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2014 DIGILAW 39 (UTT)

Committee of Management v. State of Uttarakhand

2014-02-14

SUDHANSHU DHULIA

body2014
JUDGMENT Sudhanshu Dhulia, J. 1. All these writ petitions before this Court have been filed by different Committee of Managements, which run different Education Institutions in the State of Uttarakhand. They are all being heard together as we shall see in a while that at the reading it all the issue is common. 2. In WPMS Nos. 332/2009, 1664/2008, 1410/2009, 735/2010 and 878/2010 the petitioners i.e. Committee of Managements have challenged the action on the part of the State Authorities, including District Education Officers and others, who have not recognized their “Scheme of Administration” and this they would not do till the Management signs and submits the “Model Scheme of Administration” drafted by the Education Authorities. The challenge to the action as well as inaction on the part of the State Authorities by the petitioners is that this amounts to denying the petitioners their Fundamental Right to form an association or a society and hence it is violative of Article 19(1)(c) of the Constitution of India. It is also submitted by the learned counsel for the petitioners that forcing them to sign and submit “Model Scheme of Administration” which have been drafted by the Education Authorities, is contrary to the scheme of Uttarakhand Education Act 2006 (hereinafter referred to as ‘Act’) and the Rules and the Regulations framed therein as the State Authorities are not empowered to frame a “Model Scheme of Administration” or to insist the Management to sign and submit only such “Model Scheme of Administration.” 3. In the remaining three writ petitions i.e. WPMS Nos. 2532/2013, 2529/2013 and 134/2014 the petitioners have challenged the appointment of an Authorized Controller in their Institutes which they alleged is in violation of the Act and the Rules and the Regulations framed therein. In these writ petitions, the petitioners have challenged the impugned orders dated 03.09.2013 and dated 19.09.2013. 4. In WPMS No. 134 of 2014 the petitioner has challenged inter alia, the vires of the Regulation (8tha) framed by the State Government known as “Uttarakhand School Education Board (Amendment) Regulation 2013.” 5. In order to appreciate the controversy, we will have to go to the root. The root cause of the present dispute is the so called insistence by the State Authorities that the petitioners must sign and submit the “Model Scheme of Administration” or else the Institutes or elected Management of Committee will not be recognized. In order to appreciate the controversy, we will have to go to the root. The root cause of the present dispute is the so called insistence by the State Authorities that the petitioners must sign and submit the “Model Scheme of Administration” or else the Institutes or elected Management of Committee will not be recognized. All future disputes which have come up and have been raised in other writ petitions will depend upon the adjudication of this aspect. Therefore, first the writ petitions shall be decided i.e. WPMS Nos. 332/2009, 1664/2008, 1410/2009, 735/2010 and 878/2010 where the issue is common. For convenience, however, the facts which have been referred in the present order relate to WPMS No. 332 of 2009. 6. These Institutes are Private Education Institutions which are imparting education upto Class XII and have been recognized by the Board of School Education, Uttarakhand, which is the competent authority to grant such recognition. They are, however, under a “Grant-in-Aid” of the State which would mean that the school is being totally funded by the State Government and the entire salary of all the teachers and other staff of members of these Institutes are being provided by the State Government. For this reason, the State Government has some power to control and to regulate these Institutes. 7. The Private Education Institutes are run by Education Society which is a group of individuals, who are registered under the Societies Registration Act. The Management of the Institutes are done by a “Management Committee” which consists of the elected members of the Society. Further the entire Administration of these Institutes are governed by a “Scheme of Administration” which is duly sanctioned and recognized by the Education Authority. There are two reasons for doing so. Since the entire funding of these Institutes have been done by the State Government, it is both logical and necessary as well as in public interest that the State Authorities must have sufficient control over these institutes. It is for this reason that the Institutes are regulated and controlled by the State Education Authority so that Education Institutions must run, in accordance with the Law and the Constitution of India. These Education Institutions are old Education Institutes and were continuing even prior to the creation to the State of Uttarakhand i.e. 09.11.2000 (prior to that Uttarakhand was a part of erstwhile State of Uttar Pradesh). These Education Institutions are old Education Institutes and were continuing even prior to the creation to the State of Uttarakhand i.e. 09.11.2000 (prior to that Uttarakhand was a part of erstwhile State of Uttar Pradesh). These Private Institutes were Governed under the Uttar Pradesh School Education Act and the Rules and Regulations framed therein which we will refer as the old Act. Under the old Act such Education Institutes had to provide “Scheme of Administration” to the Education Authorities and Institutes having a duly approved “Scheme of Administration” would only be permitted to conduct election of the Management Committee, which would then run these Institutions. 