Hari Narayan Singh And 3 Others vs State Of U.P. And 3 Others
2016 Latest Caselaw 4905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. 26
 
Case :- WRIT - C No. - 20797 of 2016
 

 
Petitioner :- Hari Narayan Singh and 3 others
 
Respondent :- State of U.P. and 3 others
 
Counsel for Petitioner :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi
 
Counsel for Respondent :- C.S.C.,Manish Goel,Piyush Kishore Srivastava,PK Upadhyay
 

 
Hon'ble Manoj Kumar Gupta,J.

1. One of the issues which arise for consideration in the instant writ petition is whether the ex-officio members of the committee of management envisaged by Section 16-A of the U.P. Intermediate Education Act, 19211 are entitled to vote at an election for filling up the casual vacancy of manager.

2. The background facts in which the controversy arose are that Rastriya Shiksha Samiti, Sirsi, Jaunpur, later came to be known as Vishwanath Singh Shiksha Samiti, Sirsi, Jaunpur is a registered society under the provisions of the Societies Registration Act, 1860. It runs an Intermediate College in the name of Rastriya Intermediate College, Sirsi, Jaunpur. It is a recognised institution under the provisions of the Act. The institution receives grant-in-aid from the State Government and consequently the provisions of U.P. Act No. 24 of 1971 are also applicable. The institution is being run in accordance with a duly approved scheme of administration whereunder the term of the Committee of Management of the institution is five years. The last election of the Committee of Management was held on 10.9.2013 in which one Babban Singh was elected as President and Ram Murti Singh as Manager. Petitioners 2, 3 and 4 were elected as members of the Committee. Babban Singh, the President died on 23.3.2014. The first petitioner claimed that he, who was President of the parent society, was also elected as President of the College by the Committee of Management on 8.6.2014 against the casual vacancy that occurred on account of death of Babban Singh. On 23.7.2015, Ram Murti Singh, the Manager resigned. This again gave rise to a casual vacancy on the post of Manager. The filling up the said vacancy is the bone of contention between the petitioners and the fourth respondent, the Deputy Manager. According to the fourth respondent, the resignation submitted by Ram Murti Singh was accepted in a meeting of the general body of the parent society held on 26.7.2015 at 11:00 a.m. and in his place, he was authorised to work as Manager until the post is filled up by regular arrangement. It was followed by a meeting of the Committee of Management of the institution held at 4:00 p.m. on the same day in which a similar decision was taken. The fourth respondent on the basis of the decision taken in the meeting held on 26.7.2015 submitted a request to the second respondent, the District Inspector of Schools for attestation of his signature as Manager for the purpose of operating the accounts of the institution.

3. The petitioners setup a rival claim contending that no meeting had taken place on 26.7.2015, rather a meeting of the Committee of Management took place on 4.10.2015 in which the resignation of Ram Murti Singh was accepted and in his place one Mahavir Singh, a member of the Committee was co-opted as Manager.

4. The aforesaid rival claim set up by the parties was subject matter of consideration by the District Inspector of Schools by order dated 6.11.2015. The District Inspector of Schools, taking into consideration the affidavit filed by Ram Murti Singh in support of the alleged proceedings dated 26.7.2015, in which the fourth respondent was authorised to discharge the duties as Manager until regular arrangement is made, recognised him as Manager for the remainder of the term and also attested his signatures.

5. The order of the District Inspector of Schools dated 6.11.2015 was subjected to challenge by the petitioners by means of a writ petition2. In the said writ petition, the main contention of the petitioners was that the fourth respondent had been recognised as Manager without considering the case set up by them disputing the genuineness and validity of the proceedings dated 26.7.2015. During the course of hearing of the writ petition, it was admitted that Mahabir Singh, whom the petitioner alleged to have been elected as Manager, had died on 4.10.2015. Thus, the claim set up by him for attestation of his signature was rendered infructuous. In view of it, counsel for the parties, in order to put quietus to the controversy agreed to the disposal of the writ petition on basis of consensus. Accordingly, by judgment dated 11.12.2015, the writ petition was disposed of in following terms :-

a) The second respondent is directed to convene a meeting of the committee of management of the institution within three weeks of receipt of certified copy of this order. The date of the meeting shall be duly intimated to the office bearers and members of the committee of the institution by registered post as well as by publishing a notice in a local Hindi Newspaper. The expenses in this regard shall be borne by the third respondent.

