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2010 DIGILAW 2519 (ALL)

SETH HABIBURRAHMAN v. STATE OF U. P.

2010-08-18

SANJAY MISRA

body2010
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Arvind Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri P.N. Saxena, assisted by Sri T.N. Tiwari, learned counsel for the Respondent No. 4. 2. The petitioners had initially filed this writ petition assailing the order dated 15.5.2004 passed by the District Inspector of Schools whereby he had attested the signature of Respondent No. 4 as Manager of the committee of Management of Owais Karni Makhdum Inter College Lar, district Deoria and Ayesha Rasheed Girls Higher Secondary School Lar, district Deoria. 3. Subsequently, the petitioners have amended the writ petition and assailed the order dated 31.5.2007 whereby the Regional Level Committee under the Chairmanship of Joint Director of Education, Gorakhpur Mandal has approved the election dated 14.5.2004 and directed the District Inspectors of Schools to attest the signature of the Respondent No. 4. 4. Counter and rejoinder affidavits have been exchanged between the parties. 5. Sri Arvind Srivastava at the outset has rightly submitted that the attestation granted by the District Inspector of Schools by the impugned order dated 15.5.2004 was incorrect inasmuch as it first required the approval of the Regional Level Committee and hence it is illegal. 6. He has submitted that the Regional Level Committee by the order dated 31.5.2007 has clearly recorded that the approval is being granted to the Committee of Management of the Respondent No. 4 for the reason that there is no objection by any persons against the election of the Respondent No. 4. According to Sri Arvind Srivastava the petitioners are members of the general body of the Society and the aforesaid order of the Regional Level Committee was not known to the petitioners who came to know about it after making an application under the Right to Information Act. He submits that the petitioners had objection to the aforesaid election and hence they were entitled to be given an opportunity to place their objection before the Regional Level Committee and that opportunity has not been given hence the impugned decision dated 31.5.2007 of the Regional Level Committee requires to be set aside. 7. According to Sri Arvind Srivastava the election held on 2.5.1999 by the Committee of Management for both the institutions was undisputed wherein the Respondent No. 4 was elected the Manger of the Committee of Management. 7. According to Sri Arvind Srivastava the election held on 2.5.1999 by the Committee of Management for both the institutions was undisputed wherein the Respondent No. 4 was elected the Manger of the Committee of Management. His submission is that under the scheme of administration the term of the Committee of Management was three years and, therefore, the term of the Committee of Management elected on 2.5.1999 would expire in the year 2002. He states that no election was held in the year 2002 and, therefore, the alleged election of the year 2004 conducted by the Respondent No. 4 could not have been held. He further states that the subsequent election thereto were not held with an Observer of the Education Authorities and, therefore, the continuance of Respondent No. 4 as Manager of the Committee of Management is illegal. 8. He has pointed out that a resolution dated 27.5.2001 was passed by the general body of the Society (as contained in annexure to the counter-affidavit) extending the term of the Committee of Management from three years to five years and it was approved by the Joint Director of Education on 30.9.2001. In view of the Government Order dated 30.3.1998 the approval was required for extending the term of the Committee of Management from three years to five years from the Education Authorities and the subsequent clarification of the Government order on 4.8.2003, annexure No. 4 to the writ petition will relate back to the year 1998. He therefore submits that in view of the Government order dated 4.8.2003 the benefit of the extended term from three years to five years would be available only to the subsequent Committee of Management and not to the Committee of Management which was functioning at the time when the general body of the Society resolved to extend the term. 9. In support of his submission he has placed reliance on a Division Bench decision of this Court in the case of ‘Committee of Management, Arya Kanya Inter College, Bulandshahr and another v. State of U.P. and others’, 2009(1) ESC 371 (All)(DB), and submits that the benefit of the extended term will be available only to the Committee of Management which is elected subsequent to the date of approval of the term. He therefore states that when such be the circumstance the election held on 2.5.2004 by the Respondent No. 4 was illegal inasmuch as three years term was only from 2.5.1999 to 2.5.2002. 10. He has submitted that the impugned orders passed by the District Inspector of Schools and the Regional Level Committee have not taken into account the aforesaid Government order dated 4.8.2003 and hence have committed an illegality. 11. Sri P.N. Saxena on the other hand has disputed the submission of learned counsel for the petitioner and has referred to the resolution dated 27.5.2001 of the general body (filed as annexure No. 7 to the counter-affidavit) to state that the resolution clearly provides that it is applicable to the current Committee of Management and further that the amendment in the term from three years to five years be got approved from the Education Authority. He says that when the general body itself has resolved on 27.5.2001 that the present Committee of Management will get the benefit of the extended term it cannot be said that the term of the Committee of Management expired after three years i.e. on 2.2.2002. While referring to the Government order dated 30.3.1998 he has submitted that the same only relates to seeking approval from the authority in case it is resolved that the term of the Committee of Management is to be extended from three years to five years. According to him there is nothing in the Government order dated 30.3.1998 which indicates that the benefit of such extension after approval will not be available to the current Committee of Management but it will only be available to the subsequently elected Committee of Management. 