8. The case of the petitioners is that their Institutions were being run under a duly recognized “Scheme of Administration” even prior to the appointed day i.e. 09.11.2000 when the State of Uttarakhand was a part of erstwhile State of Uttar Pradesh. However, in the year 2006, the Uttaranchal School Education Act, 2006 was enacted. Section 34 (3)(vii) of the said Act provides about the removal of defect of the “Scheme of Administration” which reads as under:- “34. Inspection of the recognized Institution and removal of defect (1) …… (2) ….. (3) ….. (i) to (vi)……. (vii) The Scheme of Administration in relation to an institution, approved before the commencement of this Act, is inconsistent with the provisions of this Act and the management of the Institution has failed to alter or modify it within a reasonable time despite notice under Section 32, he may refer the case to Board for withdrawal of recognition of such institution, or issue notice to the Committee of Management to show cause within thirty days from the date of receipt of notice why an order under sub-section (4) should not be made.” 9. The above provision clearly provides that such Education Institutions which have been granted approval under the old Act, yet if there are certain deficiencies in such “Scheme of Administration” as per the new Act, the Education Institute must remove these deficiencies and in case it does not do so the State Government can appoint Authorized Controller on such Institute. Section 30 of the Act provides as under:- “30. Section 30 of the Act provides as under:- “30. Scheme of Administration not to be inconsistent with the Schedule – The Scheme of Administration in relation to any institution, whether recognized before or after the commencement of this Act shall not be inconsistent with the principles laid down in the First Schedule.” 10. The Schedule to the Education Act provides that the “Scheme of Administration” can only be approved if it contains the following provisions given in the Schedule-One. They are as under:- “Schedule-One Principles on which approval to a Scheme of Administration shall be accorded- Every scheme of Administration shall – (1) Provide for proper and effective functioning of the Committee of Management. (2) Provide for the procedure for constituting the Committee of Management by periodical elections. (3) Provide for the qualifications and disqualifications of the members and office-bearers of the Committee of Management and the term of their offices. Provided that no such scheme shall contain provisions creating monopoly in favour of any particular person, caste and creed or family. (4) Provide for the procedure of calling of meetings and the conduct of business at such meetings. (5) Provide that all the decisions shall be taken by the Committee of Management and powers of delegation, if any, shall be limited and clearly defined. (6) Ensure that the powers and duties of the committee of Management and its office-bearers are clearly defined. (7) Provide for the maintenance and security of property belonging to the institution and also for the utilization of its funds and for the regular checking and auditing of accounts.” 11. Schedule-One clearly provides that the “Scheme of Administration” should not contain any provision by which a person, caste, creed or family, may monopolize the Management Committee. As far as this provision is concerned, this Court is absolutely in agreement with this provision. Nothing has been shown to this Court that the said provision contained in the Schedule, referred above, there is anything which is violative of any Law leave aside Article 19(1)(c) of the Constitution of India. As regards Article 19(1)(c) of the Constitution of India, we will come back in a moment. 12. From the rival pleadings which have been placed before this Court, it emerges that the petitioners were given a copy of the “Model Scheme of Administration”, which they were directed to sign and submit. 13. As regards Article 19(1)(c) of the Constitution of India, we will come back in a moment. 12. From the rival pleadings which have been placed before this Court, it emerges that the petitioners were given a copy of the “Model Scheme of Administration”, which they were directed to sign and submit. 13. The “Model Scheme of Administration” contains two clauses i.e. clause 5 and clause 6(7) on which the petitioners have objection and for this reason they have not signed the “Model Scheme of Administration. Clause 5 of the “Model Scheme of Administration” on which the petitioners have an objection is that “no office bearer of the Management of Committee shall remain as an office bearer for more than two consequent terms”. This Court has been informed by the learned counsel for the respondents that as far as this provision (Clause 5) is concerned, the State Authorities themselves have deleted it. Therefore, nothing further needs to be done in this clause to which the petitioners had earlier objected, as the provision itself stands deleted by the State Government. 