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2009 DIGILAW 2657 (ALL)

COMMITTEE OF MANAGEMENT v. STATE OF U. P.

2009-07-24

PRADEEP KANT, S.N.H.ZAIDI

body2009
JUDGMENT Hon’ble Pradeep Kant, J.—The fight amongst two rival groups for taking control and management over the institution has given rise to the present special appeals. 2. The contest has been going on right from the year 1984, but till date elections of the Committee of Management could not be held to the satisfaction of one or the other party and also that of the educational authorities, who at times disapproved the elections. 3. The matter has been brought to the Court earlier, a reference of which in short has been given in the later part of the judgment, but before adverting to the special appeals, it is pertinent to take note of and mention that in pursuance of the order passed by the learned Single Judge in Writ Petition No. 4101 (MS) of 2007, decided on 20.11.07, out of which judgment and order, Special Appeal No. 1000 of 2007 has been filed, the District Inspector of Schools has declared the list of valid members and the elections in pursuance of the said list have also been held as far back as on 27.1.08, but the result of the same has not been declared because of the interim order passed by the Court. 4. Special Appeal No. 61 of 2007 has been filed challenging the order passed in Writ Petition No. 2230 (MS) of 2006, decided on 1.12.2006, by means of which, the order passed by the Joint Director of Education was quashed and the matter was referred back to him for deciding the controversy afresh. By means of the aforesaid order, the Joint Director of Education had directed for holding fresh election from the valid list of members. 5. It has been urged by the respondents that both the special appeals have become infructuous, as fresh elections have been held and in the order passed by the learned Single Judge in Writ Petition No. 4101 (MS) of 2007, liberty has been given to the aggrieved person to challenge the election, if they are aggrieved and, therefore, there remains no subsisting cause of action or lis to be decided in special appeal. 6. 6. Learned counsel for the appellants has, however, reiterated that Special Appeal No. 1000 of 2007 deserves to be decided on merits, as the Joint Director, in pursuance of the order passed by the learned Single Judge on 1.12.06 in Writ Petition No. 2230 (MS) of 2006, has not decided the controversy in accordance with the directives issued and, therefore, any action taken on the basis of such a direction of the Joint Director of Education, is per se illegal, arbitrary and is liable to be quashed, and consequently the special appeal deserves to be allowed. 7. In regard to Special Appeal No. 61 of 2007, suffice would be to mention that the order impugned dated 1.12.2006, remanded the matter to the Joint Director of Education with certain directions, and the matter having been decided by the Joint Director of Education, which order became the subject matter of challenge in Writ Petition No. 4101 (MS) of 2007, the said special appeal has lost its efficacy and utility. The Special Appeal No. 61 of 2007, therefore, is liable to be dismissed on this ground. 8. In Special Appeal No. 1000 of 2007, the appellants have moved an application for amendment, challenging the determination of membership by the District Inspector of Schools, which amendment application has been opposed by the respondents, saying that elections have already been held in pursuance of the said list and, therefore, if the appellant is aggrieved, he can challenge the election in the appropriate proceedings, but the present special appeal does not survive. 9. We have considered the aforesaid arguments and find that the amendment in the given facts and circumstances of the case is not permissible, as the holding of fresh elections in pursuance of the directives issued by the High Court in Writ Petition No. 2230 (MS) of 2006, cannot be subject matter of challenge in these proceedings and that propriety also demands, that there has to be an end of the on going litigation in the interest of the institution itself. Besides it is a cause of action if at all any cause of action had accrued to the appellants to challenge the elections, which would require specific pleadings for the purpose to be raised in appropriate forum where the contesting parties would be given opportunity to put their defence and, thereafter the matter will have to be considered in accordance with law. 10. 10. The record reveals that right from the year 1984 the dispute regarding Committee of Management of the institution known as Mahatma Govind Sahib Inter College, Dulhupur, Ambedkar Nagar, is engaging the attention of the departmental authorities as well as of the High Court. 11. Number of orders were passed at one time or the other by the departmental authorities and all became the subject matter of challenge before the High Court, in which time and again directions were issued for holding elections and determination of membership. 12. To give a quick reference of the aforesaid events, it would be pertinent to mention that in the year 1983-84 against the direction issued by the District Inspector of Schools to the President of the Committee on 27.6.1984 to hold the election from amongst the valid members, the appellant Raj Pati Singh filed Writ Petition No. 3311 of 1984. It appears that the elections were held on 25.11.1984, in which the signatures of the appellant Raj Pati Singh were attested on 9.1.1985, and that writ petition, therefore, was got dismissed as not pressed. 13. It is the case of the appellants that they are in effective control of the institution right from 1985 and that no dispute was raised about the continuance of Raj Pati Singh as Manager till 2003. It was only in the year 2003, when Satya Narain filed Writ Petition No. 4440 of 2003, alleging that no elections have been held for the past several years, whereas according to the appellants elections were held on 6.1.2002. The elections were said to have been held by Vindhyachal Singh, the present appellant on 23.3.2003, though this election was not accepted by the appellants. 14. According to the appellants, the last elections were held on 9.1.2005, in which Ram Bahadur Singh was elected as President and the appellant No. 2 Raj Pati Singh was elected as Manager. 