C/M Khalsa Inter College Noorpur ... vs State Of U.P. And 55 Others
2015 Latest Caselaw 1759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No 545 of 2015
 

 
Appellants :- C/M Khalsa Inter College Noorpur & Anr
 

 
Respondents :- State of U P & 55 Ors

Counsel for Appellants :- K M Asthana, Ashok Khare

Counsel for Respondents :- CSC, Sujeet Kumar

Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice

Hon'ble Yashwant Varma, J

The special appeal has arisen from the dismissal of a writ petition on 30 July 2015 by the learned Single Judge on the ground that the District Inspector of Schools1, while passing an order dated 12 June 2015, was acting in the capacity of an Arbitrator and not as a statutory authority. The learned Single Judge came to the conclusion that if the appellants are aggrieved by the order of the DIOS, they would be at liberty to approach the relevant forum for the redressal of their grievance.

The dispute in the present case relates to the Committee of Management of a recognized and aided intermediate college, called the Khalsa Inter College, Noorpur, District Bijnor2 which is conducted by the Sikh Vidya Sabha, a society registered under the Societies' Registration Act, 1860. Elections to the Committee of Management were held in 2009 which were stated to have been approved under an order of the Regional Level Committee of 7 February 2011 in pursuance of which the signature of the second appellant was attested as Manager on 9 February 2011. According to the appellants, the term of the Committee of Management is current till 2016. The dispute which arises has its genesis in 2014-15 when certain decisions were taken by the general body of the society and the Committee of Management, which are summarized below:

(i) At a meeting of the general body held on 9 November 2014, a decision was taken to elect Dharmendra Singh against the vacant post of Vice President of the Committee of Management with a further resolution approving a proposal for effecting amendments in clause 10 (Ka), (1), (2), (3) and clause 10 (Ga), (1) and (2) of the scheme of administration.

(ii) A meeting of the Committee of Management was held on 14 December 2014 in which a decision was taken removing Karan Singh Kapse from the post of Deputy Manager and Chand Deep Singh from his membership of the Committee of Management.

(iii) A meeting of the Committee of Management was held on 4 April 2015 in which the decision taken on 14 December 2014 was approved and Guru Dayal Singh Tandon was elected as Deputy Manager and Harmeet Singh as Member of the Committee of Management for the remaining term;

(iv) A meeting of the Committee of Management was held on 23 April 2015 in which one Sri Amrit was elected as the President of the Committee of Management; and

(v) A meeting of the general body was held on 10 May 2015 in which a decision was taken terminating the membership of 51 members of the general body.

On 12 June 2015, the DIOS Bijnor, acting on the basis of a complaint dated 9 January 2015 (in respect of the proceedings dated 9 November 2014) and a complaint dated 30 May 2015, passed an order annulling the proceedings of the Committee of Management dated 14 December 2014, 4 April 2015 and 23 April 2015 and the proceedings of the general body dated 9 November 2014 and 10 May 2015.

The appellants filed a writ petition3 to challenge the order dated 12 June 2015 passed by the DIOS, Bijnor. The learned Single Judge relied upon an earlier decision of a Single Judge in Taptej Singh Saini Vs State of U P4 delivered on 20 April 2012. Following the judgment of the learned Single Judge in Taptej Singh Saini, the impugned judgment holds that the order passed by the DIOS was merely an order of an Arbitrator as he was not acting as a statutory authority. Consequently, if the appellants were aggrieved by such an order, it was left open to them to approach the relevant forum for the redressal of their grievance.

A scheme of administration has been framed in respect of the institution, stating that it is a minority institution. The scheme of administration contains, in its definition in clause 2 (10) a reference to the DIOS. In several clauses of the scheme of administration, functions have been entrusted to the DIOS including in regard to the resolution of disputes. Section 16-A of the Intermediate Education Act, 19215 requires that there should be a scheme of administration for every institution which shall, among other matters, provide for the constitution of a Committee of Management which is vested with the authority to manage and conduct the affairs of the institution. The scheme of administration is subject to the approval of the Director under sub-section (5) of Section 16-A. Section 16-A (7) provides as follows:

"(7) Whenever there is dispute with respect to the management of an institution, persons found by the Regional Deputy Director of Education, upon such enquiry as is deemed fit to be in actual control of its affairs may, for purposes of this Act, be recognized to constitute the Committee of Management of such institution until a Court of competent jurisdiction directs otherwise:

Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representation in writing."

The Third Schedule to the Act provides for the principles on which approval to a scheme of administration shall be accorded and provides as follows:

"Principles on which approval to a Scheme of    Administration shall be accorded
 
Every Scheme of Administration shall, - 
 
(1) provide for proper and effective functioning of the Committee of Management;
 
(2) provide for the procedure for constitution of the Committee of Management by periodical elections;
 
(3) provide for the qualifications and disqualifications of the members and office-bearers of the Committee of Management and the term of their offices:
 
 	Provided that no such Scheme shall contain provisions creating monopoly in favour of any particular person, caste, creed or family;
 
(4) provide for the procedure of calling meetings and the conduct of business at such meetings;
 
(5) provide that all the decisions shall be taken by the Committee of Management and powers of delegation, if any, shall be limited and clearly defined;
 
(6) ensure that the powers and duties of the Committee of Management and its office-bearers are clearly defined;
 
(7) provide for the maintenance and security of property belonging to the institution and also for the utilisation of its funds and for the regular checking and auditing of accounts."
 

