Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 423 (UTT)

Santosh Kumar Joshi v. State of Uttarakhand

2014-09-25

SUDHANSHU DHULIA

body2014
Judgment Sudhanshu Dhulia, J. 1. The petitioner is an Assistant Teacher in a grant-in-aid school known as “Pant Nagar Inter College”, which is being run within the campus of G.B. Pant Agriculture, University. The petitioner seeks promotion to the post of Lecturer which is lying vacant. Since his promotion has not been made, hence, he has filed the present writ petition. 2. All the same while hearing the arguments of the learned counsel for the petitioner it was noticed by this Court that the Management Committee is not elected by the Members of the Society, but instead all Members of the Management Committee are Officers and employees of G.B. Pant Agriculture University, who are nominated to the Management Committee. 3. A question was raised by this Court to the learned counsel for the petitioner that since the concerned school is under grant-in-aid of the State Government, and the entire salary of teaching as well as non teaching staff is being given by the State Exchequer, and it comes within a purview of Uttaranchal Education Act (in short “Act”) and therefore, the Management Committee must run as per the provision of the Act. This is, however, not the case. 4. The learned counsel for the petitioner brought to the notice of this Court Sections 29, 30, 31 and 32 of the Act, which are reproduced as under:- “29- Scheme of Administration –(1) Notwithstanding anything in any law, document, or decrees or order of a Court of other instrument there shall be Scheme of administration (hereinafter referred to as the Scheme of Administration) for every recognized institution, which shall be submitted alongwith the application for recognition for the sanction of the Director. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. The Head of the institution and two teachers, thereof, who shall be selected by rotation according to seniority in the manner to be prescribed by Regulations, shall be ex-officio members of the Committee of Management with a right to vote. (2) No member of the Committee of Management shall either attend a meeting of the committee of exercise his right to vote whenever a charge concerning his personal conduct is under discussion. (2) No member of the Committee of Management shall either attend a meeting of the committee of exercise his right to vote whenever a charge concerning his personal conduct is under discussion. (3) The Scheme of Administration shall also describe subject to any Regulations, the respective powers, duties and functions of the Head of the Institution and Committee of Management in relation to the Institution. (4) Where more than one recognized institution is maintained by a body or authority, there shall be separate Committee of Management for each institution unless otherwise provided in the Regulations for any class of institution. (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. (6) Every recognized institution shall be managed in accordance with the Scheme of Administration framed under and in accordance with sub-section (1) to sub-section (5) and Section 30 and 31. (7) Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Additional Director of Education upon such enquiry as is deemed fit to be in actual control of its affair may, for purpose of this Act, be recognized to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise: Provided that the Regional Additional Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representations in writing. Explanation- In determining the question as to who is in actual control of the affairs of the institution, the Regional Additional Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under sub-section (5) and other relevant circumstances. Explanation- In determining the question as to who is in actual control of the affairs of the institution, the Regional Additional Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under sub-section (5) and other relevant circumstances. 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. 31- Scheme of Administration to be Presented for sanction before the Director- (1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 29 at any time before the commencement of the this Act and such Scheme of Administration is inconsistent with the provisions of this Act, the institution shall submit, within a period of Six months from such commencement, a fresh Scheme of Administration Consistent with the principles laid down in the first schedule for the approval of the Director. 32- Requirement of Amendment or Alteration in the Scheme of Administration- (1) While making any suggestion in the Scheme of Administration submitted under Section 29 or 31 the Director shall send, within such period of time as may be prescribed, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh Scheme of Administration or to amend of alter the existing Scheme. (2) While making any suggestion in the Scheme of Administration, the Director shall give his reasons therefore and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice. (3) The Director shall consider any representation made in accordance with sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or modification suggested under sub-section (1) or with any other changes as may appear to him to be just proper. Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him. Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him. (4) Subject to the provisions of this Act, the Director shall, within such period of time as may be prescribed, either approve the Draft Scheme of Administration submitted under Section 29 or section 31, or suggest any alteration or modification in the Scheme of Administration. Provided that if the Director does not suggest any alteration or modification in the Draft Scheme of Administration within the period of time prescribed by regulations the Draft Scheme of Administration shall be deemed to have been approved.” At this juncture, it must be stated that after the creation of the State of Uttarakhand by an Act of Parliament known as “U.P. Reorganisation Act”, the State of Uttarakhand came into existence on 09.11.2000. Thereafter, Uttaranchal School Education Act, 2006 was passed with the purpose which reads as under:- “WHEREAS, it is expedient to establish a Board to regulate and supervise the system and process of School Education, Teacher Education and Departmental Training within the unified structure of Elementary and Secondary Education in Uttaranchal, and to prescribe curriculum therefore-” 5. The grant-in-aid school now must run as per the Scheme of Administration, as provided under Section 29 of the Act. Section 30 and 31 of the Act (referred above), which also provides that the Scheme of Administration shall not be inconsistent with the principles laid down in the First Schedule. The grant-in-aid school now must run as per the Scheme of Administration, as provided under Section 29 of the Act. Section 30 and 31 of the Act (referred above), which also provides that the Scheme of Administration shall not be inconsistent with the principles laid down in the First Schedule. Schedule One to the Act reads 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, 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.” 6. A bare reading of the aforesaid provision provides that one of the essential conditions, which must be there in the Scheme of Administration, is that the Committee of Management which runs a school must be constituted by “periodical elections.” Admittedly this is not being done. Therefore, this Court fails to understand as to how the Scheme of Administration of the school is in consonance with the provisions of the Act and the Schedule. How is it then that such a Scheme has been approved by the authorities? And therefore, how is it such a school is being funded by the State Exchequer? 7. Therefore, this Court fails to understand as to how the Scheme of Administration of the school is in consonance with the provisions of the Act and the Schedule. How is it then that such a Scheme has been approved by the authorities? And therefore, how is it such a school is being funded by the State Exchequer? 7. Section 31 clearly provides that even if an approval was granted to the Scheme of Administration under the old provision, (State had granted approval to the respondents institute earlier under the old provisions), the school must submit its fresh Scheme of Administration within a period of six months from the commencement of the Uttaranchal Education Act, 2006, which should be in consistent with the principles laid down in the First Schedule for approval of the Director. Nothing has been shown before this Court that this provision has been complied with by the concerned institute and such approval has been granted. 8. However, before an order could be passed by this Court on this aspect, since this school has been running for quite sometime and purely in order to avoid or hamper the smooth running of the institute, as it may have adverse consequences for the students, this Court, for the moment directs the Director of Education to take a decision on it and pass appropriate orders. He must take a decision and answer to this Court as to why the school has not submitted its Scheme of Administration, which is in consonance with the Uttaranchal School Education Act and the Schedule therein. Secondly as to why even when there are no periodical elections in the institute, how such an institute being put under grant-in-aid. 9. Let the needful be done within a period of six weeks from today. 10. The Registrar General of this Court is hereby directed to inform the Director of Education about this order for onward compliance. 11. List this matter after six weeks in the daily cause list.