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C/M SARASWATI BAL MANDIR UCHCHATTAR MADHYAMIK VID. & ANR. versus STATE OF U.P. THRU SECY. SECONDARY EDUCATION AND OTHERS

High Court of Judicature at Allahabad

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C/M Saraswati Bal Mandir Uchchattar Madhyamik Vid. & Anr. v. State Of U.P. Thru Secy. Secondary Education And Others - WRIT - C No. - 55460 of 2006 [2007] RD-AH 15298 (11 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 55460 of 2006

Committee of Management,

Saraswati Bal Mandir Uchchattar Madhyamik Vidyalaya,

Jaunpur, through its Manager and another

Versus

State of U. P. and others

Connected with

Civil Misc. Writ Petition No. 17035 of 2007

Raj Bali Tiwari

Versus

State of U. P. and others

Hon'ble V. K. Shukla, J.

Civil Misc. Writ Petition No. 55460 of 2006 has been filed by Committee of Management, Saraswati Bal Mandir Uchchattar Madhyamik Vidyalaya, Jaunpur, through its Manager, Ram Lakhan Pandey, assailing the validity of order dated 26.08.2006 passed by Regional Level Committee, Varanasi, holding therein that Ram Lakhan Pandey is not even primary member of the General Body of the society, and further holding that elections with Smt. Shashi Singh as Manager are valid elections and are liable to be recognized.

Civil Misc. Writ Petition No. 17035 of 2007 has been filed by Raj Bali Tiwari, claiming himself to be member of the general body of the society, questioning the validity of the same decision dated 26.08.2006 taken by Regional Level Committee, recognizing Smt. Shashi Singh as Manager of the Committee of Management and further for a writ in the nature of mandamus restraining her from functioning as Manager of the Committee of Management pursuant to election dated 8th September, 2004 and further directing the respondents to conduct free and fair election of the Committee of Management of the institution in question strictly in consonance with the provisions as contained in the Scheme of Administration within one month.

Brief background of the case, as mentioned in the writ petition, is that in district of Jaunpur, there is a Higher Secondary School known as Saraswati Bal Mandir Uchchattar Mdhyamik Vidyalaya, Jaunpur, which is an institution recognized under U.P. Intermediate Education Act, 1921. Ram Lakhan Pandey is claiming himself to be founder member of the society. Institution has its own Scheme of Administration framed in exercise of authority vested under Section 16-A of the U.P. Intermediate Education Act, 1921. Last elections of the Managing Committee of the institution were held on 12.09.1999, wherein Ram Sukh Upadhyaya was elected as President, Smt. Shail Singh as Manager and Dr. Hari Prasad Tripathi as Deputy Manager, along with other office bearers. Said Committee was duly recognized by District Inspector of Schools and the tenure of the said Managing Committee has been alleged to be five years. Ram Lakhan Pandey who had ben functioning as Principal, retired on 30.06.2000. Smt. Shail Singh died on 16.04.2003, and thereafter by means of resolution dated 04.05.2003 passed by Committee of Management, Dr. Hari Prasad Tripathi, he was elected as Manager and petitioner No. 2 contended that in place of Dr. Hari Prasad Tripathi was elected as Deputy Manager and papers were transmitted to District Inspector of Schools on 05.05.2003. It has been contended that Dr. Hari Prasad Tripathi had tendered his resignation which was duly accepted in the meeting dated 09.06.2003 of the General Body under the Presidentship of Ram Sukh Upadhyaya. It has been contended that he was elected as Manager in the said meeting. It has also been asserted that thereafter entire papers were transmitted to District Inspector of Schools and the District Inspector of Schools on 11.06.2003 passed an order recognizing and accepting petitioner No. 2 as Manager. Said order was subject matter of challenge in Civil Misc. writ petition No.81875 of 2003, filed by Dr. Awadhesh Narain Singh and another writ petition No.32562 of 2003 filed by Laxmi Narain Singh and others. In the aforementioned writ petition statement of fact has been mentioned that till date no meeting has been called for the elections of Manager in place of earlier elected Manager, namely, Dr. Hari Prasad Tripathi and entire proceedings were manipulated proceeding. Said writ petition had been allowed, and the matter was remitted back to be decided afresh.

