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2022 DIGILAW 1401 (ALL)

Malviya Inter College v. State Of U. P.

2022-09-05

JAYANT BANERJI

body2022
JUDGMENT : Jayant Banerji, J. 1. Heard Sri Alok Dwivedi, learned counsel for the petitioner and the learned Standing Counsel appearing for respondents. 2. Sri Yogish Kumar Saxena, learned counsel states that he had filed a caveat application on 17.5.2022 on behalf of the President of the Committee of Management. 3. Background of the case are that the petitioner’s institution is recognised under the U.P. Intermediate Education Act, 1921 and the Rules and Regulation framed thereunder. The institution is under grant-in-aid list of the State Government and payment of salary of its teachers and employees is being made under the provisions of the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 4. There is an approved scheme of administration and thereunder, the election of the Committee of Management of the institution was duly held on 25.4.2018, in which the petitioner no.2 was elected as Manager of the institution. The Inspector, Kanput Dehat had recognized this election and attested the signatures of petitioner no.2 as Manager of the institution. It is stated that model scheme of administration was issued by the Education Department by means of Government Order dated 25.8.2011 and the Committee of Management of the institution adopted the new amended model scheme of administration by a resolution dated 11.9.2020, which amended scheme of administration was approved by the Joint Director of Education by means of his order dated 18.12.2020. It is stated in the writ petition, that in terms of clause X of the newly adopted scheme of administration, the term of the Committee of Management of the institution would be five years that is to say the term of the Committee of Management elected on 25.4.2018 would be upto 24.4.2023. It is stated that the salary of teachers and employees of the institution was being duly paid under the signature of petitioner no.2 and the Finance and Accounts Officer and there was no default. Even for the month of March 2022, the salary of teachers and employees were paid under the signature of petitioner no.2 as Manager and Finance and Accounts Officer in the office of Inspector, Kanput Dehat. Even for the month of March 2022, the salary of teachers and employees were paid under the signature of petitioner no.2 as Manager and Finance and Accounts Officer in the office of Inspector, Kanput Dehat. However, the Inspector, by means of the impugned order dated 11.4.2022 passed an order of single operation of the salary distribution account of the petitioner’s institution on the ground that after expiry of three years from the date of election dated 25.4.2018, the Committee of Management has become time-barred. 5. Under challenge in the present writ petition is an order dated 11.4.2022, passed by the respondent no.3, District Inspector of Schools, Kanpur Dehat bearing order No.Ma-Derapur/345-49/2022-23, whereby an order of single operation has been passed and also directing the President of the petitioner’s institution to place a time-table/proposal, whereby the observer for election can be appointed and the election in accordance with the scheme of administration can be effected. 6. The contention of the learned counsel for the petitioner is that the old scheme of administration provided three years term for the Committee of Management. Under the old scheme of administration, the last admitted election was held on 25.4.2018. It is contended that during the sustenance of term of that Committee of Management, an amendment in the scheme of administration was proposed for extending the period of the Committee of Management from three years to five years which came to be approved by the order of the Joint Director of Education dated 18.12.2020 that has been enclosed as Annexure-3 to the writ petition. Learned counsel has vehemently argued that in view of the aforesaid approval granted by the Joint Director of Education, the previous approved scheme of administration was rendered redundant and, therefore, in view of the judgement of a full Bench of this Court in Committee of Management Saltnat Bahadur Post Graduate College, Badlapur, Jaunpur and another V. State of U.P. and others, [ 2013 (5) ADJ 326 (FB)], the existing Committee of Management would have its term extended with immediate effect. 7. It is also contended by the learned counsel for the petitioner that the petitioner continued to function as Manager of the Committee of Management and was forwarding bills for payment of salary of the teachers and other staffs of the institution, illustrative of which are documents that has been enclosed as Annexure-5 to the writ petition. 