Sri Laxman Singh And Another vs State Of U.P. Thru Secy. And Others
2014 Latest Caselaw 2183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 5
 

 
Case :- WRIT - C No. - 60245 of 2012
 

 
Petitioner :- Sri Laxman Singh And Another
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- Ranjit Saxena,Deepak Saxena
 
Counsel for Respondent :- C.S.C.,G.K. Singh,V.K. Singh,Y.N. Rai
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. By way of this writ petition the petitioners, who claim to be Ex-Manager and Ex-President of a Committee of Management, are seeking a writ of certiorari to quash the order dated 05.11.2012 passed by the District Inspector of Schools, Gautam Budh Nagar (for short, "the DIOS"), whereby he has approved the election of the respondent nos. 7 and 8 as Manager and President of the Committee of Management of Jawahar Inter College, Maincha, Gautam Budh Nagar.

2. A few broad facts may be noticed to appreciate contention of the parties. Jawahar Inter College, Maincha, Gautam Budh Nagar (for short, "the Institution) is an educational institution recognized under the U.P. Intermediate Education Act, 1921 (Act No. II of 1921). It imparts education up to the 12th standard. It receives aid out of the State funds and is governed by the provisions of the Act No. II of 1921 and the U.P. High School and the Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971). Under the statutory requirement of Section 16-A of the U.P. Act No. II of 1921 the Institution has its Scheme of Administration, which regulates its affairs.

3. The Institution has been established by a Society, Vidhya Prasarini Sabha, Maincha, District Gautam Budh Nagar. It is registered under the provisions of the Societies Registration Act, 1860 (Act No. 21 of 1860).

4. The dispute arose in 2007 when the DIOS approved membership of 24 persons of general body of the Society who were enrolled in 1993 vide order dated 01 June 2007. Those members were permitted to participate in the election which was held on 12 June 2007 and in the subsequent election which was said to be held on 03 June 2010. It is stated that the DIOS has passed the order although the Deputy Director of Education was seized of the matter. Aggrieved by the said order one Sri Indra Raj Singh Bhati preferred a Civil Misc. Writ Petition No. 66992 of 2006. On 12.12.2006 this Court directed the DIOS to decide the representation of Sri Indra Raj Bhati before initiating the proceeding for election.

5. The DIOS did not decide the matter, therefore, the petitioner moved a modification application. It was disposed of on 06 April 2007 and a fresh direction was issued to the DIOS to decide the representation in accordance with law within three weeks. In compliance thereof the DIOS, as stated above, declared that the 24 members were validly enrolled and they were authorized to participate in the election. The petitioners' list was rejected by the DIOS and he issued direction to the Authorized Controller to hold fresh election on the basis of the electoral roll determined by him.

6. Feeling aggrieved by the order of the DIOS dated 01 June 2007 the petitioners preferred a Writ Petition No. 27144 of 2007 for quashing of the said order. The writ petition was allowed by this Court on 22 December 2011. The Court took the view that the DIOS had no jurisdiction to determine the electoral roll and under Section 16-A (7) of the U.P. Act No. II of 1921 the power to resolve the dispute vests with the Joint Director of Education. The Court further went on to hold that the elections conducted in 2007 and 2010 were illegal but no order was passed to set aside those orders for the reason that no such relief was sought in writ petition. But the Court granted liberty to petitioners therein to move application before appropriate authority.

7. The respondent no. 8 Committee of Management through its Manager Yatendra Kumar preferred a Special Appeal No. 164 of 2012. The Special Appeal affirmed the judgement of the learned Single Judge to the extent that the DIOS had no jurisdiction to determine the electoral roll. But the order was modified to the extent that the matter would be determined by the Regional Level Committee in terms of the Government Order dated 19.12.2000. 

8. In furtherance of the said order the respondent no. 8, Committee of Management submitted a representation before Joint Director of Education, Meerut on 04.05.2012. They took the stand that the President of the Committee of Management is empowered to take decision in respect of the dispute of the membership and accordingly the President exercising his power under Clause-7 of the Scheme of Administration had given a decision in favour of those 24 members, which were also approved by the DIOS vide order dated 01 June 2007. A copy of the said representation is on the record as annexure-12 to the writ petition. 

9. The Deputy Director of Education, in compliance of the order of this Court dated 22 December 2011 passed in Writ Petition No. 27144 of 2007 after hearing both the parties, found that there is a serious dispute about the membership of the General Body of the Institution, therefore, a Prabandh Sanchalak was appointed and he was directed to determine the electoral roll of the Institution and to hold the fresh election within two months.

