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2016 DIGILAW 3955 (ALL)

Azad Memorial Inter College v. State of U. P.

2016-12-08

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra,J. 1. This writ petition is directed against an order passed by the Regional Level Committee dated 27.8.2016, recognizing the election of the committee of management of the institution conducted by respondent no.4 on 16.12.2015. 2. Facts, giving rise to filing of this petition, in brief, are that there exists an institution, namely Azad Memorial Inter College, Dasna, Ghaziabad, which is recognized under the provisions of the U.P. Intermediate Education Act, 2001, and provisions of the Payment of Salary Act, 1971 are also applicable upon it. This institution is run by an approved scheme of administration, which is annexed as Annexure-1 to the writ petition. The definition Clause of the scheme in Clauses (viii) and (ix), defines 'Society' and 'Anjuman' in following words: - "(viii) 'SOCIETY' means the Vidya Pracharni Sabha, Dasna (Meerut). (ix) 'ANJUMAN' means Anjuman Islahul Muslimaan Hadam Dasna, that founded the institution." General body is defined in the scheme to mean that there shall be a general body of the society, which will consist of 05 kinds of members. Clause-d is relevant for the present purposes, which deals with members of Anjuman, and reads as under: - "d. GENERAL BODY There shall be a general body of the Society. It shall consist of the following five kinds of members: - (a) ....... (b) ....... (C) ....... (D) ANJUMAN-MEMBERSHIP: - Any person who is the member of the Anjuman and donates Rs.6/- in a year in lump sum shall become the member of the General Body for the years for which his subscription has been paid." 3. It seems that elections of the committee of management in past were held on the basis of general body consisting of members of the society, and also members of the Anjuman. This has been specifically narrated by the District Inspector of Schools, in his order dated 7.6.2002, which is at page 76 of the writ petition. This order also notices that membership fee of 39 persons was deposited in the account of the institution, and on that basis, they were granted membership of institution. Elections have been held from the list of 39, which consisted of the members of Anjuman and Vidya Pracharni Sabha. The order dated 7.6.2002 was assailed before this Court, but it failed with dismissal of writ petition on 6.4.2007. This order is annexed as Annexure-3 to the writ petition. Elections have been held from the list of 39, which consisted of the members of Anjuman and Vidya Pracharni Sabha. The order dated 7.6.2002 was assailed before this Court, but it failed with dismissal of writ petition on 6.4.2007. This order is annexed as Annexure-3 to the writ petition. It appears that fresh elections were held in the year 2005, then in 2008, in which petitioner committee was recognized, and was not challenged. It further transpires that against the elections conducted in the year 2011, certain objections were raised by respondents, which were rejected by the District Inspector of Schools, vide his order dated 26.9.2011. Ultimately, the elections held in the year 2011 on 17.7.2011 was approved by the Joint Director of Education, vide order dated 29.11.2011. The order granting recognition dated 29.11.2011 has not been challenged. It is further apparent that term of the committee is 05 years, which was to continue till July, 2016. 4. While petitioner committee was continuing, it took a decision to merge the Vidya Pracharni Sabha and the Anjuman, and in that regard, certain resolutions were passed. These decisions were then submitted for approval before the Assistant Registrar. The Assistant Registrar passed an order on 29.11.2013, rejecting resolution for merger of two societies. This order has been assailed by petitioner in Writ Petition No. 68873 of 2013, which is stated to be pending, and wherein no interim orders have been passed. The respondents, on the basis of order passed by the Assistant Registrar, appear to have approached the Joint Director of Education with a prayer to appoint an authorized controller in the institution, on the ground that the merger had failed, and that the elections could not have been held, in which members of Anjuman had also participated. According to respondents, the members of Anjuman had participated in the elections on account of merger of the two societies, and once it was disapproved, the election stood vitiated. Additionally, it was asserted that grant of recognition vide order dated 29.11.2011 was conditional, being subject to grant of approval to merger, and once it failed, the election and proceedings stood vitiated. The Joint Director of Education proceeded to pass an order appointing authorized controller on 6.1.2014. Additionally, it was asserted that grant of recognition vide order dated 29.11.2011 was conditional, being subject to grant of approval to merger, and once it failed, the election and proceedings stood vitiated. The Joint Director of Education proceeded to pass an order appointing authorized controller on 6.1.2014. This order was challenged by the petitioner by filing Writ Petition No.1935 of 2014, which was disposed of with the consent of parties, requiring the Director of Education to pass a fresh order. Thereafter, a Special Appeal No.121 of 2014 was filed, which was disposed of. Ultimately, the Director proceeded to pass an order