda notice was brought to his notice, informing and intimating date of election.
All these questions, which are being raised, can be very well looked into by the Regional Committee constituted under Government Order dated 19.12.2000, as such liberty is given to the petitioner to make afresh representation along with a certified copy of this order before the District Inspector of Schools, within a period of three weeks from today. In the event any such representation being made, the said authority shall transmit the entire papers to the Regional Committee, who before proceeding to accord approval to the election dated 01.01.2006 shall advert itself on following three issues;
(i) Whether the person who has convened meeting and held the election had the authority to convene meeting and hold election;
(ii) Whether the persons who participated in the said election are valid members of the general body of the society; and
(iii) Whether the election has been held in consonance with the Scheme of Administration.
In case the aforesaid three requirements are satisfied only then recognition can be accorded to the elections dated 01.01.2006. In case the aforesaid requirements are not satisfied then steps be undertaken for appointment of Prabandh Sanchalak with further direction to him to hold fresh elections. Regional Committee shall provide opportunity of hearing to Uttam Nishad and Hari Krishna Nayak.
In terms of aforesaid observations and direction, writ petition is disposed of.
5. The contention of the counsel for the petitioner is that notice was issued by Joint Director of Education dated 16.2.2006 to the petitioner as well as respondent No. 5 fixing 22.2.2006 and also directed the D.I.O.S. to submit his report. Both the petitioner as well as Respondent No. 5 submitted their written statement before the Joint Director of Education on 27.2.2006. The petitioner is aggrieved by the fact that though he had also submitted a written statement, no hearing was done by the Joint Director of Education and by the impugned order dated 18.3.2006, he has passed an order granting approval to the Committee of Management with respondent No. 4, Shri Hari Krishna Naik as President and respondent No. 5, Shri Rajendra Prasad Naik as Manager.
6. The counsel for the petitioner has assailed the impugned order dated 18.3.2006 on the ground that since the old scheme of administration had not been amended, as such it would be deemed to be covered under the amended scheme of -administration. It has been urged by Shri Ashok Khare, learned Senior Counsel that the questions which were referred for decision in the judgment dated 4.1.2006 in writ petition No. 78373 of 2005 have been decided on the misconception of law that the management of the institution would be governed by the amended scheme of the administration even though the old scheme of administration had not been amended. In this regard reference has been made by him to Annexure-4 to the writ petition from which it appears that the petitioner Shri Uttam Nishad has been appointed as the President of the Committee of Management. It is also urged by Shri Ashok Khare, learned Senior Counsel that the D.I.O.S. had granted approval for holding of the fresh elections on 11.10.2005 and election schedule had already been notified vide annexure-7 to the writ petition i.e. much prior to the meeting dated 21.10.2005 of the alleged committee of management in which Shri Hari Krishan Naik claims himself to have been elected as working President for conducting the fresh election.
7. Shri Ashok Khare has relied upon the paragraph 4 of (1994) 2 UPLBEC 1348, Committee of Management, Shahid Mangal Pandey Inter College, Nagwa, District Ballia and Ors. v. State of U.P. and Ors. Paragraph 4 of the aforesaid judgment has been relied upon both by the petitioner as well as the respondents and as such is being quoted for ready reference.
