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2010 DIGILAW 3085 (ALL)

SETH HABIBURRAHMAN v. STATE OF U. P.

2010-10-05

A.P.SAHI, F.I.REBELLO

body2010
JUDGMENT By the Court.—This Appeal questions the correctness of the judgment of a learned Single Judge of this Court in a Writ Petition filed by the 3 Appellants herein, assailing the order passed by the District Inspector of Schools dated 15.5.2004 and the subsequent order passed by Regional Level Committee headed by Joint Director of Education dated 31.5.2007, whereby Respondent No. 4 had been recognized as the Manager of the Committee of Management of O.K.M. Inter College, Lar, District - Deoria, and A.R. Girls Higher Secondary School, Lar, District - Deoria. 2. The learned single Judge after recording the necessary facts giving rise to the dispute, came to the conclusion that the submission raised on behalf of the appellants-petitioners in relation to the extension of the tenure of the Committee of Management, cannot be accepted. However, the learned single Judge further directed that any dispute relating to the election dated 14.5.2004 may be examined by the Regional Level Committee within a period of 3 months. 3. The Respondent No. 4 has, therefore, preferred Special Appeal No. 1541 of 2010 assailing the same order impugned only to the extent of the direction issued by the learned single Judge to examine the validity of the election held on 14.5.2004 which is being separately dealt with in the judgment of Special Appeal No. 1541 of 2010. 4. The undisputed facts are that the last elections were held on 2.5.1999 in which the Respondent No. 4 was elected as the Manager. The tenure of the Committee of Management is 3 years. Before the said term could expire, the respondent No. 4 claims that a resolution was passed on 27.5.2001 for extending the tenure of the Committee of Management from 3 years to 5 years in view of the Government Order dated 30.3.1998. The aforesaid Government Order makes a provision allowing the Management of such institution to extend the tenure of the Committee of Management. The Joint Director of Education examined the proposal of the Committee of Management for extending the tenure of Committee of Management from 3 years to 5 years and approved the same on 30.9.2001. 5. Under the aforesaid approval as proposed, the Respondent No. 4 contends that the Committee, which had been elected on 2.5.1999, continued to function for a period of 5 year and fresh elections were held on 14.5.2004. 5. Under the aforesaid approval as proposed, the Respondent No. 4 contends that the Committee, which had been elected on 2.5.1999, continued to function for a period of 5 year and fresh elections were held on 14.5.2004. The signatures of the Respondent No. 4 were attested as Manager of the Institution on 15.5.2004. 6. A Government Order was issued on 4.8.2003 whereby it was provided that any order approving an amendment in the Scheme of Administration passed by the competent authority for extending the tenure of the Committee of Management from 3 years to 5 years, will apply to a Committee newly elected and not to the Committee which had passed the resolution for such extension during its tenure. Resultantly by virtue of the said Government Order, the benefit of extension would be available to a Committee of Management elected in future and not to the Committee of Management which had passed such a resolution. 7. It appears that the papers with regard to the elections of the Committee of Management that were held in the year 2004 were forwarded by the District Inspector of Schools to the Regional Level Committee for approval and the Regional Level Committee vide order dated 31.5.2007 approved the elections held by the Respondent No. 4 in the year 2004. 8. The appellant filed the Writ Petition giving rise to the present appeal being Writ Petition No. 16160 of 2007 questioning the correctness of the order passed by the District Inspector of Schools and the Regional Level committee recognizing the elections of the year 2004. The grounds of challenge were that the Committee, so elected, was held by a defunct Committee, the term whereof had already expired in the year 2002 and, therefore, the new elections ought to have been held through an Administrator to be appointed by the Authority who could hold the elections. The elections held by the outgoing Committee was an invalid exercise, which could not have been recognized either by the District Inspector of Schools or by the Joint Director of Education. 9. Sri Arvind Srivastava, learned counsel for the appellants-petitioners contends that apart from the fact that the elections were held by a defunct Committee, even otherwise the elections were not held in accordance with the scheme of administration and hence the recognition of the election dated 14.5.2004 were erroneously acknowledged by the authorities. 9. Sri Arvind Srivastava, learned counsel for the appellants-petitioners contends that apart from the fact that the elections were held by a defunct Committee, even otherwise the elections were not held in accordance with the scheme of administration and hence the recognition of the election dated 14.5.2004 were erroneously acknowledged by the authorities. He, therefore, submits that as per the scheme of administration which stood amended extending the tenure of the Committee of Management, the Respondent No. 4 had neither the authority to hold fresh elections nor any such valid elections were held. The petitioner, therefore, prayed for quashing of the order of recognition. 