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Uttarakhand High Court · body

2012 DIGILAW 229 (UTT)

PUSHKAR SINGH BISHT v. DISTRICT EDUCATION OFFICER

2012-05-17

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. (Oral) (Intervention Application No. 4550/2012) (Stay Vacation Application No. 4551/2012) Heard Sri V.B.S. Negi, Senior Advocate, assisted by Mr. Naveen Tewari, Advocate for the petitioner, Sri K.C. Tewari, Brief Holder on behalf of respondents and Sri A.S. Rawat, Senior Advocate assisted by Sri Ravindra Singh Bisht, Advocate appearing on behalf of intervener. 2. By means of this petition the petitioner has sought a writ in the nature of certiorari to quash the order dated 30.3.2012 passed by the respondent No.1 contained in Annexure No.7 to the writ petition. Further prayer was made to direct the respondents to conduct the election of the Committee of Management on the basis of the duly approved members of the General Body who are already on record. 3. Sri Ashok Duklan and Sri Virendra Garhdesi have filed intervention application 4550/2012 and stay vacation application No. 4551/2012 and prayed for vacation of interim order dated 19.4.2012 passed by this court. 4. In the intervention application the stand taken by the applicants is that the members who had been inducted without the approval of the District Education Officer, they cannot be treated a valid members. At the time of induction of members on 2-6-2010 an advertisement was issued in the daily news-paper ‘Badri Vishal’ inviting application for membership for Janta Inter College Ramardaang, District Pauri Garhwal, but the said news-paper is not circulated in the vicinity of Block Kaljikhal, District Pauri Garhwal and the interveners/applicants were not aware about the said publication. Then the applicants made a representation to the Joint Director of Education, Pauri requesting therein that the advertisement so published in the newspaper ‘Badri Vishal’ be cancelled and the same be published in the daily newspaper ‘Amar Ujala’ and ‘Dainik Jagaran’ and to to take necessary action for inducting the members in the institution. However, no date has been mentioned in the representation. It appears by a perusal of Annexure No.3 annexued with intervention application that on 14/15.7.2010 the Additional Director of Education, Garhwal Mandal Pauri directed the District Education Officer, Pauri to hold an enquiry at his own level and dispose of the matter accordingly, as to whether the members have been inducted without any advertisement. Thereafter inquiry was conducted by the District Education Officer. In turn inquiry was completed through Khand Shiksha Adhikari, Kaljikhal, Pauri and report was submitted. By a perusal of para Nos. Thereafter inquiry was conducted by the District Education Officer. In turn inquiry was completed through Khand Shiksha Adhikari, Kaljikhal, Pauri and report was submitted. By a perusal of para Nos. 5 to 10 of the report dated 27.7.2010/2.8.2010 submitted by Khand Shiksha Adhikari, it shows that all the members who were inducted have been inducted in a prescribed manner, as has been given in the ‘scheme of administration’ and they were inducted by resolution dated 17.7.2010. On the basis of the inquiry report impugned order has been passed by the District Education Officer to the effect that the members who have been inducted by the Committee of Management have not been inducted by a proper advertisement, therefore, direction was given to constitute new Committee of Management and action for advertisement be taken within a week to induct the members and thereafter the list be sent for approval for the constitution of new Committee of Management. This direction was given by the District Education Officer to the Authorised Controller. 5. Learned Senior Advocate Sri V.B.S. Negi appearing on behalf of the petitioner has contended that this court in the Writ Petition No. 1375 of 2006(M/S) Balraj Pasi versus State and others and connected writ petition, decided on 16.6.2010, has held that the Authorised Cotroller has no right to induct the new members and cannot exercise himself the function of Committee of Management. 6. Learned Senior Advocate Sri A.S. Rawat, appearing on behalf of interveners vehemently argued that when the members who have been inducted, advertisement was made in news-paper “Badri Vishal’ and the applicants and other persons could not apply for their membership and they have been deprived of their valuable right to inducting member of Electoral College and therefore they have locus to file intervetion application. 7. Learned Senior Advocate drew attention of the court towards sub-clause (3) ad (4) of clause –9 of Scheme of Administration and submitted that the members who have been inducted to the Electoral College are to be approved by the District Education Officer. 8. 7. Learned Senior Advocate drew attention of the court towards sub-clause (3) ad (4) of clause –9 of Scheme of Administration and submitted that the members who have been inducted to the Electoral College are to be approved by the District Education Officer. 