Having heard the learned Counsel for the parties, I am of the opinion that the order passed by the Regional Deputy Director of Education is not sustainable in law. The finding that the disputed election was not valid is based on the finding that the Scheme of Administration approved vide letter dated 29.3.1962 stood amended automatically on the basis of the notice dated 6.2.1985. A reading of Section 16-A of the U.P. Intermediate Education Act, 1921 (in short the Act) would show that every recognised institution shall be managed in accordance with the approved Scheme of Administration framed under and in accordance with Sections 16-A, 16-B and 16-C of the Act. It may be noticed that Sections 16-A, 16-B and 16-C were inserted by U.P. Act No. 35 of 1958. Scheme of Administration of every institution, as provided in Section 16-A(5), shall be subject to the approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without prior approval of the Director. The management of an institution is no doubt entitled to challenge the order passed by the Director of Education refusing to approve, amend or change the Scheme of Administration suggested by the management, by way of appeal to the State Government as comprehended by proviso to Sub-section (5) of Section 16-A of the Act. But no amendment or change in the Scheme of Administration shall be made without prior approval of the Director who shall be bound to approve, amend or change the Scheme of Administration as per order of the State Government, if any, passed under the proviso to Sub-section (5) of Section 16-A. Section 16-B of the Act visualises that in case of an institution already recognised at the commencement of U.P. Intermediate Education (Amendment) Act, 1958, a draft Scheme of Administration shall be prepared and submitted to the Director for his approval in accordance with Section 16-C within six months from the said commencement and in all other cases alongwith an application for recognition. In the instant case the institution was already recognised at the date of commencement of the U.P. Act No. 35 of 1958. The Regional Deputy Director of Education exercising power of the Director seems to have issued a show-cause notice to the management of the institution on 6.2.1985 suggesting therein certain amendments to be made in the already approved Scheme of Administration. It appears that the management of institution neither altered or modified the Scheme of Administration as required by the show cause notice dated 6.2.1985 nor did it file any objection as provided in Section 16-CCC of the Act. The question that arises for consideration is whether the amendment suggested by the Director vide show cause notice dated 6.2.1985 would be deemed to have been automatically made in the already approved Scheme of Administration. In my opinion, a conjoint reading of Section 16-A, Section 16-B(3), 16-C, 16-CCC read with Section 16-D(3)(vii) of the Act would not automatically be deemed to have been made in the already approved Scheme of Administration. The only way to get the suggested amendments or modifications made in the already approved Scheme of Administration is to appoint Authorised Controller under Sub-section 3 (vii) read with Sub-section (4) of Section 16-D of the act and to get the suggested alterations or amendments made in the approved Scheme of Administration through the Authorised Controller, but so long as the Scheme of Administration is not so amended, the already approved Scheme of Administration would continue to be operative except in so far as it is inconsistent with the principle laid down in the third schedule as provided in Section 16-CCC of the Act. The already approved Scheme of Administration, in so far as it is inconsistent with the principle laid down in the third schedule, shall automatically cease to be inoperative.
It is contended by the counsel for the petitioner that the impugned order passed by the Joint Director is wholly illegal and in the teeth of the aforesaid judgment, which provides that until the Scheme of Administration is not amended, it shall continue to apply.
Counsel for the respondents has also relied upon the aforesaid judgment cited by the petitioner counsel and emphasized that infact the aforesaid judgment is clearly provides that "so long as the Scheme of Administration is not amended, the already approved Scheme of Administration would continue to be operative except in so far as it is inconsistent with the principle laid down in the third schedule as provided in Section 16-CCC of the Act. The already approved Scheme of Administration, in so far as it is inconsistent with the principle laid down in the third schedule, shall automatically cease to be inoperative." He further submits that respondent No. 4 had filed the documents mentioned in annexure-12 to the writ petition before the Regional Committee states that in the old Scheme of Administration, there was no provision for appointing departmental observer giving registered notice to the members etc. i.e. the procedural part for holding fresh election was not there. He also submits that the D.I.O.S. had earlier suspended its order dated 11.10.2005 as the list of General Body of the Members of the Committee of Management was not before him, however when it came to his knowledge that there is a valid list of members of the General Body on the basis of which election for the year 2003 was conducted, he recalled the aforesaid order by order dated 24.10.2005. It is also submitted that the petitioner Shri Uttam Nishad does not dispute the elections held in the year 2003 on the basis of the aforesaid list and infact he was a signatory of the list on the basis of which earlier election in 2003 were held.