7. It is also contended by the learned counsel for the petitioner that the petitioner continued to function as Manager of the Committee of Management and was forwarding bills for payment of salary of the teachers and other staffs of the institution, illustrative of which are documents that has been enclosed as Annexure-5 to the writ petition. Learned counsel states that there is no situation existing in the management that could support the order of single operation. It is further contended that no opportunity of hearing was provided to the petitioner prior to passing of the instant order of single operation, hence the same is in violation of principles of natural justice and is liable to be set aside by this Court. 8. Learned counsel for the petitioner in support of his contention has also relied upon judgements of this Court in the matter of Committee of Management, Janta Higher Secondary School and another Vs. State of U.P. and others, [ 2013(1) ADJ 300 ], Committee of Management, Janta Inter College, Jaitpur Kalan, District Agra and another Vs. State of U.P. and others, [2021 (12) ADJ 235]. 9. Learned Standing Counsel and Sri Yogish Kumar Saxena, learned counsel have vehemently opposed the writ petition and stated that the term of the amended scheme of administration as approved by the Joint Director of Education regarding extension of term of the present Committee of Management for a period of five years would not enure to the benefits of the petitioner’s Committee of Management. Learned counsel has further stated that Full Bench decision of this Court in Saltnat Bahadur (supra) has been explained and clarified by the Division Bench of this Court in Committee of Management, Janta Inter College and another Vs. State of U.P. and others, [ 2014 (1) ADJ 111 ]. It is further contended that in view of the Division Bench judgement of 2014 aforesaid, the term of Committee of Management elected on 25.4.2018 would not extend beyond the period of three years, that is, uptill 24.4.2021 in terms of the unamended scheme of administration. It is further stated that under the circumstances, the petitioner had no vested right to continue as Manager of the institution beyond the period of three years with effect from 25.4.2018 as specified in the previous scheme of administration. 10. It is further stated that under the circumstances, the petitioner had no vested right to continue as Manager of the institution beyond the period of three years with effect from 25.4.2018 as specified in the previous scheme of administration. 10. Having considered the rival contentions of the learned counsel for the parties, it would be appropriate to look into the impugned order of single operation passed by the Inspector that appears at page 50 of the writ petition which is as follows:- **dk;kZy;] ftyk fo|ky; fujh{kd] dkuiqj nsgkr vkns’k laŒ% ekŒ&Msjkiqj@2022&23] fnukad % 11-04-2022 ,dy lapkyu vkns’k Jh ekyoh; b.Vj dkyst eqaxhlkiqj] dkuiqj nsgkr gkbZLdwy Lrj dh lgk;rk izkIr ,oa ekU;rk izkIr laLFkk gS] fo|ky; esa dk;Zjr f’k{kd ,oa f’k{k.ksRrj deZpkfj;ksa dh lsok;sa ek/;fed f’k{kk vf/kfu;e 1921 ds vUrxZr O;ogfjr gksrh gSa rFkk osru Hkqxrku osru forj.k vf/kfu;e 1971 ds vUrxZr fd;k tkrk gSA dk;kZy; esa miyC/k i=koyh ds vuqlkj fo|ky; izca/k lfefr dk foxr pquko fnukad 25-04-2018 dks laiUu djk;k x;k Fkk rFkk fo|ky; dh izca/k lfefr dk pquko iz’kklu ;kstuk esa fufgr O;oLFkk ds vuq:i fu/kkZfjr rhu o”kZ dk dk;Zdky iw.kZ gks pqdk gS rFkk orZeku esa izca/k lfefr dkykrhr dh Js.kh esa gSA vr% v/;{k] Jh ekyoh; f’k{kk izlkj lfefr] eqaxhlkiqj uUniqj] dkuiqj nsgkr dks funsZf’kr fd;k tkrk gS fd i= fuxZeu ls ,d ekg ds vUnj uohu pquko djk;s tkus dh dk;Z;kstuk@izLrko rS;kj dj bl dk;kZy; dks miyC/k djk;sa] ftlls i;Zos{kd dh mifLFkfr esa fo|ky; izca/k ra= dk pquko djk;k tk lds lkFk gh izca/k ra= ds dkykrhr gksus ds dkj.k f’k{kd ,oa f’k{k.ksRrj deZpkfj;ksa ds osru forj.k esa dksbZ vojks/k mRiUu u gks] dks n`f”Vxr j[krs gq;s osru forj.k vf/kfu;e 1971 dh /kkjk ¼;Fkkla’kksf/kr½ dh /kkjk 3¼3½ ,oa 5 mi /kkjk&2 ds v/khu laLFkk Jh ekyoh; b.Vj dkyst eqaxhlkiqj] dkuiqj nsgkr ds osru forj.k [kkrk] tks v|ru foRr ,oa ys[kkf/kdkjh dk;kZy; ftyk fo|ky; fujh{kd dkuiqj nsgkr ,oa izca/kd Jh ekyoh; b.Vj dkyst eqaxhlkiqj] dkuiqj nsgkr ds la;qDr gLrk{kjksa ls lapkyu fd;k tk jgk Fkk] dk ,dy lapkyu fd;k tkrk gS tks bl vkns’k ds fuxZeu ds i’pkr foRr ,oa ys[kkf/kdkjh ¼ekŒ f’k{kk½] dk;kZy; ftyk fo|ky; fujh{kd dkuiqj nsgkr ds ,dy gLrk{kj ls lapkfyr fd;k tk,xkA gŒ viŒ ¼vjfcUn dqekj f}osnh½ ftyk fo|ky;] fujh{kd] dkuiqj nsgkrA** 11. It is admitted to the parties that the previous election that was held on 25.4.2018 was under the unamended scheme of administration in which the period of Committee of Management was three years, that is uptill 24.4.2022. It is also admitted that by the order dated 18.12.2020, the approval to the amended scheme of administration was granted by the Joint Director of Education rendering the previous scheme of administration ineffective. At this stage, it would be pertinent to refer to the two questions referred to the Full Bench of this Court in the case of Saltnat Bahadur (supra) which were as follows: “(1) Whether the amendment will become effective from the date of the amendment? (2) Whether the amendment, extending the term of the Committee of Management, will apply to the existing Committee of Management, which has made the amendment or it applies to the Committee of Management which will be formed after the election being held after the amendment?” 