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2022 DIGILAW 248 (UTT)

Surendra Kumar v. State of Uttarakhand

2022-08-05

R.C.KHULBE, VIPIN SANGHI

body2022
JUDGMENT : Vipin Sanghi, J. Issue notice. Mr. K.N. Joshi, learned Deputy Advocate General for the State of Uttarakhand, accepts notice on behalf of respondent Nos. 1 to 5. Mr. Parikshit Saini, learned counsel, accepts notice on behalf of respondent No. 9. 2. With the consent of parties, we proceed to hear the present appeal at this stage, and we proceed to dispose of the same. 3. The present Special Appeal is directed against the order dated 25.07.2022, passed by the learned Single Judge, in Writ Petition (M/S) No. 1584 of 2022, preferred by the appellants. The learned Single Judge has dismissed the said writ petition with costs of Rs.10,000/- upon the petitioners on the ground that the petitioners had approached the Court with concealment of relevant facts. The concealment alleged against the petitioners was in relation to earlier writ proceedings instituted by the petitioners, wherein the petitioners had raised a challenge with regard to the electoral college for conduct of elections to the Managing Committee of the Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. 4. The submission of learned counsel for the appellants is that, in fact, firstly there was no concealment of the earlier writ proceedings as aforesaid and secondly, in any event, the factum of the appellants having preferred an earlier writ petition to assail the composition of the electoral college for conduct of elections to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar was not a relevant fact for the purposes of the present writ petition which has been dismissed by the impugned order. The submission of learned counsel for the appellants is that, in the present writ petition, the petitioners had primarily raised a challenge to the order dated 02.03.2022, passed by the Chief Education Officer, Haridwar, granting recognition to the Managing Committee which consists of the elected office-bearers of the said Committee in respect of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. The challenge was premised on the basis that the Chief Education Officer had earlier passed an order on 30.10.2021, holding that the elections which were held on 17.10.2021 were not regular with due notice to all the concerned members of the Society and, consequently, he had directed that fresh elections be held. The challenge was premised on the basis that the Chief Education Officer had earlier passed an order on 30.10.2021, holding that the elections which were held on 17.10.2021 were not regular with due notice to all the concerned members of the Society and, consequently, he had directed that fresh elections be held. The submission of learned Senior Counsel for the appellants is that, in the present writ petition, no issue with regard to the constitution of the electoral college was raised by the appellants/writ petitioners and, consequently, facts relating to the earlier challenge to the electoral college were, in any event, not relevant. The further submission of learned Senior Counsel for the appellants is that even as a matter of fact the writ petitioners had disclosed the filing of their earlier writ petition No. 2653 (M/S) of 2021, in para 23 of the writ petition, which reads as follows:- “That the petitioner no.3 had filed the Writ Petition No. 2653 of 2021 with the prayer to delete the 1384 names of such ordinary voters whose term was expired in the year 2019 and 129 voters who have already died and 78 voters who have not paid their membership fee before the election is conducted. The respondent no. 9 has filed a Special Appeal No. 429 of 2021 “Manoj Kumar Vs. State of Uttarakhand and another” the Hon’ble Court has set aside the order dated 15.12.2021 passed in Writ Petition No. 2653 of 2021 merely on the ground that the respondent/petitioner has not annexed the report dated 17.10.2021 of the Election Officer but it was not intentional but it was a mistake and wrong advice that it was not annexed but respondent petitioner of the said appeal/petitioner no. 3 is not at fault. The master of the brief is responsible for it. The respondent no.9, who requested to fix next date of hearing, challenged the aforesaid order passed in writ petition 2653 of 2021 before the Division Bench of this Hon’ble Court by way filing Special Appeal no. 429 of 2021. In the said appeal the appellant’s contention was that in the writ petition it has not been mentioned that the election of committee of management has been held on 17-10-2021, whereas the true copy of speaking order dated 30-10-2021 (herein referred as Annexure No. 2) has been annexed as Annexure No. 6 to the said writ petition. 