10. The respondent nos. 8 and 9, the Committee of Management preferred a Writ Petition No. 40033 of 2012. The said writ petition was disposed of directing the Authorized Controller to hold the election after certifying the electoral college of the Managing Committee.

11. The Authorized Controller by the order dated 12.10.2012 declared 24 members as valid members on the ground that the DIOS vide his order dated 01 June 2007 had found them validly enrolled. He also found that in support of the 24 members late Sri Indra Raj Singh Bhati, the erstwhile President, had taken a decision on 15 January 1993 that those members are valid members.

12. A Counter affidavit has been filed by the respondent no. 8 and by the DIOS-respondent no. 3. The stand taken by the respondent no. 8-Sri Yatendra Kumar is that the newly elected Committee of Management has not been impleaded in the writ petition at the instance of individuals/ members questioning the election of Committee of Management is not maintainable. It is stated that the Authorized Controller while finalizing the list of members has rightly considered the order dated 01 June 2007 passed by the DIOS. He has also taken into consideration receipts which were issued in favour of 24 persons, who have been enrolled in the year 1980-81 and has also taken into consideration the order passed by the President deciding the dispute of membership on 15.01.1993. The Authorized Controller has correctly mentioned the fact that the aforesaid document has also been accepted by the DIOS vide order dated 01 June 2007; the order of the DIOS dated 01 June 2007 was set aside by this Court on technical ground.

13. It is further averred that the findings returned by the DIOS were not upset on merit by this Court, therefore, the decision taken by the Authorized Controller cannot be said to be only based on the order of the DIOS dated 01 June 2007. The Authorized Controller was fully competent to decide the dispute of membership. It is further stated that the Regional Level Committee did not set aside either of the elections, which were held in the year 2007 and 2010 or orders recognizing them.

14. The erstwhile President Sri Indra Raj Singh Bhati had already decided the dispute on 15 January 1993 and it was held by him that there were 24 validly enrolled members in the general body. It is also stated that from perusal of the judgement of this Court dated 22.12.2011 in Writ Petition No. 27144 of 2007 would indicate that the election held in the year 2007 and 2010 may not be disturbed or set aside by this Court. Both the aforesaid elections were recognized by the DIOS.

15. At the time of moving of this writ petition, this Court after hearing learned Counsel for the respondent no. 8, the Manager of the Committee of Management, has passed an interim order dated 21.11.2012, whereby it has stayed the order of the DIOS dated 05.11.2012 whereby the Committee of Management headed by the respondent no. 8 Yatendra Kumar and the President Sri Tej Singh was recognized. Thus the newly elected Committee of Management is not functioning.

16. I have heard learned Counsel for the petitioners Sri Ranjit Saxena, Sri G.K. Singh, learned Senior Advocate assisted by Sri V.N. Rai, learned Counsel for the respondent no. 8 and the learned Standing Counsel appearing for the State functionaries.

17. Learned Counsel for the petitioners submits that the DIOS vide his order dated 01.06.2007 had held that 24 members were validly enrolled. The said order was set aside by this Court by order dated 22.12.2011 in Writ-C No. 27144 of 2007 (Laxman Singh & another Vs. State of U.P. & others) on the ground that the DIOS had no authority to determine the electoral roll. Aggrieved by the said order Special Appeal No. 164 of 2012 (C/M Shri Jawahar Inter College and another Vs. State of U.P. and others) was filed by the respondent no.8 which was disposed of on 25.01.2012 with a clarification that the Regional Level Committee will consider the grievance regarding the voter list. However, the DIOS himself has decided the matter by order dated 05.11.2012 without referring the matter to the Regional Level Committee.

18. He further urged that the objections filed by the petitioners, which was duly received by the DIOS on 01.11.2012, was not considered by the DIOS while passing the impugned order. He further submitted that the DIOS in his counter affidavit has stated that the respondent nos. 8 and 9 applied in the election for the post of Secretary and the President and there was no contest, therefore, they were declared elected.

19. On the basis of the said statement made in the counter affidavit filed by the DIOS Sri Saxena tried to demonstrate that in fact no election took place and the DIOS has illegally recognized the said election without adverting to the objections filed by the petitioners. A copy of the said objection has been brought on record, which is said to be received in the office of the DIOS on 01.11.2012, as annexure-20 to the writ petition.

