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C/M SARDAR PATEL INTER COLLEGE THRU' MANAGER & ANR. versus JT. DIRECTOR OF EDUCATION & ORS.

High Court of Judicature at Allahabad

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C/M Sardar Patel Inter College Thru' Manager & Anr. v. Jt. Director Of Education & Ors. - WRIT - C No. 37338 of 2004 [2005] RD-AH 3660 (29 September 2005)

 

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 OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

Counsel for the parties state that the controversy involved in the instant writ petition is a short one and can be disposed of at the admission stage itself. Accordingly, with the consent of the counsel for the parties, this writ petition is being decided on merits at the admission stage itself.

By means of the instant writ petition the petitioners have challenged the impugned orders dated 12.8.2004 and 3.9.2004(Annexures IX and XI respectively to the writ petition) passed by the Joint Director of Education, Kanpur Region, Kanpur- respondent no. 1 by which election of Sri Ram Ashrey Kannaujia as Manager of the institution, in question, has been held to be valid.

FACTS

Sardar Patel Maha Vidyalaya, Kachatipur, Post Indragarh, District Kannauj is a society, which was registered on 4.9.1956 under the provisions of Societies Registration Act, 1860. It has established a recognized Intermediate college known as Sardar Patel Inter College. The last undisputed election of the Committee of Management was held on 24.6.2001 wherein Sri Srikant was elected as President and Sri Kanhaya Lal was elected as Manager. They were duly recognized. The term of Committee of Management is three years and expired on 23.6.2004. The institution run by the aforesaid society receives grant-in-aid from the State Government and is governed by the provisions of U.P. Intermediate Education Act, 1921 and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971,

The petitioners claim that a meeting for holding election is said to have been held on 20.7.2004 in which Sri Kanhaya Lal was also present. Before the term of Committee of Management expired, the notice of election was issued by the Manager Sri Srikrishna and  the elections were held on 11.7.2004. In the said election Sri Srikrishna  and Sri Vinod Kumar are said to be  elected as President and Manager respectively whereas the case of respondent no. 5 is that the elections were held on 18.7.2004 in which Sri Chakku Lal  and Sri Ram Ashrey Kannaujia were elected as President and Manager respectively. The petitioners submitted their papers to Assistant Registrar who had registered the list of office bearers under Section 4 of the Societies Registration Act.  The order of the Assistant Registrar is dated 20.7.2004 and is appended as Annexure 5 to the writ petition.

It appears that the respondent no. 5 also submitted papers on 21.7.2004 before the authority with regard to the elections claimed to have been held by him on 20.7.2004.. The District Inspector of Schools sent a communication dated 23.7.2004 to the Joint Director of Education informing him about the aforesaid elections said to have been held by the petitioners and the respondent no. 5, but did not recommend for approval of any of the Committee of Managements. .

It is alleged that a meeting of regional committee was held on 5.8.2004 in which signatures of petitioner no. 2 were verified. The Joint Director of Education by letter dated 6.8.2004 recognized the petitioners' Committee of Management vide Annexure 7 to the writ petition and also authorized attestation of signatures of the petitioner no. 2.  Consequently, the District Inspector of Schools attested the signatures of petitioner no. 2 on 7.8.2004.

It is claimed that the petitioners' Committee of Management is managing the affairs of the college since then. It appears that a complaint was made by the rival Committee of Management on 12.8.2004, inter alia, that election conducted by the petitioners on 11.7.2004 was illegal and that as there was dispute between two rival Committees of Management, which should be decided in accordance with law.  The Joint Director of Education is alleged to have issued a notice on  12.8.2004 to the parties under political pressure, i.e., petitioner no. 2 and respondent no. 5 for producing evidence on 20.8.2004 in support of their respective claims.  The petitioners submitted their reply to the aforesaid notice on 12.8.2004 along with documents inter alia stating  that they are in effective control and have been successively elected.

