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C/M. BEGUM KHAIR GIRLS I.C. & ANOTHER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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C/M. Begum Khair Girls I.C. & Another v. State Of U.P. & Others - SPECIAL APPEAL No. - 248 of 1997 [2007] RD-AH 16137 (1 October 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

A.F.R.

Court No. 34

Special Appeal No. 248 of 1997

Committee of Management,

Begum Khair Girls Inter College, Basti through

its President/Manager Abdul Waheed Siddiqui

and another .... Appellants

Vs.

State of U.P. through Secretary,

Ministry of Education, Government of Uttar Pradesh,

Lucknow and others ...... Respondents

With

Special Appeal No. 249 of 1997

Committee of Management,

Begum Khair Girls Inter College, Basti through

its President/Manager Abdul Waheed Siddiqui

and another .... Appellants

Vs.

Regional Deputy Director of Education,

VIIth Region, Gorakhpur and others ...... Respondents

With

Special Appeal No. 250 of 1997

Abdul Waheed Siddiqui .... Appellant

Vs.

Aurangjeb Ahmad Siddiqui and others ...... Respondents

With

Special Appeal No. 251 of 1997

Committee of Management,

Begum Khair Girls Inter College, Basti through

its President/Manager Abdul Waheed Siddiqui

and another .... Appellants

Vs.

Joint Director of Education,

VII Region, Gorakhpur and others ...... Respondents

With

Special Appeal No. 252 of 1997

Committee of Management,

Begum Khair Girls Inter College, Basti through

its President/Manager Abdul Waheed Siddiqui

and another .... Appellants

Vs.

Director of Education (Secondary), U.P.,

Lucknow and others ...... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. Arun Tandon, J.

These special appeals arise out of common judgment and order passed by the Hon'ble Single Judge dated 08th April, 1997, whereby 5 writ petitions, being Writ Petition Nos. 2867 of 1996, 9904 of 1996, 35348 of 1995, 35748 of 1994 and 17346 of 1994 have been decided.

The facts giving rise to the present writ petition have precisely been stated in the judgment and order of the Hon'ble Single Judge and it is therefore not necessary to reiterate the same. Facts relevant for disposal of the present special appeals are being briefly mentioned.

Begum Khair Girls Inter College, Basti is a minority institution recognized as such under the provisions of the Intermediate Education Act, 1921 (herein after called the Act, 1921) . The institution is aided and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 are fully applicable to the institution.

The institution was established by one Begum M.A. Khair and her husband Mr. M.A. Khair solely from their own resources. A large number of properties attached to a waqf provided income for meeting the expenses of the aforesaid institution which was so provided vide deed executed on 21.12.1987.

The President of the Committee of Management of the institution by virtue of his office was to become the Mutwalli of the waqf and the Principal of the college was to become Deputy Mutwalli. The institution has its own Scheme of Administration, which was duly approved by the Joint Director of Education vide order dated 05.09.1968. The scheme so approved is of a peculiar nature, as it did not contemplate any general body. Clause 4 of the Scheme of Administration provides that there shall be 10 named members of the Committee of Management of the institution, including one Principal and two teachers, as ex-officio members.

Clause 5 of the Scheme of Administration provided that Begum M.A. Khair would be the life long President and Manager, Mr. M.A. Khair would be life long Vice President and Treasurer and Mr. Maqbool Ahmad shall be Hony. Secretary. The note to clause-5 provided that in case Begum M.A. Khair is survived by her husband Sri M.A. Khair then Sri M.A. Khair would hold office as life President, Manager and Treasurer during his life time.

Any vacancy caused in the Committee of Management is to be filled by the committee itself in a special meeting to be convened for the purpose, this procedure is to apply for filling up the vacancy of life President, Manager and Treasurer of the institution, after Mr. M.A. Khair and Mrs. M.A. Khair expire, with a condition that the person to be elected to the aforesaid office shall be a Muslim of Sunni Sect.

Clause 8(a) of the scheme provides the term of the Committee of Management as 5 years except for the ex officio members. Clause 8(b) provides that after expiry of the term of 5 years the President and Vice President shall elect a new Committee of Management, otherwise the District Magistrate, Basti shall select a new Committee of Management having due regard to the provisions of the said Scheme. Clause 10 of the Scheme of Administration provides that the Principal of the institution shall always be Muslim belonging to Sunni Sect. Clause 19 provides that if any dispute relating to the right of management of the institution during the life time of its founder President/Vice President arises, it shall be referred to the Deputy Director of Education by the aforesaid two persons after observing the provisions of the Scheme of Administration. If, however, any dispute arises subsequent to their death, it shall be referred to Deputy Director of Education, who, on being satisfied that there is a dispute, shall declare as to who is competent to be the present Manager of the institution. Clause 20 contains the emergency power where under the State Government has been authorized to appoint an Administrator if it forms an opinion that in the given circumstances it has become impossible to carry out the management of the institution properly. The appointment of Administrator has to be made on recommendation of the Committee of Management or on the recommendation of the Director of Education after affording the President an opportunity to submit a written explanation. The Administrator in turn has been granted power to dissolve the Committee of Management and to constitute a fresh committee with office bearers.

It is in this background of the provisions of the Scheme of Administration that the dispute giving rise to the present special appeals is to be adjudicated upon. Since Clauses 4, 5, 6, 8(a), 8(b), 19(a), 19(b), 20(a) and 20(b) are relevant for our purposes, they are being quoted below:

"4. There shall be 10 members of the Committee of Management of this institution under this scheme, including the principal and two teachers of the school as tis ex-office members.

