Allahabad High Court
C/M Laxmi Kunwar Inter College ... vs State Of U.P. Thru Secy. Secondary ... on 25 August, 2015
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. 10
Writ Petition No. 1088 (MS) of 2014.
Committee of Management Laxmi Kunwar Inter College
and another. ...................................Petitioners.
Versus.
State of U.P. and others. ............................Opposite parties.
Hon'ble Rajan Roy,J.
Heard Sri O.P.M. Tripathi, learned counsel for the petitioner and Sri Satyanshu Ojha learned Additional Chief Standing Counsel for he State.
The contention of Sri O. P. M. Tripathi, learned counsel for the petitioner is that Authorized Controller was appointed in the institution on 10.12.2009. The maximum period for which the Authorized Controller can be appointed is 5 years subject to second proviso of sub-section (4) of Section 16-D of the U.P. Intermediate Education Act, 1921 which provides that if at the expiration of said period of 5 years, there is no lawfully constituted committee of management, the authorized controller shall continue to function as such until the State Government is satisfied that the committee of management has been lawfully constituted. The contention is that earlier there was a dispute regarding membership of the general body of the society which was resolved by the Deputy Registrar vide order dated 21.07.2009. Against the said order of the Deputy Registrar some of the members of the general body of the society filed a writ petition before this Court which was dismissed. Special appeal filed against the said dismissal order was also dismissed. Consequently the order dated 21.07.2009 passed by the Deputy Registrar became final. Based thereon the committee of management of the society, which is parent body of the society, was constituted. After constitution of the committee of management of the society a request was made to the District Inspector of Schools for providing an observer for holding election of the committee of management of the college which had become time barred on account of the election of the committee of management of the society not having been held due to dispute. The grievance of the petitioner is that in spite of its request on one hand the observer is not being provided and on the other hand the Authorized Controller is being continued in gross violation of the provisions of sub-section (4) of Section 16-D of the Intermediate Education Act, 1921. The contention is that the Authorized Controller cannot continue indefinitely beyond 5 years if there is a validly elected committee of management but this can only be done when the observer is provided for holding elections to the committee of management of the College. By not providing observer the elections of the committee of management of the college are being stalled which is contrary to the spirit of sub-section (4) of Section 16-D of the U.P. Intermediate Education Act, 1921 read with clause 9(3) of the Approved Scheme of Administration of the College.
Sri Satyanshu Ojha on the other hand submits that the allegations against the committee of management of the college are very serious. He invited attention of the Court to the order dated 05.05.2014 passed by this Court requiring the State Government to take a decision within two months in the proceedings initiated under Section 16-D(2) and 16-D(3) of the Act, 1921. He informs the Court that in pursuance to the aforesaid order a decision has been taken on 06.05.2015 extending the tenure of the Authorized Controller for a further period of 6 months based on the report of District Inspector of Schools who conducted the enquiry and submitted his report on 14.08.2014.
Section 16D of the U.P. Intermediate Education Act,m 1921 reads as under:--
"16-D. (1) The Director may cause a recognized institution to be inspected from time to time.
(2) The Director may direct a management to remove any defect or deficiency found on inspection or otherwise.
(3) If on the receipt of information or otherwise, the Director is satisfied that
(i) the Committee of Management of an institution has failed to comply with the judgment of any Court or any direction made under this Act or any other law for the time being in force; or
(ii) the Committee has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standard in the institution or has appointed or retained in service any such teaching or non-teaching staff in contravention of the provisions of this Act or the Regulations; or
(iii) any dispute with respect to the right claimed by different persons to be lawful office-bearers of the Committee of Management has affected the smooth and orderly administration of the institution concerned; or
(iv) the Committee has persistently failed to provide the institution with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment or other facilities as are necessary for the efficient administration of such institution; or
(v) the Committee has substantively diverted, misapplied or misappropriated thee property of the institution to its detriment or has transferred any property in contravention of the provisions of the Uttar Pradesh Educational Institutions (Prevention of Dissipation of Assets) Act, 1974 (U.P. Act No. 3 of 1975); or
(vi) the draft of the Scheme of Administration has not been submitted within the time allowed therefor under Section 16-B or that the Management of the institution is being conducted otherwise than in accordance with the Scheme of the Administration or the affairs of the institution are being otherwise mis-managed; or
(vii) the Scheme of Administration in relation to an institution, approved before the commencement of the Intermediate Education (Amendment) Act, 1980, is inconsistent with the provisions of this Act and the management of the institution has failed to alter or modify it within a reasonable time despite notice under Section 16-CCC;
he may refer the case to the Board for withdrawal of recognition of such institution, or issue notice to the Committee of Management to show cause within thirty days from the date of receipt of such notice why an order under sub-section (4) should not be made.
