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2010 DIGILAW 496 (JK)

Ranjeet Singh v. J&K Lecturers

2010-09-18

Hasnain Massodi

body2010
1. Lecturers working in Higher Secondary Schools District Institutes of Education, (DIE’s), State Institute of Education and on deputation in different departments, constituted an Organization/ Association in 1978-79 under the name and style of "Jammu and Kashmir Lecturers Forum (Jammu Province)". The aims ad objects of the Association inter alia were to project just demands of the Lecturers, improve their economic status and working conditions and to work for better standards in education. The promoters of the Organization/ Association drafted a Constitution to provide for administrative structure of the Forum, delineate the duties of the office bearers of the Forum, the structure of various committees, mode and method of convening meetings and such other matters. The members of the Forum on 27th November 2006 on the eve of State Level Education Conference of the Forum made a number of amendments in the Constitution of the Forum. The amendments included one whereby the name of the Forum was changed to "All J&K Plus 2 Lecturers Forum". The Forum thus expanded its activities to whole of the State of Jammu and Kashmir and decided to be headquarters at Srinagar/Jammu in Summer and Winter respectively. The Election Authority, constituted in terms of the Para 5 of the Constitution on 25th April 2010, notified Schedule for election to various posts of the Forum. The Election Authority on the same date issued a set of instructions, pertaining to different aspects of the election. The instructions, inter alia, laid down that "the contestants must possess two years service in Plus 2 cadre" to be authenticated by the head of the Institution under his seal and signature. 2. The appellants, by their own admission, have been recently appointed as 10+2 Lecturers in various disciplines and were not enrolled as members of the Forum on the date the suit was instituted. The appellants, nonetheless, brought a Civil Suit before the Principal District Judge, Jammu, questioning the elections proposed to be held. The appellant sought a Declaratory Decree, declaring Election Notification as illegal, non est and void ab initio, and a Permanent Injunction Decree, restraining respondents from conducting elections to various posts of the Forum, and Mandatory Injunction Decree commanding respondents to allow appellants to contest election and also exercise their right to vote. 3. The appellant sought a Declaratory Decree, declaring Election Notification as illegal, non est and void ab initio, and a Permanent Injunction Decree, restraining respondents from conducting elections to various posts of the Forum, and Mandatory Injunction Decree commanding respondents to allow appellants to contest election and also exercise their right to vote. 3. The appellants’ case before the Trial Court was that though respondents were approached by appellants for membership of the Forum, but the respondents neither accepted/received membership fee from the appellants nor enrolled the appellants as members of the Forum. The appellants’ grievance was that Election Authority, on the date the election notification was issued, also issued a set of instructions that laid down eligibility criteria for contesting elections, not mandated by the Constitution of the Forum. It was pleaded that in terms of notification, only such members of the Forum were eligible to contest elections, who possessed two years service in Plus 2 cadre whereas Constitution of the Forum did not make such restrictions. Again in terms of instructions, Principals, Senior Lecturers, Incharge Lecturers were made eligible for elections and also conferred voting rights, while as the Constitution did not provide for such rights to the Principals, Senior Lecturers and Incharge Lecturers. The instructions, the appellants insisted, were ultra vires the Constitution of Forum. The appellants alleged that the instructions were aimed at excluding appellants and other Lecturers, having less than two years service from the election process and permit the preset office bearers to perpetuate their control over the affairs of Forum. The respondents were alleged to have wrongly presented the Forum as "Jammu and Kashmir Plus 2 Lecturers Forum", whereas the Forum continued to be "Jammu and Kashmir Lecturers Forum (Jammu Province)". The appellants, on the strength of averments so made, sought above stated reliefs. Alongside the suit, appellants filed Temporary Injunction Application for stay of Election Notification dated 25th April 2010, and election process initiated thereunder. 4. The respondents resisted the Suit as also Temporary Injunction application on the grounds that the appellants did not at any point of time approach respondents for their enrolment as members of the Forum and that one of the appellants, Shri Manzar Akhter, was appointed as 10+2 Lecturer on 21st April 2010 and adjusted/posted on 11th May 2010 and had not joined the service on the date the election notification was issued. The respondents pleaded that the appellants had yet to complete probation period of two years and it was only after probation period was successfully completed by the appellants that the appellants were eligible to become members of Jammu and Kashmir Education Service. The respondents pleaded that amendments were incorporated in Constitution of the Forum and name of the Organization validly changed to All J&K Plus 2 Lecturers Forum. The appellant, it was averred, could question change in the name of the Forum for the reason that the appellants were not appointed as 10+2 Lecturers when the Forum was conceived and subsequently amendments made and also without throwing challenge to the Resolution dated 27th November 2006, which appellants have not done in the present suit. The respondents denied all other averments in the plaint and application. 