8. In reply thereto learned Senior Advocate Sri V.B.S. Negi, on behalf of petitioner has submitted that so far as induction of members is concerned, the same is within the domain of Committee of Management and the Disrict Education Officer has no role to play in it, but when the election would be conducted of the Committee of Management then a list has to be prepared by the Committee of Management and to be forwarded before six months from the expiry of time of Committee of Management to be approved to constitute a new Commiteee of Management. Therefore, both the things cannot be mixed together and both the are independent altogether. 9. So far as this fact is concerned, that the interveners had no knowledge of advertisement, he drew attention towards Annexure No.4, report dated 27.7.2010/2.8.2010 submitted by Khand Shiksha Adhikari. From the above report it transpires that during the course of inquiry it was admitted by Sri Virendra Garhdesi (intervener) that on 8.6.2010 he was in Kotdwar and he read the newspaper ‘Badri Vishal’ and he came to village on 12-6-2010 and informed the other persons about the advertisement, but he did not chose to become a member. 10. Apart from this the advertisement was also pasted on the notice-board of the College. By perusal of impugned order it reveals that no note has been taken of the inquiry report which was submitted by Khand Shiksha Adhikari to the District Education Officer and on assumption without verifying this fact whether the notice of membership of Committee of Management was affixed on the notice-board of the college or not and whether the wide publicity of the notice was made in daily newspaper, passed impuned order and no reason has been assigned and on at his own the District Education Officer issued direction to Authorised Controller to induct new members and it was also directed that the old members may not deposit the fee who have already deposited the membership fee. 11. This court has to see whether the District Education Officer has any authority to direct the Authorised Controller to induct new members. 11. This court has to see whether the District Education Officer has any authority to direct the Authorised Controller to induct new members. In the judgment of this court passed in Balraj Pasi case (supra) and the judgment of S.K. Mishra and another versus District Inspector of Schools, Orai and another reported in [(1996) 2 UPLBEC, 896, it has been held that the Authorised Controller has no power to induct new members and he cannot take upon himself the functions of the Committee of Management. Therefore the impugned order passed by District Education Officer giving direction to the Authorised Controller to induct new members is totally without jurisdiction. 12. So far as the fact whether proper advertisement was published or not, the Khand Shiksha Adhikari had mentioned in his report that circulation was made in daily newspaper and one of the intervener had knowledge of publication and he had also informed other persons and the District Education Officer had not assigned any reason why the report of Khand Shiksha Adhikari could not be accepted therefore the impugned order is liable to be set aside on this score also and since the election has already been notified on 6.5.2012. The election programme has been annexed and the list of the members has already been approved under interim order passed by this Court, therefore intervention application as well as stay vacation applications are liable to be rejected. 13. It is also pertinent to mention here that in writ jurisdiction disputed question of facts cannot be scrutinized and if the interveners/applicants feel aggrieved by the action of the Committee of Management, they may file a civil suit, after the election is over. 14. Since the Authorised Controller has no power to induct the new member and cannot be taken over the function of Committee of Management and so far as the power to induct the new members, as per clause-7 of the Scheme of Administration, it is the Committee of Management who can induct the member in accordance to provision of the clause. The Khand Shiksha Adhikari in its enquiry found that the members were inducted by the Committee of Management in the General Body meeting in accordance with prescribed procedure after wide publication. The order impugned passed by District Education Officer is a creptic and non-speaking order and the same is liable to be set aside. 15. The Khand Shiksha Adhikari in its enquiry found that the members were inducted by the Committee of Management in the General Body meeting in accordance with prescribed procedure after wide publication. The order impugned passed by District Education Officer is a creptic and non-speaking order and the same is liable to be set aside. 15. Accordingly the impugned order is set aside and the writ petition is allowed. 16. The intervention application as well as the stay vacation applications stand dismissed.