on 1.4.2015. This order is annexed as Annexure-6 to the writ petition. The Director, vide his order dated 6.1.2014, set aside the order passed earlier by the Joint Director, but after hearing the parties, again directed the Joint Director to appoint an authorized controller in view of the order passed by the Deputy Registrar on 29.11.2013, disapproving the merger. A consequential order was passed by the Joint Director of Education on 16.4.2015. The order of the Director dated 1.4.2015, as well as consequential order passed by the Joint Director dated 16.4.2015, have been challenged by the petitioner, by filing Writ Petition (Misc. Single) No.2022 of 2015, in which both these orders have been stayed. Operative portion of the order dated 3.11.2015, passed by Lucknow Bench of this Court, reads as under: - "In view of above, I am of the prima facie opinion that while taking impugned action, the authorities have ignored the provisions contained in Section 6 of the Act which makes both orders vulnerable. Accordingly, till further orders of this Court, operation and implementation of the order dated 01.04.2015 passed by the Director, Secondary Education and the order dated 16.04.2015 passed by the Joint Director of Education shall remain stayed. This order would not mean that earlier order dated 06.01.2014 shall stand revived. Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit. Two weeks' time thereafter shall be available to learned counsel for petitioners to file rejoinder affidavit, if they so desire. List after expiry of the aforesaid period." 5. From the order aforesaid, it is apparent that the order of Director dated 1.4.2015, directing appointment of authorized controller, as well as consequential order passed by the Joint Director dated 16.4.2015, stand stayed. List after expiry of the aforesaid period." 5. From the order aforesaid, it is apparent that the order of Director dated 1.4.2015, directing appointment of authorized controller, as well as consequential order passed by the Joint Director dated 16.4.2015, stand stayed. This Court has further clarified that it would not mean that the previous order of Joint Director dated 6.1.2014 shall stand revived. It is clear in view of the interim order that petitioner committee of management was entitled to continue and complete its terms, as per the scheme. It is also apparent that the order granting recognition in favour of the petitioner dated 29.11.2011 has not even been questioned or challenged by any of the respondents, and no interference with such order was thus warranted. It, however, appears that without any order passed by a competent authority, disapproving the election of the petitioner committee, the respondents proceeded to treat that the recognition granted in favour of petitioner stood nullified, presumably on account of order of Assistant Registrar dated 29.11.2013, and consequently, a fresh election has been held by the respondents on 16.12.2015. It is this election, which has been granted recognition by the Regional Level Committee. 6. Sri R.K. Ojha, learned Senior Counsel for the petitioner, contends that once the petitioner's election held in the year 2011 has been recognized on 29.11.2011, and has not been interfered with by anyone, nor has been set aside by any Court, the petitioner committee was entitled to continue till completion of its term i.e. July, 2016. It is stated that this is the only consequence of the order dated 3.11.2015 passed by this Court in Writ Petition (Misc. Single) No.2022 of 2015. It is stated that there was no occasion for any fresh election to be held, during the continuance of term of duly recognized existing committee, much less to grant recognition to such election. It is also stated that respondents had no authority to hold the election, nor any observer etc. had been appointed. It is also stated that the respondent committee is not the outgoing committee, and therefore, it otherwise could not have conducted the elections. It is also stated that even if the merger was disapproved, it would not lead an inference that elections recognized stood nullified. had been appointed. It is also stated that the respondent committee is not the outgoing committee, and therefore, it otherwise could not have conducted the elections. It is also stated that even if the merger was disapproved, it would not lead an inference that elections recognized stood nullified. Contention is that even if merger stood disapproved, the recognition granted would not fall, inasmuch as the scheme clearly permitted members of Anjuman to become members of society, upon payment of Rs.6/-, and such facts were noticed by the District Inspector of Schools, while recognizing the petitioner's election held in the year 2001, vide order dated 7.8.2002. It is stated that the authorities have completely misdirected themselves in passing the order impugned. It is also argued that the order of Regional Level Committee virtually amounts to an act of contempt, inasmuch as the interim order granted by Lucknow Bench of this Court on 3.11.2015 has been violated. 