8. Counsel for the respondents has relied upon paragraph 4 of the (1993) 2 UPLBEC 1333, Basant Prasad Srivastava and Ors. v. State of U.P. and Ors., in which it has been held that where in the educational institution the election/finalisation of election process of Committee of Management is challenged under Article 226, the writ petition under Article 226 would not be maintainable and the only remedy in such cases is by filing election petition or filing civil suit. Paragraph 4 of the aforesaid judgment is quoted as under:
The learned Single Judge has observed that it was well settled proposition of law that in proceeding under Article 226 of the Constitution Courts should not interfere with election process and finalisation of list is not amenable to challenge in writ jurisdiction. It has also been observed that dispute regarding correctness of voters list is a highly disputed question of fact which can be decided only by Civil Court. With these observations the learned Single Judge directed that the result of the be declared forthwith and further steps be taken in accordance with law.
9. After hearing the counsel for the parties and perusal of record as well as considering the law cited by the parties, I am of the view that in the old scheme of administration there is absence of procedure for holding fresh elections in the certain circumstances. It appears from the impugned order that though the Joint Director has stated that since the old scheme of administration, which has been approved, has not been amended as such the amendment in the new scheme of administration would apply, is limited in should be read in its application as operative only in so far as the old scheme is new scheme in view of Committee of Management, Sahid Mangal Pandey Inter College (supra) is consistent, the respondent No. 5 already in office and his elections have been approved by the Joint Director by the impugned order and his signature had been attested on 19.3.2006 as Manager of the institution and he is in effective control of the institution.
10. Where there is a dispute of Committee of Management under Section 16-A(7) of the U.P. Intermediate Education Act No. 24 of 1971, the decision as to actual control has to be taken by the Regional Joint Director of Education. The only recourse open is to get the dispute adjudicated. By the Prashashnik Adhikari in the G.O. dated 19.12.2000 only certain administrative work has been distributed by the State Government at Regional level between the D.I.O.S. and Deputy Director of Education for discharging administrative functions enumerated therein. The G.O. is as under: -