5. The following shall constitute the first Committee of Management of this institution who shall hold office as indicated against each.

Name Office

1. Begum M.A. Khair, President and Life Manager,

2. M.A. Khair Vice President and Life Treasurer

3. Maqbool Ahmad Hony. Secretary

4. Bisheshwar Nath Gaur Member,

5. Ram Kumar Shastri Member,

6. Abdul Karim Member,

7. Shaban Ali Member,

8. Principal of the School }

9. A teacher of the School } Ex-Office member as given

10. A teacher of the School } in the regulations.

Note: If Begum M.A. Khair is survived by her husband Shri M.A. Khair then Shri M.A. Khair would hold office as President, Life Manager and Treasurer for her life time.

6. Any vacancy caused in the Committee of Management shall be filled by the Committee of Management in its special meeting convened for this purpose. This rule shall also apply for filling up the vacancy for the office of Manager and President of this institution after Begum M.A. Khair and Shri M.A. Khair with the proviso that the person so selected for this office by the Committee of Management must always be a Muslim of the Sunni Sect.

7. .....

8 .(a) The term of the Committee of Management shall be 5 years with the exception of the teachers whose term will be for one year as provided in the Regulations.

8.(b) On the expiry of 5 years, if the founder President and Vice-President Begum M.A. Khair and Shri M.A. Khair are alive they shall select a new Committee of Management, otherwise the District Magistrate, Basti shall select a new Committee of Management with due regard to the provisions of the Scheme of Administration as there is no general body for governing the institution.

19.(a)This Institution has been founded and sustained by its founder President and Vice-President Begum M.A. Khair and Sri M.A. Khair without any subscription or contribution from any member of the public. There is, therefore, no general body for governing the Institution and all the powers for governing the Institution are vested in the Managing Committee.

19.(b)In case there is a dispute relating to the right of Management of the Institution in the Life time of its present founder President and Vice-President it shall be referred to the Deputy Director of Education by them and they shall select a new Committee of Management after observing the procedure given in the Scheme of Administration. If, however, the said dispute arises after the life time of the two, it shall be referred to the Deputy Director of Education who on being satisfied that there is a dispute, shall declare as such and shall appoint a competent person to Manage the Institution during the period of dispute.

19.(c)Within a month of the declaration by the Deputy Director of Education for election of a new Managing Committee, the District Magistrate, Basti shall select a new Committee of Management with due regard to the provisions of the Scheme of Administrations.

20. Emergency Provision -(1) When the State Government is of the opinion that circumstances have arisen which have rendered it impossible to carry on properly the administration of the school/ college in the normal manner it may appoint an administrator.

Provided that no such Administrator shall be appointed except:-

(a) On the recommendation of the Committee

Or

(b) On the recommendation of the Director of Education and after allowing the President an opportunity to submit a written explanation against the said recommendation."

In order to keep the records straight it may be noticed that with the enforcement of U.P. Act No. 2 of 1981 (hereinafter called the Act, 1981), the Deputy Director of Education vide its letter dated 29th July, 1981 required the Committee of Management of the institution to get the Scheme of Administration amended by incorporating certain provisions relating to the elections of the Committee of Management. The institution, with reference to its minority character, refused to accept the suggestion so made vide its letter dated 24.10.1981. The Deputy Director of Education, however, vide its letter dated 19th December, 1983 again insisted upon the amendments being carried out.

On 1st November, 1987 the Committee of Management proposed certain amendments in its Scheme of Administration. The Deputy Director of Education, however, refused to grant approval to the amendments so suggested on the ground that they were contrary to the provisions of Section 16-CC of the Act, 1921.

During all this correspondence Mr. M.A. Khair predeceased his wife, and Mrs. Khair also expired on 21st June, 1992. On the death of Mrs. Khair, the District Magistrate is alleged to have passed an order on 26.01.1992 appointing the present appellant Mr. Abdul Waheed Siddiqui as the President/Manager for the remaining term. However, the Deputy Director of Education refused to accord recognition to this Committee of Management.

Subsequent to the death of Mrs. Khair further amendments in the Scheme of Administration were proposed by the Committee of Management with A.W. Siddiqui as President (Appellant), which were turned down by the Deputy Director of Education vide letter dated 28.04.1994 after recording that the Scheme of Administration as approved for the college originally, still continued in force. It was held that there was no recognized Committee of Management of the institution which could suggest any amendment in the Scheme of Administration, therefore circumstances have arisen where an Administrator has to be appointed and accordingly the District Inspector of Schools was appointed as Administrator. The Deputy Director of Education also required the District Magistrate, Basti to constitute a new Committee of Management in accordance with the provisions of the Scheme of Administration, with specific reference to the provisions of Regulation 19(b), referred to above.

Pursuant to the aforesaid order the District Magistrate, Basti vide his order dated 28th October, 1994 appointed a Committee of Management with Sri Abdul Waheed Siddiqui as President/Manager and Sri Mushtaq Ahmad was appointed as Vice-President/Treasurer. The appointment of the Committee of Management so made was stayed by the District Magistrate himself vide order dated 29th October, 1994.