20. He lastly urged that the DIIOS has also ignored the order passed by learned Single Judge in Writ-C No. 57163 of 2012 (Sri Laxman Singh Vs. State of U.P. & others) dated 01.11.2012, whereby the petitioner was granted liberty to file a representation in respect of the electoral college and the DIOS was directed to consider the objection and, if required, refer the matter to the Regional Level Committee. The DIOS without referring the matter to the Regional Level Committee has recognized the election of the respondent no. 8

21. Learned Counsel for the contesting respondent no. 8 Sri G.K. Singh submits that in compliance of the order of this Court dated 22.12.2011 a Special Appeal was filed which was disposed of on 25.01.2012 and the petitioner, who was granted liberty to approach the appropriate authority to get the elections of 2007 and 2010 set aside, approached the Regional Level Committee. On 19 July 2012 the Regional Level Committee did not set aside the elections, which were held in 2007 or 2010 and it simply directed the fresh election be held by the Prabandh Sanchalak.

22. Learned Senior Advocate further submits that the instant writ petition is not maintainable as it has been filed by two individual members, who are not even members of the general body. He has placed reliance on the judgement of the Division Bench of this Court in Special Appeal No. 1380 of 2008 (Rajivir Singh Vs. State of U.P. and others) decided on 07 September 2010. He strenuously urged that findings recorded by the Prabandh Sanchalak in respect of the members of the petitioner and in respect of list of members submitted by them have not been challenged. He lastly submitted that the writ petition is not maintainable for the reason that the Committee of Management which has been recognized by the impugned order of the DIOS dated 05 January 2012 has not been impleaded as respondent.

23. It was also submitted that no objection was filed by the petitioners before the DIOS prior to 05.11.2012, therefore, the DIOS cannot be said to be at fault while passing the order impugned.

24. I have considered the rival submissions made by the Counsel for the respective parties and perused the record.

25. Before adverting to the merit of the case, the preliminary objection raised by the learned Counsel for the respondent no. 8 Sri G.K. Singh needs to be decided. The issue that whether an individual member can challenge the decision of the educational authorities, recognizing the Committee of Management, has engaged the attention of this Court in several cases. The issue whether the individual member can maintain the writ petition in respect of the recognition of the Committee of Management or its election is no more res integra.

26. Initially there were two sets of decisions, who have taken the divergent view. The view that individual member has no right to file the writ petition, was taken in the following decisions; Dr. P.P. Rastogi and others v. Meerut University, Meerut and another, 1997 (1) UPLBEC 415; Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra and others, 1997 (3) ESC 1807; Bhagwan Kaushik v. State of U.P. and others, (2006) 2 UPLBEC 1372; Amanullah Khan v. State of U.P. and others, 2009(75) ALR 29; Writ Petition No. 62190 of 2010 (Kunwar Singh v. State of U.P.); Kanwar Singh v. State of U.P. and others, Writ Petition No. 62190 of 2010; and a Division Bench judgement in Rajveer Singh v. State of U.P. and others, Special Appeal No. 1380 of 2008.

27. The other sets of decisions wherein the view has been taken that the individual member can challenge the election by filing the writ petition. The writ petition can be maintained when there is a breach of right of a person affecting his right to form an association, which is a fundamental right under Article 19(1)(c) of the Constitution or there is a breach of the Statute, the writ petition would be maintainable subject to the existence of efficacious alternative remedy. The said view has been taken in the cases of Kamla Kant Agrawal v. State of U.P. and others, 2008(7) ADJ 601= 2008(4) ESC 2531; Committee of Management, Janta Inter College, Sultanpur, District Haridwar and another v. Joint Director of Education, I Region, Meerut and others, (1999) 1 UPLBEC 170 and a Division Bench in Ratan Kumar Solanki v. State of U.P. and others, 2010(1) ADJ 262 (DB).

28. Both the divergent view in the aforesaid cases has been considered by a Division Bench in the case of Committee of Management, Arya Kanya Pathshala Inter College, Bulandshahar v. State of U.P. and others, 2011(2) ADJ 65 (DB). The Court has referred the decision of Rajveer Singh (supra), wherein the view has been taken that a member who has taken part in the election and did not succeed has no locus to file writ petition. The Court has observed that this Court is already overburdened with the writ petitions filed by the rival Committee of Managements and every year thousands of writ petition are being filed. On the other hand the Division Bench in Ratan Kumar Solanki (supra) took the view that where a right of an individual is affected or infringed and he has no other affective remedy, he may prefer a writ petition if he satisfies the Court that such right of individual concerned are borne out from Statutes or the provisions of bye-laws. After considering both the decisions the Division Bench observed as under;

"11.....there is no such proposition that an individual member cannot, in no circumstance, challenge the election of the Committee of Management....."

