C/M Saltnat Bahadur Post Graduate ... vs State Of U.P. Thru Secy. And Others
2013 Latest Caselaw 1693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court						   Reserved
 

 
Case :- WRIT - C No. - 71377 of 2011
 

 
Petitioner :- C/M Saltnat Bahadur Post Graduate College And Another
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Petitioner Counsel :- V.D. Shukla,Ashok Khare, Sr. Advocate
 
Respondent Counsel :- C.S.C.,A.K. Singh, G.K. Singh
 

 
Hon'ble Shiva Kirti Singh,Chief Justice.
 
Hon'ble Ashok Bhushan,J.

Hon'ble Arun Tandon,J

(Delivered by Hon'ble Shiva Kirti Singh, Chief Justice)

The writ petition at hand has been placed before this larger Bench on a reference made by a learned Single Judge by order dated 22.12.2011. The learned Single Judge heard the parties on merits and noticed the relevant facts and rival submissions indicated below.

2. On behalf of the petitioner, reliance was placed upon some judgements of this Court including that of a Division Bench in the case of The Committee of Management, M.M.I. Inter College, Bijnor vs. Dy. Director of Education, 10th Circle and others, reported in 1994 (24) ALR 410. On the other hand, on behalf of the respondent no. 4, a private person who along with others had objected to the extension of term of the petitioner- Committee of Management, reliance was placed upon another later Division Bench judgement of this Court in the case of Committee of Management, Arya Kanya Inter College, Bulandshahr and another vs. State of U.P. and others, reported in 2009 (1) AWC 466.

3. The learned Single Judge was of the view that there is a conflict of opinion between two Division Benches. In his opinion, following two relevant questions require decision by a larger Bench:-

(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?

4. Before us, surprisingly, Counsels for all the parties supported the stand of the petitioner before the learned Single Judge.

5. For appreciating and deciding the aforesaid two questions or issues of law, it is deemed pertinent to take note of some basic facts which are not at all in dispute. Both the Division Benches judgements, noticed earlier and considered by the learned Single Judge, related to Inter Colleges, which are governed by the U.P. Intermediate Education Act, 1921 (hereinafter after referred to as 'Act, 1921'). On the other hand, the petitioner, in this case, is the Committee of Management of a Post Graduate College governed by The Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as 'Act, 1973') and the Statutes framed by the respondent University under the provisions of this Act. In order to obtain required recognition under either of the Acts, an Intermediate College or a Degree College should be established by a Society duly registered under The Societies Registration Act, 1860 (hereinafter referred to as 'Act, 1860'). As a registered Society, it can have its own bye-laws but for recognition of the educational institution under the respective Acts, it is required to have a Scheme of Administration. In case of an Intermediate Institution, the Scheme of Administration must be in conformity with the Act, 1921, particularly with the principles laid down in the Third Schedule as per mandate of Section 16-CC. Section 16-CCC of the Act, 1921 vests power in the Director of Education to send notice to the Management of the Institution suggesting modifications in the Scheme of Administration and requiring such Institution to submit fresh Scheme or to amend the existing Scheme. After considering the representation of the Management, Director of Education may approve the new Scheme or amend the existing Scheme, as the case may be.

6. According to the judgement of the Division Bench in the case of The Committee of Management, M.M.I. Inter College, Bijnor (supra), the Scheme of every Institution governed by the Act, 1921 cannot be inconsistent with the principles laid down in the Third Schedule and amendment introduced in the existing Scheme takes effect immediately. Although the amendment is not retrospective in operation, but the term of existing Committee has to be calculated in accordance with the amendment. The Court clarified that since the amendment is enforced only from the date it is made, it cannot be said to be retrospective only because it might affect the term of the Committee which was elected prior to the date of amendment. The Division Bench relied upon the judgement of the Supreme Court in the case of Bishun Narain vs. State of U.P., AIR 1965 SC 1567, wherein the law was laid down and it still holds the field that if the rule reducing the age of retirement of a Government servant is enforced only from the date when it was promulgated and not from any earlier date, the rule will not be retrospective merely because it would affect the employee who has joined the service prior to the amendment.

