Rampal Singh And Another vs State Of U.P. And 3 Others
2016 Latest Caselaw 7607 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										     AFR
 
Court No. - 33
 

 
Case :- WRIT - C No. - 58846 of 2016
 

 
Petitioner :- Rampal Singh And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. It is admitted that the scheme of administration of the institution provides a term of five years and by virtue of Clause 8, as amended, if elections are not held within five years and one month, authorized controller shall be appointed and such authorized controller is to ensure that elections are conducted and a valid body is constituted to act as Committee of Management of the institution. It is admitted in the facts of the present case that no elections, within the term, was conducted by the outgoing Committee and consequently, an authorized controller has been appointed on 20th February, 2016. The order of the Joint Director records that Principal, DIET shall be the authorized controller who shall get the elections conducted under scheme of administration within a period of three months. It appears that elections have not been held by the authorized controller. The authorized controller instead has sent a communication to the District Inspector of Schools to appoint one of the three suggested persons to act as Election Officer. It appears that District Inspector of Schools has appointed fourth respondent as Election Officer, vide order dated 28.11.2016, which is assailed in this petition.

2. Learned counsel for the petitioners submits that by virtue of Clause 8 of the Scheme of Administration read with the order of Joint Director dated 20th February, 2016, the proceedings of election were required to have been got conducted by the authorized controller and the course adopted by the authorities to have elections conducted by the respondent No.4, who is not the authorized controller, is illegal.

3. Learned counsel for the respondents, on the other hand, submits that election ought to be conducted at the earliest so that valid Committee of Management is constituted.

4. I have heard learned counsel for the petitioners and learned Standing Counsel as well as Shri Vinod Sinha, learned counsel for some of members of the outgoing Committee and have perused the materials brought on record.

Clause 8 of the Scheme of Administration reads as under:-

**inkf/kdkfj;ksa ,oa lfefr ds lnL;kass dk dk;Zdky rhu o"kZ dk gksxkA dk;Z vof/k lekIr gks tkus ij] vxys rhu ekl rd gh inkf/kdkjh cus jg ldsaxsA ;fn rhu o"kZ ds ckn rhu ekg ds vUnj uop;fur lfefr dk;ZHkkj xzg.k ugha djrh rkss 3 o"kZ 3 ekg ckn dkykrhr lfefr dk dk;Zdky Lor% lekIr le>k tk;sxk vkSj lEHkkxh; mi f'k{kk funs'kd }kjk euksuhr ,d O;fDr izcU/k lapkyd dk;Zjr ekuk tk;sxk] ftls izcU/kkf/kdj.k ds iw.kZ vf/kdkj gksaxsA og izcU/k lapkyd uo p;fur lfefr dks 'kh?kzkrh'kh?kz dk;Zjr djk;sxk vkSj ;fn pquko ugha gqvk gS rks pquko djkds p;fur lfefr dks dk;Zjr djk;sxk vkSj ;fn izcU/k lfefr;ksa esa vf/kdkj dk nkok gS rks ftlds i{k esa lEHkkxh; mi f'k{kk funs'kd dk fu.kZ; gks mls dk;Zjr djk;sxkA**

5. The aforesaid provision was amended to increase the term of Committee of Management to five years and authorized controller is to be appointed after expiry of five years and one month. It is further apparent that Joint Director has already appointed an authorized controller with a clear direction that he shall get the elections conducted as per the scheme of administration within three months. Authorized controller, however, has not conducted the election and has proposed appointment of respondent No.4 to act as an Election Officer. The appointment of the respondent No.4 is challenged on the ground that the same is inconsistent with the scheme of administration as well as the judgements delivered by this Court.

6. A Full Bench of this Court in Committee of Management Vs. Deputy Director of Education [(2015) 1 U.P.L.B.E.C. 85] while answering the reference has been pleased to hold as under:-

"38. Accordingly, we answer the questions as follows :

(1) The Regional Deputy Director of Education, while deciding a dispute under Section 16-A(7) of U.P. Intermediate Education Act, 1921, exercises quasi-judicial powers and not purely administrative powers.

(2) The Regional Deputy Director of Education white deciding a dispute under Section 16-A(7) of the U.P. Intermediate Act, 1921, must decide the question of validity of the elections prima facie, in deciding the question of actual control over the affairs of the institution.