In the meantime the Committee of Management with Sri Abdul Waheed Siddiqui decided to fill the vacancy on the post of Principal of the college caused due to retirement of earlier incumbent. The dispute in that regard was considered by Division Bench of this Court in Special Appeal No. 581 of 1994 decided on 30.08.1995. The Hon'ble Court directed holding of fresh proceedings for selections/appointment on the post of Principal. This order of the Division Bench was challenged by way of Special Leave Petition before the Hon'ble Supreme Court. The Supreme Court vide its order dated 02.01.1996 upheld the judgment of the Division Bench of this Court, however, it was provided that till fresh selections are held, the incumbent already appointed namely Mrs. Nilofar Usmani shall continue.

Reverting back to the dispute of the Committee of Management of the institution, the order of the Deputy Director of Education dated 28th April, 1994 was challenged by means of Writ Petition No. 17346 of 1994 on the ground that there cannot be a waiver of fundamental rights and that the Deputy Director of Education had no jurisdiction to appoint an Administrator for the institution. The order of the Deputy Director of Education refusing the amendments of Scheme of Administration dated 05.04.1994 was also challenged in the said writ petition.

The order dated 29.10.1994 of the District Magistrate, suspending his earlier order constituting a new Committee of Management for the institution, was challenged by means of Writ Petition No. 35717 of 1994.

This Court vide order dated 08th November, 1994 stayed the operation of the order of the District Magistrate dated 28.10.1994, as consequence thereto the District Inspector of Schools vide order dated 03th December, 1994 recognized the newly constituted Committee of Management with Sri Abdul Waheed as the President.

Feeling aggrieved by the said order one Sri Maslahuddin filed Writ Petition No. 40320 of 1994, wherein an interim order was granted on 15.12.1994 as a result whereof the recognition of the Committee of Management under order of the District Inspector of Schools dated 03.12.1994 was stayed.

Thereafter Writ Petition No. 9904 of 1996 has been filed by Sri Aurengzeb Ahmad Siddiqui for a direction upon the Committee of Management to proceed with selection for the post of Principal.

Writ Petition No. 2867 of 1996 was filed by the Committee of Management with Sri Abdul Waheed Siddiqui as Presidnet for quashing the order dated 4.12.1995 wherein Deputy Director of Education has directed fresh selections for the office of the Principal. This Court vide order dated 01.05.1996 directed that the District Magistrate to take decision with regard to the constitution of the Committee of Management of the institution keeping in view his own order passed on 28th October, 1994 and 29th October, 1994, referred to herein above.

This interim order was challenged by way of Special Appeal No. 422 of 1996, which was disposed of with a direction that all the writ petitions referred to above be heard and decided as early as possible and till then status quo be maintained. It is in pursuance to the aforesaid order of the Division Bench that all the writ petitions have been clubbed and decided under a common judgment dated 08.04.1997 subject matter of present Special Appeal.

The Hon'ble Single Judge under its judgment and order dated 08.04.1997 inter alia recorded that the institution in question, has been established by a minority community and that it is actually administered by the said minority. With reference to the aforesaid basic finding the Hon'ble Single Judge has held that the right to manage the institution does not include the right to mismanage and that reasonable restriction can be placed upon such right of management, which may be in form of regulations. Reliance in that regard has been placed upon the judgments of the Supreme Court in St. Stephen's College vs. University of Delhi; AIR 1992 SC 1630; in re: The Kerala Education Bill, 1957; AIR 1958 S.C. 956 and Ahmedabad St. Xavier's College Society vs. State of Gujrat; AIR 1974 SC 1389.

The Hon'ble Single Judge has held that the provisions of the Act, 1921 and Regulations framed thereunder provide for various restrictions and regulatory measures with the end of securing a better and efficient administration of an educational institution admitted to the privileges of recognition by the Board, which include the framing of Scheme of Administration providing for constitution of the Committee of Management vested with authority to manage and conduct the affairs of the institutions. The Director of Education has the power to suggest amendment in the Scheme of Administration as well as to approve the same. Any party aggrieved has remedy provided for under Section 16-A(5) of the Act, 1921.

The Third Schedule to the Act, 1921 lays down the broad principle for approval of a Scheme of Administration, which amongst other include the principle of periodical elections, qualifications and disqualifications for being members and office bearers, the term of the elected office bearers and the restrictions qua creation of monopoly in favour of any particular person, caste, creed and family. It has been held that the Scheme of Administration approved for an institution has to be in conformity with the provisions contained in Act, 1921 and Regulations framed thereunder and that it has a statutory flavour.

It has further been held that as on 28.10.1994, when Begum M.A. Khair and Mr. M.A. Khair both had expired, the District Magistrate was vested with the power under Clause 8(b) of the Scheme of Administration to select and appoint a new Committee of Management having due regard to the provisions of the Scheme of Administration. It is in escapable that the District Magistrate could only select/nominate a Committee of Management comprising of the persons who were Muslims. The District Magistrate, however, could not thrust upon the society persons, who had no concern with the society at all and were not even its members and further that the order of the District Magistrate does not indicate any criteria, which was adopted for selecting/nominating the members as office bearers of the Committee of Management. It has been held that because of the death of three of the signatories to the memorandum of association, out of 7 and that there being no provision for admitting new member in the society (although there was a specific provision for amending the Scheme of Administration), a wholly uncalled and unwarranted circumstances had been created, which had the effect of unsurmountable impediment in the way of an efficient management of the institution, and could result in defeating the object for which the institution had been established. Hon'ble Court held that in the circumstances it has become impossible to constitute a Committee of Management in accordance with scheme applicable and therefore it was necessary that the Scheme of Administration be amended. The amendments proposed by the Deputy Director of Education were in consonance of the Act, 1921. The amendment so suggested did not militate against the right secured in favour of the minority. The Court proceeded to pass following directions/orders:

"(a) The order passed by the Deputy Director of Education VIIth Region, Gorakhpur dated 28.4.1994 except to the extent it provides for the appointment of an administrator shall stand quashed with the modification that it will be ensured that the Administrator shall be a suitable Muslim person of the Sunni Sect as desired by the Waqf. In the event, where no such person is available, the Deputy Director of Education VIIth Region, Gorakhpur shall appoint a Gazetted Officer of the Education Department as the Administrator. This shall be done within a period of one month.