Pursuant to directive issued by this Court, matter was reconsidered by Regional Level Committee and Regional Level Committee on 21.03.2004 recognized the elections set up by Smt, Shashi Singh as Manager of the Committee of Management. Against the said order, writ petition No.18082 of 2004 had been filed by Ram Lakhan Pandey. In the said writ petition after exchange of counter and rejoinder affidavits, final judgment was passed on 14.07.2004, and on the basis of the record so produced, writ petition was allowed and the matter was remitted back to be decided afresh in the light of the observations and directions given therein. Relevant extract of the said judgment is being quoted below:

"Respective contention, which has been advanced has to be seen in the light of the pleadings available on record. Record has been produced before this Court at the time of hearing. Regional Committee has recorded categorical finding in respect to the fact that petitioner No. 2 is not even primary member of the general body and further election where in petitioner no. 2 claims himself to be elected same is contrary to the provision as contained in the Scheme of Administration. In respect to claim which has been set up by petitioner that he is valid member, petitioner has filed copy of Memorandum of Association as Annexure - 1, wherein his name is mentioned at item No. 13 and he has been designated as Ex-officio member and below the same petitioner No. 2 has been described as founder member. Along with counter affidavit a photostat copy of the Memorandum of Association has been produced which is dated 31.8.1968 and therein at first page name of petitioner No. 2 has been mentioned at item No.15, wherein initial has been made, describing petitioner No. 2 as member along with Principal. Order impugned reflects that Regional Committee has proceeded with the presumption that petitioner No. 2 is ex-officio member and at no point of time any attempt or endeavour was made by the Regional Committee to see as to whether petitioner was founder member of the society or not and to the contrary straightaway presumption has been drawn that petitioner was ex- officio member and he cannot be elected as Manager. The question of membership of petitioner No. 2 has been decided afresh. It is true that election proceeding which has been filed shows that General Body has elected petitioner No. 2, whereas casual vacancy is to be filled up from amongst the members of the Committee of Management and thus, election dated 09.06.2003 wherein petitioner No. 2 claims himself to be elected as Manager has rightly not been accepted but at no point of time any adjudication has been made as to wherein the meeting where Dr. Hari Prasad Tripathi was elected as Manager, petitioner No.2 was ever elected as Deputy Manager. No exercise has been undertaken on this aspect of the matter and thus, in respect to claim of the petitioner, these two aspects of the matter has to be examined (i) Whether petitioner No. 2 is founder member of society (ii) Whether petitioner No. 2 was elected as Deputy Manager in the meeting wherein Dr. Hari Prasad Tripathi was elected as Manager.

Now coming to the election of other side which has been accorded recognition by the Regional Committee, it is reflected that before this Court categorical statement of fact has been mentioned in affidavit filed before this Court on 22.07.2003 that no meeting was ever convened for electing Manager in place of Dr. Hari Parasad Tripathi and before Regional committee election has been set up dated 22.6.2003 and in this view of the matter it was bounden duty of the Regional Committee to see as to whether claim which has been set up by the respondents was genuine or ingenunine on the face of it. Original record which has been produced shows that Regional Committee without adverting to this aspect of the matter as to whether valid meeting has been convened by valid persons straightaway has accorded recognition with out assigning any reasons whatsoever. Whether any meeting had been held on 22.6.2003 has not at all been adverted to and specially in the background when before this Court a different categorical stand has been taken which doubted the election but all these aspects of the matter has not at all been considered by the Regional Committee and thus, recognition accorded to the election is clearly unsustainable, and as such he same is set aside; the matter is remitted back to Regional Committee to be decided afresh, by means of reasoned and speaking order, within a period of three months from the date of presentation of certified copy of the order, after affording opportunity of hearing to Ram Lakhan Pandey and Dr. Shail Singh respectively.

For the reasons stated above, writ petition succeeds and is allowed."

Pursuant to this judgment again matter was taken by Regional Level Committee and the Regional Level Committee again proceeded to pass order dated 04.01.2005, recognizing the elections of Smt. Shashi Singh, against which Ram Lakhan Pandey again filed writ petition No.9875 of 2005, claiming himself to be the Manager. This court on 23.02.2005 held that as Regional Level Committee failed to exercise the authority vested in it and had ignored the precise direction issued by this Court and specially had not considered the admission made by Smt. Shashi Singh, the order passed by the Regional Level Committee was set aside and the matter was again remanded back to Regional Level Committee with following directions:

"The writ petition is allowed. The regional committee will decide the rival claim of two committee of managements now referred to it as well as the question about the membership of the petitioner Ram Lakhan Pandey and effect of the alleged admission of respondent No. 4, afresh if possible within a period of three months from the date a certified copy of this order is produced by the parties."