b) The meeting shall be presided over by the second respondent himself or by his nominee, who could be the Accounts Officer in his office or Principal of some Government College.

c) In the aforesaid meeting, the only agenda would be regarding filling up of the vacancy on the post of the Manager of the committee of management of the institution. The motion shall be put to vote by secret ballot and thereafter, appropriate decision shall be taken in regard to the filling up of the post of Manager, as per the result of the election.

d) Until the new Manager is elected, the Deputy Manager i.e. the third respondent shall be entitled to function as Manager in officiating capacity.

e) However, soon after the elections are held, the newly elected Manager shall be entitled to take over the duties attached to the post of the Manager of the institution and the second respondent shall act accordingly in attesting the signatures of the newly elected Manager. The impugned order will thus abide by the outcome of the elections, which would be held in pursuance of the directions aforesaid.

6. In pursuance of the directions of this Court, the District Inspector of Schools by order dated 1.1.2016 nominated the third respondent (Finance & Accounts Officer, Secondary Education, Jaunpur) as Election Officer for conducting the election on the post of Manager. The third respondent on 27.1.2016 issued an order convening meeting of the Committee of Management on 16.2.2016 for filling the casual vacancy of Manager. It was further notified that in case any one has any objection in relation to the election process, the same could be filed in his office by 8.2.2016. The fourth respondent submitted a list of 15 persons supposedly containing the names of the members and office bearers of the Committee of Management before the Election Officer on 28.1.2016. It comprises of the name of those who were elected in the last election held in the year 2013-14. Thus, it mentioned name of Babban Singh as President who had infact died on 23.3.2014, Ram Murti Singh as Manager, who had resigned on 23.7.2015 and names of Kripa Shankar Lal and Mahavir Singh as Treasurer and member respectively, though they had also died since after the election held in the year 2013. On the other hand, the list did not contain the name of the first petitioner though he claimed to be elected as President after the death of Babban Singh. This prompted the petitioners to file their objection by way of affidavit before the third respondent pointing out the aforesaid discrepancies. They further raised a plea that the ex-officio members namely, the Principal and two teachers of the institution whose name find place in the list supplied by the fourth respondent, do not have right to vote in election of the office bearers of a committee of management. They also supplied a list of the office bearers and members, which according to them reflected the position of the Committee as was in existence at the relevant time.

7. The third respondent did not pay heed to the objection filed by the petitioners. He proceeded to hold the election on the assigned date and time i.e., on 16.2.2016 from the list supplied by the fourth respondent. In the election held on that date, the fourth petitioner and the fourth respondent were the only two contestants for the post of Manager. The fourth respondent was declared elected having got 9 votes whereas the fourth petitioner got only 3 votes. The petitioners made a representation on the same date before the District Inspector of Schools pointing out various irregularities allegedly committed by the third respondent in conducting the election and requested for fresh election being held from the list of office bearers and members supplied by the petitioners. However, the District Inspector of Schools by impugned order dated 27.2.2016 has recognised the election of the fourth respondent on the post of Manager. Aggrieved thereby, the instant writ petition has been filed.

8. The fourth respondent entered appearance by means of a caveat and filed a short counter affidavit. The petitioners filed a supplementary affidavit. Counsel for the parties made a statement before the Court that they do not intend to file any further affidavits and requested for the matter being heard finally.

9. Sri G. K. Singh, learned senior counsel appearing on behalf of the petitioners assailed the election proceedings dated 16.2.2016 as well as the order passed by the District Inspector of Schools dated 27.2.2016 recognising the said election on the following grounds :-

(a) The three ex-officio members of the Committee of Management, namely, the Principal and two teachers were not entitled to vote in the election. It is urged that clause 5 (ga) of the Scheme of Administration as originally framed (Annexure 3) specifically prohibits participation of the ex-officio members in the election of the office bearers or members of the Committee of Management or any proceedings relating to the passing of no confidence motion or determination of disability of any member/ office bearer. Consequently, the participation of three ex-officio members, all of whom had voted in favour of the fourth respondent, had rendered the election proceedings illegal and void.

