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2018 DIGILAW 2326 (ALL)

PRAMOD KUMAR v. STATE OF U. P.

2018-11-15

MANOJ KUMAR GUPTA

body2018
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioners, learned Standing Counsel for respondent Nos. 1 to 4 and Sri N.L. Pandey for respondent Nos. 5 and 6. With their consent, the writ petition is being disposed of finally without inviting a formal counter-affidavit. 2. Saraswati Inter College, Peepalhera, Kakrala, Khatauli, Muzaffarnagar is a recognized institution under the provisions of the U.P. Intermediate Education Act, 1921(for short ‘the Act’). The institution is governed by an approved Scheme of Administration as stipulated by Section 16-A of the Act. Under Clause 8 of the Scheme of Administration, the term of the office bearers and members of the Committee of Management of the institution is three years with a grace period of one month, after which, in case election is not held, a person appointed by Regional Deputy Director of Education would act as Authorised Controller with duty to hold fresh elections. As per statement made by learned counsel for the parties, sometimes in the year 2011, an amendment was carried out in Clause 8 and thereby, the term of the Committee of Management was enlarged from three years to five years. In an election of the Committee of Management of the institution held on 1.6.2008, respondent No. 6 was elected as Manager. The said election was recognized by District Inspector of School by an order dated 20.11.2008. At the expiry of the term of the said Committee in December, 2011, three set of elections were set up, but none of which was approved. In consequence, the District Inspector of Schools, by an order dated 6.1.2012, directed for single operation of the accounts of the institution followed by an order passed by the Joint Director of Education on 26.7.2012 appointing an Authorized Controller. Thereafter, fresh election of the Committee of Management was held on 7.7.2013, in which respondent No. 6 was again elected as Manager. The Committee elected on 7.7.2013 was recognized by the District Inspector of Schools by order dated 16.7.2013, and as a consequence whereof, respondent No. 6 worked as Manager for second successive term. The next election, as per the provisions of the amended Scheme, fell due in the year 2018. Petitioner No. 2 and respondent No. 2 both filed their nominations for the post of Manager. The next election, as per the provisions of the amended Scheme, fell due in the year 2018. Petitioner No. 2 and respondent No. 2 both filed their nominations for the post of Manager. It seems that petitioner No. 2 as well as petitioner No. 1, who is member of the general body, filed objections before the Election Officer as well as before District Inspector of Schools against nomination of respondent No. 6 on the post of Manager on the ground that under Clause 6(8) of the Scheme of Administration, no office bearer is entitled to contest third successive election, for the same post. The District Inspector of Schools, by letter dated 9.7.2018 called for a response from respondent No. 6. Respondent No. 6 submitted his response and pleaded that after the term of the Committee elected in the year 2008 expired in December, 2011, an Authorised Controller came to be appointed in the institution and he managed the institution till fresh election was held on 7.7.2013. According to him, although, he was again elected in the said election, but since in between the election held in the year 2008 and 2013, an Authorised Controller managed the institution for almost a year, therefore, the bar contained under Clause 6 (8) would not apply. However, District Inspector of Schools without deciding the objection, proceeded to the pass the impugned order dated 18.7.2018 according recognition to election held on 8.7.2018 and also attested the signatures of respondent No. 6 on the post of Manager. Aggrieved thereby, the instant writ petition has been filed. 3. Clause 6(8) and Clause 8 of the Scheme of Administration, which are relevant to the controversy, read thus : ^^¼8½ dksbZ O;fDr ,d fo|ky; dh lfefr ds inkf/kdkjh ds fdlh in ij yxkrkj nks ckj jg ldrk gS mlls vf/kd ughaA xSi ds ckn nksckjk gks ldrk gSA&& 8- inkf/kdkjh ,oa lfefr ds lnL;ksa dk dk;Zdky rhu o"kZ dk gksxkA dk;Z vof/k lekIr gks tkus ij vxys ,d ekl rd gh inkf/kdkjh cus jgsaxsA ;fn rhu o"kZ ds ckn ,d ekg ds vUnj uo p;fur lfefr dk;ZHkkj xzg.k ugha djrh rks rhu o"kZ ,d ekg ckn dkykrhr lfefr dk dk;Zdky Lor% lekIr le>k tk;sxk vkSj lEHkkxh; mif'k{kk funs'kd }kjk euksuhr ,d O;fDr izcU/k lapkyd dk;Zjr ekuk tk;sxkA** 4. Counsel for the petitioners submitted that since admittedly respondent No. 6 was elected as Manager in the election held in the year 2008 followed by a successive term in the next election held in the year 2013, and therefore, the bar contained under Clause 6(8) would be applicable on all fours and re-election of respondent No. 6 on the post of Manager for the third successive term was not permissible. It is urged that despite a specific objection filed by the petitioners in this regard, the District Inspector of Schools has proceeded to accord recognition to the election of respondent Nos. 5 and 6 without adverting to the objection filed by the petitioners. He has placed reliance on various judgements of this Court in contending that the provisions contained in the Scheme of Administration are mandatory in character and could not be relaxed. 5. On the other hand, Sri N.L. Pandey learned counsel for respondent Nos. 5 and 6 submitted that the writ petition at the instance of two persons, out of a general body comprising of about 1200 members is not maintainable. According to him, petitioner No. 2 also contested the election on the post of Manager, but lost, therefore he could turn around and challenge the election. He further submitted that Clause 6(8) itself permits re-election in case there is a gap. According to him, as an Authorised Controller functioned after the tenure of the earlier Committee expired and the tenure of the new Committee started, therefore, there was a gap between the two elections. Consequently, there was no illegality in respondent No. 6 contesting the election and him being declared elected. 6. I have given anxious consideration to the submissions made by the learned counsel for the parties and perused the record. 