(3) Where the Regional Deputy Director of Education finds that the election of both the rival Committees arc invalid, he is not required to decide the question of actual control to recognize one or the other Committee of Management, and instead he shall, where the Scheme of Administration provides for appointment of an Administrator (Prabandh Sanchalak), appoint an Administrator with the direction to hold elections expeditiously in accordance with the Scheme of Administration, and where there is no such provision in the Scheme of Administration he shall appoint an Authorised Controller who shall expeditiously hold elections to the Committee of Management and shall manage the affairs of the institution until a lawfully elected Committee of Management is available for taking over the Management."

Sub para 3 of para 38 is categorical, inasmuch as it provides that as per the scheme of administration, authorized controller shall be appointed and that the authorized controller shall expeditiously hold elections of the Committee of Management and shall manage the affairs of the institution until a lawfully elected Committee of Management is available for taking over the affairs of the management.

7. A Division Bench of this Court in Special Appeal (Defective) No. 57 of 2016 had an occasion to examine the issue, in appeal, arising out of a judgement of the learned Single Judge, by which the election process was interfered with on one of the grounds that it had not been conducted by the authorized controller. The Special Appeal was dismissed, endorsing the view taken by the learned Single Judge, that election itself would be invalid if it is not held by the authorized controller. The relevant portion of the judgement dated 12.2.2016 passed in Special Appeal (Defective)No. 57 of 2016 is re-produced below:-

"While dealing with the submission, it would be necessary to note at the outset that the judgment of the Division Bench of this Court dated 5 April 2011 specifically directed that the election has to be conducted by the Authorized Controller. In the present case, the election was held by an Election Officer. But more significantly, the basic flaw in the entire election process was the failure to finalise the list of voters by considering objections to the voters' list. The order of the Division Bench dated 5 April 2011 specifically directed that the Authorized Controller shall notify a draft electoral list, call for objections and thereafter finalise the same upon which he would proceed to hold the election in terms of the list as is finalised. The communication of the Deputy Registrar, Agra which is relied upon by the appellant is dated 30 April 2009 which is much prior, in fact merely a year and half prior to the order of the Division Bench dated 5 April 2011. Hence, it is evident on the basis of the material on the record that after the judgment of the Division Bench dated 5 April 2011, the draft electoral list was not notified nor were objections called and invited. Any process which had taken place prior to the order of the Division Bench would not come to the aid of the appellant even if the notification took place thereafter as submitted for the simple reason that the process of finalization of the voters' list had to take place in compliance with the order of the Division Bench which was not done. This being the position, we find from the record that the basic directions which were issued by the Division Bench in its order dated 5 April 2011 which we have noted above and which were in accordance with the plain meaning of the scheme of administration, were not fulfilled. Having due regard to this aspect, the learned Single Judge has found against the appellant on three counts namely, (i) the failure of the Authorized Controller to hold the elections; (ii) the failure of the Authorized Controller to publish a tentative list of voters, to call for objections and after the finalization of objections to notify the final list of voters; and (iii) the elections having been held barely two weeks after the date of publication of the advertisement in the newspaper in breach of the binding terms of the scheme of administration. These findings are justified and proper.

For these reasons, we see no merit in these special appeals. The special appeals shall, accordingly, stand dismissed.

There shall be no order as to costs."

(emphasis supplied by me)

8. From the provisions of the scheme as well as the judgement rendered by this Court on the subject matter, it is clear that the appointment of authorized controller to manage the institution recognized under the provisions of U.P. Intermediate Education Act, 1921 on the ground that term of elected Committee has expired, is with reference to the provisions contained in the scheme of administration. It is an obligation of the authorized controller to ensure that elections are held as per the scheme and charge of institution is then delivered to the validly constituted Committee. Such obligation is required to be performed by the authorized controller himself. Even otherwise, once the Joint Director has exercised its power by appointing authorized controller with a direction to hold the election, such course could not have been altered by the District Inspector Schools by appointing respondent No.4 for the purpose.

9. In such view of the matter, writ petition succeeds and is allowed. The order dated 28.11.2016 passed by the District Inspector of Schools, appointing respondent No.4 to hold election in his capacity as Election Officer is set aside.

10. A direction is issued to the authorized controller to forthwith ensure conduct of the elections, in accordance with the scheme of administration, preferably within a period of three months from the date of presentation of certified copy of this order.

Order Date :- 16.12.2016

Ruchi