(b) Babban Singh, erstwhile President being dead was wrongly shown as President of the Committee of Management on the basis of which election had been conducted by the third respondent, whereas the first petitioner who was elected as President in his place was wrongly excluded from the election process.

(c) Ram Murti Singh, erstwhile Manager who had admittedly resigned on 23.7.2015 was wrongly permitted to participate in the election process. He had voted in favour of the fourth respondent, thus adversely affecting the outcome of the election.

(d) Non-inclusion of the name of the first petitioner in the electoral college for filling up the casual vacancy has rendered the entire election null and void. He has been deprived of his right to contest the election and/or caste his vote, thus, vitiating the entire election process.

(e) The third respondent though had invited objections against the election process but he held the elections without considering the objections filed by the petitioners and also without finalising the electoral college which is sine qua non for holding of a valid election.

10. On the other hand, Sri Manish Goel, appearing on behalf of the fourth respondent submitted that : (a) the ex-officio member viz, the Principal and two teachers were rightly permitted to vote in view of such right conferred in their favour by Section 16-A of the Act.

(b) The only approved scheme of administration in existence is the one approved by the Dy. Director of Education on 25.1.1985 (Annexure 5 to the writ petition). Therein, there is no prohibition for the ex-officio members participating in the election of the office bearers and particularly for filling up the casual vacancy on the post of Manager.

(c) Arguendo that the scheme brought on record as Annexure 3 was in existence, the same stood superseded by the new scheme approved on 25.1.1985 and thus the petitioners cannot be permitted to place reliance on the old scheme. Further any provision in the scheme of administration which restricted the right of the ex-officio members to vote, is contrary to the provision of Section 16-A of the Act, consequently, such provision is unenforceable and void.

(d) The first petitioner was not permitted to participate in the election as the election was to be held from the Committee as originally elected on 10.9.2013, in which concededly the first petitioner was not elected as President. It is further sought to be suggested that infact, the first petitioner was never elected as President after death of Babban Singh and thus even otherwise, he had no right to contest the election or to vote therein.

11. Countering the submissions made by Sri Manish Goel, learned counsel for the petitioners submitted that the scheme approved by the Deputy Director of Education on 25.1.1985 is only an amendment to the earlier scheme of administration and it does not supersede the same. To buttress the submission, he placed reliance on various provisions of earlier scheme of administration and the amended scheme of administration and tried to bring home the fact that in the scheme subsequently approved, various provisions as contained in the original scheme do not find place and thus the same does not stand superseded altogether as sought to be urged on behalf of the contesting respondent. He further submitted that the election of the first petitioner on the post of President had never been a matter of dispute. He submitted that even when previous writ petition was filed by the first petitioner showing himself as President, assailing the order dated 6.11.2015, the claim of the first petitioner was not disputed. It is further submitted that the fourth respondent himself, in the notice issued on 23.7.2015 for convening the meeting dated 26.7.2015 had shown the first petitioner as President and again in the proceedings dated 26.7.2015, thus, it does not lie in the mouth of the fourth respondent to dispute the election of the first petitioner on the post of President.

12. Section 16-A of the Act envisages a Scheme of Administration for every institution which amongst other matters provides for the constitution of a Committee of Management vested with the authority to manage and conduct the affairs of the institution. It stipulates that the Head of the institution and two teachers thereof elected by rotation according to seniority, shall be ex-officio members of the Committee of Management with a right to vote. For convenience of reference, relevant part of section 16-A is reproduced below :-

16-A. Scheme of Administration --- Notwithstanding anything in any law, document, or decree, order of a Court or other instrument there shall be a Scheme of Administration (hereinafter referred to as the Scheme of Administration) for every institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1958. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. The Head of the institution and two teachers thereof, who shall be elected by rotation according to seniority in the manner to be prescribed by regulations, shall be ex-officio members of the Committee of Management with a right to vote.

(2) No member of the Committee of Management shall either attend a meeting of the committee or exercise his right to vote whenever a charge concerning his personal conduct is in discussion.