7. When another Division Bench considered similar issue in the case of Committee of Management, Arya Kanya Inter College, Bulandshahr (supra) in the year 2008, there was a significant and material change in the factual and legal matrix. On 4th August, 2003, the Director of Education issued a circular in which a reference was made to the decision of the Director dated 30th March, 1998, whereby the term of office of managing Committee of non-government Intermediate Schools had been extended by a further period of two years from that of three years and in that context, it was clarified that necessary formalities for such change/amendment in the term of office of the Committee of Management had to be completed by the general body by passing resolution to that effect. If such resolution is approved then the amendment would be applicable only in respect of term of office of the newly constituted Committee of Management after an election held on a date subsequent to the date of passing of proposal for extending the term of office. The benefit of such proposal would not be available to the managing Committee during whose tenure such proposal is passed. The order impugned in that case was passed in 2007 by the Regional Joint Director of Education and the same was based upon the aforesaid circular of 4th August, 2003 which is extracted in paragraph 15 of the judgement. On account of such subsequent materials, in paragraph 29, the Division Bench found that the earlier judgements did not have any application in view of the circular of the Director and hence, it was not necessary to refer to any of the earlier judgements relied upon by the parties. Since the amendments in the Scheme of Administration in respect of term of the elected Committee of Management was approved with condition as provided under the circular / order of the Director of Education dated 4th August, 2003, the subsequent judgement did not consider the earlier Division Bench judgements as relevant. In paragraph 28 of the judgement, the later Division Bench however observed as follows:-

"28. Even otherwise, we feel that it is appropriate and it is fitness of things that the Committee of Management, which is elected in accordance with the provisions of the scheme of administration must be permitted to continue only for the term, which was applicable at the time of the elections. The extension of the term so provided by seeking permission of its own term and by suggesting amendments in the scheme of administration cannot be approved of by this Court and, therefore, we have little hesitation to hold that the provision as contained in the circular/letter of the Director dated 4th August, 2003 as also in the condition imposed in the order of the Regional Joint Director of Education dated 3rd September, 2007 while approving the amendments in the scheme of administration with the extended term applicable only in respect of Committee of Managements, which are elected subsequent to the date of the approval order, is fair and just. Such orders do not warrant any interference in equitable jurisdiction under Article 226 of the Constitution of India."

8. So far as The Uttar Pradesh State Universities Act, 1973 is concerned, Section 2 thereof contains definitions of different terms. Sub-section (13) of Section 2 alone is relevant for the purpose of this case. That defines the term ''management' in relation to an affiliated or associated college to mean the managing committee or other body charged with managing the affairs of that college and recognised as such by the University. The respondent University has exercised its powers to frame Statutes. Chapter 10 of the 1st Statute of respondent Purvanchal University, Jaunpur is relevant for deciding the two issues noticed above in this case. Sub-rule 10.05 requires that certain conditions and stipulations indicated in that sub-rule must be incorporated in the constitution of Scheme of management for every College. Condition No. (Anga), inter alia, provides that term of office of the Committee of Management shall not be more than five years and no office bearer can hold office in total for more than two terms. Condition No. (Cha) contains another condition and stipulation that in the aforesaid constitution i.e. constitution of Scheme of Administration, no amendment shall be made without prior approval of the Vice Chancellor.

9. Thus, it is obvious that the respondent University while framing the relevant Statutes has taken precaution of laying down the maximum tenure of Committee of Management as five years and any amendment in that respect has to be in accordance with the said requirement. It is also evident that amendment in the Scheme of Administration is to be made by the Management of the Institution as per its own bye-laws or the Scheme of Administration but it requires prior approval of the Vice Chancellor and in absence of approval, any amendment in the Scheme of Administration will be non est and no amendment in the eyes of law. Only on receipt of approval, the proposed amendment shall become effective. If interpreted otherwise, the word 'prior' occurring before the word 'approval' shall become otiose or meaningless. Such interpretation must be avoided.