It is alleged that respondent no. 5 also filed some documents, copy of which was not given to the petitioners in spite of repeated requests, however, without considering the representation of the petitioners the Joint Director of Education held that the election said to have been held by the petitioner no. 2 was illegal and that by respondent no. 5 on 18.7.2004 was legal.  It was further held that respondent no. 5 is en effective control over the affairs of the institution.

Aggrieved by the aforesaid order of Joint Director of Education, Kanpur Region, Kanpur - respondent no. 1  , the petitioners have come up in this writ petition on the ground that the order of the Joint Director is without jurisdiction inasmuch as the Regional Committee had considered the rival elections and made the recommendation in favour of the petitioners. The same Joint Director was the Chairman of the Regional Committee, thus, the Joint Director independently without any reference to him under Section 16-A-7 of the U.P. Intermediate Education Act cannot exercise jurisdiction as there was no parallel election and the notice issued by him of same complaint was illegal and without jurisdiction. After constitution of the Regional Committee, the jurisdiction of the Joint Director can be invoked when the ingredient of Section 16-A-7 of the Intermediate Education Act are present.  All these aspects have already been examined by the Regional Committee in which the Joint Director himself was Chairman.

CONTENTIONS OF THE PARTIES

Counsel for the petitioner submits that the impugned orders  passed by the Joint Director of Education, Kanpur Region, Kanpur- respondent no. 1 is ex facie illegal, perverse and contrary to the provisions of Societies Registration Act (hereinafter referred to as ''the Act') as he had no jurisdiction to decide the dispute of membership of office bearers of the society as the same falls under the jurisdiction of Prescribed Authority under Section 25 of the Act. He has relied upon Committee of Management Sri Nehru Smarak Inter College Jaithara, Etah and another vs. Surjan Singh and others- 2004 (4) AWC-3674 in this regard.

It is urged by the counsel for the petitioner that Sri Ram Ashrey Kannaujia- respondent no.5 was Head Clerk in the institution till 30.9.2002 and was not even a member of the society continuously for a period of three years, as such, he cannot be elected as the Manager of the institution.  In support of his argument he placed reliance upon clause 3 (ka) of the Bye-laws of the society which provides that newly enrolled member will have no right to vote for a period of three years and submits that respondent no. 5, who retired from service on 30.9.2002 was not even entitle to cast vote in the election alleged to have been held on 18.7.2004 as by that date he was not even competent to vote much less could have been elected as office bearer. It is also submitted by him that the regional committee after examining all the papers made a recommendation in favour of petitioners on 6.8.2004. There is no justification for any change in the said recommendations; that the Joint director of Education has no jurisdiction to decide the matter under Section 16-A-7 of the Intermediate Education Act, 1921 and that the impugned order dated 3.9.2004 (Annexure 11 to the writ petition) passed by the Regional Director of Education amounts to review of the recommendation of regional committee which is legally not possible. It is urged that none of the papers filed by respondent no. 5 was made available to the petitioners and they were absolutely unaware of the pleas and documents produced by the respondent no. 5 as such, the impugned order is hit by principles of natural justice and fair play.

The counsel for the petitioners urged that admittedly, Sri Srikrishna, who was the President from the very inception, had not called the alleged meeting dated 18.7.2004, wherein the parallel election has been set up. Thus, on this ground alone, the entire election set up by respondent no. 5 is a farce and their claim is frivolous.  He also contends that officiating Principal cannot be appointed as election officer under the provisions of the Bye-laws and scheme of administration, but in the so called elections held on 18.7.2004, officiating Principal acted as election officer hence even on this score, the elections dated 18.7.2004 are ab initio void.

It is then submitted that findings of the Joint Director are perverse as the petitioner along with his comment dated 20.8.2004 had submitted Agenda, Election Proceeding dated 11.7.2004 and Proceedings of the Meeting dated 10.8.2004 which was also signed by the officiating Principal, who had set up the parallel claim with the help of respondent no. 5.  It is significant to mention that in the election dated 11.7.2004 out of 79 members, 61 members had participated in the election.  However, these documents have been totally ignored by him and he failed to consider that in the undisputed elections held in 2001, Sri Sri Krishna was elected as President.  Under the Bye-laws, only the President has the authority to call meeting and no meeting can be called by rank outsider; that findings of the Joint Director that the list of the office bearers for 2004-05 was not registered is also perverse and illegal inasmuch as the order of the Assistant Registrar dated 20.7.2004 was filed before the Joint Director and is also on the record of the writ petition as Annexure 6.  