12. He has referred to the Government order dated 4.8.2003 which is in the nature of a clarification of the 1998 Government order and states that the said Government order may be a clarification that the benefit of the extended term will be available only to the subsequently elected Committee of Management but not to a Committee of Management in whose tenure the general body of the Society had extended the term from three years to five years much prior to the clarification. 13. According to Sri Saxena, the said Government order may have been issued as a clarification of the 1998 Government order but it will have prospective effect and will be applicable only after 4.8.2003. 14. 13. According to Sri Saxena, the said Government order may have been issued as a clarification of the 1998 Government order but it will have prospective effect and will be applicable only after 4.8.2003. 14. Having considered the submission of learned counsel for the parties and perused the record it is not disputed that the law laid down by the Division Bench of this Court in the case of ‘Committee of Management, Arya Kanya Inter College, Bulandshahr and another v. State of U.P. and others’, is quite clear. Paragraph 30 of the judgment of the Division Bench is quoted hereunder : 30. Even otherwise, we feel that it is appropriate and it is fitness of things that the Committee of Management, which is elected in accordance with the provisions of the scheme of administration must be permitted to continue only for the term, which was applicable at the time of the elections. The extension of the term so provided by seeking permission of its own term and by suggesting amendments in the scheme of administration canto be approved of by this Court and, therefore, we have little hesitation to hold that the provision as contained in the circular/letter of the Director dated 4th August, 2003 as also in the condition imposed in the order of the Regional Joint Director of Education dated 3rd September, 2007 while approving the amendments in the scheme of administration with the extended term applicable only in respect of Committee of Managements, which are elected subsequent to the date of approval order, is fair and just. Such orders do not warrant any interference in equitable jurisdiction under Article 226 of the Constitution of India. 15. In this case the election in consideration was admittedly held after the Government order dated 4.8.2003 and, therefore, the Division Bench while considering the Government order dated 4.8.2003 found that the provision of the extended term will be applicable only with respect to the Committee of Management which are elected subsequent to the date of approval of the extended term. The Division Bench did not consider the circumstance where the election in question and the approval to the extended term was prior to the Government order dated 4.8.2003. It is here that the rival submission relating to the prospective effect of the Government order dated 4.8.2003 or retrospective effect has been argued by learned counsel for the parties. 16. The Division Bench did not consider the circumstance where the election in question and the approval to the extended term was prior to the Government order dated 4.8.2003. It is here that the rival submission relating to the prospective effect of the Government order dated 4.8.2003 or retrospective effect has been argued by learned counsel for the parties. 16. While considering this aspect of the matter the Government order dated 30.3.1998 would be relevant for the purpose. The Government order of 1998 has been filed as Annexure No. 6 to the counter-affidavit. 17. The relevant portion of the Government order is quoted hereunder : bl lac/k esa eq>s ;g dgus dh vis{kk dh xbZ gS fd b.VjehfM,V f’k{kk vfèkfu;e 192 dh /kkjk 16 x x x esa izcU/k lfefr dk dk;Zdky rhu o"kZ gksxk ,slh dksbZ izkfoèkku ugh gSA ifj"kn ds fofu;eks ds v?;k; 1 Hkkx nks ds fofu;e 14¼vk½ esa Li"V :i ls vafdr gS fd iz’kklu ;kstuk vuqeksfnu fd;s tkus gsrq xfBr djus dh fof/k blds lnL;ks dh ;ksX;rk, vk;ksx dk;kZy; dh vof/k bldh cSBd cqykus vkSj muesa dk;Z lapkyu djus dh fof/k fu/kkZfjr dh tk,xhA blls Li"V gS fd ek0 f’k{kk vf/kfu;e esa izcU/k lfefr dh vof/k dgh fu/kkZfjr ugh fd;k x;k gSA 'kklu ds mi;qZDr funsZ’k@vkns’k ds ifjizs{; vkidks funsZf’kr fd;k tkrk gS fd ;fn dksbZ izcU/kkf/kdj.k izcU/k lfefr ds dk;kZy; ds rhu o"kZ ds LFkku ij ikWp o"kZ djus dk ladYi ysrk gS vkSj rnuqlkj iz’kklu ;kstuk esa la’kksf/kr djus dk vuqjks/k gS rks mls la;qDr f’k{kk funs’kdks }kjk ijh{k.kksa ijkUr gksus ds i’pkr ekU; fd;k tk ldrk gSA vr% d`i;k bl lac/k esa vxyh dk;Zokgh v’kkldh; ek/;fed fo/kky; ls ,rn fo"k;d izkIr izLrkoks ij fopkj djrs gq, vko’;d la’kks/ku djus dk dk;Z djsaA 18. From a reading of the above-quoted portion it is quite clear that in absence of any provisions in the Intermediate Education Act or Regulation framed thereunder relating to the term of the Committee of Management the Government order provided that in case the term is extended by a resolution of the general body of the Society such amendment in the scheme of administration would require the approval of the education authority. In the present case the general body of the Society resolved to extend the term on 27.5.2001 and approval was granted on 30.9.2001. In the present case the general body of the Society resolved to extend the term on 27.5.2001 and approval was granted on 30.9.2001. On this date the