7. Indisputably, respondent No. 6 was elected on the post of Manager in the election held on 1.6.2008. It is also not disputed that in the next election held on 7.7.2013, respondent No. 6 was again elected on the post of Manager. There is also no dispute between the parties that after the expiry of the term of Committee elected on 1.6.2008, an Authorised Controller managed the affairs of the institution for almost a year before the charge was handed over to the Committee elected on 7.7.2013. There is also no dispute between the parties that after the expiry of the term of Committee elected on 1.6.2008, an Authorised Controller managed the affairs of the institution for almost a year before the charge was handed over to the Committee elected on 7.7.2013. The issue which thus falls for consideration is whether the period during which Authorised Controller functioned, could be treated as a gap as envisaged under Clause 6 (8) of the Scheme of Administration. 8. Section 16-C(C) inserted by U.P. Act No. 1 of 1981 provides that the Scheme of Administration in relation to any institution whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1980 shall not be inconsistent with the principles laid down in the Third Schedule. One of the principles laid down in the Third Schedule is regarding constitution of the Committee of Management by holding periodical elections. The another one is for stipulating term of the office of Committee of Management and a prohibition in creating monopoly in favour of any particular person, caste, creed or family. 9. As noted above, Clause 8 of the Scheme of Administration provided for holding of elections initially after every three years and after amendment, after every five years. Clause 6(8), quoted above, is in two parts. The first part specifically provides that a person could be elected as office bearer of the Committee of Management only for two successive terms and not more than that. The second part stipulates that he could be elected again after a gap. The object of such stipulation in the Scheme of Administration was to prevent perpetuation of an individual in the same office for long period, beyond two terms in succession. This is in accordance with the principles of the Third Schedule mentioned above. The second part of Clause 6(8), is in the nature of a proviso. Thus, where there is a gap after two successive terms, the bar contained in the first part stands lifted. The second part has to be given an interpretation so as to effectuate the object of the main provision. Thus, the gap envisaged under the second part is a gap coming into existence on account of some other person being elected on the said post for the third time. The second part has to be given an interpretation so as to effectuate the object of the main provision. Thus, the gap envisaged under the second part is a gap coming into existence on account of some other person being elected on the said post for the third time. A recognized institution, in view of Section 16-A and other provisions of the Act, has to be managed by a Committee elected as per the provisions contained in the approved Scheme of Administration. Where election are not held in time, the Scheme of Administration and the provisions contained in the Act provides for the body which would manage the institution till a duly elected Committee of Management is handed over the charge. Thus, under Clause 8, although, the term of the office bearers and members of the Committee of Management was/is three/five years, but a grace period of one month is provided to them to continue in office and hold elections. If within this grace period elections are not held, the Management will be taken over by a person nominated as Authorized Controller by the Regional Deputy Director of Education. Likewise under Section 16-D in case, there is no validly elected Committee of Management and which has affected the smooth and orderly administration of institution, the State Government is competent to appoint an Authorized Controller. These provisions only envisage adhoc arrangement until validly elected Committee of Management is constituted. When the Management is in hand of such a body, it would not result in a gap envisaged by the second part of Clause 6 (8). Any contrary interpretation would defeat the very purpose for which Clause 6 (8) has been incorporated in the Scheme of Administration. 10. If the argument of learned Counsel for respondent No. 6 is accepted, then the Committee, whose term has run out, but continues to manage the institution by virtue of the grace period of one month and succeeds in holding election in the grace period, would contend that there has been a gap in holding of fresh election and thus, the bar contained under clause 6(8) would stand lifted. This is simply impermissible. The submission of learned counsel for respondent No. 6, is therefore, not acceptable and is consequently rejected. 11. This is simply impermissible. The submission of learned counsel for respondent No. 6, is therefore, not acceptable and is consequently rejected. 11. The next submission of learned Counsel for respondent No. 6 that writ petition at the instance of the petitioners is not maintainable, also deserves rejection. Admittedly, petitioner No. 2 had contested for the post of Manager. He filed objection before the District Inspector of Schools on 6.7.2018, before holding of election on 7.7.2018. The District Inspector of Schools also called for a reply from respondent No. 6, in reference to the objection filed by petitioner No. 2. However, without deciding the objection, he proceeded to accord recognition to respondent Nos. 5 and 6. The order so passed directly affects petitioner No. 2, who had lost the election. In case, the nomination of the respondent No. 6 on the post of Manager itself was invalid, there was very likelihood of petitioner No. 2 being elected or someone else being elected, but not respondent No. 6. Thus, it cannot be said that the writ petition at the instance of the petitioners is not maintainable. 12. As a result of the above discussion, the election of respondent No. 6 on the post of Manager of the Committee of Management of the institution is declared invalid, and to such extent, the impugned order is hereby quashed. The District Inspector of School shall now ensure holding of fresh election on the post of Manager in accordance with the approved Scheme of Administration. 13. The writ petition stands allowed with the aforesaid direction.