14. However, another clause on which the petitioners had objected is clause 6 (7) of the “Model Scheme of Administration” which states that “no two members of the Management of Committee be related to each other.” In other words two members of the same family cannot become member of the Committee of Management. Meaning of family is the same as contained in Sections 39 and 40 of the Act read with Schedule Two of the Act. Schedule Two, in which list of relatives is given reads as under:- S. No.List of Relatives 1. Father 2.Mother (including step-mother) 3.Son (including step-son) 4.Son’s wife 5.Daughter (including step-daughter) 6.Father’s father 7.Father’s Mother 8.Mother’s mother 9.Mother’s father 10.Son’s son 11.Son’s sons wife 12.Son’s daughter 13.Son’s daughter’s husband 14.Daughter’s husband 15.Daughter’s son 16.Daughter’s son’s wife 17.Daughter’s daughter 18.Daughter’s daughters husband 19.Brother (including step-brother) 20.Brother’s wife 21.Sister’s (including step-sister) 22.Sister’s husband 23.Wife’s (or husband’s) brother 24.Wife’s (or husband’s) father 25.Wife’s (or husband’s) sister 26.Brother’s son 27.Brother’s daughter 15. The Education Department insists that their “Model Scheme of Administration” which they want the petitioners to submit is in conformity with the Act and the Rules and the Regulations framed therein and there is no conflict between the “Model Scheme of Administration” and the Act and the Rules and the Regulations framed therein. The Education Department insists that their “Model Scheme of Administration” which they want the petitioners to submit is in conformity with the Act and the Rules and the Regulations framed therein and there is no conflict between the “Model Scheme of Administration” and the Act and the Rules and the Regulations framed therein. In fact the “Model Scheme of Administration only seeks to achieve the objects visualize under the Act and the Rules and the Regulations framed therein. 16. Learned counsel for the petitioners on the other hand has argued that two members of the Management of Committee cannot be related to each other is wholly arbitrary and unreasonable restrictions and in violation of Article 19(1)(c) of the Constitution of India. Moreover, the second limb of the argument of the petitioners is that there is no provision in the Act and the Rules and the Regulations framed therein for a “Model Scheme of Administration” and the petitioners, therefore, are not bound to sign the “Model Scheme of Administration”. Both these points are totally misconceived and are rejected for the following reasons:- 17. As far as violation of Article 19(1)(c) of the Constitution of India is concerned, which is a Fundamental Right “to form associations or unions”. It is not an absolute right and comes with certain restrictions contained in Clause (4) of Article 19 of the Constitution of India, which reads as under:- “19. Protection of certain rights regarding freedom of speech etc.- (1) ….. (2) ….. (3) ….. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.” 18. The society or the Management of Committee therein which runs an Education Institution is totally funded by the State exchequer, hence it is empowered to regulate and to control such the Management Committee in order to bring it within the purview of the Act. One of the purposes of the Act is that a Management Committee should not be dominated by “a person, caste, creed or a particular family”. One of the purposes of the Act is that a Management Committee should not be dominated by “a person, caste, creed or a particular family”. The so called ‘restrictions’ contained in the “Model Scheme of Administration” have been formulated in order to achieve this object, which is that one family does not dominate the Management of Committee, or that a Management of Committee be dominated by “a person, caste, creed or a particular family.” 19. So far as the arguments that there is no provision for a “Model Scheme of Administration” in the Act, it must be stated that the petitioners are well aware that the “Model Scheme of Administration” has been invoked not only in the State of Uttarakhand but also when Uttarakhand was a part of erstwhile State of Uttar Pradesh. “Model Scheme of Administration” is only to achieve the object of the Act and the Rules and the Regulations framed therein. The State Authorities have framed a “Model Scheme of Administration” and directed the petitioners to abide by it. The petitioners would have a reason not to sign the “Model Scheme of Administration” as it does not violates any of its rights. On the contrary it only seeks to achieve the objects of the Act. Had he been able to show that the “Model Scheme of Administration” which he is being compelled to sign and submit is in conflict with the Act and the Rules and the Regulations framed therein, then the matter would be different. Since this is not the case or at least this is not what the petitioners have been able to show, this Court finds no fault on the part of the State Authorities, who insist upon the petitioners to sign and submit the “Model Scheme of Administration.” 