(4) Where the Committee of Management of an institution fails to show cause within the time allowed under sub-section (3) or within such extended time as the Director may from time to time allow, or where the Director is, after considering the cause shown by the Committee of Management, satisfied that any of the grounds mentioned in sub-section (3) exists, he may, recommend to the State Government to appoint an Authorised Controller for that institution, and thereupon, the State Government may, by order, for reasons to be recorded, authorise any person (hereinafter referred to as the Authorised Controller) to take over, for such period not exceeding two years, as may be specified, the management of such institution and its properties:
Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper management of the institution and its properties, it may, from time to time, extend the operation of the order, for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order, but excluding the period specified in sub-section (8), does not exceed five years:
Provided further that if at the expiration of the said period of five years, there is no lawfully constituted Committee of Management of the institution, the Authorised Controller shall continue to function as such, until the State Government is satisfied that a Committee of Management has been lawfully constituted.
(5) If on the receipt of information or otherwise, the State Government is of opinion that in relation to an institution the ground mentioned in clause (iii) or clause (v) of sub-section (3) exists, and that the interest of the institution calls for immediate action, it may, notwithstanding anything contained in the said sub-section, issue notice to the Management of such institution to show cause within fifteen days from the date of receipt of such notice why an Authorised Controller be not appointed in respect of such institution.
(6) Where the Committee of Management of the concerned institution fails to show cause within the time allowed under sub-section (5), or within such extended time as the State Government may, from time to time allow, or where the State Government is, after considering the cause shown by the committee of Management, satisfied that any of the grounds mentioned in clause (iii) or clause (v) of sub-section (3) exists, it may, by order and for reasons to be recorded, appoint an Authorised Controller in respect of such institution and thereupon, the provisions of sub-section (4) shall mutatis mutandis apply.
(7) Every notice issued by the Direct6or under sub-section (3) on or before service of the notice referred to in sub-section (5) and not finally disposed of on the date of such service shall with effect from the said date, be deemed to have been placed in abeyance:
Provided that nothing contained in this sub-section shall be deemed to prevent the Director to take action upon grounds other than those mentioned in clause (iii) and (v) of sub-section (3) in case the notice issued by the State Government under sub-section (5) is discharged.
(8) If the State Government is of opinion that immediate suspension of the Committee of Management is also necessary or expedient in the interest of the institution concerned, it may, while issuing notice under sub-section (5), by order and for reasons to be recorded, suspend the Committee of Management and make such arrangement as it thinks proper for managing the affairs of the institution pending the order that may subsequently be made under sub-section (6).
Provided that the suspension shall not remain in force for more than six months from the date it becomes effective.
Explanation 1.-- For the removal of doubts it is hereby declared that in computing the period of time specified in sub-section (4) or sub-section (8), the time during which the operation of the order was suspended by the High Court in exercise of the powers under Article 226 of the Constitution shall be excluded.
Explanation II.-- Nothing in sub-section (4) or sub-section (6) shall preclude the State Government from removing of appointment of an Authorised Controller appointed under any of the said provisions.
(9) Nothing in this section shall be construed to confer on the Authorised Controller appointed under sub-section (4) or sub-section (8), the power to transfer any immovable property belonging to the institution (except by way of letting from month to month in the ordinary course of management) or to create any charge thereon (except as a condition of receipt of any grant-in-aid for the institution from the State Government or the Government of India).
(10) Any order made under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or in any instrument (including any Scheme of Administration relating to the management and control of the institution or its property):
Provided that the property of the institution and income thereon shall continue to be applied for the purposes of the institution as provided in any such instrument.
(11) The Director may give to the Authorised Controller such directions as he may deem necessary for the proper management of the institution or its properties, and the Authorised Controller shall carry out those directions.
(12) No order made by the Board withdrawing recognition in pursuance of a reference made under sub-section (3) and no order made or direction given under this section by the Director or the State Government shall be called in question in any Court, and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this section.
(13) The powers conferred by this shall be in addition to, and not in derogation of any powers conferred on the State Government or the Authorised Controller under any other law for the time being in force.
(14) Nothing contained in sub-section (3) to (13) shall apply to all institutions established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India."