 

Chapter I of the Regulations which have been framed under the Act, deals with the scheme of administration. Regulation 14 provides for the main principles on which approval to a scheme of administration shall be accorded and requires conformity with certain rules. Among them, clause (i) of Regulation 14 provides that the scheme shall contain specific provisions for speedy decision of disputes relating to the right of management declared as such by the Regional Deputy Director of Education or the Deputy Director of Education, as the case may be, as also regarding the management of the institution during the period of dispute. Section 16-A consequently mandates that there has to be a scheme of administration in relation to every institution governed by the provisions of the Act. The contents of the scheme of administration are regulated by Chapter I of the Regulations framed under the Act.

A Full Bench of this Court in Aley Ahmad Abidi Vs District Inspector of Schools, Allahabad6 considered whether the Committee of Management of an intermediate college is a statutory body, and whether a writ petition would be maintainable against such an institution. The Full Bench held that a recognized intermediate college which is required by Section 16-A to have a scheme of administration cannot, by any stretch of imagination, be regarded as a statutory body nor is a scheme of administration subordinate legislation. The Full Bench held as follows:

"The Scheme framed by a recognised Intermediate College cannot, in our opinion, be regarded as a piece of subordinate legislation like the Rules, Regulations, Statutes and Ordinances, which an Act empowers the Government or the statutory bodies under the Act to make or frame. A recognised Intermediate College which is required by Section 16-A to have a Scheme of Administration, cannot, by any stretch of imagination, be regarded as statutory body. Once we hold that a Scheme of Administration required to be framed by each recognised Intermediate College under Section 16-A of the Act, is not a piece of a subordinate Legislation, it follows that the Committee of Management constituted under such a scheme, is not a body constituted under a statute, but is merely governed by the provisions of the Act and Regulations framed thereunder."7

The judgment of the Full Bench was delivered on 15 October 1976. Subsequently, in a decision of a Division Bench of this Court delivered on 31 August 1977 in Committee of Management, Janta Uchchatar Madhyamik Vidyalaya Vs Deputy Director of Education8, it was observed that the scheme of administration is prepared under the compulsive force of and in compliance with the mandatory provisions of Section 16-A of the Act.

Another Division Bench of this Court in a judgment delivered on 18 June 1990 in Om Prakash Vs U P Secondary Education Service Commission9, took note of both the judgment of the Full Bench and of the Division Bench noted above. The Division Bench held that the Committee of Management is governed by the provisions of the scheme of administration framed under Section 16-A, and rejected the submission that the scheme does not have the force of law.

The judgment of the learned Single Judge in Taptej Singh Saini (supra) which was delivered 20 April 2012, held as follows:

"The appellate power conferred under the scheme of administration upon the District Inspector of Schools in the facts of the case is only a private arrangement by persons subscribing to the scheme of administration. The power conferred upon the District Inspector of Schools is not an statutory power inasmuch as the scheme of administration is not statutory. It is more or less in the nature of an arbitration agreed upon by the members subscribing to the scheme of administration. The order passed by the District Inspector of Schools is not an order passed in exercise of any statutory power. Such an order of the District Inspector of Schools, passed on the basis of a purely private arrangement, cannot be subjected to challenge by means of writ petition under Article 226 of the Constitution of India. The remedy available to the petitioner is to file a Civil Suit..."

In coming to this conclusion, the learned Single Judge relied upon the judgment of the Full Bench in Aley Ahmad Abidi (supra).

The principles which emerge on a consideration of the judgments of the Full Bench and of the two Division Benches in particular, is that a scheme of administration in respect of an intermediate college is framed in pursuance of the mandate of Section 16-A. Section 16-A makes it obligatory for every institution governed by the Act, to have a scheme of administration and regulates the contents of the scheme. Such a scheme of administration has to conform to the provisions contained in the Act and the Regulations and is subject to the approval of the Director of Education. In fact, Section 16-A(7) contemplates that a dispute in regard to the management of an institution having arisen, such persons who, upon enquiry, are found by the Regional Deputy Director of Education to be in actual control of its affairs may, for the purposes of the Act, be recognized to constitute the Committee of Management, unless a court of competent jurisdiction directs otherwise. The decision is for the purpose of the enabling provisions of the Act and is always subject to a determination in a judicial proceeding.