(b) The order passed by the District Magistrate, Basti dated 28th October, 1994 shall stand quashed.

(c) The Scheme of Administration for the Begum Khair Girls College, Basti shall be amended in accordance with the directions issued by the Deputy Director of Education vide his notice dated 29.7.1981 with the modification that it shall contain a specific provision for ensuring of an effective majority of the members of the minority community which has established the institution, for the purpose of its administration providing that the minority character of the institution is not affected and it is ensured that only the persons belonging to the aforesaid minority community which has established the institution have a controlling voice in the administration of the institution and continues to maintain its effective control of the institution by keeping effective majority of the persons belonging to the minority community either in the governing body or in the managing body so that the effective decisions in regard to the administration of the institution cannot be taken except by minority community which has established the same. The Deputy Director of Education VIIth Region, Gorakhpur shall ensure that the appropriate amendments in the Scheme of Administration for the college in question are carried out after the due information to the members of the Begum Khair Girls Institution Society, Basti, referred to in the existing approved Scheme of Administration for the institution, within a period not later than one month.

(d) The Administrator so appointed shall hold the election for constituting the committee of management following the procedure prescribed after getting approved the amended scheme of administration in the light of the observations made herein above and completing the process of enrollment of new members. The election shall be held within a period of one month of the enrollment of new members.

(e) The Regional Inspectress of Girls Schools/Competent authority shall grant the approval to the committee of management only after ensuring that the persons belonging to the minority community which has established the institution have a controlling voice in the administration of the institution.

(f) The Administrator shall induct the new elected committee of management in office after grant of the approval referred to above thereafter he will cease to function.

(g) The Committee of Management so inducted in the office as indicated above shall hold fresh selection for appointment of the Principal of the college complying with the directions of this Court issued vide the judgment and order passed in special appeal No. 581 of 1994, decided on 30.8.1995 as affirmed by the Apex Court vide its judgment and order dated 30th August, 1995 within a period not later than six weeks from the date of its induction in the office. The Deputy Director of Education VIIth Region, Gorakhpur shall ensure that the orders passed by this Court in this regard are complied with by the Committee of Management and the Deputy Director of Education VIIth Region, Gorakhpur shall pass the final orders in regard to the approval of the recommendations of the Committee of Management keeping in mind the observations of this Court in its decision in the aforesaid special appeal, within a period not later than three weeks from the receipt of the recommendation.

(h) The reliefs claimed by the petitioners in the aforesaid writ petitions except to the extent indicated herein above shall stand refused.

(i) The Registry of this Court is directed to send a copy of this judgment to the Deputy Director of Education VIIth Region, Gorakhpur within two weeks for strict compliance of the directions, referred to herein above."

Sri Ashok Khare Learned Senior Advocate submits that the directions issued by the Hon'ble Single Judge qua appointment of the administrator by the Deputy Director of Education, quashing of the order of the District Magistrate dated 28.10.1994 whereby the Committee of Management with Sri Abdul Waheed was constituted as well as the direction for Scheme of Administration being amended in accordance with the directions issued by the Deputy Director of Education dated 29th July, 1981 are based on complete misreading of the provisions of the Scheme of Administration applicable to the institution as well as the provisions of Section 16-CC and 16-D of the Act, 1921. Similarly, the direction upon the administrator to constitute a new general body for the institution and to hold elections of the office bearers therefrom virtually amount to negating the fundamental right provided under Article 29 and 30 of the Constitution of India, and even otherwise violative of Article 19(1) (g) of the Constitution.

Sri Ashok Khare with reference to Clauses 5, 6, 8(a), 8(b), 19(a), 19(b) and 20, referred to herein above, submits that the Scheme of Administration as was earlier approved for the institution takes care of all contingencies. No vacuum has been left and in the facts of the case the Deputy Director of Education could not have interfered with the Committee of Management constituted by the District Magistrate as per the provisions of the Scheme of Administration under his order dated 28.10.1994. This order of the District Magistrate could not have been quashed by this Court, the committee so constituted was entitled to run and manage the institution, including the right to suggest such amendments as were necessary and in the interest of the institution.

It is further submitted that existing Scheme of Administration was in conformity with the principles contained in Schedule III to the Act, 1921 and therefore no amendments were required, moreover the Director of Education has not pointed out any particular clauses of the existing Scheme of Administration, which offended Section 16-CC or the Third Schedule appended to the Act, 1921. With reference to Section 16-D(14) of the Act, 1921, it is stated that no action can be taken against a minority institution if it refuses to make amendments as suggested by the Deputy Director of Education under Section 16-CC, inasmuch as Section 16-D(1) to Clause 16-D(13) of the Act, 1921 are not applicable to the minority institution. Reference- Section 16D(14) of Act, 1921.