(3) The Scheme of Administration shall also describe subject to any regulations, the respective powers, duties and functions of the Head of the Institution and Committee of Management in relation to the institution.

13. Section 16-CC of the Act substituted by U.P. Act No.1 of 1981 provides that the Scheme of Administration of an institution whether recognised before or after commencement of the Intermediate Education (Amendment) Act, 1980, shall not be inconsistent with the principles laid down in the Third Schedule. The Third Schedule postulates that every Scheme of Administration shall -

(1) provide for proper and effective functioning of the Committee of Management;

(2) provide for 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 or any particular person, caste, creed or family;

(4) provide for the procedure of calling meeting 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.

14. The language of Section 16-A is plain and unambiguous and admits of no confusion regarding right of ex-officio members to vote. The right conferred in their favour is in absolute terms without any qualification or exception. The provision of sub-section (1) of Section 16-A when contrasted with sub-section (2) further reinforces an interpretation that where the legislature intended to limit the right to vote, as in case of a member whose personal conduct is in discussion, the same has been specifically provided for.

15. The Supreme Court in the case of Sangeeta Singh vs. Union of India and others3 has held that "the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. ............. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. .............. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock vs Frank Jones (Tipton) Ltd.4] Rules of interpretation do not permit the courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. ............. The question is not what may be supposed and has been intended but what has been said".

16. In Padma Sundara Rao vs. State of Tamilnadu5, the Supreme Court noticed the golden rule of construing statutes by quoting the following passages from Grey vs. Pearson6 and Abley vs. Dale7 :-

"The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Case 61).

The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J.,

"the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale) (ER p.525).

17. If these principles of construction of statutes are kept in mind it can safely be held that the statute has conferred an unequivocal right to vote in favour of the ex-officio members. Ordinary all members of the Committee have a right to vote, as under Clause (5) of the Third Schedule, all decisions are to be taken by the Committee but in order to obviate any doubt regarding the right of ex-offio members, it has been specifically provided for by the statute. However counsel for the petitioners placed reliance on Clauses 5 and 8 of the scheme of administration in contending that the scheme of administration as duly approved itself prohibits the ex-officio members from voting in an election of the office-bearers of the Committee of Management. These Clauses of the Scheme of Administration are to the following effect :-

5- lfefr dk laxBu&lfefr esa fuEufyf[kr iUnzg lnL; gksaxs%&

¼d½ inkf/kdkjh&

1&v/;{k] 2&mik/;{k] 3&izcU/k] 4&lgk;d izca/kd] rFkk 5& dks"kk/;{kA

mijksDr 5 inkf/kdkjh lkslkbVh }kjk pqus tk;saxsA

¼[k½ lk/kkj.k lnL; 7 & lkslkbVh vius lnL;ksa esa ls lfefr ds lkr lk/kkj.k lnL;ksa dk pquko djsaxhA

¼x½ insu lnL;k 3& iz/kkukpk;Z rFkk nks v/;kid ,sDV ds lsD'ku 16&,¼1½ vkSj fofu;e % 1 % ds vuqlkj insu lnL; gksaxs] tks izcU/k lfefr ds inkf/kdkfj;ksa ds pquko esa rFkk fdlh lnL; ;k inkf/kdkjh ds fo#) vfo'okl ds izLrko esa ;k vk;ksX;rkvksa ds fu/kkZj.k esa Hkkx ugha ysxsaA

8- vkdfLed fjfDr & lnL;ksa ¼insu lnL;ksa ls fHkUu½ ;k lfefr ds inkf/kdkfj;ksa ds in esa gksus okyh fdlh vkdfLed fjfDr ¼mijksDr en 7 dh fLFkfr ds vfrfjDr½ dh iwfrZ lfefr }kjk dk;Zdky dh 'ks"k vof/k ds fy;s dh tk;sxh vkSj bl izdkj fu;qfDr dksbZ O;fDr ml 'ks"k dky ds fy;s lfefr dk lnL; ;k inkf/kdkjh ¼tSlh Hkh n'kk gks½ gksxk] ftlds fy;s og O;fDr] ftlds LFkku dh og iwfrZ djrk gS] lnL; ;k inkf/kdkjh jgrkA

18. As discussed above, Section 16-A specifically confers a right to vote in favour of ex-officio members. The right conferred is in absolute terms without any exception. There is no other provision under the Act which may be taken aid of to restrict such right of vote. If a Scheme of Administration envisaged by Section 16-A contains a stipulation which is contrary to the specific provisions of the Act, such a stipulation has to pave way to the provisions of the Act.

