C/M Adarsh Kisan Inter College And ... vs State Of U.P. And 4 Others
2018 Latest Caselaw 3690 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 
Case :- WRIT - C No. - 35777 of 2018
 
Petitioner :- C/M Adarsh Kisan Inter College And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shiv Sagar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard learned counsel for the petitioners, learned standing counsel for respondents 1 to 3 and Sri R. C. Singh for respondent no.5. Respondent no.4 being only a formal party, notice to the said respondent is dispensed with. The matter has been heard finally with consent of learned counsel for the parties.

The petitioners have called into question an order dated 27.9.2018 passed by District Inspector of Schools, Bulandshahr, respondent no.3. By the said order, the District Inspector of Schools has found the complaint made by respondent no.5 against co-option of petitioner no.2 on the post of Manager of the Committee of Management of Adarsh Kishan Inter College, a recognised institution under the U.P. Intermediate Education Act, 1921, as correct and has accordingly directed for fresh election being held on the said post.

The last election of the Committee of Management of the institution was held on 24.9.2014, in which one Mahipal Singh was elected as Manager. His signature was attested on 17.10.2015 by respondent no.3. Mahipal Singh, according to the petitioner died on 3.4.2015. After his death, in a meeting of Committee of Management held on 15.4.2015, the second petitioner, who was Deputy Manager in the Committee of Management, was permitted to work as officiating Manager for the remainder of the term. The District Inspector of Schools, by an order dated 16.4.2015/24.4.2015 attested signatures of petitioner no.2 as Manager. At this stage Writ-C No.41815 of 2015 was filed by one Jogender Singh challenging the attestation of signatures of petitioner no.2. He also prayed for a mandamus commanding the District Inspector of Schools to get election of Manager of the Committee of Management conducted in accordance with Clause 13 of the Scheme of Administration. According to the petitioner of the said writ petition, as per Clause 13, the casual vacancy on post of Manager was required to be filled by election from the general body and not by co-option of the Deputy Manager in meeting of Committee of Management. The said writ petition was entertained and a counter affidavit was invited. It has also been placed before this Court for hearing alongwith the instant writ petition.

During pendency of the above writ petition, the petitioners proceeded to fill up post of Assistant Teachers in the institution by issuing an advertisement dated 12.7.2018. Challenging the same, Writ-A No. 16769 of 2018 was filed by respondent no.5. In the said writ petition, apart from challenging the advertisement, he also prayed for a mandamus directing the District Inspector of Schools to decide the claim of petitioner no.2 relating to manager-ship. In the said writ petition, once again the same plea, as was taken by the petitioner in Writ-C No.41815 of 2015, was reiterated. Apart from reiterating the above plea, the petitioner of that writ petition also challenged the advertisement and selection process on the ground that the institution has since been elevated to intermediate level and consequently the provisions of Uttar Pradesh Recognised Basic Schools (Junior High Schools Recruitment and Conditions of Service of Teachers) Rules, 1978 , would not apply. The said writ petition was entertained by this Court and counter affidavit was called for. It has also been placed for hearing alongwith the present matter.

During pendency of the above writ petitions, a complaint was filed by respondent no.5 challenging the right of petitioner no.2 to hold the post of Manager. The complaint found favour with the District Inspector of Schools. He has held that in view of Clause 13 of the approved Scheme of Administration, a casual vacancy on the post of Manager, could only be filled by election from General Body and not by co-option, as has been done in the instant case. Consequently, he has issued a direction to the President of the Committee of Management of the institution to convene meeting of the general body and ensure that vacancy on the post of Manager is filled up in accordance with the procedure prescribed under the Scheme of Administration within one month. Aggrieved by the said direction, the petitioners have filed the instant writ petition.

Learned counsel for the petitioners submitted that the District Inspector of Schools was not justified in entertaining the complaint of respondent no.5 once the writ petition filed by him concerning the same issue, was subjudice before this Court. He also assailed the impugned order by placing reliance on sub-clause (4) of Clause 20 of the Scheme of Administration, whereunder it is provided that in the event the elected Manager is unable to perform his function or the post falls vacant for some other reason, the Deputy Manager would be entitled to discharge function on the post of Manager until regular arrangement is made. He has also tried to contend that casual vacancy was required to be intimated to District Inspector of Schools within 7 days and within 15 days, it should have been filled by District Inspector of Schools. It is urged that since District Inspector of Schools has failed to fill up the casual vacancy within 15 days, therefore, he is now precluded from directing filling up of the said vacancy.

On the other hand, Sri R.C. Singh, learned counsel appearing on behalf of respondent no.5 contended that even if the writ petition filed by the fifth respondent remained pending, it would not be an impediment in deciding the claim. He further submitted that the appointment of petitioner no.2 on the post of Manager being dehors the provisions of the Scheme of Administration, the District Inspector of Schools was justified in directing filling up of the vacancy in accordance with the procedure prescribed under it.

The brief holder of Sri Vinod Sinha, learned counsel appearing in Writ-C No.41815 of 2015 reiterated the submissions made by Sri R.C. Singh.

