Allahabad High Court
Hari Narayan Singh And 3 Others vs State Of U.P. And 3 Others on 31 July, 2017
Bench: Arun Tandon, Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 10
Case :- SPECIAL APPEAL No. - 628 of 2016
Appellant :- Hari Narayan Singh And 3 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi
Counsel for Respondent :- C.S.C.,P.K. Upadhyay
Hon'ble Arun Tandon,J.
Hon'ble Ritu Raj Awasthi,J.
Heard Mr. G.K. Singh, learned Senior Advocate assisted by Mr. H.P. Sahi, learned counsel on behalf of appellants and Mr. P.K. Upadhyay, learned counsel on behalf of respondent.
This intra Court appeal is directed against the judgment and order of the learned Single Judge dated 5.8.2016 passed in Writ-C No. 20797 of 2016.
The dispute as raised before the learned Single Judge is relating to the election to the office of Manager of the recognized intermediate college in the name and style of Rastriya Shiksha Samiti, Sirsi, Jaunpur against a casual vacancy. The sole issue canvassed before us is as to whether the ex-officio members, namely, Principal and two teachers had a right to vote or not in the election for the post of Manager against casual vacancy.
The learned Single Judge after taking note of the provision of Section 16-A (1) of the Intermediate Education Act (hereinafter referred to as 'Act') has come to a conclusion that the Act itself confers a right upon the ex-officio member to cast their votes. The provision being statutory in nature would prevail over any other provision in the scheme of administration which itself is framed under the Act. The learned Single Judge has held that the Act being parent legislation all subordinate legislation would be subservient to the main statutory provision. Accordingly, it has been held that there was no illegality in the participation of the ex-officio members in the election to fill in the casual vacancy on the post of Manager of the Institution.
Mr. G.K. Singh, learned Senior Advocate would, however, contend before us that ex-officio members had no right to participate in the meeting where the election to fill in the casual vacancy on the post of Manager of the Institution had to take place inasmuch as the three ex-officio members do not participate in the election of Manager nor can participate in the meeting where motion for no confidence is to be considered against office bearers of the society. In support of his contention, Sri G.K. Singh took us through the scheme of administration as was originally applicable prior to enforcement of the Act No. 1 of 1981. In the provision which was so heavily relied upon by the Sri G.K. Singh, under the category of members of the general body, it was mentioned that there shall be three ex-officio members, namely, Principal and two teachers who shall be included in accordance with Section 16-A (1) of the Act with a restrain that in respect of the election of office bearers of the Committee of Management or/and in the matter of the election of member they will not have any right to vote in respect of a no confidence motion. The provision referred to reads as under:
"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"
It is submitted that in view of the Division Bench judgment of this Court in the case of Ajab Singh vs. District Inspector of Schools, Meerut and others; [1980 UPLBEC 308] the ex-officio members have no right to participate in the election of the office bearers nor they have a right to vote in the matter of consideration of no confidence motion.
Mr. P.K. Upadhaya, learned counsel for the respondent in reply submitted before us that the scheme of administration has been amended in terms of the U.P. Act No. 1 of 1981. The amended scheme of administration as applicable to the institution in so far as it pertains to ex-officio members reads as under:
"izca/k lfefr dk xBu
1- lfefr esa insu lnL;ksa lfgr dqy 15 lnL; gksxsaA rhu insu lnL;ksa ds vfrfjDr 12 lnL;ksa dk p;u lHkh dksVh ds lnL;ksa dks lfEefyr dj lk/kkj.k lHkk }kjk turkaf=d i)fr ls cgqer ds vk/kkj ij fd;k tk;sxkA bUgh 12 lnL;ksa esa ls lfefr ds ikap fuEufyf[kr inkf/kdkjh Hkh gksxsa ftudk p;u lk/kkj.k lHkk }kjk fd;k tk;sxkA lfefr esa fdlh tkfr /keZ oxZ ,d ifjokj ;k leqnk; dk ,dkf/kdkj ugh gksxk rFkk dksbZ vkthou inkf/kdkjh ugh jgsxkA
1&v/;{k] 2&mik/;{k] 3&izcU/kd] 4&mi izca/kd] 5& dks"kk/;{kA
2 izk/kkuk/;[email protected]/kkukpk;Z rFkk nks v/;kid vf/kfu;e 16&d&1 ,oa fofu;e ds vuqlkj insu lnL; gksxsaA
3- b.VjehfM;V f'k{kk la'kks/ku vf/kfu;e ds vUrxZr lapkfyr fdlh ekU;rk izkIr laLFkk dk deZpkjh fdlh fo?kky; dk izca/k lfefr dk inkf/kdkjh ugh gksxkA
4- izca/k lfefr ds dksbZ Hkh lnL; ,d nwljs ds lEcU/kh ugh gksxsaA laca/kh 'kCn dk vFkZ ogh gksxk tks fd ek/;fed f'k{kk vf/kfu;e ds v/;k;&3 fofu;e&4 esa fn;k x;k gSA "
He would, therefore, submit that the earlier provision restraining ex-officio members from casting their votes now does not exist in the scheme of administration. Even otherwise such provision would be hit by Section 16-A (1) of the Intermediate Eduction Act. He submits that the judgment of the Division Bench in the case of Ajab Singh (supra) has not taken note of the statutory provision of Section 16-A (1) of the Act which confers power upon the ex-officio members to cast their votes. The judgment cannot be said to be laying down correct law.