10. The respondent No. 4 contested the writ petition on the ground that there was no such provision in the scheme of administration under which the outgoing Committee could have been treated to be defunct and the existing provisions contained in clause-9 of the approved scheme of administration permitted the continuance of the office bearers of the Committee of Management till their successors were chosen. He further submits that the tenure of the Committee of Management of 2004 had already come to an end and fresh elections have been held in the year 2009 and, as such, there is no justification for directing the Regional Level Committee to adjudicate the same. He further submits that the elections of 2004 even otherwise did not suffer from any infirmity and were held in accordance with the scheme of administration. He further submits that once the tenure of the Committee had been extended, then in view of the Government Order dated 30.3.1998, the said extension applied to the Committee elected in the year 1999 which validly continued in office till 2004. He, therefore, submits that the writ petition filed by the appellants was misconceived and no relief ought to have been granted. He further submits that the finding recorded that the Government Order dated 4.8.2003 does not apply retrospectively has to be upheld as the same would not govern the extension already granted and approved by the Joint Director of Education prior to the said date. 11. He further submits that the finding recorded that the Government Order dated 4.8.2003 does not apply retrospectively has to be upheld as the same would not govern the extension already granted and approved by the Joint Director of Education prior to the said date. 11. In rejoinder, Sri Arvind Srivastava vehemently urged that the judgment dated 30.11.1988 in Writ Petition No. 9897 of 1987 establishes that the scheme of administration had been subjected to an earlier amendment whereby the provisions of Clause-9 of the continuance of the office bearers till their successors were chosen, stood substituted by the provisions of the model scheme of administration as contained in clause-8 thereof, and the said decision is binding on the respondent No. 4, hence it cannot be said that the Committee elected in 1999 had not become defunct. 12. Learned Standing Counsel submits that the learned single Judge has issued directions and the dispute relating to the validity of the elections held on 14.5.2004 will be decided in accordance with law and the proceeding shall be concluded as per the directions of the learned single Judge which does not require any interference. 13. Having heard learned counsel for the parties and having perused the records, it appears that the institution in question is governed by the provisions of the U.P. Intermediate Education Act, 1921 and has an approved scheme of administration as provided for under Section 16-A of the 1921 Act. The said scheme as it originally stood contains clause-9 which is as follows : “9. Term of Members.—(I) The term of office bearers and member other than ‘ex-officio member shall be three years from the date they are chosen provide that the term of every office bearer shall be deemed to have continued till his successor is chosen.’ 14. A perusal of the said provision leaves no room for doubt that the tenure of the office bearers other than the ex-officio Members is 3 years subject to the condition that their term shall continue till their successors are chosen. 15. The contention of the appellants is that the said clause came to be altered with the introduction of the model scheme of administration in the year 1983. For this, the averments contained in the writ petition are in paragraph Nos. 11 and 12. The said averments have been denied in paragraph Nos. 15. The contention of the appellants is that the said clause came to be altered with the introduction of the model scheme of administration in the year 1983. For this, the averments contained in the writ petition are in paragraph Nos. 11 and 12. The said averments have been denied in paragraph Nos. 11 and 12 respectively of the counter-affidavit filed on behalf of the Respondent No. 4. The statutory provision to enforce an amendment in a scheme of administration is contained in sub-Section 5 of Section 16-A of the 1921 Act, which is quoted below : “16-A (5). The Scheme of Administration of every institution 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 the prior approval of the Director: [Provided that where the Management of an institution is aggrieved by an order of the Director refusing to approve an amendment or change in the Scheme of Administration, the State Government, on the representation of the Management, may, if it is satisfied that the proposed amendment or change in the Scheme of Administration is in the interest of the institution, order the Director to approve of the same, and thereupon the Director shall act accordingly.]” 16. It is, therefore, clear that there is no automatic enforcement of any amendment and the same is subject to approval by the competent authority. Neither the writ petition nor the pleadings in the present appeal bring on record any document or corroborative evidence to establish that the Management had either applied for such an amendment or the same had been approved by the competent authority in 1983. Sri Arvind Srivastava, learned counsel for the appellants, submits that the aforesaid fact need not be investigated in view of the admission made by the Committee of Management in the pleadings of Writ Petition No. 9897 of 1987 and an admission being the best piece of evidence, no further proof is required. He further invited the attention of the Court to the judgment dated 30.11.1988 to substantiate his contention. 17. He further invited the attention of the Court to the judgment dated 30.11.1988 to substantiate his contention. 