As per Section 16-D(1) the Director may cause a recognised institution to be inspected from time to time. As per Section 16-D (2) the Director may direct a management to remove any defect or deficiency found on inspection or otherwise. Under sub-section (3) of Section 16-D if on the receipt of information or otherwise, the Director is satisfied that any of the eventualities mentioned in clauses (i) to (vii) exists, he may refer the case to the Board for withdrawal of recognition of such institution or issue notice to the Committee of Management to show cause within 30 days from the date of receipt of such notice as to why an order under sub-section (4) should not be made. A perusal of sub-section (3) shows that two actions are contemplated threin to be taken by the Director (i) he may refer the case to the Board for withdrawal of recognition of the institution or (ii) issue notice to the Committee of Management to show cause within thirty days from the date of receipt of such notice as to why an order under sub-section (4) should not be made.
A perusal of sub-section (4) of Section 16D of the Act 1921 shows that where the Committee of Management of an institution fails to show cause within the time allowed under sub-section (3) or within such extended time as the Director may from time to time allow, or where the Director is, after considering the cause shown by the Committee of Management, satisfied that any of the grounds mentioned in sub-section (3) exists, he may, recommend to the State Government to appoint an Authorised Controller for that institution, and thereupon, the State Government may, by order, for reasons to be recorded, authorize any person to take over, for such period not exceeding two years, as may be specified, the Management of such institution and its properties. Such person shall be referred to as the Authorised Controller. As per first proviso to sub-section (4) if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper management of the institution and its properties, it may, from time to time, extend the operation of the order, for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order, but excluding the period specified in sub-section (8), does not exceed five years. Thus 5 years is the maximum limit for which, under normal circumstances the tenure of the Authorized Controller can be extended. Even if at the expiration of the said 5 years there is no lawfully constituted committee of management of the institution, the Authorized Controller shall continue to function as such until the State Government is satisfied that a committee of management has been lawfully constituted. This provision is contained in second proviso to sub-section (4) of Section 16D. The language and spirit of sub-section (4) is not that the State Authorities shall prevent holding of election to the committee of management if the same can be held as per the scheme of administration and there is no legal impediment in this regard.
There is nothing on record that the petitioner's case has been referred to the Board for withdrawal of its recognition.
The Authorized Controller is appointed only as an interim measure so as to secure proper management of the institution. Even after expiry of the term of earlier committee of management another election is required to be held as per the approved scheme of administration and the provisions of the Act, 1921. Nothing under Section 16D(4) or any other provision of the Act, 1921 empowers the State authorities to create a hurdle in holding the said elections specially when the recognition of the institution is still intact.
In these circumstances as the Authorized Controller was appointed on 10.12.2009 his tenure of 5 years expired on 10.12.2014, thereafter the tenure of the Authorized Controller could have been extended only if there was no lawfully constituted committee of management of the institution. No doubt, as on date there is no lawfully constituted committee of management of the institution but it is because of the action of the DIOS in not providing observer for holding the elections of the committee of management of the institution in spite of the request having been made by the committee of management of the society on 20.12.2013. The term of outgoing committee of management of the institution expired on 25.09.2012, therefore, the committee of management of the society, which is the parent body, which runs the college in question, was justified in making a request to the DIOS for providing observer for election to the committee of management of the institution.
The counter affidavit filed by the opposite parties merely refers to certain illegalities committed by the outgoing committee of management of the institution. If the State authorities find, as per law, that some illegalities have been committed by the outgoing committee of management, they can take action as per existing provisions of law but this cannot be a ground for not providing an observer for election to the committee of management of the institution, which has become due. Such an action on the part of the State authorities is in violation of the provisions contained in the Act, 1921 as also the approved scheme of administration.
In these circumstances the DIOS is directed to look into the matter in the light of the observations made hereinabove, to ascertain the correct facts and if he finds that there is no legal impediment in holding the election of the committee of management of the institution which is said to have become time barred, then he shall provide an observer as requested by the committee of management of the society. He shall complete this exercise within a period of one month from the date a certified copy of this order is produced before him. Consequences shall follow. The Authorized Controller shall cease to continue as soon as the new committee of management of the institution is elected.
It is made clear that this Court has not at all adjudicated the merits of the allegations made against the outgoing committee of management of the institution and it shall be open to the State authorities to take such action in that regard as may be permissible under the law.
With the aforesaid observations/directions the writ petition is disposed of.
Date: 25.08.2015.
Shaakir. (Rajan Roy,J.)
