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2011 DIGILAW 484 (ALL)

COMMITTEE OF MANAGEMENT v. STATE OF U. P.

2011-02-28

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri P.N. Saxena learned senior counsel for the petitioners and Sri Sanjiv Singh for Saiyad Javed Ali Sabjposh who has been impleaded as resondent No. 4 under the orders of this Court dated 25.2.2011, and the learned standing counsel for the respondent Nos. 1, 2 and 3. 2. An amendment application has been filed and keeping in view the nature of the submissions raised the amendment application is allowed. The incorporation be carried out accordingly. 3. The dispute relates to the constitution of the Committee of Management Patel Smarak Inter College Patel Nagar, Bhatahat, Gorakhpur. The petitioner contends that the earlier elections of 2004 had been held in which the petitioner had been recognized as the Manager whereafter fresh elections after the expiry of three years in accordance with the scheme of administration were to be held in the year 2007, but could not be held for which several reasons have been given. 4. One of the contentions is that the elections could not be held on account of the nuisance having been created by Sri Sati Kumar Verma and the matter came up before this Court in Writ Petition No. 7803 of 2008, that was filed by Sati Kumar Verma. The said writ petition was dismissed on 16.5.2008, the judgment dated 16.5.2008 has been brought on record as Annexure - 7 to the writ petition. A perusal of the said judgment demonstrates that the right of the outgoing committee to hold elections was acknowledged holding further that the elections have to be held within a reasonable time. The writ petition was dismissed on the ground of availability of alternative remedy to file a suit. A special appeal filed against the same was also dismissed. 5. After the aforesaid litigation the respondent No. 4 appears to have taken objections to the proceedings undertaken by the petitioner to hold elections and it was urged that the Committee has not passed any resolution nor authorized the Manager to get the elections held. The petitioner on the other hand kept on demanding an Observer from the District Inspector of Schools and thereafter an Observer was appointed but the elections came to be adjourned on one count or the other. The petitioner on the other hand kept on demanding an Observer from the District Inspector of Schools and thereafter an Observer was appointed but the elections came to be adjourned on one count or the other. The result was that the elections were kept being postponed and ultimately the petitioner wrote a letter on 1st of July, 2010 demanding an Observer and informing the District Inspector of Schools that the elections are now proposed to be held on 22.8.2010. 6. The District Inspector of Schools instead of appointing an Observer made certain queries on 17th July, 2010 to which the petitioner gave a reply on 3rd August, 2010. The District Inspector of Schools did not immediately respond to the same but passed an order dated 20th August, 2010 which the petitioner alleges to have received on 23rd August, 2010. 7. By this order, the District Inspector of Schools informed the Manager that the President of the outgoing Committee has intimated that the date of the elections have not been fixed by the Committee nor it has been approved by the President and therefore a request has been made for staying the elections. The District Inspector of Schools accordingly called for an explanation from the petitioner so that further action may be taken thereon. 8. Sri P.N. Saxena learned counsel for the petitioner contends that before the said letter could reach the hands of the petitioner, elections had been held on 22.8.2010 and therefore a request was made to the District Inspector of Schools to recognise the said elections. The District Inspector of Schools instead of recognizing the same, sent a letter on 15th November 2010 informing the petitioner that the elections have not been validly held as per the report of the Associate District Inspector of Schools dated 1st November 2010 and therefore, the petitioner should remove the deficiencies and act in accordance with the scheme of administration for the purpose of holding of the elections. This letter was followed by the Communication dated 22.2.2011 which has been impugned in the writ petition through an amendment application contending that the District Inspector of Schools had no authority in law to reject the elections of the petitioner when they were held in accordance with the scheme of administration. 9. This letter was followed by the Communication dated 22.2.2011 which has been impugned in the writ petition through an amendment application contending that the District Inspector of Schools had no authority in law to reject the elections of the petitioner when they were held in accordance with the scheme of administration. 9. Coming to the submissions raised Sri P.N. Saxena contends that the Committee had already passed a Resolution way back in the year 2007 itself for holding of the elections and it was only a matter of intimating the new dates for holding of the elections that was communicated by the Manager. In such a situation the objection raised by the District Inspector of Schools that there was no fresh resolution of the Management does not hold water. He therefore contends that there being no other violation there was no occasion to postpone the elections. His further contention is that the objections of the District Inspector of Schools are founded on the report of the Associate District Inspector of Schools and the default is on the part of the District Inspector of Schools himself who failed to send an observer inspite of repeated demands and therefore the same does not invalidate the elections of the petitioner. 10. Sri Sanjiv Singh learned counsel for the respondent No. 4 submits that not only violation of the scheme of administration was alleged, but the elections have been held from amongst the members excluding those from the list of the parent society about which the report of the Associate District Inspector of Schools gives details. He therefore contends that the elections claimed to have been held by the petitioner on 22.8.2010 is invalid and that the Observer has now held fresh elections on 27th February 2011. In such a situation this Court should not interfere with the orders of the District Inspector of Schools as impugned through the amendment application and that the claims can be decided by the Regional Level Committee simultaneously. 