Thereafter, matter has once again been taken up by the Regional Level Committee, and the Regional Level Committee this time has recorded categorical finding of fact that Ram Lakhan Pandey is not at all member of the general body of the society and has further proceeded to mention that in the meeting held on 04.05.2003 Dr. Hari Prasad Tripathi was elected as Manager for the remainder period and Smt. Shashi Singh was elected as Assistant Manager, and on 02.06.2003, Dr. Hari Prasad Tripathi tendered his resignation and thereafter in the meeting dated 22.06.2003, Smt. Shashi Singh was elected as Manager for remainder period, and mention has been made that fresh elections have been held on 09.09.2004. At this juncture both these writ petitions have been filed.

In both the writ petitions, counter affidavit has been filed, and therein stand has been taken that the elections of the Committee of Management have been validly held, and the claim of Ram Lakhan Pandey has been found to be forged and fictitious on the face of it, and in this background, no interference is required to be made. To the said counter affidavit, rejoinder affidavit has been filed and therein the averments made in the counter affidavit have been disputed and that of writ petition have been reiterated.

After pleadings mentioned above inter se parties have been exchanged, present writ petitions have been taken up for final hearing and disposal with the consent of the parties.

Sri P.N. Saxena, Senior Advocate, assisted by Sri Amit Saxena, Advocate, appearing for Ram Lakhan Pandey, contended with vehemence that Regional Level Committee has totally misdirected itself while deciding the issue of membership of Ram Lakhan Pandey, whereas the provisioins contained in the Bye-laws of the society and the Memorandum of Association clearly suggested that Ram Lakhan Pandey was valid founder member of the general body of the society, and the group headed by him only was entitled to run and manage the affairs of the institution, and in this background handing over charge to Smt. Shashi Singh is totally uncalled for. Impugned order itself reflects that undue favour has been extended to Smt. Shashi Singh and directives issued on earlier occasions have been deliberately ignored, whereas admission of Smt. Shashi Singh clearly exposed that her entire claim is based on fraud and manipulation.

Sri R.C. Tiwari, Advocate, appearing for petitioner in Civil Misc Writ Petition No.17035 of 2007, on the other hand, contended that directives issued by this Court have been ignored and the elections which has been accorded recognition are totally farce and fictitious, as such Prabandh Sanchalak be appointed with direction to hold free and fair election of the Committee of Management of the institution.

Sri Ashok Khare, Senior Advocate, assisted by Sri Ashok Singh, Advocate, on the other hand, countered the said submissions by contending that claim of Ram Lakhan Pandey has been found to be fake and fictitious, as such there was no rival claim and there being only one claim, Regional Level Committee has rightly proceeded to accept the claim set up by Smt. Shashi Singh and the post of Manager has been rightly filled up as per provisions of the Scheme of Administration and thereafter valid elections have been held and the same has been duly accorded recognition, as such no interference be made.

