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C/M SHRI GIRJA SHANKAR TIWARI INTERMEDIATE COLLEGE & ANOTHER versus THE STATE OF U.P. THRU' SECRETARY MADHYAMIK SHIKSHA & OTHERS

High Court of Judicature at Allahabad

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C/M Shri Girja Shankar Tiwari Intermediate College & Another v. The State Of U.P. Thru' Secretary Madhyamik Shiksha & Others - WRIT - C No. 3411 of 2006 [2006] RD-AH 1812 (24 January 2006)

 

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

Court No.26

Civil Misc. Writ Petition No. 3411 of 2006

The Committee of Management  & another

versus

The State of U.P. and others

HON. SHISHIR KUMAR, J.

This writ petition has been field for quashing the order dated 29.12.2005, Annexure-8 to the writ petition passed by respondent no.2 and further prayer is for issuing a writ in the nature of mandamus directing the educational authorities to hold the election of the Committee of Management under the supervision of the authorized controller as held by this Hon'ble Court in Full Bench decision reported in 2005 (1) U.P.L.B.E.C. 85, Committee of Management, Pt. Jawahar Lal Nehru Inter College, Bansgaon, district Gorakhpur and another Vs Deputy Director of Education,  amongst the undisputed members who participated in the election on 23.1.2000.

The brief facts arising out of the present writ petition are that there is an institution established by late Sri Girja Shanker Tiwari in the name of Uchchtar Madhyamik Vidyalaya, Nibhapur, Jaunpur. The aforesaid institution is established under the U.P. Education Act having its approved scheme of administration under the U.P. Intermediate Education Act and it has a registered society known as Sri Girja Shanker Intermediate College, Nibhapur, Jaunpur under the Societies Registration Act. The undisputed election of Committee of Management was held on 23.1.2000 in which one Sri Shitla Prasad Dubey was elected as President and Gauri Shanker Tiwari was elected as Manager. That in the General Body, there are different variety of members and it consists of total members of 218. The Manager of the institution Gauri Shanker Tiwari expired on 25.7.2002, therefore, the Deputy Manager namely Sri Hari Shanker Tiwari was allowed to continue as Manager of the Committee of Management and his signature was approved by the District Inspector of Schools on 25.9.2002. The signature of the Manager of Committee of Management was attested for only up to 22.1.2003 as the term of the Committee of Management was for 3 years, which was going to expire. On 5.1.2003 election was held in which Sri Hari Shanker Tiwari was elected as Manager and Kapil Dev Pandey was elected as President whereas the rival group was established by Sri Prakash claiming himself to be the Manager and Shitla Praad Dubey as President who claimed that the election of the Committee of Management was held on 22.1.2003. The relevant record was placed before the Joint Director of Education because of the rival group and Joint Director of Education vide its order dated 31.12.2003 has held that the election which claimed to be held by Sri Prakash is absolutely illegal as he is not even the member of the General  Body and his membership is also doubtful and it has also been held that as the election has been held belated as such the election held by Sri Hari Shanker Tiwari is also not in accordance with the scheme of administration, therefore, the same was also not approved.

It has further been stated that the Joint Director of Education has also held that the Committee of Management headed by Sri Hari Shanker Tiwari which is continuing earlier, may hold the election with due supervision and direction of the District Inspector of Schools after finalizing the electoral list. Inspite of the aforesaid order no election of the Committee of Management was held by Sri Hari Shanker Tiwari inspite of the repeated reminders. The District Inspector of Schools on 21.6.2005 has directed that due publication be made and after making publication, the list of the valid members may also be submitted to his office and advertisement was made on 28.6.2005 in which the election schedule was published. In pursuance of the aforesaid letter, list of 218 members was submitted in the office of the District Inspector of Schools and election was scheduled to be held on 17.7.2005 in the college campus. Out of 218 members 180 members have participated in the election proceedings and Smt. Dilraji Devi who was the wife of founder manager namely Sri Girja Shanker Tiwari was unanimously elected as Manager and Makhan Lal Ojha was elected as President. The election was held in the campus of the college and the Principal and all teaching and non-teaching staff has certified the same. When Sri Hari Shanker Tiwari could not succeed in his game, he established a parallel Committee and in the mean time Hari Shanker Tiwari has submitted the election proceedings said to be held on 17.7.2005 and one Sri Prakash has also alleged to have conducted the election said to be held on 10.7.2005.