20. For this reason, so far as the contention of the learned counsel for the petitioners in WPMS Nos. 1664/2008, 1410/2009, 332/2009, 735/2010 and 878/2010 regarding “Model Scheme of Administration” cannot be insisted upon them is concerned, fails and all these writ petitions are hereby dismissed. 21. For this reason, so far as the contention of the learned counsel for the petitioners in WPMS Nos. 1664/2008, 1410/2009, 332/2009, 735/2010 and 878/2010 regarding “Model Scheme of Administration” cannot be insisted upon them is concerned, fails and all these writ petitions are hereby dismissed. 21. It is further directed, in case, the petitioners, desire they should remain under the Grant-in-Aid, they must submit their “Model Scheme of Administration” with the Education Authorities within a period of 45 days from the date of receipt of this order, failing which the Education Authorities will be at liberty to pursue the matter against the petitioners, in accordance with law, which shall include, appointment of an “Authorized Controller”. 22. Regarding WPMS Nos. 2532/2013 and 2529/2013 are concerned on which the appointment of Authorized Controller is being under challenge, the arguments of the learned counsel for the petitioners is that there is no provision for appointment of Authorized Controller by the Additional Regional Director, in view of Section 34 (4) of the Act, which clearly provides that only the State Government is authorized to appoint Authorized Controller and that too on the recommendation of the Director Education. The relevant provision i.e. Section 34(4) of the Act reads as under:- “34. Inspection of the recognized institution and removal of defect- (1) …… (2) ….. (3) ….. The relevant provision i.e. Section 34(4) of the Act reads as under:- “34. Inspection of the recognized institution and removal of defect- (1) …… (2) ….. (3) ….. (4) Where the Committee of Management of an institution fails to show cause within the time allowed under sub-section (3) or within such extended time as the Director may, from time to time allow, or where the Director is, after considering the cause shown by the Committee of Management satisfied that any of the grounds mentioned in sub-section (3) exists, he may recommend to the State Government to appoint an authorized Controller for that institution and thereupon, the State Government may, by order, for reasons to be recorded authorize any person (hereinafter referred to as the authorized Controller) to take over, for such period not exceeding two years, as may be specified, the Management of such Institution and its properties: Provided that if the State Government is of the opinion that it is expedient so to do in order to continue to secure the proper management of the institution and its properties, it may from time to time, extend the operation of the order, for such period not exceeding one year at a time, as it may specify, so however, that the period specified in the initial order, but excluding the period specified in sub-section, does not exceed five years. Provided further that if at the expiration of the said period of five years, there is no lawfully constituted Committee of Management of the institution, the authorized Controller shall continue to function as such, until the State Government is satisfied that a Committee of Management has been lawfully constituted.” 23. Since what goes to the root of the matter and as we have seen from the narration already stated above in this order, the main reason for which the Education Authorities have finally passed an order appointing Authorized Controller is for the reason that the petitioners have not signed and submitted the “Model Scheme of Administration”. Therefore, the petitioners are not free from blame. Moreover, in the counter affidavit the State Government has relied upon the amended Regulation (8tha) under which the Additional Regional Director Education can appoint an Authorized Controller. If the elections of the Management of Committees are not held in time and to that extent they have modified their earlier order dated 19.09.2013. Therefore, the petitioners are not free from blame. Moreover, in the counter affidavit the State Government has relied upon the amended Regulation (8tha) under which the Additional Regional Director Education can appoint an Authorized Controller. If the elections of the Management of Committees are not held in time and to that extent they have modified their earlier order dated 19.09.2013. When the order dated 19.09.2013 is challenged the main contention of the petitioners inter alia was that the order has been passed by the Additional Regional Director, Education and not by the State Government, therefore, it is totally without jurisdiction. 