After respective arguments have been advanced, the first question to be considered is as to whether Regional Level Committee has misdirected itself while considering the question of membership of Ram Lakhan Pandey as member of the general body of the society. This fact has not been disputed that Ram Lakhan Pandey was the Principal of the institution in question till he attained the age of superannuation. Claim of Ram Lakhan Pandey is that he is founder member of the general body of the society and his name has been shown at the point of time when society in question was registered and as such by no stretch of imagination any finding of fact could be returned that he is not member of the general body of the society. Bye-laws of the society has been appended, which shows that there are four categories of members of the general body of the society; (i) life members; (ii) founder members; (iii) ordinary members; and (iv) nominated members. Life members have been defined to be those who pay Rs.101/- at one point of time. Founder members have been defined to mean those incumbents who before establishment of the institution had taken active part in its establishment and the said members have been vested with the authority, in case of unforeseen circumstances, to pass resolution for dissolution of society and form separate society. Ordinary members have been defined to mean those incumbents who pay Rs,12/- and will be entitled to vote after expiry of the period of six months. Nominated members are those, who are nominated by the Managing Committee of the society. In the Memorandum of Association, which has been filed, therein name of Ram Lakhan Pandey has been shown and he has been described and designated as member and as far as founder members are concerned, only two persons have been shown as founder members, viz. Smt. Shail Singh and Sri Ram Adhar Singh. Once at the point of time of registration of society, founder members had been identified and which is clearly born out from the Memorandum of Association, then no other person can claim that he is founder member on the basis of definition, inasmuch as it would be essentially a question of fact as to how much contribution of his has been there in the establishment of the institution. Identity of the said two persons has been very well disclosed, and it was also clearly referable before the establishment of the institution and same was husband and wife team. Once identity of founder members was disclosed and it was mentioned in the Memorandum of Association, then as far as petitioner is concerned, he cannot be permitted to say that he is founder member of the general body of the society. It has also been sought to be emphasized that Managing Committee of the society is constituted by election and the founder members have been given right to nominate three members and in case such view is taken, it will made the scheme unworkable. Elections have different shades, wherein persons can be elected by way of voting, by way of nomination and by any other mode, and once bye-laws of the society are clear and categorical that there are four category of members with proportionate representation qua each category provided for, Life members' 4 representatives, founder members' 3 representatives, ordinary members 8 representatives and one member of the Committee of Management of the institution. Constituency of each category is clearly demarcated, and same also clearly provides that Principal of the institution would be ex-officio member, then Principal had to be there by virtue of being ex-officio member. In this background, if petitioner has been shown as member at the point of time of filing Memorandum of Association, it dose not ipso facto mean that Ram Lakhan Pandey was founder member of the general body of the society. Not only this, Ram Lakhan Pandey has also proceeded to set up contradictory claims and his claim has been found to be based on fraud and forgery. Two receipts have been submitted by Ram Lakhan Pandey; one receipt No.617 dated 06.06.2000 and the other is dated 16.04.1988. Both these receipts have been found to be forged and fictitious. Once in all these factual backdrop, categorical finding of fact has been returned that Ram Lakhan Pandey is not even primary member of the general body of the society, then writ petition at his behest cannot be entertained under the authority of Article 226 of the Constitution of India while proceeding to exercise authority of judicial review. The finding recorded by Regional Level Committee is neither perverse nor unreasonable, as such said factual finding warrants no interference. In case, Ram Lakhan Pandey is aggrieved by the said finding, his remedy lies in filing civil suit before the civil court for getting his right declared. Once suit is filed, then findings recorded by Regional Level Committee as well as by this Court will not come in the way of civil court in taking a decision on the basis of evidence adduced. Consequently once it has been found that Ram Lakhan Pandey is not even primary member of the general body of the society, then qua the institution in question he is stranger and outsider, as such challenge at his behest in respect of validity of election determined by decision dated 26.08.2006 is not being entertained, and writ petition No.55460 of 2006 deserves to be dismissed.

Now coming to the second question in respect of validity of order dated 26.08.2006, Raj Bali Tiwari is claiming himself to be life member of the general body of the society and his precise case is that no election had been held and the entire claim set up by Smt. Shashi Singh is farce, fictitious and bogus, and the order passed by this Court has not at all been complied with . Membership of Raj Bali Tiwari is not disputed, inasmuch as, in the counter affidavit filed in writ petition No.55460 of 2006, list of members by the group headed by Smt. Shashi Singh herself at page 29 has been filed and therein name of Raj Bali Tiwari finds place at serial No. 16, and once he has been accepted as life member of the general body of the society, then he has interest in the affairs of the society/institution and at his behest validity of the order dated 26.08.2006 has to be examined. Serious dispute has been raised qua the validity of said list also, as unregistered list of members has been filed by both the groups, and therein dispute is qua Ram Lakhan Pandey only and qua thirty six other members, no dispute has been raised, as their name is common to both the list. This Court on earlier two occasions had given categorical direction to decide the claim, keeping in view the alleged admission made by respondent No.4 before this Court on 27.07.2003 in the affidavit, wherein it was categorically admitted that no meeting had taken place to fill in the vacancy of Dr. Hari Prasad Tripathi. Emphasis of challenge of the order dated 26.08.2006 is that in view of the orders passed by this Court on two occasions, Regional Committee was obliged to answer the said question, but once again Regional Level Committee has deliberately and intentionally failed to consider this precise direction that when there was admission before this Court clearly mentioning therein that no meeting had taken place, then what was the effect of the said admission . Regional Level Committee, which is three member committee, has been entrusted, by Government Order dated 19.12.2000, to go into the validity of all election disputes, has not at all decided the dispute as per directives issued by this Court and it appears that deliberately said issue has conveniently not been answered, as answer to the said issue will go to the root of the matter. Before this Court, it has been sough to be contended that pleadings are being misconstrued and same intended to say that no meeting was held on 09.06.2003. Averments mentioned therein in the affidavit dated 27.07.2003 were clear and categorical that no meeting had been held to fill in the casual vacancy of Dr.Hari Prasad Tripathi, and it was not in reference to any particular meeting, and once averments made were clear and categorical and qua which categorical direction had been issued by this Court to go into the question of said admission, then authority cannot be permitted toignore the effect of the said admission deliberately and intentionally and proceeded to accept that valid resolution had been passed. Order dated 26.08.2006 has been perused. Perusal of the order indicates that in respect of holding of the meeting dated 04.05.2003, there has been no dispute, and at the said point of time Dr. Hari Prasad Tripathi was elected as Manager, and dispute was that on the said date one Smt. Shashi Singh claimed herself to have been elected as Assistant Manager, whereas, on the other hand, Ram Lakhan Pandey, claims to have been elected as Manager. Theory of resignation of Dr. Hari Prasad Tripathi on 02.06.2003 has not been disputed. Smt. Shashi Singh claims that meeting dated 09.06.2003 had never been held, wherein Ram lakhan Pandey is alleged to have been elected as Manager, whereas in the meeting dated 22.06.2003, she had been elected in casual vacancy. Admittedly, meeting dated 22.06.2003 wherein Smt. Shashi Singh claims herself to have been elected as Manager, had not been convened under the Presidentship of the President Ram Sukh Upadhyaya. At no point of time any attempt or endevour was made by Regional Level committee to go into the questions as to whether meeting had been held on 22nd June, 2003 or not, and the meeting had been validly convened, and the persons who participated in the meeting had the right to participate in meeting. Admittedly, meeting had not been held under the Presidentship of Ram Sukh Upadhayay, and to the contrary, meeting has been shown to be held under the Presidentship of Dr. Shobh Nath Verma, who has been shown to be Acting President with two guest members.