17. We have perused the same and we find that the Court proceeded to issue a direction to the then Deputy Director of Education to examine the validity of an election and then further to decide as to whether an Administrator could be appointed if the tenure of the Committee of Management had expired after 3 years and one month. The said decision, in our opinion, does not hold that there was an order approving any amendment in the Scheme of Administration as suggested by the learned counsel for the appellants. The Court proceeded on an assumption that if such was the position, then the Authority shall exercise it’s powers accordingly. It was not found as a matter of fact that the Scheme of Administration had already been amended and that an Administrator could be appointed after the expiry of 3 years and one month. In this view of the matter, we do not find any material to support the argument that the Scheme of Administration had been admittedly amended in the year 1983 incorporating any provision for the appointment of Administrator after the expiry of the term of the Committee of Management on completion of 3 years and one month. The argument on behalf of the appellants, therefore, on that count cannot be accepted. 18. Apart from this, it is on record that the Committee elected on 2.5.1999, of which the respondent No. 4 was the Management in 2001 had moved an amendment for extending the tenure of the Committee of management from 3 years to 5 years. This was approved by the Joint Director of education on 30.9.2001 which has not been challenged by the appellants. The amendment so approved, therefore, supersedes all other amendments which may have been introduced earlier. As concluded above, since the model Scheme of Administration had not been approved for being enforced in the institution and since there is no challenge to the subsequent amendment approved on 30.9.2001, the contention of the appellants that the office bearers elected in 1999 were not entitled to continue till their successors were chosen in relation to the said term cannot be countenanced. We are, therefore, of the opinion that the office bearers elected on 2.5.1999 under the existing Scheme of Administration were entitled to continue even beyond the period of 3 years till fresh elections were held. 19. Having found so, we are further of the opinion that the said Committee being the outgoing Committee and which was admittedly in de-facto control over the institution, had the lawful authority to convene the Meeting which was held on 14.5.2004. 20. Coming to the second limb of the argument of Sri Arvind Srivastava to the effect that the Government Order dated 4.8.2003 would apply on the facts of the present case and that the learned single Judge fell in error in construing the same, it would be evident that the Government Order of 30.3.1998, which has been reproduced in the judgment of the learned single Judge, does not indicate any limitations on the applicability of such an amendment to the existing Committee of Management. The aforesaid Government Order in the absence of any such recital, and being silent on the said issue cannot be construed to mean that the amendment if made would not apply to the existing Committee of Management. 21. The argument of Sri Srivastava is that the Government Order dated 4.8.2003 was only clarificatory in nature and it did not introduce a new condition, cannot be accepted inasmuch as the said Government Order as found by the learned single Judge introduces an altogether new approach to the applicability of the effect of an approval by the Authority extending the tenure of the Committee of Management. In the instant case, the approval to the amendment extending the term to 5 years has been granted almost 2 years prior to the enforcement of the said Government Order way back in the year 2001. 22. Apart from this, the Government Order dated 4.8.2003 came into existence much after the expiry of 3 years in 2002. In such a situation, the then Committee of Management was justified in continuing to hold office by virtue of the extension as approved on 30.9.2001. 22. Apart from this, the Government Order dated 4.8.2003 came into existence much after the expiry of 3 years in 2002. In such a situation, the then Committee of Management was justified in continuing to hold office by virtue of the extension as approved on 30.9.2001. The submissions advanced by Sri Arvind Srivastava, therefore, do not appeal to reason and the finding recorded by the learned single Judge after discussing the impact of the judgment in the case of Committee of Management, R.A. Kanya Inter College, Bulandshahar and another v. State of U.P. and others, 2009 (1) ESC 371, cannot be said to be suffering from any infirmity. We, accordingly, approve the said finding given by the learned single Judge and reject the submissions raised on behalf of the appellants. 23. On a conspectus of the facts that emerge, it is also evident that the elections under dispute are dated 14.5.2004. The respondents allege that fresh elections have been held in the year 2009. In such a situation the argument advanced on behalf of the appellants in relation to the elections of the year 2004 even otherwise do not require any further consideration. The appeal to the extent as it assails the order of the learned single Judge dated 18.8.2010 relating to the issues as indicated herein above stands dismissed as against the appellants. The dismissal of this appeal is confined only to the grievance of the appellants to the extent aforesaid and not in relation to the directions issued by the learned single Judge for a decision of the dispute by the Regional Level Committee which is subject matter of Special Appeal No. 1541 of 2010 being disposed of by us today separately. No order as to costs. —————