e.Myh; vf/kdkfj;ksa dk dk;Z foHkktu milfefr dk xBu egRoiw.kZ dk;Z lkSais& jktkKk la[;k % 3446! 15&13&2000&9¼[email protected]½ izs'kd] ih0ds0>k lfpo] ek/;fed f'k{kk m0iz0 'kklu lsok esa] 1- f'k{kk funs'kd ek0 m0iz0 y[kuÅ] 2- f'k{kk funs'kd cs0] m0iz0 y[kuÅ] f'k{kk vuqHkk&13 ¼y[kuÅ] % fnukad 19 fnlEcj] 2000½ fo"k; % e.My Lrj ij e.Myh; la;qDr f'k{kk funs'kdksa ,oa e.Myh; mi f'k{kk funs'kdksa ds e/; dk;ksZ ds foHkktu ds laca/k esa A egksn;] mi;qZDr fo"k; in vius vk0'[email protected]] fnukad 9 tuojh 19999 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd 'kkluns'k la[;k [email protected]&10&9¼[email protected] fnukad 19 fnlEcj] 1995 rFkk 'kklukns'k l[;k [email protected]!15&13&99¼11½94 fnukad 12 fnlEcj 195 }kjk e.My Lrj ij e.Myh; vf/kdkfj;ksa ds iz'kklfud vf/kdkj fu/kkZfjr fd;s x;s Fks A 'kklu }kjk lE;d~ fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd e.My Lrj ij e.Myh; la;qDr f'k{kk funs'kdksa rFkk e.Myh; mi f'k{kk funs'kdksa ds iz'kklfud vf/kdkjksa dks rkRdkfyd izek.k ls fuEuer~ ifjofrZr dj fn;k tk;% 1- e.Myh; la;qDr f'k{kk funs'kdksa ds iz'kklfud vf/kdkj% 1- e.Myh; la;qDr f'k{kk funs'kd eq[; :i ls csfld rFkk ek/;fed f'k{kk ds dk;Zdzeksa dk vuqJo.k rFkk leh{kk djsaxs vkSj fofHkUUk vf/kfu;eksa ds vUrxZr iznRr vf/kdkjksa dk iz;ksx iwoZor djrs jgsaxs A 2- cs0 ,oa ek0 f'k{kk ds lHkh dk;ksZ ;kstukvksa ,oa iz'kkldh; fu;a=.k ds izfr mRrjnk;h gksaxssA 3- cs0 f'k{kk ds dk;Zdzeksa esa ftyk rFkk jkt; ;kstukvksa ds dk;Zdzedkas ds e.My Lrj ij vuqJo.k 10 osa o 11osa foRr vk;ksx dsUnz iwjksfu/kkfur rFkk okg~; lgk;frr ;kstukvksa dh leh{kk fo/kku [email protected]/kku ifj"kn iz'uksa ds mRrj ds izs"k.k rFkk fo/kku e.My ds fofHkUu laifRr;ksa ls lacaf/kr mRrjksa ds izs"k.k ek0 eq[; eh th izdj.k yksdk;qDr yksd f'kdk;r Hkkjr ljdkj rFkk mPpLrjh; lUnfHkZr izs"k.k dh leh{kk o vuqJo.k djsaxs A e.My ds tuinksa esa& v/;kidksa dh mifLFkfr] fo|ky;ksa ds fujh{k.k] fofHkUu vf/kdkfj;ksa }kjk vius drZO;ksa ds fuoZgu rFkk d{kk 5 o d{kk 8 ds ijh{kk;sa o vU; foHkkxh; dk;Zdzeksa dk vuqoj.k o leUo; djsaxs A e.My Lrjh; fofHkUu izdkj dh 'kS{kf.kd o vU; laxr dk;Zdzeksa ds fdz';kUo;u] csf'kd rFkk vukSipkfjd f'k{kk ds vU; egroiw.kZ izdj.kksa ij ekxZn'kZu nsus gsrq mRrjnk;h gksaxs A e.My ds vUrxZr r`rh; oxhZ; deZpkfj;ksa ds tks vf/kdkj mUgsa izkIr gS muds fdz;kUo;u csfld rFkk ek/;fed lHkh foHkkxksa dk lq;qDr f'k{kk funs'kd gh djsaxs A e.My ds jktdh;] ifj"knh;@lgk;rk izkIr f'k{k.k laLFkkvks ds le; ls osru Hkqxrku o isa'ku Hkqxrku ds vuqJo.k ds fy, Hkh mRrjnk;h gksaxs rFkk fu;fer ctV vkfn ds izs"k.k vkfn ds Hkh leUo; dk dk;Z Hkh djsaxs A csfld f'k{kk ds vUrxZsr O;og`r gksus okys dk;ksZ ds fy, lacaf/kr lgk;d f'k{kk funs'kd cs0 e.Myh; la;qDr funs'kd dh visf{kr lg;ksx iznku djsaxs A IkkB~;iqLrdksa dh miyC/krk dk vuqJo.k la;qDr f'k{kk funs'kd }kjk fd;k tk;sxk A csfld rFkk ek0 f'k{kk ds e.My Lrj ds leLr dk;ksZ ds izHkkoh vuqJo.k ds fy, e.Myh; mi f'k{kk funs'kd rFkk lgk;d f'k{kk funs'kd cs0 ij la;qDr f'k{kk funs'kd dk iz'kkldh; fu;a=.k jgsxk rFkk e.My dh iwjh f'k{kk O;oLFkk ds lqpk: :i ls lapkyu ds