Clause 13 and Clause 20(4) of the Scheme of Administration read thus :-

Þ13- vkdfLed fjfDr

Lkfefr ds lnL;ksa (insu lnL;ksa ls fHkUu) rFkk inkf/kdkfj;ksa ds in esa gksus okyh fdlh vkdfLed fjfDr dh iwfrZ lk/kkj.k lHkk }kjk dk;Zdky dh 'ks"k vof/k ds fy, dh tk;sxh vkSj bl izdkj fu;qDr dksbZ O;fDr ml 'ks"kdky ds fy, lfefr dk lnL; ;k inkf/kdkjh (tSlh Hkh n'kk gks) gksxk ftlds fy, og O;fDr ftlds LFkku dh og iwfrZ djrk gS dk lnL; ;k inkf/kdkjh jgrkA vkdfLed fjfDr dh lwpuk 07 fnol ds vUrxZr izcU/kd ftyk fo|ky; fujh{kd dks nsxkA lwpuk izkIr gksus ds iUnzg fnu ds vUrxZr fjDr in ds pquko gsrq ftyk fo|ky; fujh{kd frfFk LFky ,oa le; fu/kkZfjr djrs gq, i;Zos{kd dh ns[k&js[k o fu;a=.k esa pquko gksxkAß

20- izcU/k lfefr ds inkf/kdkfj;ksa ds vf/kdkj rFkk drZO;

4- mi izcU/kd

1. izcU/kd dks mlds drZO;ksa dk ikyu djus essa lgk;rk nsuk vkSj mldh vksj ls mu ekeyksa esa dke djuk tks mls izcU/kd }kjk fyf[kr :i ls fufnZ"V rFkk izfrfufgr fd;s x;s gksa rFkk izcU/kd dks mlds drZO;ksa dk ikyu djus esa vleFkZ gks tkus ij vkSj izcU/kd dk in fjDr gksus ij dksbZ LFkkbZ O;oLFkk gksus rd izcU/kd ds :i esaa dk;Z djukA

According to Clause 13, a casual vacancy of member or office bearers of Committee of Management has to be filled by election from the general body. The person elected is entitled to hold the post for remainder of the term. The information relating to casual vacancy has to be given by Manager to District Inspector of Schools within 7 days. The District Inspector of Schools, upon receipt of information, has to convene a meeting within 15 days at a place, date and time notified by him. The election will be held in such meeting under supervision of a person appointed as observer by him.

The second petitioner was admittedly Deputy Manager in the Committee of Management. The resolution dated 15.4.2015 of the Committee of Management on basis of which petitioner no.2 is claiming to be duly elected Manager reads thus :-

ÞizcU/k lfefr v/;{k Jh thriky flag th us izLrko j[kk fd fo|ky; izcU/k lfefr esa izcU/kd in ij tks vkdfLed fjfDr gks xbZ gS mls fo|ky; ds mi&izcU/kd Jh fnus'k dqekj th dks izcU/k lfefr ds 'ks"k dk;Zdky ds fy;s dk;Zokgd izcU/kd in ij fu;qDr dj iw.kZ ij fy;k tkosA vkSj fu;ekuqlkj buds gLrk{kj Hkh fo|ky; dk;kZy; }kjk ftyk fo|ky; fujh{kd cqyUn'kgj ls izekf.kr djk fy;k tkosA fopkj foe'kZ mijkUr ;g izLrko loZ lEefr ls ikfjr gqvkAß

A bare perusal of the said resolution would show that petitioner no.2 was thereby permitted to work as officiating manager. Under Clause 20(4) of the Scheme of Administration, the Deputy Manager is entitled to officiate on the post of Manager until a regular appointment is made. The resolution passed by the Committee of Management on 15.4.2015 was thus, referable to Clause 20 (4) of the Scheme of Administration. Even the attestation of signature of petitioner no.2 as Manager, by order dated 23.4.2015, was in view of Clause 20(4) of the Scheme of Administration. The very language of Clause 20(4) confers a limited right to officiate as Manager, until regular arrangement is made. Indisputably, the petitioner was not elected in the manner prescribed by Clause 13 by the General Body. He was permitted to work as officiating manager, by the Committee of Management. Consequently, the District Inspector of Schools is fully justified in passing the impugned order directing filling up of casual vacancy by election from general body of the college. The mere fact that the writ petition filed by respondent no.5 challenging attestation of signature of petitioner no.2 remained pending, was not an impediment in the way of District Inspector of Schools in issuing directions consistent with the provisions of the Scheme of Administration. Even otherwise, since the said writ petition is also before this Court, wherein also respondent no.5 has in effect prayed for the same relief, which now stands granted by the impugned order, therefore, the submission made in this regard by learned counsel for the petitioners has no substance.

The next submission of learned counsel for the petitioner that casual vacancy was duly notified but District Inspector of Schools failed to hold the election within 15 days, therefore he is precluded from exercising power conferred upon him by Clause 13 also cannot be accepted. There cannot be any estoppel against the provisions contained in the approved Scheme of Administration. The second petitioner himself was the Deputy Manager at the relevant time and he should have ensured holding of election for filling up of casual vacancy by making request to District Inspector of Schools in this regard.

In consequence and as a result of above discussion, the District Inspector of Schools is directed to convene meeting of general body on a date and time specified by him and it shall be supervised by an observer nominated by him. The sole agenda in the said meeting would be regarding filling up of casual vacancy on the post of Manager. Petitioner no.2 shall be permitted to officiate on the post of Manager till new Manager is elected.

The writ petition stands disposed of accordingly.

Order Date :- 15.11.2018

skv

(Manoj Kumar Gupta, J.)