Lastly it is submitted that the wish of the persons belonging to minority, who have established institutions, as reflected in the Scheme of Administration, has to prevail except where the scheme framed is illegal or contrary to a statutory provision. He submits that any direction of this Court or of the education authorities to constitute a general body for a minority institution contrary to the wishes of its founder would be in violation of Article 19(1)(g) of the Constitution of India.

He, therefore, canvasses that the Committee of Management, which was constituted under orders of the District Magistrate dated 28.10.1994 with Sri Abdul Waheed Siddiqui as President, should be permitted to discharge its duty for a period of 5 years and thereafter the District Magistrate may constitute a fresh Committee of Management in accordance with the approved Scheme of Administration as is applicable subject however to the power of the present Committee of Management to suggests/carry out amendments in the Scheme of Administration. It is this committee alone which is authorized under law to hold selections for appointment of Principal of the institution. He, therefore, submits that the direction issued by the Hon'ble Single Judge be quashed and writ petition filed by Sri Abdul Waheed Siddiqui be allowed.

Sri P.N. Saxena Learned Senior Advocate, assisted by Chandan Kumar Advocate, on behalf of the respondents submits that a workable solution had been provided for the institution after the death of Mr. And Mrs. Khair, specifically in the background that no general body has been provided for the institution under the Scheme of Administration. The learned Single Judge has rightly made an attempt to resolve the controversy in the best interest of the institution. The amendments and the procedure to be adopted for constitution of the general body and thereafter the Committee of Management was the only possible legal measure available to ensure effective lawful management of the institution.

He, however, clarifies that under Clause 19 of the approved Scheme of Administration, the Deputy Director of Education has the power to appoint an Administrator, which has been done in the facts of the case vide order dated 28.04.1994 and therefore the direction issued by this Court to the Administrator for holding fresh elections is in conformity with the Scheme of Administration itself. He lastly pointed out that for a society to be registered under the Societies Registration Act at least 7 members are a must and since it is admitted on record that only four members, who had signed the memorandum of association of the society, survive, it is but necessary that effective steps for enrollment of new members be initiated keeping in mind the provisions of the Scheme of Administration and memorandum of association of the society. He, therefore, supports the judgment of the Hon'ble Single Judge be upheld in its entirety.

Standing Counsel has adopted the contentions raised by Sri P.N. Saxena Senior Advocate and he also contends that order of the Hon'ble Single Judge is in the best interest of institution and therefore be not interfered with.

We have heard counsel for the parties and have gone through the records of the writ petition, we have considered the rival submissions made.

From the approved Scheme of Administration specifically Clauses 5, 6, 8(a), 8(b), 19(a), 19(b) and 20, it is apparently clear that the Committee of Management of the institution was to consist of 10 named members. Three of whom are ex-officio member (Principal and two teachers). No general body for the institution has been provided for either under the Scheme of Administration or under the memorandum of association in respect of the society. The implications, which may arise because of the number of members of the registered society being reduced to less than 7, is not relevant for our purposes in the present special appeal, inasmuch as the dispute in hand is confined to the constitution of the Committee of Management of a recognized minority Intermediate College only.

A Division Bench of this Court in Committee of Management of Hindu Inter College, Koshi Kala and others Versus Deputy Director of Education, Agra region, Agra & ors.; 1988, U.P.L.B.E.C. 732 has specifically held that the provisions of the Act, 1921 and those of Societies Registration Act are not overlapping, they operate in separate fields.

Accordingly, this Court may record that the implications, which may arise due to the membership of the registered society being reduced to less than 7, is not required to be examined by this Court in the present appeal.

The constitution of the Committee of Management of a recognized Intermediate College has to be determined with reference to the provisions of the Scheme of Administration alone. Therefore, the provisions of the Scheme of Administration alone are being considered herein under for arriving at a conclusion, which in the opinion of this Court is just, legal and fair.

As already noticed above, there is no general body contemplated for holding the elections of the Committee of Management of the institution. The Scheme of Administration as applicable takes care of the different situations, which may arise in given set of facts qua the Committee of Management of the institution, as is being noticed herein under.

(A) Any vacancy in the office of the Committee of Management during the life time of Mr. and Mrs. M.A. Khair was required to be filed by the named Committee of Management itself by a meeting to be convened for the said purpose. Any vacancy arising subsequent to death of Mr. and Mrs. Khair is also required to be filled by the named Committee of Management by convening a meeting for the said purpose. However, it was provided that so far as the office held by Mr. and Mrs. Khair is concerned i.e. the President/Manager, the person to be inducted must be a Muslim belonging to Sunni Sect.

(B) The term of the Committee of Management has been provided as 5 years under Clause 8(a). A power was conferred upon Mr. and Mrs. Khair during their life time, to select a new Committee of Management after the expiry of its term. Subsequent there to the power to elect the Committee of Management has been vested with the District Magistrate, Basti alone under Clause 8(b) of the Scheme of Administration. This clause itself notices the fact, that there is no general body for governing the institution, meaning thereby that the District Magistrate, Basti has been conferred a power to elect a Committee of Management of persons of his own choice subject however to the provisions of the Scheme of Administration, i.e. Clause 6 which contemplates that the President/Manager as well as Vice-President/Treasurer must be a Muslim belonging to Sunni Sect.

(C) So far as the dispute of office bearers of management of the institution is concerned two different contingencies have been provided under Clause 19 of the Scheme of Administration (i) during life time of Mr. and Mrs. Khair and (ii) subsequent to death of Mr. and Mrs. Khair.