15. On a rival claim being raised by the respondent Nos. 4 and 5, who claimed the elections of 2003, the controversy was decided by the Joint Director of Education vide order dated 5.2.2005, recognized the Committee of Management, in which Raj Pati Singh was elected as Manager on the basis of election held on 6.1.2002. 16. 15. On a rival claim being raised by the respondent Nos. 4 and 5, who claimed the elections of 2003, the controversy was decided by the Joint Director of Education vide order dated 5.2.2005, recognized the Committee of Management, in which Raj Pati Singh was elected as Manager on the basis of election held on 6.1.2002. 16. In pursuance to the election held on 9.1.2005, the appellant No. 2 raised claim for attestation of signatures and the District Inspector of Schools referred the matter to the Regional Level Committee, who recommended for attesting the signatures of the appellant No. 2 vide order dated 24.2.2005 and in pursuance thereto, the signatures of the appellant No. 2 were attested on 14.3.2005. 17. The respondent Nos. 4 and 5 challenged the order dated 5.2.2005 before the High Court by means of Writ Petition No. 1994 (MS) of 2005, which was finally decided on 17.11.2005, quashing the order dated 5.2.2005 and the matter was sent back to the Joint Director of Education for deciding it afresh. The appellant No. 2 filed fresh representation on 29.11.2005 giving details of all the previous elections and the respondent Nos. 4 and 5 had also filed their representations. A plea was raised by the appellants that certain documents submitted by respondent Nos. 4 and 5 were forged. 18. The Joint Director of Education, however, found that the elections of the appellants as well as of the respondent Nos. 4 and 5 were not valid and directed for holding fresh elections. This order dated 15.4.2006 became the subject matter of challenge by the appellants in Writ Petition No. 2230 (MS) of 2006, which has been allowed on 1.12.2006 with the direction to the Joint Director of Education to decide the controversy afresh, as mentioned earlier. This time, again the Joint Director of Education found that the elections held by the appellant No. 2 as well as respondent Nos. 4 and 5 were invalid and, therefore, a direction was issued to the District Inspector of Schools to verify the list of valid members and thereafter elections be held. This order became the subject matter of challenge again, which petition has been dismissed by the learned Single Judge after holding that the writ petition is premature and a cost of Rs. 15,000/- is also imposed upon the appellants. 19. This order became the subject matter of challenge again, which petition has been dismissed by the learned Single Judge after holding that the writ petition is premature and a cost of Rs. 15,000/- is also imposed upon the appellants. 19. Sri Anil Tiwari, learned Senior Advocate, assailing the aforesaid order passed by the learned Single Judge, mainly argued that the order passed by the Joint Director of Education was not in consonance with the directives issued by the High Court in its judgment and order dated 1.12.2006 and that the signatures of the appellant No. 2 were attested by the District Inspector of Schools on 14.3.2005 and, therefore, it cannot be said that they were not in effective control of the institution or the elections held by them were not valid. 20. A further plea has been raised that the learned Single Judge did not give any opportunity of hearing. 21. The pleas aforesaid have been responded too by the learned counsel for the respondents Sri Manish Kumar, urging that the learned Single Judge has given full opportunity of hearing and the order was passed after taking into consideration the entire facts and circumstances of the case, which does not call for any interference, moreso when the learned Single Judge has dismissed the writ petition as premature, finding that there was no ground to come to the Court. 22. Further submission is that none of the elections said to have been held by the appellants, were found to be valid by the District Inspector of Schools and the Joint Director of Education. 23. Sri Anil Tiwari, submits that a specific plea of forged documents was taken by the appellants before the Joint Director of Education and the learned Single Judge in his order dated 1.12.2006 has taken note of the said argument and held that the said plea requires consideration, but no such consideration has been made by the Joint Director of Education. 24. In regard to the plea of signatures of the appellant No. 2 being attested on 14.3.2005, the learned counsel for the respondents, submits that when the Joint Director of Education declared the elections of the respondent Nos. 24. In regard to the plea of signatures of the appellant No. 2 being attested on 14.3.2005, the learned counsel for the respondents, submits that when the Joint Director of Education declared the elections of the respondent Nos. 4 and 5 as invalid and upheld the elections of the appellants, said to have been held on 6.1.2002, a challenge was made to the said order in Writ Petition No. 1994 (MS) of 2005, in which an interim order was passed by the Court on 12.9.05, restraining the appellant No. 2 from discharging the duties as Manager and subsequently the writ petition filed by the respondent Nos. 4 and 5 was allowed vide judgment and order dated 17.11.2005 and the matter was remanded to the Joint Director of Education, Lucknow for deciding the matter afresh, therefore, the elections said to have been held on 6.1.2002 remained disputed and no sanctity can be attached to the order of attestation of signatures in pursuance of the said election. 25. From the events referred to above and the orders passed by the Joint Director of Education, it is clear that the elections of either of the parties have not been found to be valid nor they have been found to be in effective control. The elections are otherwise also to be held from amongst the valid members, but if there is a dispute regarding membership, that has to be settled by some competent authority and in the given facts and circumstances of the case, a direction was issued by the High Court itself as far back as on 1.12.06 to determine the membership and to decide the controversy afresh. 