12. While answering the second question referred, the Full Bench observed as follows: “12. Following the same, the second question is answered by holding that the amendment, extending or curtailing the term of the Committee of Management, will become effective immediately and as a result, then existing Committee shall have its term extended or modified in accordance with the amendment. We may add here by way of precaution that if the authority competent to make the amendment itself chooses to specify that the amendment shall be effective from a future date then the amendment shall apply from such later date as may be specified. Similarly, if the approving authority has the necessary powers to lay down similar stipulation, then the amendment may apply as per conditions or stipulations laid down by the approving authority. In absence of such special feature or stipulation, the amendment shall apply to the Committee of Management existing on the date amendment comes into force.” 13. In the case of Committee of Management, reported in 2014(1) ADJ 111 (supra), this Court had the occasion to consider the judgement of the Full Bench in Saltnat Bahadur (supra). The Court referred to the circular of Director dated 4.8.2003 and held as under:- “13…………. In the case of Committee of Management, reported in 2014(1) ADJ 111 (supra), this Court had the occasion to consider the judgement of the Full Bench in Saltnat Bahadur (supra). The Court referred to the circular of Director dated 4.8.2003 and held as under:- “13…………. Since the Director is vested with a statutory power to grant or refuse his prior approval, incidental to the exercise of power, it is open to the Director to stipulate that the approval shall not enure to the body which has proposed by a resolution, the enhancement of the term. Secondly, the Director has, by his circular of 4 August 2003, clarified the matter beyond doubt by stipulating that when the term of a Committee of Management is enhanced from three years to five years by an amendment in the scheme of administration, the benefit of the amendment will enure only to the Committee of Management that would be elected after fresh elections are held.” 14. The Full Bench, inter alia, held that for want of a special feature or stipulation by the authority competent to make the amendment to the Scheme of Administration to make the amendment effective from a future date, the amendment shall apply to the Committee of Management existing on the date the amendment comes into force. Given the mandate of the Division Bench clarifying the answer to question no. 2 of the Full Bench, in view of the circular dated 4.8.2003, and given the fact situation of the present case, it is evident that the term of the Committee of Management, which was elected on 25.4.2018 under the unamended scheme of administration, came to an end on expiry of three years on 24.4.2021. It is pertinent to mention here that the existence, currency and validity of the aforesaid circular of 4.8.2003 is not disputed. 15. Though a photocopy of salary bill for the month of March 2022 signed by the Manager of the institution and the Finance & Accounts Officer is on record, in view of the legal position regarding the term of the Committee of Management as discussed above, no benefit of that can accrue to the petitioner. 15. Though a photocopy of salary bill for the month of March 2022 signed by the Manager of the institution and the Finance & Accounts Officer is on record, in view of the legal position regarding the term of the Committee of Management as discussed above, no benefit of that can accrue to the petitioner. Merely for the reason that no default regarding payment of salary has occurred, the order of single operation cannot be struck down unless the petitioners establish and demonstrate that the Committee of Management could legally continue beyond the term of three years on the strength of the amended Scheme of Administration, which they have failed to do. 16. In view of the aforesaid position, it needs to be examined whether the petitioner was entitled to an opportunity of hearing under the facts and circumstances of the case. 17. In the present case, it is iterated that in view of the aforesaid Division Bench judgement of this Court clarifying the answer of the question by the Full Bench in Saltnat Bahadur(supra), the petitioner has no vested right to continue as Manager of the institution beyond the stipulated period of three years as provided in the previous scheme of administration. 