C/M Islamia Inter College And ... vs State Of U.P. Thru Secy. And 3 ...
2014 Latest Caselaw 1868 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 5
 

 
Case :- WRIT - C No. - 8730 of 2014
 

 
Petitioner :- C/M Islamia Inter College And Another
 
Respondent :- State Of U.P. Thru Secy. And 3 Others
 
Counsel for Petitioner :- Anil Bhushan
 
Counsel for Respondent :- C.S.C.,Namit Srivastava,Parul Srivastava
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioners have filed this writ petition aggrieved by the order of the District Inspector of Schools dated 30 December 2013, whereby he has passed an order of single operation under Section 5(2) of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971). This writ petition is in respect of the educational Institution namely Islamiya Inter College, which has been founded by the petitioner no.2.

2. Briefly stated facts of this case are; last election of Committee of Management of Islamia Inter College, Firozabad (for short, "the Institution") was held on 27.01.2008 wherein Gulab Navi-petitioner no. 2 in the instant writ petition was elected as Manager and one Mohd. Ubedulla was elected as President. The signatures of the petitioner no. 2 was attested by the District Inspector of Schools (for short, "the DIOS") vide order dated 19 January 2009. The term of the office bearers of the Committee of Management is three years. The fresh election was held on 19 December 2010. The petitioner no. 2 was again elected as a Manager and Mohd. Ubedulla was elected as President. After the election the papers were forwarded to the DIOS for the recognition of Committee of Management. The DIOS sent the matter to the Regional Level Committee for consideration of recognition but in the meantime on 04 March 2011 he passed an order of single operation.

3. Aggrieved by the said order the Committee of Management preferred a Writ Petition No. 14663 of 2011. The said writ petition was dismissed by this Court on the ground that the term was admittedly expired and the DIOS has made arrangement for single operation keeping in view the interest of the teachers and employees of the Institution since the managerial dispute was pending before the Regional Level Committee.

4. Dissatisfied with the order of the learned Single Judge dated 10 March 2011 the petitioners preferred a Special Appeal No. 420 of 2011. The said special appeal was allowed on 17 March 2011 and the order of learned Single Judge was modified setting aside the order of single operation. The Division Bench was of the view that the Scheme of Administration specifically provides that the erstwhile office bearers and members of the Committee of Management were entitled to continue till their successors are chosen, therefore, the office bearers of the Committee of Management were held to be entitled to continue and manage the affairs of the College. The Division Bench maintained the direction of the learned Single Judge, whereby He had directed the Regional Level Committee to decide the managerial dispute within certain time.

5. The Regional Level Committee after hearing the concerned parties held that the election dated 19 December 2010 wherein the petitioner no. 2 Gulab Navi was elected as Manager and Mohd. Ubedulla as President, was a valid election and it rejected the claim of the rival faction who had held their election on 19 December 2010. In compliance thereof the DIOS recognized the petitioner no. 2 as Manager and his signatures were attested. A copy of the order of the Regional Level Committee and the DIOS are on the record as annexure-7 & 8 to the writ petition.

6. It is averred that the previous election was held on 19.12.2010. The process for the fresh election was initiated on 22 December 2013. It is stated that due to some unavoidable reason the meeting could not be held on 12 December 2013, therefore, a fresh agenda was issued on 22 December 2013 for holding the election on 12 January 2014. The DIOS was requested to send an Observer and the notice was published in the local newspaper. A copy of the said notice is on the record as annexure-11 to the writ petition.

7. It is stated that the election was held on 12 January 2014 and the copy of the election proceeding and other papers were forwarded to the office of the DIOS for the approval of the Regional Level Committee. The DIOS instead of taking the recognition of the Committee of Management, has passed the impugned order of single operation.

8. I have heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Anil Bhushan, learned Counsel for the petitioners, Sri R.K. Ojha, learned Senior Advocate assisted by Sri Namit Srivastava, learned Counsel for the complainant, and learned Standing Counsel appearing for the State respondents.

9. Sri Ashok Khare, learned Senior Advocate, submits that the Regional Level Committee had approved the election of the petitioners and earlier order passed by the DIOS was set aside by this Court and in the Special Appeal it was held that as per the Scheme of Administration the office bearers shall continue till their successors are elected. He further submits that the fresh election has also been held on 12 January 2014 and papers have been sent to the office of the DIOS. Before the decision has been taken, the DIOS on the basis of complaint has passed the order of single operation.

10. Lastly he urged that the DIOS has illegally invoked his power under Section 5(2) of the U.P. Act No. 24 of 1971 as none of the conditions for invoking said power is specified in the facts of this case as there was no fault of Management in depositing the Management fund or there was no difficulty in disbursement of the salary of teachers and employees.

11. Learned Senior Advocate Sri R.K. Ojha submits that the term of the Committee of Management is over and the fresh election has not been recognized by the authorities, therefore, the DIOS has rightly invoked his power under Section 5(2) of the U.P. Act No. 24 of 1971.