19. It is noteworthy that Section 16-A was inserted by U.P. Act no. 35 of 1958. By the same amending Act, Section 16-B was also inserted which empowers the Director to suggest alteration or modification in the Scheme of Administration. Subsequently, when Section 16-CC was inserted by U.P. Act No.1 of 1981 which stipulates that the Scheme of Administration has to be consistent with the principles laid down in the Third Schedule, the other provision inserted was Section 16-CCC. It again empowered the Director to compel the alteration or modification in a Scheme of Administration in so far as it is inconsistent with the provisions of the Act. In case, the Director has not taken recourse to such power or has approved a Scheme containing a stipulation which is inconsistent with the provision of the Act, it would not infuse life into it. A scheme of administration of an institution recognised under the Act is a creature of statute. It cannot contain a stipulation which whittles down the provisions of the Act.

20. Counsel for the petitioners has placed reliance on a Division Bench judgement of this Court in Ajab Singh vs. District Inspector of Schools, Meerut and others8 wherein the Scheme of Administration contained a provision to the effect that elected member of the Committee alone would have the right to participate in the election of an office bearer. The Court explained the rationale behind such a provision by holding as under :-:-

"The Scheme of Administration provided that the twelve elected members of the Committee of Management alone have a right to participate in the election of the office bearers and the ex-officio members have no right to participate therein. The intention behind this provision seems to be clearly that employees of the Institution who became ex-officio members of the Committee of Management will not participate in the election politics of the college concerned and that when they have been debarred from participating in the election proceedings."

(emphasis supplied)

21. It is noticeable that while taking the said view, the stipulation in the Scheme of Administration alone was taken into consideration. The provisions of Section 16-A(1) of the Intermediate Education Act which specifically confers a right to vote in favour of ex-officio members, was not brought to the notice of the Court. The aforesaid judgment of the Division Bench of this Court came up for consideration before a learned Single Judge in Committee of Management DAV Inter College, Tateir Baghpat and another vs. State of U.P. and others 9. The learned Single Judge after noticing the fact that the Division Bench judgement was rendered in ignorance of the statutory provision, held that it would have no binding effect. For taking such view, the learned Single Judge placed reliance on the decision of the Supreme Court in State of U.P. vs. Synthetics and Chemicals Ltd.10 wherein the law relating to per incurium was laid down. The relevant portion from the said judgement is as under :-

"10. I have gone through the said judgment of the Division Bench of this Court. It is apparently clear that the Division Bench has not noticed the aforesaid provisions of Section 16A(1) of the Intermediate Education Act and therefore, the said judgment in the opinion of the Court is based on non-consideration of a statutory provision and as such has no binding effect in the facts of the case.

11. The legal position in that regard has been explained by the Hon'ble Supreme Court in the judgment in the case of State of U.P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon'ble Supreme Court has held as follows:

"Incuria' literally means 'carelessness. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding."

This Court is in respectful agreement with the view taken by learned Single Judge in Committee of Management, DAV Intermediate College, Baghpat (supra).

22. Counsel for the petitioners has placed reliance on another judgement of a learned Single Judge of this Court in Harjinder Nagar Inter College and Another vs. State of U.P.11 in which the learned Single Judge held that the ex-officio members do not have a right to participate in a no-confidence motion against an office bearers as they also had no right to elect them. It has been held thus :-

"I have considered the submissions of the learned counsel for the parties. From a perusal of the Scheme of Administration, it will be seen that as per para 5 of the Scheme, the Committee shall consist of 15 members out of which the Principal and two teachers shall be the ex-officio members. The Note to para 5 clearly mentions that the ex-officio members shall not take part in the selection of office bearers. That being the position if the ex-officio members are specifically prohibited from participating in any meeting for selection of office bearers, they also cannot participate in any meeting, ordinary or Emergent for passing a motion of no confidence against an office bearer. If there is no right to select, there is no right to remove either and therefore, I am in agreement with the submission of Sri P.N. Saxena, learned senior counsel for the respondents that since the ex-officio members were prohibited from participating in any selections they also stood prohibited by logical interpretation from participating in any meeting held for consideration of a motion of no confidence against an office bearer.