Government order dated 4.8.2003 had not come and the field was covered by the Government order dated 30.3.1998. Therefore the Committee of Management whose term was extended from three years to five years by the general body of the Society after approval of the Education Authority on 30.9.2001 continued to function in the extended term also. There was nothing in the Government order dated 30.3.1998 relating to continuance or discontinuance in the extended term. 19. It was only when the clarification came on 4.8.2003 that it was provided that the benefit of the extended term from three years to five years will be available only to the subsequently elected Committee of Management. This Government order was considered by the Division Bench in the decision referred to above and it was found to be a fair and just arrangement since the Committee of Management which extended its own term by getting a resolution of the general body hence it cannot claim benefit of such extended term. The clarification has come only on 4.8.2003, therefore, the Committees of Management whose term was extended from three years to five years prior to 4.8.2003 had been functioning for the extended period after approval. At that time there was no such condition on their functioning since the Government order dated 4.8.2003 was non-existent prior to the date when it was issued. The condition in the Government order dated 4.8.2003 was not there in the Government order dated 30.3.1998 hence it cannot be read therein prior to 4.8.2003. 20. The Government order dated 4.8.2003 is couched in words which appear to be a clarification of the Government order dated 30.3.1998 but in effect it has introduced a new condition although in the same context. It will, therefore, have only prospective effect. There is no stipulation therein that it shall have retrospective effect. 21. The Division Bench was considering an election which was held after 4.8.2003 and, therefore, the Government order dated 4.8.2003 which had imposed the condition regarding the benefit of extended term only to the subsequently elected Committee of Management clearly applied in that case. 22. There is no stipulation therein that it shall have retrospective effect. 21. The Division Bench was considering an election which was held after 4.8.2003 and, therefore, the Government order dated 4.8.2003 which had imposed the condition regarding the benefit of extended term only to the subsequently elected Committee of Management clearly applied in that case. 22. Another reason is that the Committee of Management herein whose term was extended from three years to five years on 27.5.2001 and approved on 30.9.2001 has already functioned in the extended term at least up to 4.8.2003 and that cannot be undone by holding that what was permissible prior to 4.8.2003 and has become impermissible after 4.8.2003 and, therefore, that which was permissible up to 4.8.2003 has been rendered illegal due to retrospective application. 23. In the present case the undisputed election was held in 1999. At that time the term of the Committee of Management was three years hence the next election was due in 2002. In 2001 it was resolved by the general body of the Society to extend the term to five years and the resolution was approved by the Competent Authority on 30.9.2001. On this date the Government order dated 30.3.1998 was applicable and only approval of the resolution was required. Hence after approval the Committee of Management elected in the year 1999 did not hold any election after expiring of three years but held the election after expiry of five years i.e. in 2004. On 4.8.2003 the clarification of Government order dated 30.3.1998 came. In fact it was an additional provision to be read in the Government order dated 30.3.1998. The Committee of Management elected in 1999 therefore could not take the benefit of its extended term after 4.8.2003. But upto and prior to 4.8.2003 there was no such provision that it could not function in the extended term after expiry of its original term of three years. Therefore its functioning upto 4.8.2003 was not bared by any provision or order but it could not function after the condition was imposed on 4.8.2003. 24. For the aforesaid reason the submission made on behalf of the petitioners to the contrary cannot be accepted. 25. Therefore its functioning upto 4.8.2003 was not bared by any provision or order but it could not function after the condition was imposed on 4.8.2003. 24. For the aforesaid reason the submission made on behalf of the petitioners to the contrary cannot be accepted. 25. In view of the aforesaid circumstances since admittedly the Regional Level Committee has passed the impugned order dated 31.5.2007 only on the basis that there was no objection filed by anybody and also upon observing that the election dated 14.5.2004 was conducted in absence of any Observer of the District Inspector of Schools it would be appropriate that the Regional Level Committee should reconsider its decision after giving opportunity to the petitioners to file their objection. 26. It is made clear that in view of the averments made in the counter-affidavit by the Respondent No. 4 regarding the locus-standi of the petitioners the Regional Level Committee should consider the maintainability of the objection made by the petitioners. 27. For the aforesaid reasons, this writ petition is finally disposed of however, by providing that the impugned order dated 31.5.2007 shall be subject to the decision so taken by the Regional Level Committee as per observations made herein above. 28. It is expected that the Regional Level Committee shall conclude these proceedings by taking an appropriate decision in accordance with law preferably within a period of three months from the date a certified copy of this order is served upon it and any delay thereupon would be only for valid reasons. No order is passed as to costs. —————