fy, budk mRrjnkf;Ro Hkh Li"V ifjHkkf"kr jgsxk A e.Myh; la;qDr f'k{kk funs'kd ds ek/;fed f'k{kk ds dk;ksZ ds fy, budh okf"kZd xksiuh; vk[;kvksa esa f'k{kk funs'kd ¼em0½ rFkk csfld f'k{kk ds dk;ksZ ds laca'k esa f'k{kk funs'kd cs0 f'k{kk izFke vk[;krk vf/kdkjh ds :i esa izfof"V djsaxsa A la;qDr] f'k{kk funs'kd& e.My mi f'k{kk funs'kd rFkk e.Myh; lgk;d f'k{kk funs'kd cs0 ds izFke vk[;krk vf/kdkjh gksaxsa A 2- e.Myh; mi f'k{kk funs'kdksa ds iz'kklfud vf/kdkj% 1- leLr v'kkldh; ek/;fed fo|ky;ksa ds isa'ku izdj.k tks vHkh rd e.Myh; lq;qDr f'k{kk funs'kd }kjk O;g`r fd;k tkrk gS] mu leLr izdj.kksa dks O;g`r fd;'k tk;sxk A 2- v'kkldh; ek0 fo|ky;ksa ds eklkU; Hkfo"; fuokZg fuf/k ls vLFkk;h vfxze] chek vkfn dh Lohd`fr tks lEizfr e.Myh; la;qDr f'k{kk funs'kd }kjk dh tkrh Fkh] dks e.Myh; mi f'k{kk funs'kd }kjk fd;k tk;sxk A 3- v'kkldh; ek0 fo|ky;ksa esa v/;kidksa ds vo'ks"k dk Hkqxrku :0 20][email protected]& dh lhek ds vUrxZr e.Myh; la;qDr f'k{kk funs'kd }kjk fd;k tkrk gS] vc dk;Z e.Myh; f'k{kk funs'kd rFkk e.Myh; mi f'k{kk funs'kd ds la;qDr gLrk{kj ls fd;k tk;sxk A rhu o"kZ ls iqjkus vo'ks"k ns;ksa ds izdj.k f'k{kk funs'kky;] bykgkckn }kjk fuLrkfjr fd;s tkrs Fks A tks :0 20][email protected]& lhek rd e.My Lrj ij e.Myh; la;qDr f'k{kk funs'kd rFkk mi f'k{kk funs'kd }kjk la;qDr :i ls fuLrkfjr fd;k tk;sxk A uohu fu;qfDr;ksa ,oa U;k;ky;ksa izdj.kksa ij dk;Zokgh gsrq funsZ'k funs'kky; dh laLrqfr ij 'kklu Lrj ij fy;k tk;sxk A 4- mDr lanfHkZr 'kklukns'k fnukad 12 fnlEcj] 1995 }kjk foHkUu izdkj ds vodk'k Lohd`r djus dk vf/kdkj e.Myh; la;qDr f'k{kk funs'kd dks fn;k x;k gS] dk vc e.Myh; mi f'k{kk funs'kd }kjk fd;k tk;sxk A e.Myh; la;qDr f'k{kk funs'kd dsoy e.Myh; mi f'k{kk funs'kd dks vkdfLed vodk'k lohd`r djsaxsA 5- iSuy fujh{k.k ,oa vuqJo.k dk dk;Z e.Myh; mi f'k{kk funs'kd }kjk Hkh fd;k tk;sxk A 6- ek/;fed Lrj ds e.My Lrj ds dhM+k izfr;ksfxrkvksa dk vk;kstu ,oa vuqJo.k A 7- ftyk ;kstuk] jkt;kstuk dk vuqJo.k A 8- osru Hkqxrku dk vuqJo.k 9- vkfMV vk[;kvksa ds izs"k.k dk vuqJo.k 10- ekU;rk izdj.ksa ds fuLrkj.k ,oa vuqJo.k mDr iz'kklfud vf/kdkjksa ds vfrfjDr tks iz'kklfud vf/kdkj fofHkUu 'kklukns'kksa }kjk e.Myh; la;qDr f'k{kk funs'kdksa rFkk e.Myh; mi f'k{kk funs'kdksa dks fn;s x;s Fks] rFkkor cus jgsaxs A 'kklu Lrj ij fujUrj ;g f'kdk;rksa izkIr gks jgha gSa fd ek/;fed f'k{kk vf/kfu;e] 1921 ,oa osru forj.k vf/kfu;e] 1971 }kjk izkIr vf/kdkjksa dk dfri; vf/kdkfj;ksa }kjk nq:i;ksx fd;k tk jgk gS A blfy, e.Myh; la;qDr f'k{kk funs'kd dh v/;k{krk esa ,d lfefr dk xBu fd;k tkrk gS ftlesa e.Myh; mi f'k{kk funs'kd rFkk lacaf/kr tuin ds ftyk fo|ky; fujh{kd lnL; gksaxs A 3- ;g lfefr fuEufyf[kr izdj.kksa ij fopkj djsxh%& 1- izcU/kdksa ds gLrk{kj djuk A 2- osru forj.k vf/kfu;e ds vUrxZr lkf/kdkj fu;a=d dh fu;qfDr A 3- leLr izdkj ds izcu/kdh; fookn A 4- f'k{kdksa ds ofj"Brk laca/kh fookn A 5- osru vuqeU;rk ls lacaf/kr