12. I have heard learned Counsel for the parties and considered their submissions.

13. The petitioner's Institution is a minority Institution. The undisputed election was held on 27.01.2008. In the said election the DIOS has recognized the petitioner no. 2 as Manager and attested the signatures on 19 January 2009. The fresh elections were held on 19 December 2010, wherein the petitioner no. 2 was again elected as Manager of the College. The dispute arose with regard to the said election and the matter was decided by the Regional Level Committee on 30 July 2011, wherein it was found that the petitioner no. 2 was validly elected Manager of the Committee of Management. The DIOS had passed a consequential order on 19 August 2011 attesting the signatures of petitioner no. 2.

14. Pertinently, while the matter was pending before the Regional Level Committee previously also the single operation order was challenged by the petitioner by a Writ Petition No. 14663 of 2011, which was disposed of by this Court on 10.03.2011 with a direction to the Regional Level Committee to decide the matter expeditiously but the learned Single Judge refused to interfere with the order of single operation.

15. Feeling aggrieved by the order of learned Single Judge the petitioners had filed a Special Appeal No. 420 of 2011. In the said Special Appeal, vide order dated 17.03.2011, the order of learned Single Judge was modified and it was found that clause-7 of the Scheme of Administration provides that every office bearer shall continue till his successor is elected. Clause-7 of the Scheme of Administration reads as under;

VII. Term of Members :-.

The term of office bearers and members V(a) & (c) other than ex-officio members shall be three years from the date they are chosen, provided that the term of every office bearer shall be deemed to have continued till his successor is chosen. The term of the ex-officio members shall be governed by the regulations of the Act.

16. The Division Bench has considered the said clause in its judgment dated 17 March 2011 and set aside the order of the DIOS for single operation. The relevant part of the order is extracted hereunder;

"Sri Khare invited the attention of the Court to Clause 7 of the Scheme of Administration, which finds place at page 50 of the paper book wherein terms of the office bearers and members has been provided to be three years from the date they are chosen but they shall continue till their successor is chosen. He, therefore, submitted that the appellant is validly elected committee of management and till such time the rival claims are decided the appellants are entitled to continue to function as the committee of management and, therefore, the order of single operation could not have been passed.

Sri J.J. Munir, learned counsel could not successfully challenge the aforesaid submission.

In this view of the matter, even otherwise, we find that Clause 7 of the Scheme of Administration specifically takes care of such contingency and the erstwhile office bearers and members of the committee of management are entitled to continue till their successor is chosen and, therefore, the appellants are entitled to continue and manage the affairs of the College including that of operating the accounts. The order dated 4th March, 2011 passed by the District Inspector of Schools, Firozabad directing for single operation is, therefore, set aside."

17. In the instant case the petitioner no. 2 was recognized in two consecutive elections of 2008 and 2010 and the fresh election has also been held, papers of which have been submitted in the office of the DIOS but no order has been passed by the DIOS or the Joint Director of Education. Therefore, there was no difficulty in disbursement of the salary in the Institution.

18. The Section 3 of the U.P. Act No. 24 of 1971 enjoins that the salary of teachers and employees shall be paid within a time frame mentioned in the said Section without deduction of any kind except those authorized by the regulations or by any rules made under the Act. Section 5 of the U.P. Act No. 24 of 1971 provides the procedure for payment of salaries.

19. From the perusal of the impugned order it is manifest that the only reason in the order is that since the election has not been held within time and the Committee of Management has outlived its period, therefore, it was necessary to invoke sub-section (2) of Section 5 of the Act No. 24 of 1971. In the order no finding has been recorded by the DIOS that there was any difficulty in disbursement of salary or Management has failed to comply the provisions of Section 5(1) of the Act, 1971, which provides that the Management shall deposit certain percentage of fee realized from the students. The reason mentioned by the DIOS for invoking Section 5(2) of the Act, 1974 is unsustainable. The said reason was considered by the Division Bench while considering the order of the single operation of the same Institution. The Division Bench held that in view of clause-VII of the Scheme of Administration the office bearers shall continue till his successor is elected.

20. Having regard to the facts and circumstances of the case, I am of the view that the order of the DIOS is contrary and in teeth of the judgment of the Division Bench in Special Appeal No. 420 of 2011 dated 17.03.2011. For the said reason the order of single operation passed by the DIOS needs to be set aside. Accordingly, it is set aside. It is provided that the papers relating to the election dated 12.01.2014, which have been submitted to the office of the DIOS, is pending consideration. The DIOS is directed to take appropriate decision on the papers submitted by the Committee of Management in terms of the Government Order dated 19 December 2000 and 21 October 2008 as early as possible preferably within eight weeks from the date of communication of this order, but in any case, not later than three months.

21. Thus writ petition is, accordingly, allowed.

22. No order as to costs.

Order Date :- 20/5/14

DS/-

Hon'ble Pradeep Kumar Singh Baghel,J.

Writ petition is allowed.

For order, see my order of the date passed on separate sheets (six pages).

Order Date :-20/5/14

DS/-