23. It is brought to the notice of this Court that the judgement of the learned Single Judge was upheld with the dismissal of Special Appeal No. 1881 of 2012 by a Division Bench of this Court on 4.12.2012 and the aforesaid judgements were further upheld with the summary dismissal of Special Leave to appeal.

24. It is apposite to note that the judgement of the learned Single Judge in case of Harjinder Nagar Inter College (supra) again does not take into consideration the provisions of Section 16-A(1) of the Act. The Division Bench judgement in Special Appeal does not seem to agree with the view of the learned Single Judge that the ex-officio members were not entitled to participate in a meeting of no-confidence. But ultimately the judgement of the learned Single Judge was not interfered with on the ground that even in the absence of ex-officio members, more than 2/3 members being present, the no-confidence motion was validly passed. The relevant observations made in this regard by the Division Bench in Special Appeal are as under :-

"Clause 5 of the Scheme provides for Constitution of the Committee. The note appended to Clause 5 provides that 3 ex-officio members as for example Principal and 2 teachers shall not take part in that item of the agenda of the Committee of Management by which it appoints an ad-hoc committee for selection of teachers. They shall also not take part in the selection of office bearers. Though prima facie it appears that the 3 ex-officio members are not prohibited from participating in a meeting in which a no-confidence motion is moved, from paragraph 7 of the Scheme it appears that an agenda of no-confidence motion has to be passed by 2/3rd majority of the members present in a particular meeting in which a notice of no-confidence motion against a particular office bearer has been given. Clause 7 does not provide that in case of a meeting for no-confidence motion, all the 15 members are required to be present. It only provides that such a motion has to be passed by 2/3rd of the members present in the meeting. In the present case, 9 members were present and they voted in favour of the motion. We are therefore, of the view that 2/3rd majority of the members present in the meeting having voted in favour of the motion, no illegality can be found in accepting the same."

(emphasis supplied)

25. The language of Section 16-A(1) is plain and unambiguous. In such a situation, the Supreme Court in Lalappa Lingappa & Ors vs. Laxmi Vishnu Textile Mills Ltd.12 has held that the Court "must give effect to it whatever may be the consequences, for, in that case, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the Courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficent purpose of legislation, the Courts must not yield to the temptation of seeking ambiguity when there is none". Lord Brougham, J. in Robert Wigram Crawford v. Richard Spooner13, has cautioned the court in reading something in the statute which is not provided for, in the following words :- "If the legislature did not intend that which it has not expressed clearly much more, if the legislature intended some thing very difficult, if the legislature intended some thing pretty nearly the opposite of what it said, it is not for the judges to invent something which they do not meet within the words of the text." Thus where the words are clear and explicit, the Courts should not fell into temptation of reading something which in their wisdom would make the provision more rational.