All the claimants filed their papers before the Joint Director of Education who issued notice to the parties and the parties have submitted their reply. The case was posted for 12.12.2005 and no document subsequent to that has been submitted by the opposite parties and after 12.12.2005 no date was fixed and on 29.12.2005 the impugned order has been passed by the Joint Director of Education Sri S.K. Pathak who was going to retire on 30.12.2005 and has passed an order to this effect directing the District Inspector of Schools to attest the signature of Sri Prakash , respondent no.4. It has been submitted that the petitioners no.1 and 2 are the life members of the General Body of the College.

A submission has been made on behalf of the petitioner that the election of Sri Prakash Tiwari which has been recognized by the respondents, the said order has been passed without taking into consideration the fact that in the earlier election an order was passed by the competent authority dated 31.12.2003. The membership of Sri Prakash Tiwari itself was in doubt. From the perusal of the order it was clear that regarding the membership of Sri Prakash Tiwari respondent no.4 there is a doubt whether he is a member of the society or not. When respondent no. 4 was not even the member of the society which is clear from the order dated 31.12.2003, then how the respondents can recognize the election alleged to be held by respondent no.4. The respondents have not taken into consideration the aforesaid fact and the order has been passed on extraneous consideration which is clearly apparent as the Joint Director of Education was going to retire  only  one day after when he has passed the order.

Further submission made on behalf of the petitioner is that as the matter is still pending before the Assistant Registrar, Firms, societies and Chits, Varanasi, regarding the valid membership of the society, therefore, any information sought from the Registrar, Firms and Society and the order passed by respondent no.2 basing the order on the basis of the information is wholly illegal and without jurisdiction. The petitioner submits that respondent no.4 was never Manager of the institution. Regarding the registration the finding appears to be perverse that if the registration was valid from 20.11.2005 to further 5 years and no certificate was produced by respondent no.4 and only on the basis of a Notary affidavit dated 5.5.2004, the Registrar has believed the said affidavit and has recognized the election held by respondent no.4 though Smt. Dilraji Devi has submitted a registration certificate of 2005-06 and has submitted a list of 218 members in the election, which is alleged to be held on 17.7.2005. It has further been submitted on behalf of the petitioners that the basis of the recognition of the election of respondent no.4 is of an affidavit filed by one Ajit Kumar Pandey who is alleged to have conducted the election. It has not been mentioned in the said order that who has authorized Sri Ajit Kumar Pandey to hold the election. In such a way the petitoner submits that as the order impugned dated 29.12.2005 has been passed without affording an opportunity to the petitioner as well as the election of that person has been recognized who is not even the member of the General Body and the order dated 31.12.2003 has become final and no body has challenged, as such the order passed by respondent no.2 is liable to be quashed.

On the other hand Sri Ashok Khare Senior Advocate, who appears for the respondent no.4 has submitted that the order has been passed after affording an opportunity to the parties and after perusal of the record and the Committee of Management headed by respondent no.4 has been recognized as it has been found that the election held by respondent no.4 is valid. As regarding the finding recorded in the order dated 31.12.2003 Sri Khare has submitted that there is no clear finding to this effect that respondent no.4 is not member of the society. Some doubt has been created but it cannot be said that respondent no.4 is not the member of the Society. Further submission made on behalf of the respondent no.4 is that a report was called from the Assistant Registrar, Firms and on the basis of the perusal of the aforesaid record, respondent no.2 has found that the election of respondent no.4 is valid held by valid members and as such he has recognized the Committee of Management of which the respondent no.4 has been elected as the Manager.