The role which the Deputy Director of Education performs under Section 16-A (7) has been held in a judgment of a Special Bench of this Court in Committee of Management, Pt Jawahar Lal Nehru Inter College Vs Deputy Director of Education10 to be of a quasi-judicial character. The Bench of five Judges held as follows:

"The powers of the Deputy Director of Education, under Section 16-A(7) spring into action, as soon as the dispute with respect to a Management of an institution is raised before him or referred to him by the District Inspector of Schools. He is required to make an enquiry as is deemed fit. The proviso to sub-section (7) requires him to afford reasonable opportunity to the rival claimants to make representations in writing. The explanation provides for the guidelines to determine the question as to who is in actual control of the affairs of the institution. The order passed by the Deputy Director of Education, affects the other party, and his decision visits civil consequences upon him. All the attributes of powers require him to act fairly. He must conform to the norms of judicial procedure in exercise of his powers. The statute requires him to act fairly consistently with the rules of natural justice. The power exercised by him, therefore, is not administrative in character. It has all the attributes of a quasi-judicial power."11

The scheme of administration of an educational institution governed by the provisions of the Act may, in its diverse clauses, recognise the role and position of the DIOS. But the mere fact that the role of the DIOS has been adverted to in the scheme of administration would not render every exercise of power by him as incidental to the resolution of a private civil dispute between the members of the society. Undoubtedly, the scheme of administration may recognize a role for the DIOS on certain matters which may not be referable to the vesting of statutory duties and functions in him. In such areas, as the learned Single Judge held in the decision in Taptej Singh Saini (supra), the power which is conferred upon the DIOS may not partake the character of a statutory power but may be in the nature of an agreement between the members who subscribe to the scheme of administration. However, it cannot be assumed that every conferment of power upon the DIOS is purely in the nature of a private agreement or contract between the members of the institution. The role which is recognized in a public official by the scheme of administration may intersect with statutory powers and duties which are conferred upon him by the Act. Where the duty which is being performed and the order which is passed partakes the character of the functions which are to be discharged or the obligations which are to be performed under the enabling provisions of the statute and its regulations, the exercise of powers would be amenable to correction in a writ petition. Whether a writ petition should be entertained in the given facts of a particular case or whether it would raise disputed questions of fact is a separate matter altogether which would be decided by the Court on the basis of the facts of each case. We are unable to find ourselves in agreement with the general principle enunciated in the impugned judgment of the learned Single Judge that the power which was being exercised by the DIOS was merely in the nature of an Arbitrator. As the facts before the Court in the present case would indicate, several resolutions passed on 14 December 2014, 4 April 2015 and 23 April 2015 and the proceedings of the general body dated 9 November 2014 and 10 May 2015 were the subject matter of the decision of the DIOS who, by his order dated 12 June 2015 annulled the proceedings of the Committee of Management of 14 December 2014, 4 April 2015 and 23 April 2015 and the proceedings of the general body dated 9 November 2014 and 10 May 2015. The learned Single Judge should have, in our view, enquired into the nature of the power which the DIOS was exercising while annulling the proceedings of the Committee of Management on the one hand and the proceedings of the general body on the other. It is only on an assessment of the nature of the power which the DIOS was exercising with reference to each of the aforesaid events, that it could have been decided as to whether the power which was being exercised was for deciding a purely private civil dispute unrelated to the exercise of the statutory power or whether the DIOS was, in fact and in substance, acting in the discharge of his statutory obligations albeit in connection with the scheme of administration. Since this exercise has not been carried out, we are of the view that the impugned judgment and order of the learned Single Judge is rendered unsustainable.

We may note that even in the judgment in Taptej Singh Saini's (supra) which was relied upon by the learned Single Judge in the impugned judgment and order, a complaint was made before the DIOS that a particular person was involved in criminal cases and was not entitled to act as a member of the general body under the scheme of administration or to function as a Manager. The learned Single Judge, in fact, noted that what the petitioner desired was virtually a disqualification of that person with reference to the provisions of the scheme of administration which have been held to be non-statutory in character and it was in the background of these facts that the writ petition was dismissed with liberty to file a civil suit. Taptej Singh Saini's case, therefore, does not lay down a general principle or a thumb rule of universal application but only reiterates the well settled principle that it is on the basis of the facts of each case, that the Court should decide as to whether a writ petition is maintainable or whether the disputed questions of fact before the Court are of such a nature as to warrant a relegation to the remedy of a civil suit.

For these reasons, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 30 July 2015. Writ-C No 36048 of 2015 is restored to the file of the learned Single Judge.

We clarify that we leave it open to the learned Single Judge to determine, on the basis of the principles which we have enunciated, as to whether the DIOS had, while annulling the resolutions of the Committee of Management or, as the case may be, the general body, acted purely in the exercise of a private conferment of power under the scheme of administration or those which were conferred by the provisions of the Act. We also leave it to the discretion of the learned Single Judge to decide whether, in the facts of the case, recourse to the writ jurisdiction would be an appropriate remedy or whether the parties should be relegated to the remedy of a civil suit.

The special appeal is accordingly disposed of in the aforesaid terms. There shall be no order as to costs.

Order Date :- 11.8.2015

AHA

(Dr D Y Chandrachud, CJ)

(Yashwant Varma, J)

Hon'ble Dr D Y Chandrachud, CJ

Hon'ble Yashwant Varma, J

Disposed of.

For orders, see order of date passed on separate sheets.

Order Date :- 11.8.2015

AHA

(Dr D Y Chandrachud, CJ)

(Yashwant Varma, J)