24. In the counter affidavit it has been stated that the power exercised by the Additional Regional Director, Education has not been given to him under Section 34 of the Act, but it is under the amended Regulation wherein the Additional Regional Director is empowered to appoint an Authorized Controller in the event when the elections are not held by the Management of Committee in time. The petitioners on the other hand have filed rejoinder affidavit (in WPMS No. 2532 of 2013) in the Court today and contends that the election of the Committee of Managements have already been held on 10.06.2013 and the matter is pending before the Education Authority for approval of the election, instead approving the Management of Committee they have appointed Authorized Controller. The fact remains that the so called elections done by the Management of Committee has been done under the “Scheme of Administration”, which is still not recognized by the Education Authorities and it is not in conformity with the Act, Rules & Regulations as already held in the preceding paragraphs. Since there is no election as contemplated under the law, the same is not liable to be recognized under the law and consequently the Additional Regional Director, Education has rightly exercised the powers for appointing the Authorized Controller. Therefore, this Court finds no force in these writ petitions (2532/2013 and 2529/2013) as well and the same are also dismissed. 25. In WPMS No. 134/2014, the petitioners have also challenged the vires of the Uttarakhand School Education Board (Amendment) Regulation, 2013. In view of the amendment such a power, for appointing Authorized Controller, has been given to the Additional Regional Director. 25. In WPMS No. 134/2014, the petitioners have also challenged the vires of the Uttarakhand School Education Board (Amendment) Regulation, 2013. In view of the amendment such a power, for appointing Authorized Controller, has been given to the Additional Regional Director. Here the ground for challenging is that the Act gives such power for appointment of Authorized Controller to the State Government on the recommendation of the Director Education whereas under the new amended Regulation (8tha) i.e. Uttarakhand School Education Board (Amendment) Regulation, 2013, such powers have been given to the Additional Regional Director, Education. The powers, which have been given under Section 34 of the Act to the State Government is visualize a condition which is entirely different from the one which is contained under the amended Regulation. Now the amended power can be exercised where the elections have not been done within the stipulated time. Regulations are framed by the Board under Section 24 of the Act, which reads as under:- “24. Power to make Regulations of the Board:- (1) The Board may make regulations to provide for all or any of the following matters, namely:- (a) The constitution, powers and duties of committees. (b) The conferment of diplomas and certificates. (c) The conditions of recognition of institutions for the purposes of its examinations. (d) The courses of study to be laid down for all certificates and diplomas. (e) The conditions under which candidates shall be admitted to the examinations of the Board and shall be eligible for diplomas and certificates. (f) The fees for admission to the examinations. (g) The conduct of examinations. (h) The appointment of examiners and their duties and powers in relation to the Board’s examinations. (i) The admission of institution to the privileges of recognition and the withdrawal of recognition. (j) Appointment of committees at village, nyaya panchayat, block, district and region level for inspection, supervision, management and recognition of institutions, and delegation of powers to them. (k) All matters which by this Act are to be or may be provided for by Regulations. (l) The conditions under which grants-in-aid shall be given to institutions recognized by the Board. (m) The formation of parent-teachers association. (2) No regulation under sub-section (1) shall be made except prior approval of the State Government.” 26. This amended Regulation has been framed after the approval from the State Government. (l) The conditions under which grants-in-aid shall be given to institutions recognized by the Board. (m) The formation of parent-teachers association. (2) No regulation under sub-section (1) shall be made except prior approval of the State Government.” 26. This amended Regulation has been framed after the approval from the State Government. Consequently, under Section 18 (4) of the Act, it provides as under:- “18. Powers of the State Government (1) ….. (2) ….. (3) ….. (4) Whenever, in the opinion of the State Government, it is necessary or expedient to take immediate action, it may, without making any reference to the Board under the foregoing provision, pass such order or take such other action consistent with the provision of this Act as it deems necessary, and in particular, may, by such order modify or rescind or make any regulation in respect of any matter and shall forthwith inform the Board accordingly.” 27. In view of the above provision as well as from the perusal of the records, that this Regulation has been framed after approval from the State Government. This Court finds no conflict between the two and, therefore, the challenge to the vires also fails and the WPMS No. 134/2014 also stands dismissed.