429 of 2021. In the said appeal the appellant’s contention was that in the writ petition it has not been mentioned that the election of committee of management has been held on 17-10-2021, whereas the true copy of speaking order dated 30-10-2021 (herein referred as Annexure No. 2) has been annexed as Annexure No. 6 to the said writ petition. The said appeal was decided by this Hon’ble Court accepting the contention of the appellant and passing the judgment/order dated 04- 03-2022, thereby without going into merits of the case dismissed the writ petition 2653 of 2021 and set aside the judgment/order dated 15-12-2021 passed in writ petition. For kind perusal of this Hon’ble Court, a true and correct copy of judgment/order dated 04-03-2022 is being filed herewith and is marked as Annexure No. 20 to this writ petition.” 5. On merit, learned counsel submits that in the face of the earlier order dated 30.10.2021, also passed by the Chief Education Officer, the order dated 02.03.2022, cannot be sustained. 6. On the other hand, the submission of learned counsel for the respondents is that the order dated 30.10.2021 was passed without any authority or jurisdiction since the dispute with regard to the election of an office-bearer can only be raised under Section 25 of the Societies Registration Act, as applicable to Uttar Pradesh (which is also application to the State of Uttarakhand). The said dispute can be raised before the Registrar and the Chief Education Officer, therefore, had no authority or jurisdiction to go into the issue whether the elections to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar were legally held or not. Learned counsel submits that order dated 30.10.2021 is, therefore, a nullity and a separate challenge to the said order was not necessary and the respondents can raise the issue of the order dated 30.10.2021, being a nullity, even in these collateral proceedings. Learned counsel, therefore, submits that the recognition order dated 02.03.2022 issued by the Chief Education Officer subsequently is valid since no challenge to the elections to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar has properly been laid before the Registrar under Section 25 of the aforesaid Act. 7. Learned counsel, therefore, submits that the recognition order dated 02.03.2022 issued by the Chief Education Officer subsequently is valid since no challenge to the elections to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar has properly been laid before the Registrar under Section 25 of the aforesaid Act. 7. Learned counsel for the respondents fairly does not dispute the position that the petitioners/appellants were not guilty of concealment of any material fact. 8. We have considered the submission of learned counsels and perused the impugned order as well as the record. 9. We find merit in the grievance of the appellants that there was no concealment of any material fact by the petitioners in the writ petition. We find merit in the appellants’ submission that since there was no challenge raised to the constitution of the electoral college in the present writ petition, the earlier proceedings in respect of the challenge to the electoral college had no bearing on the present petition. The present petition had proceeded on the basis that the electoral college was properly constituted. The writ petition had been premised primarily upon the issuance of an earlier order dated 30.10.2021 by the Chief Education Officer, to say that without holding the elections in terms of the order dated 30.10.2021 passed by the Chief Education Officer, subsequently the Chief Education Officer had himself issued the recognition order on 02.03.2022. Even otherwise, we find, as a matter of fact, that there was no concealment of any material fact since, in any event, in para 23 of the writ petition, the petitioners had made the disclosure of the filing of the earlier petition. We are, therefore, of the view that the dismissal of the appellants’ writ petition on the ground of concealment of material and relevant facts and imposition of cost upon the appellants was not called for. We, therefore, set aside the impugned order in that regard. 10. At the same time, we also find merit in the submission of learned counsel for the respondents that the order dated 30.10.2021 relied upon by the appellants was a nullity, inasmuch as, the Chief Education Officer had no authority or jurisdiction to decide a dispute with regard to elections of office bearers of the Managing Committee constituted to manage Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. Section 29 of the Uttarakhand School Education Act, 2006, is relevant, and the same reads as follows:- “29. Scheme of Administration.- (1) Notwithstanding anything in any law, document, or decrees or order of a Court of other instrument there shall Scheme of administration (hereinafter referred to as the Scheme of Administration) for every recognized institution, which shall be submitted along with 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 of 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 or 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 chap 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 subsection (5) and Sections 30 and 31. (6) Every recognized institution shall be managed in accordance with the Scheme of Administration framed under and in accordance with sub-section (1) to subsection (5) and Sections 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 deemed fit to be in actual control of its affair may, for purpose of 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 to who is 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.” 