So far as the situation (i) is concerned, the scheme provides that Mr. and Mrs. Khair shall have a right to elect a new Committee of Management after observing the procedure given in the Scheme of Administration. In situation (ii) the Deputy Director of Education, on being satisfied that there is a dispute, shall declare that a dispute exists and then appoint a competent person to act as Manager of the institution during the period of dispute.

Clause 19 (c) contemplates that within one month of declaration by the Deputy Director of Education for elections of new Committee of Management, the District Magistrate, Basti shall elect a new Committee of Management having due regards to provisions of the Scheme of Administration.

From the aforesaid clause it is apparently clear that the Deputy Director of Education has not been conferred any power to appoint an Administrator for the institution. In case there is a dispute of office bearers, he is only authorized to recognize a person to act as Manager during the subsistence of the dispute with a further condition that in case he directs that a new committee is to be constituted, the power for the purpose is conferred upon the District Magistrate, Basti alone. It is, thus apparent that in no case the Deputy Director of Education can appoint an Administrator for the institution nor he can constitute any Committee of Management nor he can confer a power upon the Administrator to constitute a Committee of Management. The power in that regard is exclusively vested upon the District Magistrate, Basti. The authority of the Deputy Director of Education to recognize a person as the Manager is only limited for the period dispute of right of management subsists.

(D) Clause 20 of the Scheme of Administration contemplates an emergent situation where it becomes practically impossible to run and manage the institution efficiently. In such a situation the State Government has been conferred a power to appoint an Administrator either on the recommendation of the Committee of Management or on the recommendation of the Director of Education after affording opportunity of hearing to the President.

In the facts of the present case it is admitted on record that the State Government has not exercised any power under Clause 20 of the approved Scheme of Administration and therefore it is not necessary to elaborate any further upon the said clause.

From Clauses 8 and 19 of the Scheme of Administration it is apparently clear that a new Committee of Management can be constituted by the District Magistrate alone in both the situations, where the term of the earlier Committee of Management has expired or where, after the dispute is referred to the Deputy Director of Education, he comes to a conclusion that fresh committee has to be constituted. It is only during the subsistence of the dispute of the Committee of Management, he has a power to recognize a person to act as a Manager.

In view of the aforesaid clauses of the approved Scheme of Administration, subsequent to the death of Mr. and Mrs. Khair and subsequent to the expiry of the term of the Committee of Management, it is the District Magistrate, Basti alone who could have elected a new Committee of Management.

This Court may record that the discretion so conferred upon the District Magistrate, Basti necessarily contemplates appointment of persons other than those mentioned as member of the Committee of Management under Clause 5 of the Scheme of Administration, inasmuch as a vacancy caused in the Committee of Management referable to Clause 5 has to be filled from persons other than those mentioned therein, as no general body is contemplated by the Scheme of Administration nor any guidelines have been laid down qua the persons who becomes eligible for such induction into the Committee of Management against the vacancy caused. The power so conferred upon the District Magistrate cannot be interfered with on the plea that it can be misused, inasmuch as no factual foundation has been laid to suggest that the District Magistrate in fact had misused his position in any manner and had created a situation whereby the interest of the institution and its founders has been jeopardized. Mere apprehension of misuse of a power cannot be a ground for striking down the provision.

This Court may record that there is no bar under the Act, 1921 which debars a government servant from becoming the President/Treasurer of the minority institution nor any such statutory bar could be referred to by the counsel for the respondent or by the Standing Counsel. In such circumstances it logically follows that the District Magistrate has a discretion to appoint a new Committee of Management for the institution after the expiry of its term and such Committee of Management may or may not include the persons, whose names find mention in Clause 5 of the approved Scheme of Administration (except that during their life time Mr. and Mrs. Khair, they were to continue as President and Vice-President of the Committee of Management respectively).

It may be clarified that the only restriction placed upon the discretion of the District Magistrate to constitute the new Committee of Management is with reference to the office of President/Manager/Vice-President/Treasurer. Clause 6 contemplates that a person to be appointed against the aforesaid office of the Committee of Management must be a Muslim belonging to Sunni Sect.

We, therefore, hold that it is the District Magistrate alone in the facts of the present case, who could have selected a new Committee of Management subsequent to death of Mr. and Mrs. Khair and to that extent the order passed by the District Magistrate, Basti dated 28.10.1994 constituting a new Committee of Management for the institution cannot be faulted with and that the Hon'ble Single Judge was not legally justified in quashing the order so passed. This committee was legally entitled to manage the affairs of the institution for a period of 5 years from its constitution.

This leads the Court to the issue as to whether in the facts of this case the minority institution could be forced to amend its Scheme of Administration with reference to the guidelines contained in Schedule-III of the Act, 1921 in view of Section 16-CC and 16-CCC thereof. It is worthwhile to reproduce Schedule-III of the Act, 1921 which lays down the principles for approval of the Scheme of Administration of a recognized Intermediate College, which reads as follows:

"[THIRD SCHEDULE]

(See Section 16-CC)

Principles on which approval to a Scheme of Administration shall be accorded-

Every Scheme of Administration shall-

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

(2) provide for the procedure for constituting the Committee of Management of 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 of any particular person, caste, creed, or family;

(4) provide for the procedure of calling meetings 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 utilization of its funds and for the regular checking and auditing of accounts."

So far as the Scheme of Administration approved for the institution on 05th September, 1968 is concerned, the only clauses which can be said to have been violated are (1) that there is no procedure for constituting the Committee of Management by periodical elections, (2) the scheme contains provisions which create monopoly in respect of a particular person, caste, creed or family.