26. The logic which prompted the Division Bench in the case of Ajab Singh (supra) and the learned Single Judge in Harjinder Nagar Inter College (supra) in holding that the ex-officio members are not entitled to participate in no-confidence motion or in an election to fill up a casual vacancy, is based on premise that the ex-officio members are not supposed to indulge in the politics of the college. As a necessary corollary, they are also not entitled to participate in a no-confidence motion. It is noticeable that the Committee of Management and its office bearers, under the scheme are elected by the members of the Society from amongst themselves. At the time of election of the Committee of Management of an institution, the electoral college is thus the general body of the Society. The ex-officio members are concededly not the members of the general body and thus also have no role to play in such an election. However, once the election of the office bearers and the members of the Committee of Management had taken place, there comes into existence the body envisaged under clause 5 of the Scheme of Administration viz. the Committee of Management which comprises of 15 members, namely, the 5 office bearers, 7 members and three ex-officio members i.e. the Principal and two teachers. Under clause 10 (cha) the decisions of the Committee of Management are taken on the basis of majority will whereas the decision for terminating service of an employee as well as for creating encumbrance over immovable property of the institution requires a majority of 2/3 members. Thus there may be a situation where a Manager or some other office bearer looses the confidence of majority of the members but remains in majority if ex-offico members are excluded, and likewise, a person is elected as office bearer against a casual vacancy without the involvement of the will of ex-officio members there is a likelihood that such office bearers may not enjoy the confidence of the majority of the members of the Committee of Management taken together. In such a scenario, the rival faction with the support of ex-officio members would be in a position to scuttle the proposals of the Management, thus paralysing the body invested with the management of the institution. This was never intended by the legislature. Thus, in the opinion of the Court, in case ex-officio members are permitted to vote in an election for filling up a casual vacancy of an office bearers, the person elected would enjoy the confidence of the majority of the members and would be in a position to run the institution in a more effective manner as compared to a person elected in their absence. The aforesaid instance is being cited only to demonstrate that the view that ex-officio members should not be permitted to participate in an election for filling up casual vacancy as it would result in their involvement in college politics, may have its flip side as well. In such an eventuality, the very idea of having a body better equipped to run the institution would stand defeated. Thus, once the legislature has chosen not to curtail the right of the ex-officio members to vote in an election for filling up a casual vacancy, it is not within the province of a Court to import rationality in the provision by reading into the statute something which was never intended. Thus, this Court has no hesitation in holding that the ex-officio members have full right to vote for filling up casual vacancy on the post of Manager and they were rightly permitted to vote.

27. The next question which arises for consideration is whether Ram Murti Singh, erstwhile Manager was rightly permitted to participate in the election. Under the Scheme of Administration, the Manager is directly elected by the general body. He does not get elected for the reason he is a member of the Committee of Management. Therefore, on his resignation from the post of Manager, he ceases to be part of the Committee of Management which constitutes the electoral college for filling up the casual vacancy.

28. Under Clause 8 of the Scheme, the Committee has to elect a successor to a vacant post for the remainder of the term. The office bearers and the members of the Committee of Management who are entitled to participate in the election are those who hold their respective posts as office bearers or member on the date election is held. The electoral college for filling up the casual vacancy on the post of Manager could not be the office bearers and the members originally elected in the year 2013 albeit having tendered resignation later on, as suggested by learned counsel for the fourth respondent. Thus, Ram Murti Singh having already resigned was not entitled to participate in the election.

29. This brings the Court to the next argument of learned counsel for the petitioners that the first petitioner having been elected as President in place of Babban Singh was entitled to participate in the election process, but was wrongly excluded therefrom. The claim of the first petitioner to participate in the election was sought to be negated by suggesting that infact the first petitioner was never elected as President and in any case, his election as President was not recognised or approved by the educational authorities.

30. The case of the petitioners is that the first petitioner was continuing as President of the Managing Committee of the parent Society on the basis of elections held on 8.10.2013. Subsequently, when the post of President of the Committee of Management of the institution fell vacant on account of death of Babban Singh on 23.3.2014, he was also elected as President of the Committee of Management of the institution in a meeting of the Committee held on 8.6.2014. The resolution passed in this regard has been brought on record as Annexure 7 to the writ petition. A copy thereof was duly forwarded to the District Inspector of Schools for information and necessary action by the then Manager by letter dated 17.7.2014. The specific case of the first petitioner is that he had been working as President of the Committee of Management of the institution since then. There is nothing on record to indicate that any objection was raised from any quarter regarding the alleged claim of the first petitioner as President of the Committee of Management of the institution. On the contrary, from perusal of the order of the District Inspector of Schools passed on 6.11.2015 recognising the fourth respondent as Manager, it is clear that his own case was that the first petitioner as well as his son Vinay Kumar Singh, despite due notice and information remained absent from the proceedings held on 26.7.2015. It is the same meeting in which the fourth respondent claimed that the resignation of Ram Murti Singh was accepted and in his place he was authorised to work as Manager. In case the first petitioner was not the President, there was no other reason for calling him to participate in the said meeting. It may further be noted that in the notice dated 23.7.2015 sent to the office bearers and member of the Committee of Management regarding holding of emergent meeting on 26.7.2015, the first petitioner had been shown as President. Even in the proceedings dated 26.7.2015, on the basis of which the fourth respondent claimed to be entrusted with duties on the post of Manager, the first petitioner has been described as President though he was not present in the said meeting. Resolution No.2 passed in the said meeting specifically records that the first petitioner could not preside over the meeting on account of his illness. The fourth respondent, who is signatory to the proceedings and also a beneficiary of the resolution passed in the said meeting, cannot be permitted to take a contrary stand and contend that the first petitioner had never been elected as President.