It is lastly urged that the petitioner in paragraph 21 of the writ petition had stated that the respondent no. 5 was a clerk and he retired in September, 2002. In paragraph 23 of the counter affidavit, no date of his membership is mentioned.  In the counter affidavit it has also not been denied that their alleged meeting dated 18.7.2004 was not convened by the President of the Committee of Management.  In the counter affidavit filed on behalf of respondent nos. 2 and 3, in paragraph 3 it is admitted that Sri Shrikrishna was President of the outgoing Committee and sri Kanahiya Lal was the Manager and that the signatures of the petitioner were attested on 6.8.2004 and he is in effective control of the institution.  It is stated that it has further been admitted in the same paragraph that the salary bill of the institution is regularly being passed by the signatures of the petitioner no. 2. In paragraphs 11 and 12 of the counter affidavit, it is clearly mentioned that the respondent no. 5 had retired on 30.9.2002 and the officiating Principal cannot participate in the election and that the papers submitted by respondent no. 5 pertaining to his election was contrary to the provisions of the Scheme of Administration as such, in view of this stand taken by the District Inspector of Schools, it is clear that the Joint Director has grievously erred in recording various findings against the petitioner.

 Reliance has been placed upon by the counsel for the petitioner on a Division Bench decision in the matter of Madan Mohan Malaviya Shiksha Samiti Deoria- Special Appeal No. 207 of 2000 wherein it has been held that the Manager performs the important duty and if he is not member then the election of the whole Committee of Management becomes illegal.  Reliance has also been placed upon the Full Bench decision in a case of Committee of Management, Pt. Jawahar Lal Nehru Inter College wherein the guidelines have been laid down in paragraphs 31,32,33,34,35,36 and 37 and it is submitted that the finding of the Joint Director regarding the effective control of the respondent no. 5 suffers from perversity inasmuch as, no evidence has been referred by the Joint Director about the actual control of respondent no. 5 and the documents filed by the petitioner has been totally ignored and they have not even been referred is contrary to the Full Bench decision as such, on this ground also the  order is vitiated.

  Counsel for the respondent no. 5 in rebuttal submitted that even according to Sri Vinod Kumar, petitioner no. 2, the list for registration before respondent no. 1 was submitted on 20.7.2004, it was accepted by the respondent no. 1 on 20.7.2004  who had issued a show cause notice to the Manager of the institution on 20.7.2004 itself to file the documents in support of renewal of list within a period of one month. He submits that the renewal certificate dated 20.7.2004 was cancelled by the respondent no. 1 only after hearing the concerned parties.

It is vehemently urged by the counsel for the respondent that the affidavits said to be of 52 members, were filed behind the back of respondent no. 5 without even serving him with a copy of the said affidavits. He also submits that the new list of members submitted by the petitioner no. 2, which was recognized by all concerned. In the said list 19 life members and 22 ordinary members were excluded which was the basis of election dated 11.7.2004 in which petitioner no. 2 is said to be elected as Manager. It is alleged by Counsel for the respondent no. 5 that Sri Ram Ashrey Kannaujia was not served with any copy of the documents filed by Sri Vinod Kumar- petitioner no. 2 before the Joint Director of Education, Kanpur Region, Kanpur.