On the other hand, regarding the election held by one Sri Hari Shanker Tiwari, the papers were also submitted before the competent authority and as his claim has also not been accepted, he has also challenged the present impugned order by means of Writ Petition no.3608 of 2006. Sri P.S. Baghel who has appeared on behalf the petitioner has submitted that there is no dispute to this effect that the petitioner's Committee of Management was in the effective control in the election held in 2000 and in 2003 the election conducted by the petitioner was not recognized by the order passed by respondent no.2 dated 31.12.2003 and he has been directed to hold the election which is apparent from the said order after getting an approval from the District Inspector of Schools. It has been also submitted that on the basis of the directions issued by the District Inspector of Schools, the election was held and no other election can be recognized because the petitioner in Writ Petition No.3608 of 2006 was the only Committee of Management who was in effective control and was authorized to hold the election- vide its order dated 31.12.2003, but the respondent no.2 without considering all these aspects of the matter has recognized the election held by respondent no.4. It has also been submitted that as in the order dated 31.12.2003 a finding to this effect has been recorded that respondent no.4 is not the member of the society and that order has become final, therefore, he cannot hold the election and his election cannot be recognized. On behalf of the petitioner it has also been submitted that the order has been passed by the respondent no.2 on extraneous consideration without considering the case of the petitioner and no proper opportunity has been given, as such the same is liable to be quashed.

I have heard the learned counsel Sri R.K. Ojha and Sri P.S. Baghel who appears for the petitioners in both the writ petitions and Sri Ashok Khare, Senior Advocate who appears for respondent no.4 and have perused the record.  With the consent of the counsel for the parties, the writ petition is being disposed of finally.

From the record it is clear that it is not in dispute that by order dated 31.12.2003 the membership of Sri Prakash Tiwari respondent no.4 has been doubted. A finding to this effect has been recorded that respondent no.4 has failed to prove that when he has become member and whether the proper procedure as provided for becoming a member of the society has been followed and on what date, the money was deposited and whether there is any entry in the record regarding the genuineness of the membership of respondent no.4. Respondent no.2 has not recorded a finding to this effect regarding the order-dated 31.12.2003, which admittedly has become final and nobody has challenged the said order. As regards the contention of the petitoner in Writ Petition No.3608 of 2006 that in view of the order dated 31.12.2003 it is only the petitioner's Committee of Management who was in effective control in holding the election and the permission has been granted to him only. From the record it clearly appears that the petitioner has not initiated any action or taken any step to hold the election with the permission of the District Inspector of Schools. It was only when the District Inspector of Schools has issued a letter to hold the election in compliance with the order dated 31.12.2003 then the petitioner in Writ petition no.3608 of 2006 had taken steps for holding the election. Admittedly the term of the Committee of Management according to the scheme of administration is three years which expired in 2003, therefore, whether the petitioners in both the writ petitions were having any authority to hold the election because admittedly in view or the well settled principle of law if the term of the Committee of Management has expired, then only the authorized controller can hold the election. Even the Committee which was in effective control has got no right to hold the election. In view of the Full Bench decision of this Court reported in 2005 (1) UPLBEC 85 Committee of Management Pt. Jawahar La Nehru Inter College, Bansgaon ,District Gorakhpur Vs. Deputy Director of Education connected with Writ petition No.27735 of 1995, the Full Bench of this Court has clearly held that while deciding the dispute between the two Committee of Managements if it is held that the election of both the rival committees are invalid, the competent authority is not required to decide the question of actual control and whether the term of the Committee of Management has expired and the scheme of administration provides for appointment of administrator, the Deputy Director or Joint Director, as the case may be, appoint an administrator with a direction to hold the election in accordance with the scheme of administration and whether there is no such provision he, may appoint an authorized controller who shall expeditiously hold the election and manage the affairs of the institution till a lawfully elected Committee of Management is available for taking over the management.

I have considered the submissions made on behalf of the parties and in view of the Full Bench decision of this Court admittedly the undisputed election was held in 2000 and the election held in 2003 was not recognized, therefore, according to the well settled principle of law only the authorized controller is empowered to hold the election. In view of the aforesaid fact the order passed by respondent no.2 dated 29.12.2005 cannot be sustained in the eye of law and is hereby quashed.

In the result the writ petition is allowed. As the order dated 29.12.2005 has been quashed, respondent no.2 is directed to appoint the authorized controller and to hold the election as soon as possible after verifying the  list of the members of the Society. The aforesaid exercise shall be done by respondent no.2 within a period of six weeks from the date of production of certified copy of this order before him. No orders as to costs.

24.1.2006

V.Sri/-


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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