7. Per contra, Sri Ashok Khare, learned Senior Counsel appearing for the respondents, states that once the plea of merger stood disapproved by the Assistant Registrar, any election held with the participation of members of Anjuman would automatically fall. It is also stated that petitioner's claim was based upon merger, and there was no independent claim set up that members of Anjuman had paid Rs.6/- to seek membership of society. It is also stated that in view of the provisions of scheme, an election could be held only by members of society, and in the absence of claim of deposit of Rs.6/- by members of Anjuman, they could not have participated in the election. It is also stated that approval granted on 29.11.2011 had taken note of the proceedings of merger pending before the Assistant Registrar, and thus, in essence, was conditional. 8. I have heard learned counsel for the parties, and have perused the records. 9. From the facts, noticed above, it is clear that committee of management of the institution is to function, in accordance with scheme of administration. Relevant clauses of scheme have already been extracted above. The scheme specifically contemplates 05 kinds of members, which includes members of Anjuman, who donate Rs.6/- in a year as lump sum. It is, therefore, clear that a member of Anjuman could be a member of general body, and is entitled to take part in election of the institution. Relevant clauses of scheme have already been extracted above. The scheme specifically contemplates 05 kinds of members, which includes members of Anjuman, who donate Rs.6/- in a year as lump sum. It is, therefore, clear that a member of Anjuman could be a member of general body, and is entitled to take part in election of the institution. The order of District Inspector of Schools dated 7.6.2002 clearly recognizes this fact. It is further apparent that petitioner committee has continuously been elected from the year 2001 onwards, and its subsequent election in the year 2003, 2005, 2008 and 2011 have been duly recognized. The order passed by District Inspector of Schools on 7.6.2002 clearly mentions the electoral college, as including members of Anjuman. This order further notices the contention of the parties that upon payment of fee, they have become member, as per the scheme of administration. This order has attained finality with dismissal of writ petition on 6.4.2007. It is, therefore, apparent that in the past also, elections, which were recognized, were held with the participation of members of society, as well as members of Anjuman. The mere fact that resolution for merger has failed, would not be a material circumstance for the present purposes, inasmuch as even without a merger, the members of Anjuman could continue to be part of the general body of institution. This Court further finds that elections of petitioner committee held in the year 2011 was granted recognition of the Joint Director of Education on 29.11.2011. Although this order notices pendency of matter before the Assistant Registrar, relating to the merger of two societies, but the order is not made conditional in any manner, nor could the approval order be treated to have been nullified, just because approval to merger was not accorded by the Assistant Registrar. 10. This Court further finds that attempt on part of respondents to create a dispute on account of disapproval of merger with appointment of authorized controller had clearly been disapproved by this Court, and any such act would be a direct affront to the orders passed by this Court on 3.11.2015. The necessary consequences of order dated 3.11.2015 otherwise would be that petitioner committee shall continue to complete its terms. 11. The necessary consequences of order dated 3.11.2015 otherwise would be that petitioner committee shall continue to complete its terms. 11. This Court is at a loss to understand as to how any elections could be held by the respondents to constitute committee of management, during the currency of term of a recognized committee of management. The respondent committee was otherwise not the outgoing committee, and had no right to conduct the elections. The order of disapproval of merger would also not lead to nullifying the order of recognition. There was otherwise no order disapproving the recognition order dated 29.11.2011, and therefore, there was otherwise no occasion for any fresh elections could have been held on 16.12.2015. Such aspects, however, have completely been omitted from consideration by the Regional Level Committee. This Court finds substances in the contention of petitioner that the impugned action runs contrary to the interim order passed by this Court on 3.11.2015, inasmuch as the spirit of order was that the petitioner committee would continue. The order impugned essentially proceeds on the assumption that as a consequence of disapproval of merger, the election itself stood nullified. This assumption is flawed for the reasons, noticed above. In such circumstances, the order passed by Regional Level Committee dated 27.8.2016 cannot be sustained, and is quashed. 12. Petitioner, in facts and circumstances, is entitled to payment of cost, quantified at Rs.1,000/-. The cost is being awarded also to express disapproval in the manner, in which the respondents have proceeded to pass order, recognizing a wholly invalid election. Petitioner committee being an outgoing committee has conducted fresh elections within time on 26.8.2016. The claim of fresh elections shall be gone into by the Regional Level Committee, keeping in view the observations made above, after affording opportunity of hearing to the parties concerned, afresh, within a period of six weeks from the date of presentation of certified copy of this order. 13. With the aforesaid observations/directions, the writ petition stands disposed of.