Section 16-A of the Act, 1921 contemplates that there shall be a Scheme of Administration for every recognized institution. Section 16-CC contemplates that the Scheme of Administration shall not be inconsistent with the principles laid down in the Third Schedule to the Act, 1921. Section 16-CCC contemplates that in case the existing Scheme of Administration is inconsistent with the provisions of the Act, the Director shall send, within a period of three years from such commencement, a notice to the institution suggesting alterations/modifications therein and requiring the institution to submit a fresh Scheme of Administration or to amend or alter the existing scheme.

The question is (a) whether the Scheme of Administration of a minority institution must provided for periodical elections and for that purpose constitution of a general body for the institution and (b) whether there can be any restriction upon monopoly being created in favour of particular person, caste, creed or family qua a minority institution.

Article 30 of the Constitution of India confers a fundamental right upon the citizens belonging to religious or linguistic minority to establish and administer educational institutions of their choice.

Right to establish an administer and educational institution has been subject matter of consideration in series of judgments of Hon'ble Supreme Court of India. The Article is in two parts. The first right is the initial right to establish institutions of minority's choice. "Establishment" means bring into existence of an institution and it must be by a minority community, it is of little relevance if same member of the other community take advantage of such institution or bring in income for establishment of the institution. The second part of right relates to the administration of such institutions. "Administration" means the 'management of affairs' of the institution. The management must be free of control, so that the founders or their nominees can mould the institutions as they think fit, and in accordance with their ideas of how the interests of the community in general and the institutions in particular will be best served. No part of the management can be taken away and vested in another body without encroachment of guaranteed fundamental rights. Reference State of Kerala v. Very Rev. Mother Provincial; AIR 1970 S C 2079.

The right to administer broadly includes the following rights:

(a) Admit students,

(b) Set up a reasonable fee structure,

(c) Constitute a governing body, and

(d) Appoint staff and to take disciplinary action.

(Reference may be had to the Constitution Bench Judgment of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka; (2002) 8 SCC 481- para 50).

It may be recorded that the right to choose its managing and governing body is one of the basic right, included in the right to administer an educational institution. Any imposition of new members or a Committee of Management contrary to the wishes of the founder and the provisions contained in the scheme, formulated for the purpose, would have the effect of violating the fundamental right guaranteed under Article 29 and 30 of the Constitution of India and have the effect of taking away the right of management of its choice.

With reference to minority institutions exclusively the 3rd principle of Schedule-III be examined. Third Schedule to the Intermediate Education Act contemplates a provision for periodical elections. For periodical elections it is not necessary that there should be a general body in the institution. Inasmuch as in a given case the scheme of a minority institution may provide (a) for the Committee of Management being of Ex-officio member of administrative Service of the State, (b) an individual person may be conferred the power to nominate the Committee of Management after expiry of the term of earlier Committee of Management, as in the facts of this case.

Even otherwise if for periodical elections constitution of a general body is taken to be a condition precedent, it may result in creating two anomalies;

(a) in every Scheme of Administration a general body and induction thereto has to be provided for, which may not be the wish of the founder of the minority institution. The State cannot insist upon the persons, establishing an institution of minority character, to make a provision for induction of new members to general body or for a general body being necessarily constituted, inasmuch as it is the wish of the founders of the institution to have a management of its own choice, which may in a given case confine to the members of a particular family, which contributes for establishing the institution, or for persons belonging to particular caste or creed alone being made office bearers of the institution. Such a choice of the management is in conformity with Article 29 and Article 30 of the Constitution of India and therefore no statutory provision can be made for taking away the said constitutional right.

(b) Such an insistence under a statutory provision to have a general body could also violate Article 19(1)(g) of the Constitution of India, which confers not only a right to form an association it also guarantees an additional right of not being forced to take into its association the persons to whom founder do not like. Reference- The Hindi Sahitya Sammelan and others v. Shri Jagdish Swarup and others; AIR 1971 SC 966 .

Point 3 of the Third Schedule mandates that no scheme shall contain provisions "creating monopoly in favour of any particular person, caste, creed or family". This provision was amended to its present form by U.P. Act No. IX of 1981. Originally the provision also contained a bar against creating monopoly in favour of any 'religion'. The word 'religion' was deleted from the proviso by the aforesaid amendment. But the word 'creed' has a similar meaning, which read as follows:

"Creed: 1. A brief formal summary of Christian doctrine, esp. each of those known as the (Apostles) Creed, the Athanasian Creed, and the Nieene Creed.

2. A repetition of the Creed as an act of devotion, esp. as part of the Mass

3. A system of religious belief

4. A set of opinions or principles on any subject; esp. a political philosophy

5. Belief or confidence in; an article of faith."

Reference may be had to the judgment of Hon'ble Supreme Court in the case of in re: Kerala Education Bill; AIR 1958 SC 956, wherein the Hon'ble Supreme Court has considered the relationship between Articles 29 and 30 of the Constitution of India and observed as follows:

"The purpose of Article 29(1) it was held was to enable the minority to conserve its own language, script or culture which could be achieved through educational institutions and therefore the right under Article 30 to establish educational institutions of its choice is a necessary concomitant to the rights of the minority to conserve its language, script and culture. In State of Kerala Vs. Mother Provincial (supra) it was held that the management of a minority institution must be free of control so that the founders can mould the institution as they think fit and in accordance with the ideals of how the interest of the community can be best fulfilled. No part of the management can be taken away and vested in any other body without encroachment upon the right. No part of the management can be taken away and vested in any other body without encroachment upon the right. It follows from this pronouncement of the law that if the founders of a minority institution believe that the interest of the community can be better sub-served by having a management consisting of members of the minority community alone they may so provide. A minority institution can therefore have a scheme of administration containing a provision creating a monopoly in favour of the members of the minority community in the managing body of the institution. It also appears that if the founders are of the view that holding of periodical elections to the management would not be in the interest of the minority community they may provide for any other manner of constituting the management. The minority may provide in the scheme that the post of Manager be filled up by nomination. If therefore the provision of Schedule III prohibiting a monopoly in favour of any creed or of periodical election is held to be applicable to a minority institution the provision would be ultra vies Article 30. To save these provisions from invalidation they have to be read down as not being applicable to a minority institution. It may be noted that under the scheme of administration approved in 1984 the nomination of a Committee of Management after even 5 years by the District Magistrate, Basti in the facts of the case is a sufficient safeguard in the scheme against creation of a monopoly of any person or group of persons in the management.

The matter can be examined from another angle. If the scheme of administration is inconsistent with the provisions of the Act and the management of the institution has failed to alter or modify it despite notice under Section 16 CCC the consequences contemplated under the Act are that the Director may under Section 16 D(3) refer the case to the Board for withdrawal of recognition or after issuing notice under Section 16 D(4) to the committee of management appoint an authorized controller. Section 16 D (14) however exempts a minority institution from the application of sub sections 3 to 13 of Section 16-D which is an indication though not conclusive that under the scheme of the provisions, it Section 16 CCC was not intended to apply to a minority institution.

From the mandate of Article 30 that a minority has a right to administer its institutions and the scheme of the Act it appears that the provision in the III schedule relating to periodical elections and bar against monopoly in favour of any creed is not applicable to minority institutions. There is nothing to show that the provision under the scheme empowering the District Magistrate to nominate the Committee of Management and the other provisions of the approved scheme would affect efficiency in running the institution."

This Court may add a note that merely because financial aid is provided by the State to the institution the same cannot be made a ground for interference in the administration of a minority institution. The issue in that regard stands decided by the Apex Court in the case of TMA Pai Foundation (supra), wherein it has been held that the grant of aid to the institution cannot in any way dilute the rights of the minority under Article 30 (1) of the Constitution of India. It is, therefore, held that the State cannot, in the name of providing aid to the institution, take away the minority character thereof.

This Court may notice that the Scheme of Administration of the institution under consideration specifically provides for the term of the Committee of Management as five years and that after every 5 years a new Committee of Management is to be constituted. Subsequent to death of Mr. and Mrs. Khair the power to constitute the Committee of Management is now with the District Magistrate, Basti.

In the opinion of the Court such provision for constitution of a new Committee of Management after every 5 years is a sufficient safeguard referable to point-2 of Schedule-III of Act, 1921, which provides for periodical elections. Periodical elections as referred to in point-2 of the Third Schedule in the case of minority institutions cannot mean that such elections are to be held through the process of nomination and voting. All other clauses of Schedule-III are taken care of in the Scheme of Administration, as was enforced in the institution in 1968, and therefore no amendments in the Scheme of Administration are required subsequent to the enforcement of U.P. Act No. 1 of 1981. The Scheme of Administration is still workable and no vacuum has been left.

In view of the aforesaid legal background and specifically in view of the fact that neither the private respondent nor the State respondents could point out any provision of the existing Scheme of Administration, as being in conflict with any other principles enshrined under Schedule-III of the Intermediate Education Act, this Court holds that there cannot be a direction to amend the existing Scheme of Administration in the facts of the present case. The offending principle, as already noticed above, will have no application qua minority institution.

In view of the aforesaid fact, the Hon'ble Single Judge was not justified in providing for appointment of an Administrator for the minority institution and for constituting a general body as well as for holding fresh elections from amongst members so enrolled for constituting the Committee of Management of the institution. The directions issued by the Hon'ble Single Judge therefore cannot be approved of and are hereby set aside.

This leads the Court to the issue as to whether in the facts of the present case it is desirable to permit the Committee of Management, which was constituted by the District Magistrate in the year, 1994 of which appellant no. 2 was nominated as Manager to take charge now. Although this Court has found that the order of the District Magistrate dated 28.10.1994 was in strict conformity with the provisions of the approved Scheme of Administration (with specific reference of Clause 8), yet it will not be fair and just to direct the said committee to continue to manage the institution even after expiry of 13 years of said order specifically when the District Magistrate has to appoint a new committee under the Scheme of Administration after every 5 years.

In view of the aforesaid fact, this Court is not inclined to issue a direction qua continuance of the appellant Committee of Management nominated by the District Magistrate under his order dated 28.10.1994 or for charge being handed over to the said Committee of Management now.

Having regard to the provisions of the approved Scheme of Administration, it is provided that the District Magistrate, Basti shall immediately constitute a new Committee of Management having due regard to the provisions of the Scheme of Administration specifically those relating to the office of President/Manager/Vice-President/Treasurer being a Muslim by caste, belonging to Sunni Sect, preferably within four weeks from the date a certified copy of this order is filed before him. The Committee of Management so constituted shall take immediate steps for holding fresh selections for the post of Principal of the institution, as has been provided for under the judgment and order of the Hon'ble Supreme Court dated 10.5.1996.

With the aforesaid observations/directions present special appeals are disposed of.

Dt/05.09.2007

Pkb/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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