leLr izdj.k U;k;ky;h izdkj.ksa dk NksM+dj A ;g lfefr mDr izdj.kksa dk ijh{k.k djus mijkUr viuh laLrqfr ml vf/kdkjh dks izLrqr djsxh] tks vf/kfu;eksa ds vUrxZr bu dk;ksZ dks djus ds fy, vf/kd`r gS A bl lfefr dh ekg esa nks ckj fu;fer :i ls cSBdsa vk;ksftr gksaxh A U;k;ky; izdj.kksa ij mDr lfefr viuh laLrqfr f'k{kk funs'kd dks izf"kr djsxh] ftudh vk[;k ,oa laLrqfr izkIr gksus ij 'kklu }kjk dk;Zokgh gsrq funsZ'k fn;k tk;sxkA Hkonh;
¼ ih0ds>k ½ lfpo A
11. Perusal of the G.O. shows that the administrative work distributed as detailed in serial 1 to 3 by the Regional Joint Director of Education and serial Nos. 1 to 10' by the Regional Deputy Director of Education and that the Regional Level Committee under the notification dated 19.12.2000 is established and empowered to consider and deliberate the question regarding issues mentioned at serial Nos. 1 to 5 mentioned in the last Para of the order above as provisions of the U.P. Intermediate Act, 1971 and Payment of Salaries Act, 1971 are being misutilised by the authorities.
12. From the G.O, it is clear that the Regional Level Committee has to prepare a report, which shall be forwarded to the authority, who has to take decision under the Act of 1921. The Regional Level Committee cannot exercise judicial or quasi-judicial function until it is specifically directed by the High Court or Hon'ble Supreme Court in a given case. Even if any of the parties are not satisfied, then in that case remedy is not before the High Court in writ petition under Article 226 of the Constitution, but before the Civil Court by means of suit as disputed questions of facts can only be decided by the Civil Court after documentary and oral evidence is adduced. Though the basis of the G.O. has been upheld in Special Appeal No. 1394 of 2004 the constitution of Regional Level Committee is only that of a recommendatory body and it has no authority or jurisdiction to decide the disputes of Committee of Management under the Government Order dated 19.12.2000, for a Government Order cannot override or replace the provision of law i.e. Section 16-A(7) of the U.P. Intermediate Education Act, 1971. Therefore it cannot exercise powers of Section 16-A(7) which are quasi judicial and are to be exercised only by the Authority specified.
13. The Regional Level Committee is constituted under the G.O. by the very same officers, who are authorities under the Act. Their judgment would lack transparency. It is suggested that the State Government may consider appointment of judicial persons other than educational and administrative authority in the Committee, So that the need of the time to check and balance of power exercised by the Regional Level Committee, Where the order dated 19.12.2000 of the Regional Level Committee is concerned, it appears to be more politically motivated.