5. The Trial Court initially on 05.05.2010 stayed election process beyond the stage of withdrawal of the nominations. However, after the objections were filed by the respondents, the Trial Court dismissed Temporary Injunction Application. The order dated 24th May 2010 is assailed in the present appeal on the grounds, that the reasons that persuaded Trial Court to disallow Temporary Injunction application are not legally sustainable. It is urged that the appellants being competent under the Constitution to get enrolled as members of the Forum have not been allowed to contest elections under the condition laid down in the instructions issued by Election Authority, in conflict with Constitution of the Forum. One of the appellants, despite having been enrolled as a member of the Forum, is said to have been debarred from participating in election process because of the condition of two years service as 10+2 Lecturer, that the Election Authority had no power to lay down. The Trial Court is also said to have erred in holding that election process once initiated cannot be put on hold, come what may and that aggrieved party is to wait for results of election and thereafter throw challenge to the outcome of election. 6. Heard and considered. 7. The appellants, by their own admission, were not enrolled as members of the Forum on the date of institution of Suit and Temporary Injunction Application, though one of the appellants, Ms. Avineet -- appellant No.5, is said to have been enrolled as member of the Forum on 5th May 2010. 6. Heard and considered. 7. The appellants, by their own admission, were not enrolled as members of the Forum on the date of institution of Suit and Temporary Injunction Application, though one of the appellants, Ms. Avineet -- appellant No.5, is said to have been enrolled as member of the Forum on 5th May 2010. Article 6 of Constitution of the Forum deals with membership of the Forum. It reads as under:- "6. Members and Membership All the Male and Female Lecturers who pay membership fee will become member of the Forum. Membership will be completed before the end of September. The School Secretary shall be responsible for the collection of membership fee. 8. It follows that a candidate by his selection and appointment as 10+2 Lecturer does not ipso facto become a member of the Forum. A person, after getting appointed as 10+2 Lecturer, has to seek membership of the Forum and only after his/her membership fee is accepted, he or she becomes member of the Forum and is clothed with the rights available to the member under the Constitution including right to vote and contest the elections. In the present case, as already pointed out, none of the appellants was member of the Forum on the date Election Notification was issued or even on the date the suit was commenced. The appellants thus have no locus standi to call in question mode and manner of elections notified on 25th April 2010 or Constitutional validity of the Instructions issued by Election Authority. The case set up by the appellants as regards violation of Constitution of the Forum by Election Authority may have substance, but the appellants lacked authority to agitate the matter as on the date of institution of suit. The appellant No.5 admittedly has been enrolled as member on 5th May 2010 i.e., after suit was instituted. The case set up by the appellant No.5 as other appellants in suit was that she was not member of the Forum and was denied membership. The appellant No.5 admittedly has been enrolled as member on 5th May 2010 i.e., after suit was instituted. The case set up by the appellant No.5 as other appellants in suit was that she was not member of the Forum and was denied membership. In case the appellant No.5 was able to get enrolled as member of the Forum after the institution of suit, the right course for the appellant No.5 was to lay a motion for amendment of the plaint, acquaint the Court with developments subsequent to the suit and plead that she was enrolled as a member after institution of the suit and was competent to enforce her rights in that capacity and ask respondents to perform their obligations under the Constitution of the Forum. In the circumstances enrolment of the appellant No.5 as member of the Forum after institution of Suit without subsequent developments, getting reflected in the pleadings does not in any manner brighten up the chances of appellants’ case. The Trial Court was right in holding that the appellants in view of their not having been enrolled/admitted members of the Forum, had no right to maintain the suit muchless ask for ad-interim injunction. There is no scope for disagreement with the Learned Trial judge that the appellants had failed to establish a prima facie case in their favour, to show that balance of convenience tilted in their favour or that they would be exposed to an irreparable injury in the event Court did not come to their rescue and grant ad-interim injunction. However, there is merit in the arguments advanced by the Learned Counsel for the appellants that observations of the Trial as regards interference in conduct of elections, is unwarranted and erroneous. The Courts are advised to desist from interfering in election process once set in motion, where there is an inbuilt mechanism for redressal of grievances, if any, as regards mode and manner of conduct of elections. Where the Constitution/Byelaws of an Association provide a Forum/Authority, before which an appeal against denial of right to vote, right to contest elections, is competent, the right course for an aggrieved member of the Society/ Association, is to approach the Appellate Authority to get his/her grievance redressed. In such case Civil Courts are expected, nay, required to be slow in interfering in election process. In such case Civil Courts are expected, nay, required to be slow in interfering in election process. There is thus no rule of universal application that a Court must invariably in all cases keep its hands off the matters related to election of a Society/ Association. The view taken by Learned Trial Judge, for the reasons discussed above, is untenable. For the said reason reliance on law laid down in Shri Prakash Singh Jamwal v. Lt.Col. Shiv Dev Singh (2000, KLJ, 266) is misplaced. This however, does not change complexion of the matter or outcome of the present appeal. 9. For the reasons discussed the appeal is dismissed and interim direction, if any, granted is revoked. The records be send down.