11. The Managing Committee in question for which elections were held was constituted to manage Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar, in terms of Section 29 aforesaid. 12. Reliance is placed by learned Senior Counsel for the appellants on Sub-Section (7) of Section 29, to submit that the Regional Additional Director of Education was vested with the authority to determine a dispute with respect to the management of the Institution, appears to be misplaced in the facts of the present case. Sub-Section (7) of Section 29 deals with a situation where there is a dispute with respect to management of an institution amongst two groups claiming to have actual control over the affairs of the Managing Committee. In the present case, the dispute related to elections of office-bearers to the Managing Committee, and not to the management of the institution by one or the other Managing Committee. In fact, even the appellants did not claim that there were two rival managements. 13. Therefore, the dispute raised by the petitioners could not have been taken before the Regional Additional Director of Education, and he did not have the authority or jurisdiction to intervene in the matter by resort to Section 29(7). In fact, even the appellants did not claim that there were two rival managements. 13. Therefore, the dispute raised by the petitioners could not have been taken before the Regional Additional Director of Education, and he did not have the authority or jurisdiction to intervene in the matter by resort to Section 29(7). On the other hand, Section 25 of the Societies Registration Act, as applicable to the Uttar Pradesh (and to Uttarakhand), clearly provides that the Prescribed Authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in the State, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office bearer of such society, and may pass such orders in respect thereof as he deems fit. The Managing Committee of a particular institution which is run by the society, also consists of office-bearers of the society itself. The elections to the Managing Committee of a particular institution under the Uttarakhand Education Act is from amongst the members of the society. Section 25 appears to be wide enough to cover within its scope disputes regarding elections - not only to the Managing Committee of the Society, but also to the Managing Committee of different institutions which the Society may be running. To construe otherwise would be to give a very narrow meaning to the scope of Section 25. The Legislature could not have intended that though disputes with regard to the elections of the office bearers of the society, as a whole, could be resolved by the Registrar, disputes with regard to elections to a Managing Committee of the society – which is the sub set of the members of the Society could not be so decided by the Registrar. In our view, the Legislature clearly intended to create the mechanism of dispute resolution with regard to the elections of the office bearers, which means all office-bearers of the Society. Consequently, the Chief Education Officer clearly had no authority or jurisdiction to pass the order dated 30.10.2021 on the aspect of elections to the Managing Committee constituted to manage the Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. 14. Consequently, the Chief Education Officer clearly had no authority or jurisdiction to pass the order dated 30.10.2021 on the aspect of elections to the Managing Committee constituted to manage the Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. 14. We, therefore, find merit in the submission of learned counsel for the respondents that the order dated 30.10.2021, passed by the Chief Education Officer, was a nullity and did not come in the way of the Chief Education Officer in passing the impugned order dated 02.03.2022 granting recognition to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. The mere fact that the respondents did dot assail the order dated 30.10.2021 independently is neither here, nor there, since it is open to a party to raise the issue of an order being a nullity, in collateral proceedings. 15. We, therefore, dispose of the present appeal while setting aside the impugned order, and at the same time, finding no merit in the writ petition. We leave it open to the petitioners to invoke the remedy available to them under Section 25 of the Societies Registration Act, in case, they still feel aggrieved by the elections to the Managing Committee of Raja Mahendra Pratap Prem Vidyalaya Inter College, Gurukul Narsan, District Haridwar. 16. The parties are left to bear their respective costs. Stay Application (IA No. 01 of 2022) also stands disposed of.