We have heard counsel for the parties and examined the records of present appeal.
In order to examine as to whether there is any restrain under the scheme of administration in the matter voting right in respect of the consideration of the matter pertaining to election of the Manager for filling up of the casual vacancy, it would be necessary for us to notice the provision of Section 16-A (1) of the Act which statutorily provides for the Headmaster and two teachers to be ex-officio members of the Committee of Management. Section 16-A reads as under:
"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."
We have already taken note of the earlier scheme of administration as was applicable in the Institution prior to enforcement of the Act No. 1 of 1981 as well as change brought under the amendment which has been incorporated in the scheme of administration subsequent to the enforcement of Act No. 1 of 1981 with regards to ex-officio members.
We may record that the amended scheme of administration has been incorporated on 25.1.1985 and there is no issue in that regard. From a simple reading it will be seen that earlier restrain which was put upon the exercise of right to vote upon the ex-officio members in the matter of election of office bearers or in respect of a resolution of no confidence or in respect of the consideration of issue of qualification has since been deleted. Therefore, we have no hesitation to record that under the amended clause of the scheme of administration as appliable now pertaining to ex-officio members is in strict conformity with the provision of Section 16-A (1) of the Act which confers a right to vote upon the ex-officio members also. The provisions of Section 16-A are not under challenge.
We have also no hesitation to record that the learned Single Judge was correct in recording that the provision of Section 16-A (1) of the Act which is the parent provision would prevail over all other provisions framed under the Act including scheme of administration.
For the aforesaid, we have no hesitation to record that the learned Single Judge was correct in returning a finding that ex-officio members have a right to vote on the issue pertaining to election of Manage against casual vacancy.
So far as the judgment in the case of Ajab Singh (supra) is concerned, we may record that it does not take into consideration the provision of Section 16-A (1) of the Act and even otherwise the provision of scheme of administration as was applicable in that case contained a categorical clause restrain the ex-officio members from participation in the process of election of office bearers and it was in that background that the Court proceed to hold that the ex-officio members have no right to participate in the matter of no confidence.
In the facts of this case the restrain on right to vote which was earlier put under the scheme of administration upon the ex-officio members stands deleted from the scheme of administration as per the amended scheme enforced in the year 1985.
We may also record that in the case of Committee of Management, DAV Intermediate Colege, Tateir Bagpat and another vs. State of U.P. and others; [(2005) 1 UPLBEC 985] delivered by one of us (Arun Tandon, J.), the impact of the provisions of Section 16-A has been examined vis-a-vis the judgment in the case of Ajab Singh (supra). We see no reason to take any different view.
Counsel for the appellants would then contended that in view of the provision pertaining to constitution of Committee of Management elections of office bearers can be held only by the members of the general body, therefore, there can be no election of Manager even against casual vacancy by the members of the Committee of Management. This in our opinion is a submission of no substance inasmuch as clause 8 of the scheme of administration, stand on the scheme even after amendment under the U.P. Act No. 1 of 1981. Election for the office of Manager in regular course is different from the election of the Manager against a casual vacancy on the post of office bearers of the committee of management which is caused due to unforseen reasons during the subsistence of the term of the Committee of Management.
There is no merit in this appeal.
The special appeal is dismissed.
(Ritu Raj Awasthi, J.) (Arun Tandon, J.)
Order Date :- 31.7.2017
Santosh/-