18. It has been repeatedly held by this Court as well as by the Apex Court that in addition to demonstrating breach of natural justice, proof of prejudice is also to be demonstrated. The petitioner having no right to continue beyond the period of three years, is no longer entitled to continue as Manager of the Committee of Management. At this stage, it is pertinent to refer to the judgment of the Supreme Court in Aligarh Muslim University and others Vs. Mansoor Ali Khan, (2000) 7 SCC 529 , in which it has been held as under: “23. Chinnappa Reddy, J, in S.L. Kapoor case laid down two exceptions ( at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi V. State Bank of India Sabyasachi Mukharji, J ( as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade’s Administrative Law (5th Edn., pp. 47275), as follows: (SCC p. 58, para 31). “It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent…. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.” Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala V S.K. Sharma. In that case, the principle of “prejudice” has been further elaborated. The same principle has been reiterated again in Rajendra Singh V. State of M.P. ……… 26. It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor V. Jagmohan, namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued.” 19. In the judgement cited by the learned counsel for the petitioner, which is reported in 2013 (1) ADJ 300 (supra), there was a dispute with regard to the Committee of Management which was pending before the Joint Director of Education and an order of single operation was passed. Mansoor Ali Khan though notice has not been issued.” 19. In the judgement cited by the learned counsel for the petitioner, which is reported in 2013 (1) ADJ 300 (supra), there was a dispute with regard to the Committee of Management which was pending before the Joint Director of Education and an order of single operation was passed. The argument advanced was that the same cannot be a ground to invoke the provisions of U.P. Act No. 24 of 1971, unless default is established. In this view, the Court observed as follows:- “5. Having heard learned counsel for the parties, this is not a case where the Court should await any filing of further Affidavits as the impugned order on the face of it is in teeth of the provisions of U.P. Act No. 24 of 1971, which mandatorily requires the issuance of a notice prior to passing of an order of single operation. Admittedly, no notice was issued to the petitioner-Committee of Management. Apart from this, the mere pendency of a dispute cannot be the reason for passing of an order of single operation inasmuch as there is nothing in the order to indicate that the payment of salary was ever obstructed. In such a situation, the passing of the order is absolutely unjustified.” In such a situation, the order impugned was held to be unjustified. However, the fact scenario of the present case are different. 20. In the other matter cited by the learned counsel for the petitioner, reported in 2021 (12) ADJ 235 (supra), it appears that during the sustenance of term of the Committee of Management, 16 new members were enrolled, out of which, petitioner no.2 therein was also enrolled as a member. The Manager of the Committee of Management died, as a result, a casual vacancy came into existence and the petitioner no.2 being a valid member was elected as manager for the residue period under a resolution which was duly approved by the Inspector. It was only on the complaint made by the Principal of the institution, the proceeding of single operation was initiated without providing an opportunity of hearing. It was, therefore, in view of the facts of that case, the order of single operation was set aside. 21. Therefore, the aforesaid two judgements are of no help to the petitioner. 22. It was only on the complaint made by the Principal of the institution, the proceeding of single operation was initiated without providing an opportunity of hearing. It was, therefore, in view of the facts of that case, the order of single operation was set aside. 21. Therefore, the aforesaid two judgements are of no help to the petitioner. 22. In view of the aforesaid facts and circumstances of this case, though notice may not have been given to the petitioners prior to issuance of the impugned order of single operation of the account, no prejudice has been caused to them. In the aforesaid judgement in Aligarh Muslim University, the Supreme Court held that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. In view of the indisputable facts of the present case, only one view is possible, and that is, that the petitioner Committee of Management had no right to continue beyond 24.4.2021. The benefit of the extended term of the Committee of Management, brought about by the amendment in the Scheme of Administration, would not inure to the petitioner Committee of Management which was existing on the dates of adoption and approval of the amended Scheme of Administration. 23. In view of the aforesaid facts and circumstances of the case, in the opinion of the Court, the petition has no legs to stand and it is, accordingly, dismissed.