"12. From the proposition as laid down in the above Division Bench judgement, it is clear that the question as to whether an individual member has locus to challenge the election of Committee of Management depends on facts of each case....."

29. In the premise aforesaid the fact of this case can be considered. The petitioner no. 1 admittedly was the Manager of the Institution from 1996 to 2003 thus it cannot be said that he is a rank outsider. Previously also he had preferred Writ petition No. 27144 of 2007, which was allowed by this Court. In addition to above, if in an Institution a Prabandh Sanchalak is continuing and he holds the election, in such event there cannot be any rival committee if the view is taken that the election cannot be challenged by the member of the general body. Such election shall go unchallenged as the term is only 3 or 5 years and the filing of the civil suit to challenge the election of the Committee of Management cannot be considered to be an efficacious remedy, therefore, no law can be laid down in absolute term that individual member has no right to challenge the election. It would depend upon the facts of each case, if an individual member who has participated in the election and has lost, his writ petition may not be entertained on the ground of alternative remedy but if the electoral roll itself has been challenged on the ground that the members enrolled are in violation of the provisions of the Scheme of Administration then in such cases the writ petition can be entertained. A valid electoral role is the basic requirement of a fair election.

30. In view of the aforesaid premise, the preliminary objection raised by Sri G.K. Singh, learned Senior Advocate, hardly merit acceptance, thus, said objection is rejected.

31. From the record it transpires that the petitioner was elected as Manager and continued from 1996 to 2003. The dispute arose with regard to the electoral college consisting of 24 members, the DIOS vide order dated 01 June 2007 rejected the list submitted by the petitioners and affirmed the list submitted by the respondent no. 8/ his faction. The said order of the DIOS was challenged by the petitioner in Writ Petition No. 27144 of 2007. This Court found that the order passed by the DIOS was without jurisdiction and the writ petition was disposed of on 22.12.2011. The Court also noticed the fact that on the basis of the said disputed electoral roll the two elections were conducted in 2007 and 2010. Since those two elections were not challenged in the writ petition, therefore, the Court while setting aside the order of the DIOS dated 01 June 2007 left it open to the petitioners to approach the Prescribed Authority to pass a fresh order after hearing the parties. The said order was challenged by the respondent no. 8 in Special Appeal No. 164 of 2012. The Division Bench on 25.01.2012 held that the view taken by the learned Single Judge that the DIOS had no jurisdiction to determine the electoral college was correct view, however both the parties agreed that the Regional Level Committee may consider the grievance regarding the voter list on which the election was held in 2009.

32. The Regional Level Committee did not consider the said dispute and it held that there is a dispute of the members of the general body, therefore, the Prabandh Sanchalak was appointed and he was directed to hold the fresh election after determining the electoral college. When the order of the Regional Level Committee was not complied with the respondent preferred a Writ Petition No. 40033 of 2012 (C/M Shri Jawahar Inter College and another Vs. State of U.P. & others). The said writ petition was disposed of on 22.08.2012 directing the Authorized Controller to hold the election after certifying the electoral college of the Managing Committee.

33. In compliance of the said order the Prabandh Sanchalak determined the electoral college and he relied the order of the DIOS dated 01 June 2007 which has already been set aside by this Court. The Prabandh Sanchalak has failed to consider the judgment of this Court in Writ Petition No. 27144 of 2007. From the order of the Prabandh Sanchalak it is manifest that he has not even considered the import of the said order and he has recorded the finding that those members are valid. The said conclusion of the Authorized Controller is not supported by any convincing reason. The only ground on the basis of which he has accepted the said list is that late Sri Indra Raj Singh the ex-President vide his order dated 15.01.1993 had declared those 24 members as valid members. The Authorized Controller has failed to consider that this Court by a detailed judgment had set aside the order dated 01 June 2007 against which in the Special Appeal also a direction was issued to consider the matter by the Regional Level Committee.