26. The learned Single Judge in Writ Petition No. 2230 (MS) of 2006 himself observed that the power to decide the validity of an election is incidental to the question of effective control under Section 16-A(7) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as ‘the Act’). It has also been held that in an event when it is found that there were no valid elections then the authority will be fully justified in issuing directions for holding the fresh elections. 27. The right to elect a valid Committee vests in the Electoral College i.e. the general body, constitution of which would be relevant factor in order to determine validity or otherwise of the elections of the Committee of Management. 27. The right to elect a valid Committee vests in the Electoral College i.e. the general body, constitution of which would be relevant factor in order to determine validity or otherwise of the elections of the Committee of Management. It was in pursuance of the aforesaid directions that the Joint Director of Education after finding that no valid elections have been held by either of the two claimants and that they also could not prove their effective control within the meaning of Section 16-A(7) of the Act and that there was necessity to get the valid members verified, issued the direction to the District Inspector of Schools to prepare a list of valid members. 28. In our opinion, there cannot be a grouse for either of the parties to the aforesaid order, as has been observed by the learned Single Judge also for the reason that it was open to both the parties to place the list of their members before the District Inspector of Schools, who would select the validly enrolled members, who are still continuing with the membership. The effort on the part of either of the parties to challenge the on going process of election at every intermediary stage, would only delay the elections, causing hindrance in the normal and smooth functioning of the institution. 29. The plea of the appellants that looking to the past elections on which they placed reliance, the Joint Director of Education ought to have passed this order, is totally devoid of force as the orders earlier passed were not given finality at any stage and that the High Court specifically directed, in the own petition of appellant No. 2, to the Joint Director of Education for deciding the controversy afresh, therefore, there cannot be any grievance. 30. The plea that forged documents were submitted by the respondents before the Joint Director of Education has lost all significance in view of the fresh elections having been held and, a perusal of the order passed by the Joint Director of Education also reveals that he has taken those pleas into consideration and has given his own reasons for not placing reliance upon them. 31. We need not enter into these questions, as we are not entering into the merits of membership at all in these special appeals. 32. 31. We need not enter into these questions, as we are not entering into the merits of membership at all in these special appeals. 32. The learned Single Judge has made it very specific in his order that the appellants cannot be said to be aggrieved, as District Inspector of Schools was only directed to ascertain the valid membership of the general body for holding fresh elections of the Committee of Management and after such election, the aggrieved person would have remedy to challenge the same before the Regional Committee headed by the Joint Director of Education. 33. We are in respectful agreement to the views expressed by the learned Single Judge. 34. In the case of A.P. Aboobaker Musaliar v. District Registrar (G), Kozhikode and others, (2004) 11 SCC 247 , in which, the apex Court in a matter of dispute between two rival claimants to the governing body made the following observation : “.........When there were two lists, the District Registrar, prima facie, on being satisfied, accepted the list filed by E.K. Aboobaker as he was filing the lists for the previous years also. The District Registrar has only taken into consideration the limited question of accepting the list of members of the governing body. The Division Bench of the High Court was right in taking the view that the list accepted by the District Registrar did not become final; if the appellant was aggrieved, it was open to him to establish his claim in a competent Court/forum.” 35. The appellants have relied upon the case of Committee of Management v. Deputy Director of Education and others, 1996 (1) ESC 336, in support of their plea that the Joint Director of Education has not decided the question of actual control in accordance with the explanation given to the Section 16-A(7) of the Act. It has also been urged that the determination of membership or validity thereto, can also be challenged in writ jurisdiction. 36. It has also been urged that the determination of membership or validity thereto, can also be challenged in writ jurisdiction. 36. The question is not as to what can be challenged under Article 226 of the Constitution of India, but the Court has to see as to whether the extraordinary discretionary jurisdiction should be exercised in a matter of the present nature where the dispute regarding the valid membership is entrusted to a departmental authority to decide the same on the basis of material evidence on record in a summary manner and a decision so given, whether is liable to be interfered by the High Court time and again. 37. No rights of any party have been affected so as not to give effect to the elections held in pursuance of the directives issued by the High Court. If any person is aggrieved by the elections, he has the liberty to challenge the same in the appropriate forum and can also approach the Court of competent jurisdiction, may be the departmental authority or the competent Court, namely, the Civil Court. 38. We thus, do not find any error in the judgment and order passed by the learned Single Judge in Writ Petition No. 4101 (MS) of 2007. 39. We also take notice of the fact that the elections have already been held in pursuance of the list declared by the District Inspector of Schools as far back as on 27.1.2008, but the elected Committee of Management has not been able to take charge because of the non declaration of result. 40. We, therefore, direct that the result of the election be declared and the charge be handed over to the newly elected Committee of Management forthwith. 41. This order has been passed without prejudice to the rights of either of the parties to approach the appropriate forum for challenging the election, if they so desire. 42. Both the special appeals are dismissed. ———