11. Learned Standing Counsel has also adopted the same arguments. In such a situation this Court should not interfere with the orders of the District Inspector of Schools as impugned through the amendment application and that the claims can be decided by the Regional Level Committee simultaneously. 11. Learned Standing Counsel has also adopted the same arguments. It has also been urged on behalf of the respondents that the relevant provisions of the scheme of administration provide for the powers to be exercised by the President of the Committee of Management in emergency and since the petitioner was not holding or convening the meeting of the Committee of Management for fixing dates, the President accordingly raised objections and ultimately an Observer has been appointed on the asking of the Committee of Management who has held elections on 27.2.2011. It is further the contention of the respondent that violation is of Clause 26 in particular of the scheme of administration and hence no interference is called for. 12. Having heard learned counsel for the parties and having perused the documents on record as also the scheme of administration, it is evident that the term of the members of the office bearers of the Committee of Management continues beyond their tenure of three years till they are succeeded in their office through a fresh election. This is admitted that no fresh elections were held in the interregnum period and therefore the elected office bearers continued. The meeting which has to be convened by the general body is to be summoned by the Secretary of the Society. The said meeting therefore is not to be convened by the President even though he may preside over the same. The meeting has to be convened in terms of the Clause 10 of the scheme of administration where the President can only approve the date of the holding of the meeting by postponement or adjournment thereof. It is the Manager of the Institution who is also the Secretary, and therefore the meeting has to be called by him and convened under his signatures under Clause 3(J) of the scheme of administration. 13. The procedure which has been prescribed under Clause 26 empowers the Management of the Institution to intimate the date of the elections. In the instant case the Management had earlier passed a resolution and the District Inspector of Schools had also appointed an Observer but the elections could not be held. 13. The procedure which has been prescribed under Clause 26 empowers the Management of the Institution to intimate the date of the elections. In the instant case the Management had earlier passed a resolution and the District Inspector of Schools had also appointed an Observer but the elections could not be held. The Committee has therefore performed the initial function informing the District Inspector of Schools for getting the elections held. 14. This is however a peculiar case where the date of elections have been postponed time and again on account of non-availability of the Observer. The question therefore arises as to whether the Management will have to undertake a fresh exercise to fix a date for elections and intimate the same to the District Inspector of Schools as per the Clause 26. The dispute between the parties, therefore lies between this area of the provision of scheme of administration. Secondly the report of the Observer indicates certain deficiencies. In such a situation, there was a serious dispute with regard to the holding of the elections by the petitioner on 22.8.2010. Such a dispute therefore ought to have been referred by the District Inspector of Schools to the Regional Level Committee instead of taking any steps himself for either deciding the dispute or holding of fresh elections. The District Inspector of Schools, under the relevant Government Orders, once there is a legal impediment, cannot proceed to decide the same. It was the duty of the District Inspector of Schools therefore to have referred the matter to the Regional Level Committee headed by the Joint Director of Education. 15. Sri Sanjiv Singh learned counsel for the respondent No. 4 submits that this dispute can be decided by the Regional Level Committee and therefore there need not be any interference. 16. It is true that in view of the conclusions drawn herein above, the District Inspector of Schools could not have undertaken the exercise himself for having decided the matter as to whether the elections were held in accordance with the scheme or not. The District Inspector of Schools in the event of an objection having been filed, none else then by the outgoing President, ought to have sent the matter to the Regional Level Committee for decision. The District Inspector of Schools in the event of an objection having been filed, none else then by the outgoing President, ought to have sent the matter to the Regional Level Committee for decision. The District Inspector of Schools in the opinion of the Court in such a situation could not have issued any directions for holding of fresh elections as well, as urged by the learned counsel for the respondent No. 4 and therefore such elections cannot be recognized so long as validity of the elections dated 22.8.2010 are not decided by the competent authority. 17. Accordingly, this writ petition is disposed of with a direction to the Regional Level Committee headed by the Joint Director of Education to decide this dispute without being influenced by any orders of the District Inspector of Schools passed earlier and after taking into account the entire facts and circumstances of the case and giving an opportunity of hearing to the petitioner and the respondent No. 4. 18. The Regional Level Committee or the District Inspector of Schools shall not recognize any new elections which are alleged to have held on 27th February 2011 till the dispute is decided by the Regional Level Committee which shall be decided as early as possible but not later than three months from today. —————