10. Accordingly, the first question is answered in affirmative. The amendment will become effective from the date of amendment and such date will be the date when the Vice Chancellor grants the approval required in terms of the Condition or Clause No. (Anga) of sub-rule 10.05 of the 1st Statute of the respondent University. It is clarified that if the Statute requires prior approval from Statutory Authority, then the amendment will take effect from the date prior approval is granted and if the Approving Authority has powers and specifies any other date for the purpose, then the amendment would take effect from the said specified date only.

11. So far as the second question is concerned, its answer is not dependent upon interpretation of the Act or the Statutes, but as a general principle of law such issue has been decided by the Division Bench of this Court in the case of The Committee of Management, M.M.I. Inter College, Bijnor (supra). That principle of law culled out from the judgement of the Supreme Court as one in the case of Bishun Narain (supra), in our considered view, does not suffer from any infirmity and must be accepted to be still valid.

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. We have, after examining the two Division Bench judgements come to the view that there is no real dispute or divergence of opinion on the law or principles laid down by the two Division Benches deciding the case of The Committee of Management, M.M.I. Inter College, Bijnor (supra) and the case of Committee of Management, Arya Kanya Inter College, Bulandshahr (supra). The later judgement explicitly mentions that on account of subsequent circular it had found the earlier judgements inapplicable. In such a situation, the two judgements cannot be said to be in conflict. A conflict can arise only if two different views are taken in similar facts and circumstances. After discussing the matter, we have come to the view that some observation of general nature in the beginning of paragraph 28 of that judgement is merely an obiter and not necessary or relevant for deciding the issue discussed in that judgement. Hence, observations in that paragraph running thus:- "Even otherwise, we feel that it is appropriate and it is fitness of things that the Committee of Management, which is elected in accordance with the provisions of the scheme of administration must be permitted to continue only for the term, which was applicable at the time of the elections. The extension of the term so provided by seeking permission of its own term and by suggesting amendments in the scheme of administration cannot be approved of by this Court" are not approved by us. Those observations shall be treated as obiter rendered in the facts of the particular case and not laying down any law as a precedent.

14. After having answered both the issues or questions, we would have ordinarily remitted the matter back to the learned Single Judge for disposing of the writ petition in the light of our judgment, but that would be empty formality in view of the fact that on account of interim order passed in this case by the learned Single Judge, even the extended period of two years has elapsed and the petitioner-Committee of Management has already completed full five years term permissible as per the amendment. That is the maximum benefit the petitioner could have got on the basis of our judgement and the relevant facts noted by the learned Single Judge in the order of reference. As per those facts, the College affiliated to the respondent University was being governed by the petitioner-Committee of Management on account of election held on 3rd March, 2008. It would have completed its tenure of three years as per the original Scheme of Administration on 2nd March, 2011 but the general body of the Society amended the bye-laws of the Society on 25.7.2010 and provided for an extended term of the Committee of Management to five years in place of three years. This amendment and the extended term of the Committee of Management was initially approved by the Vice Chancellor by order dated 16.11.2010. Subsequently, on the basis of judgement of the Division Bench in the case of Committee of Management, Arya Kanya Inter College, Bulandshahr (supra), the Vice Chancellor by the impugned order clarified that the benefit of the amendment will be available only to the next Committee of Management. In the light of our findings indicated above, such view of the Vice Chancellor was misconceived and not warranted by law. However, since the petitioner has already completed its lawful tenure of five years, it cannot get any further relief and hence, the writ petition has to be treated as infructuous.

15. In that view of matter, without remitting the writ petition back to the learned Single Judge, we dispose it of as infructuous. There shall be no orders as to costs.

Date: 6/05/2013

RK/