In reply to the allegation of the petitioners that the respondent no. 2 could not contest the elections as he retired from service only in 2002, he submits that Sri Sri Krishna, President had colluded with Sri Vinod Kumar and had prepared  forged documents.  He submits that proper agenda was issued by the outgoing Manager Sri Kanhaiya Lal and in pursuance of the same, meeting dated 18.7.2004 was held in accordance with the Bye-laws. It is then contended by the Counsel for  respondent no.5 that Regional Director of Education has recorded a categorical finding in the order that Sri Ram Ashrey Kannajuia, respondent. 5 was a valid member of General Body, was legally entitled to contest the election has rightly been elected as such and that regional committee had decided/recommended in favour of the petitioner no. 2 without considering the case of respondent no. 5 at all, which is apparent from the resolution dated 6.8.2004 passed by regional committee (Annexure C.A.2 to counter affidavit filed by respondent no. 5). It is submitted that perusal of the aforesaid resolution shows as if there was no dispute regarding rival committees although the District Inspector of Schools had clearly referred the matter of both the rival committees and that the said resolution dated 6.8.2004 was passed by the regional committee without giving any opportunity of hearing to the respondent no. 5, as such, the resolution and the recommendation made by regional committee in favour of petitioner no. 2 was wholly illegal and has rightly been set aside by Regional director of Education.

FACTS OF CONNECTED WRIT PETITION NO. 42697 OF 2004

This writ petition is a sequel to the controversy in Civil Misc. Writ Petition No. 37338 of 2004 which has been given in detail in preceding paragraphs of this judgment.

The petitioners in this writ petition have challenged the impugned order dated 30.9.2004 (Annexure XI to the writ petition) passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur Mandal, Kanpur- respondent no. 1 by which election of Sri Ram Ashrey Kannaujia as Manager of the institution, in question, has been recognized.

  In this petition, the petitioner claims that the elections held on 11.7.2004 electing Sri Sri Krishna as President and Sri Vinod Kumar as Manager is valid whereas the respondent no. 2 claims that the elections held on 18.7.2004 electing Sri Chakku Lal as President and Sri Ram Ashrey Kannaujia as Manager is valid.  By the impugned order dated 30.9.2004, the Deputy Registrar, Firms, Securities and Chits, Kanpur- respondent no. 1 accorded recognition to the elections held on 18.7.2004 electing Sri Chakku Lal as President and Sri Ram Ashrey Kannaujia as Manager.  

 Aggrieved by the aforesaid order of Deputy Registrar, Firms, Societies and Chits, Kanpur Mandal, Kanpur- respondent no. 1  , the petitioners have come up in this writ petition.  

It would not be feasible to decide the highly disputed facts in writ jurisdiction as each of the Committees of Management are claiming elections held by them to be valid.  There are two parallel committees and their claims have to be decided on basis of records after giving full opportunity of hearing to the parties, which is not feasible in writ jurisdiction. In Committee of Management and another v. Regional Deputy Director of Education, Agra and others- 2004(57) A.L.R.-405, a Full Bench of this Court has held that the dispute under Section 16-A(7) of U.P. Intermediate Education Act, 1921 shall be finally decided by the Regional Deputy Director of Education.

It has been held in paragraph 34 of the judgment as under :-

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

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

(3)   Where  the Regional Deputy Director of Education finds that the election of both the rival committees are invalid, he is not required to decide the question of actual control to recognize one or the other Committee of Management, and instead he shall, where the Scheme of Administration provides for appointment of an Administrator (Prabandh Sanchalak), appoint an Administrator with the direction to hold elections expeditiously in accordance with the Scheme of Administration, and where there is such provision in the Scheme of Administration he shall appoint an Authorized controller who shall expeditiously hold elections to the Committee of Management and shall manage the affairs of the institution until a lawfully elected committee of management is available for taking over the management.".  

In the circumstances and in view of answer no.3 given by the Full Bench, the writ petitions are disposed of with the direction to the respondent no. 1 to decide the controversy afresh by a reasoned and speaking order in accordance with law within a period of six weeks from the date of production of a certified copy of this order by any of the parties.  It shall be open for the Joint Director of Education, Kanpur Region, Kanpur to decide all the questions which have been raised in these writ petitions by the petitioners.  No order as to costs.

Dated 29.9.2004

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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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