14. The matter also came up for consideration by Division Bench in Special Appeal No. 1078 of 2005, Munna Lal Singh and Anr. v. State of U.P. and Ors. arising out of judgment dated 30.8.2005 in writ petition No. 38907 of 2004. Their Lordships in the aforesaid appeal opined: -
We are of the opinion that the Government Order cannot in any manner had to vary or alter the provisions of the statute which is the product of the State Legislature or its predecessor. However, the Government Order can, and indeed, does operate in areas which are silent in the Act and operating in that area, does not in any manner touch the Act.
It is noticed that within the Government Order itself the report the Committee is to be forwarded to the authority under the Act, which has jurisdiction to decide the matter. This finding of the Government Order itself presupposes that it is not within the jurisdiction of the Committee itself to decide the matter but that the jurisdiction for decision is only ascertained from the provision of the 1921 Act itself.
15. I am also supported in my view by another judgment of Division Bench in Special Appeal No. 1394 of 2004, Committee of Management v. Regional Joint Director of Education and Anr., wherein it has been observed: -
A perusal of the Government Order 19.12.2000 clearly shows that the Regional Level Committee has to merely send its recommendation to the officer authorized to pass the order under the provisions of the Act. It is, therefore, clear that the order has to be passed by the Regional Joint Director of Education, Agra but on the basis of the recommendation made by the Regional Level Committee. We are, therefore, unable to accept the contention advanced by the learned Senior counsel for the appellant that the provisions of the Government Order run contrary to the provisions of Section 16-A-7 of the Act.
16. In the instant case, the Regional Committee has decided the question in view of the directions of this Court under the judgment of this Court dated 4.1.2006 in writ petition No. 78373 of 2005, Committee of Management and Ors. v. State of U.P. and Ors., but the dispute still persists in spite of several innings of litigation before the authorities and the High Court. If the parties approach the High Court more than once, disputing election of Committee of Management or the college of the Society, it is a sure indication that litigation has deep roots in disputed facts and in the circumstances the matter should invariably be ordered to be decided in Civil Courts, which can give findings of facts on basis of oral and documentary evidence, which is not feasible in writ jurisdiction where courts are already burdened. If there is any grievance to either of the parties regarding the recommendation of Regional Committee of order passed under Section 16-A(7), I am of the firm view that they have to approach the Civil Court and get the dispute settled by findings of facts there. It is not open to them to approach in the writ petition again and again under Article 226 of the Constitution without first getting the dispute settled finally through Civil Court.
17. In cases of questions of memberships of Committee of Management under Section 25(1) of the Societies Registration Act, the only course open is by adjudication by Civil Court finally. Whenever there is a whisper of dispute regarding the electoral college, the Committee of Management elections or election process which requires findings of facts by oral and documentary evidence, Civil Court is the only remedy and writ petition is not maintainable under Article 226 of the Constitution as has been also held by the Division Benches of this Court in the case of Basant Prasad Srivastava (supra).
18. The writ petition has been filed on factual grounds and is not maintainable as such. I am supported in my view by a recent judgment of the Hon'ble Supreme Court in 2006 (109) FLR 223 Himmat Singh v. State of Haryana and Ors. In paragraph 11 of the aforesaid judgment the Hon'ble Supreme Court has held that only question of law can be raised and not statement of fact and it was further held that "whether statements of the appellants or the respondents were correct or not could not ordinarily be decided in a writ jurisdiction. It is well known that in writ petition ordinarily such a disputed question of fact could not be entertained. The High Court arrived at finding of fact on the basis of affidavit evidence.
19. This Court is not inclined to interfere in the writ petition in exercise of powers under Article 226 of the Constitution. The petitioner has an alternative remedy before the Civil Court.
20. For the reasons stated above, without entering in disputed questions of facts, the petition is dismissed on the ground of alternative remedy.