At no point of time, Regional Level Committee has undertaken any exercise to find out as to whether in meeting dated 04.05.2003 Dr. Shashi Singh had been elected as Assistant Manager or not, as is being claimed by her. Regional Level Committee has proceeded with the assumption that in the meeting dated 04.05.2003, Dr. Shashi Singh was elected as Assistant Manager and thereafter in the meeting dated 22.06.2003 as Manager without actually undertaking any exercise in respect of validity of said proceeding . Similarly, no exercise whatsoever has been undertaken to go into the validity of elections dated 09.09.2004, and ipso facto, proceedings have been presumed to be genuine proceeding. Full fledged procedure has been provided for holding elections of the Committee of Management of the institution under the provisions of the amended Scheme of Administration, wherein right to convene meeting has been vested with the joint effort of the President and Manager and in absence of any such effort by them, one-third member of the general body of the society would request the President and Manager and even then, if they fail to convene the meeting, then meeting can be convened with the consent of the District Inspector of Schools, and then President can be nominated, who will take decision in respect of members and date of election. Notification of the said election is to be made in some approved newspaper and in case strength of the members is less than 200, then notices have to be sent through registered post and the record of the entire proceedings be sent to the District Inspector of Schools by registered post. Here, in the present case no such exercise has been undertaken by Regional Level Committee to go into these questions and coupled with this, elections are claimed to have been held on 09.09.2004, whereas admittedly, on the said date Prabandh Sanchalak had been running and managing the affairs of the institution appointed in pursuance of order dated 05.08.2004, who had taken over charge of the institution on 09.08.2004. Once there was Prabandh Sanchalak working in the institution, then as to how and where elections have been held and whether the Prabandh Sanchalak was associated with the elections or not, all these questions have been conveniently ignored. Regional Level Committee before proceeding to accord approval to elections, has to satisfy itself on three scores; (i) the persons who convened the meeting had right to convene the meeting; (ii) the persons who participated in the elections had right to participate in the elections; and (iii) elections have been held as per provisions contained in the Scheme of Administration. On two occasions, this Court asked the authorities concerned to look into aspects of the matter pointed out, but the same has been quite conveniently ignored. Consequently, as this is virtually case of no adjudication qua claim of contesting respondents this Court is remanding the matter back to Regional Level Committee, cautioning that if directions issued by this Court are once again ignored, then suitable proceedings for contempt would be initiated, and disciplinary action would be recommended. Order dated 26.08.2006, to the extent it recognizes Respondents' Managing Committee is quashed. Joint Director of Education is directed to appoint Prabandh Sanchalak in the institution forthwith, as prior to passing of impugned order , Prabandh Sanchalak had been functioning, who shall run and manage the affairs of the institution on day to day basis till fresh decision is taken by Regional Level Committee, by reasoned order after providing opportunity to Smt. Shashi Singh and Raj Bali Tiwari, and any other incumbent who could be useful in coming to rightful decision.

In view of the discussions and observations made above, Civil Misc. Writ Petition No.55460 of 2006 is dismissed and Civil Misc. Writ petition No. 17035 of 2007 is partly allowed.

11.09.2007

SRY


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