34. In addition to above, it need to be considered that when the fresh election was held on the basis of the electoral college determined by the Authorized Controller and the papers were sent for the approval before the DIOS, the petitioner preferred Writ Petition No. 57163 of 2012 challenging the said election. This Court while disposing of the writ petition granted liberty to the petitioners to make a representation before the DIOS and the DIOS was directed to take appropriate decision in the matter after considering the objection and if required referred the matter to the Regional Level Committee. The relevant part of the order dated 01.11.2012 reads as under;

"It would be appropriate to provide that the petitioner may represent his grievance in respect of deterioration of the electoral college and the procedure adopted in the elections before the authorities concerned before whom the matter is pending consideration for approval within two weeks from today along with the certified copy of the order. If this is done, the District Inspector of Schools, G.B. Nagar shall take appropriate decision in the matter after considering the objections of the petitioner and if required refer the matter to the Regional Level Committee if there appears to be a bona fide dispute in terms of the Government Order dated 19th December, 2000. In that circumstances, the Regional Level Committee shall take appropriate decision within a period of two months from the date of receipt of the documents in accordance with law.

In case, the District Inspector of Schools or the Regional Level Committee has already decided the mater and some orders have been passed, a copy of the order shall be made available to the petitioner and it shall be open to the petitioner to challenge the same. The writ petition is disposed of.

A certified copy of this order shall be made available to the learned counsel for the petitioner on payment of usual charges."

35. It is stated that a representation was made on 01.11.2012, on the date of the judgement itself, after the Counsel of the petitioners instructed his client to file objection immediately before the DIOS. Copy of the said objection is said to be received in the office of the DIOS and it bears the seal of the office of the DIOS. In the Counter affidavit filed by the DIOS in paragraph no. 42 it is admitted that one of the petitioners Veer Pal Singh had submitted a representation but there was no reference of the order of this Court.

36. Regard being had to the fact that the representation filed by Veer Pal Singh bears the seal and sign of some official of DIOS. In counter affidavit it has not been denied that the said objection was not received or it is a forged document. Paragraph nos. 42 and 43 of the counter affidavit are self contradictory, thus it is established that an objection was filed by one Sri Veer Pal Singh in the office of the DIOS on 01.11.2012 and in the said objection it has been stated that in the electoral Roll from Sl. Nos. 15 to 120 have been shown to be enrolled on 20.11.1981 but the date of submission of draft is 2009. Thus their membership was wholly illegal and bogus.

37. Relevant it would be to mention that in the Special Appeal No. 164 of 2012 and in the order of learned Single Judge dated 20.12.2011 a clear direction was issued that the matter would be considered by the Regional Level Committee. The relevant part of the order dated 25.01.2012 passed in Special Appeal No. 164 of 2012 reads as under;

"At this stage, learned counsel for the parties agreed that this appeal may be disposed of with the clarification that the Regional Level Committee while considering the grievance regarding voter list on which election prayed to be held in the year 2009 shall not be influenced or prejudiced by the observations made in the order of the learned Single Judge under appeal. However, it would be needless to emphasize that the impact of the consequences of setting aside the order dated 1.6.2007 of the District Inspector of Schools would certainly be decided by the Regional Level Committee.

With the above observations, the appeal stands disposed of."

38. Pertinently, the State Government has issued orders dated 19.12.2000 and 20.10.2008 wherein it is provided that in the event of the dispute of Committee of Management, the matter shall be considered by the Regional Level Committee. Only in the case of the undisputed election the DIOS was authorized to take decision.

39. As stated above, in the present case there was a clear direction in the Special Appeal and the learned Single Judge; for consideration of the matter by Regional Level Committee, therefore, in my view the DIOS ought to have referred the matter to the Regional Level Committee. He himself has decided the matter without affording proper opportunity to the petitioners and other members and for this reason the impugned order of the DIOS dated 05.11.2012 is unsustainable and it is accordingly set aside. The matter is remitted to the Joint Director of Education to refer the matter to the Regional Level Committee. The Regional Level Committee after hearing both the factions will decide the matter as expeditiously as possible preferably within three months from the date of communication of the order. Till the decision is taken by the Regional Level Committee the salary payment account of the Institution shall be operated by the DIOS by single operation and the Committee of Management shall not take any policy decision and it will only look after day to day affairs of the Institution.

40. The writ petition is accordingly disposed of.

41. No order as to costs.

Order Date :- 30.05.2014

DS/-

Hon'ble Pradeep Kumar Singh Baghel,J.

Writ petition is disposed of.

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

Order Date :- 30.05.2014

DS/-