31. Irrespective of what has been held above, this Court also cannot loose sight of the fact that the previous writ petition was filed by the first petitioner alongwith four others claiming himself to be the President. The writ petition aforesaid, as noted in the earlier part of the judgement, was disposed of with the consent of learned counsel for the parties. In case the first petitioner had never been elected as President, there does not appear any reason on record why such plea was not raised at that time and the writ petition was got disposed of on the basis of consensus for holding election for the post of Manager alone. In view of these facts, the Court is unable to accept the contention of learned counsel for the fourth respondent that the first petitioner had never been elected as President.

32. Learned counsel for the fourth respondent while placing reliance on various regulations framed under Chapter-I tried to contend that it is only the Committee of Management duly approved by the educational authorities which is entitled to function. It is urged that it is implicit in grant of recognition that election of each office bearer is approved. It is submitted that in the absence of approval by the educational authorities to the election of the first petitioner, he was not entitled to participate in the election for filling up the casual vacancy.

33. Under Government Orders dated 19 December 2000 and 20 October 2008 the District Inspector of Schools recognises an election of the Committee of Management and in case of any legal impediment, recognition is granted by the Regional Level Committee constituted thereunder. The signature of the Manager of the Committee of Management is attested by the District Inspector of Schools in view of the fact that the Manager is empowered to operate the account of the institution jointly with the District Inspector of Schools and the Principal of the institution. However, there is no provision which requires a specific approval from the educational authorities in case a casual vacancy on a post other than that of Manager is filled up. The educational authorities may, in an eventuality where the filling up casual vacancy is in dispute be called upon to decide the same, but in normal course, no specific approval is required. All that is needed is communication of the proceedings to the educational authorities which had been done in the instant case. In view thereof, this Court holds that petitioner no.1 who was the President was wrongly excluded from the electoral college.

34. The question which still remains to be considered is the relief to which the petitioners are entitled to. Although it has been held that the ex-officio members were rightly permitted to participate in the election and thus undoubtedly, majority of vote were cast in favour of the fourth respondent but still this Court is of the opinion that inclusion of the erstwhile Manager in the election process as well as exclusion of the President (the first petitioner) from the election process was fatal to the entire election. In numerical terms, it may appear to be in inconsequential but an election held from an invalid electoral college, in the opinion of the Court, cannot be sustained. The presence of the first petitioner and exclusion of the ex-manager has the potentiality of making a material difference in the outcome of the election. The petitioners in response to the notice by the fourth respondent had preferred objection pointing out the manner in which the electoral college should be determined but the fourth respondent in great haste, oblivious of the fact that he himself issued notice inviting objections, illegally proceeded to hold the election from the list supplied by the fourth respondent. There is no gainsaying that a valid election cannot be held without a valid electoral college being determined before holding of the election.

35. In consequence and for the reason given above, this Court is unable to uphold the impugned election dated 16.2.2016 and the order of the District Inspector of Schools dated 27.2.2016 recognising the said election. Accordingly, the impugned order of the District Inspector of Schools dated 27.2.2016 shall stand quashed and the election held on 16.2.2016 is declared to be illegal. The District Inspector of Schools is now directed to convene another meeting for filling up casual vacancy on the post of Manager of the Committee of Management of the institution. In the said election, the first petitioner shall also be entitled to participate whereas the erstwhile manager Ram Murti Singh shall stand excluded from the electoral college which is to elect the Manager. All other terms and conditions as contained in the the previous order dated 11.12.2015 shall remain applicable in the election which is to be held.

36. The writ petition stands disposed of accordingly.

(Manoj Kumar Gupta, J.)

Order Date :- 05 August 2016

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