JUDGMENT
Arun Tandon, J.
1. Learned counsel for the petitioner is permitted to implead Sri Parvindar as respondent No. 4 during the course of the day.
2. Heard Sri P.R. Ganguly, learned counsel for the petitioners, Sri Nitin Sharma, learned counsel for the respondent No. 4 and learned standing counsel for the respondent Nos. 1 to 3.
3. It is not necessary to call for counter-affidavit from the respondents, in view of the order proposed to be passed by this Court today in the present writ petition.
4. The Committee of Management of D.A.V. Intermediate College, Tateir Baghpat, which is aided institution recognized under the provisions of Intermediate Education Act through its Manager Sri Mahak Singh has filed this writ petition against the order dated 21st September, 2004, passed by the Joint Director of Education, Pratham Mandal, Meerut, respondent No. 2. The said institution is run and managed in accordance with the scheme of administration, duly approved by the Joint Director of Education. In the elections of the Committee of Management which were held on 29th December, 2002, Sri Mahak Singh was elected as Manager while Shri Parvindar was elected as President.
5. According to the petitioner there are 15 persons, who constitute the Committee of Management out of which 12 are elected from the general body while three are ex officio members (Principal and two nominated seniormost teachers). According to the petitioner a no-confidence motion’ dated 25th January, 2004, is said to have been passed against the petitioners in the meeting of the Executive Committee held on 25th January, 2004. In the said meeting ex officio members namely Principal and two teachers are also said to have cast their votes. Relevant papers for granting approval to the resolution of the Executive Committee whereby no-confidence motion is said to have been passed against the Manager, were transmitted to the District Inspector of Schools. The District Inspector of Schools by means of the letter dated 17.8.2004 required the parties to appear before him for establishing their respective case. The District Inspector of Schools after affording opportunity of hearing to the parties came to the conclusion that it is not clear as to whether any ‘no-confidence motion’ has been passed against the petitioner in the meeting of the Executive Committee held on 25th January, 2004 or not and further held that no-confidence motion’ has not been approved by the general body within ninety days (90 days). Vide order dated 4th September, 2004, the District Inspector of Schools disapproved the alleged ‘no-confidence motion’ and directed the Manager, Sri Mahak Singh to convene a fresh meeting of the Committee of Management to consider ‘no-confidence motion’ within ten days and in case the ‘no-confidence motion’ is passed by the Committee of Management the same be placed before the general body within next ten days.
6. Feeling aggrieved by the aforesaid order of District Inspector of Schools, the petitioner filed representation before the Joint Director of Education. The Joint Director of Education by means of the order dated 16th September, 2004, informed to the District Inspector of Schools that ex-officio members are also entitled to cast their votes in the meeting of the Committee of Management and, therefore, the matter be re-examined accordingly. On the receipt of the aforesaid order of the Joint Director of Education, the District Inspector of Schools issued fresh notices to the parties concerned dated 20th September, 2004. Before the matter could be re-examined as aforesaid the Joint Director of Education has now issued the impugned order dated 21st September, 2004, whereby it has been directed that the issue as to whether the ex-officio members are entitled to cast their votes in the meeting of the C.O.M. or not, has been referred for the opinion of the Director of Education and, therefore, so long as the opinion of the Director of Education is not received, the order dated 16th September, 2004, shall remain stayed. Against the aforesaid order of Joint Director of Education dated 21.9.2004 the present writ petition has been filed.
7. The controversy raised between the parties is now restricted only to the issue as to whether the ex-officio members, namely, the principal and two teachers, of the Committee of Management are entitled to cast their votes in the meeting of the Committee of Management or not? From the facts as pleaded by the parties, it is not in dispute that the validity of the ‘no-confidence motion’ passed against the petitioner would depend upon the issue as to whether the aforesaid ex-officio members are entitled to cast their votes or not. For the purposes of appreciating the said controversy, it would be relevant to refer to the provision of Section 16A(1). The aforesaid provision of Section 16A(1) reads as follows :
“16A. Scheme of administration. -Notwithstanding anything in any law, document, or decree or order of a Court or other instrument there shall be a scheme of administration (hereinafter referred to as the scheme of administration) for every institution, whether recognized before or after the commencement of the Intermediate Education (Amendment) Act, 1958. The scheme of administration shall amongst other matter provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. (The Head of the institution) and two teachers, thereof, who shall be selected by rotation according to seniority in the manner to be prescribed by regulations with a right of vote.”
8. In view of the aforesaid statutory provisions there is no room for doubt that the ex-officio members, namely, Principal and two teachers can also cast their votes in the meeting of the Committee of Management.
9. However, on behalf of the respondents it is contended that the Division Bench judgment of this Court in the case of Ajay Bahadur v. District Inspector of Schools, 1980 UPLBEC 308, has held that ex-officio members have no right to cast their votes in the meeting of the Committee of Management.
10. I have gone through the said judgment of the Division Bench of this Court. It is apparently clear that the Division Bench has not noticed the aforesaid provisions of Section 16A(1) of the Intermediate Education Act and therefore, the said judgment in the opinion of the Court is based on non-consideration of a statutory provision and as such has no binding effect in the facts of the case.
11. The legal position in that regard has been explained by the Hon’ble Supreme Court in the judgment in the case of State of U. P. v. Synthetics and Chemicals Ltd., 1991 (4) SCC 139. In the said judgment the Hon’ble Supreme Court has held as follows:
“Incuria’ literally means ‘carelessness. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.”
12. On the face of the aforesaid statutory provisions the respondent No. 4 pleaded that Section 16A(1) of the Act is liable to be declared ultra vires, because of the fact that it confers a power upon the ex-officio members to remove the elected office bearers. Although such person can be removed by the members of the collegium, who have elected him as such. Since the ex-officio members had not elected the manager, they can not be conferred upon a power to exercise their franchise in respect of ‘no-confidence motion’ brought against the office bearers. Section 16A (1) of the Act as such deserves to be declared ultra vires inasmuch as it infringes upon the very basic democratic system of elections of the office bearers. Petitioner further submits that the stage for deciding the validity of the provisions of Section 16A(1) of the Act has not yet reached inasmuch as till date no order against the respondent No. 4 has been passed after taking into consideration the provisions of Section 16A(1).
13. In view of the aforesaid rival submissions, it is not necessary for this Court at this stage to decide the legality or validity of the provisions of Section 16A(1) of the Act. As and when any order is passed against the respondent No. 4 on the basis of the vote cast by the ex-officio members, it will always be open to the said respondent No. 4 to question the legality or validity of such exercise by the ex officio members including the vires of Section 16A(1) of the Act.
14. Only those persons can remove an elected manager, who have elected him in accordance with the provision of the approved scheme of administration. The ex-officio members cannot be conferred with a power to remove the elected office bearers, subject, however, to the conditions that there may be a provision to the effect in the approved scheme of administration. Since such provision in the scheme of administration does not exist, the provision under the scheme of administration contained in Section 16A(1) of the Act conferring a power upon the ex-officio members to cast their votes, is liable to be declared ultra vires. It is not necessary for this Court at this stage to go into the aforesaid controversy inasmuch as if the issue of Casting of vote by ex-officio members is decided against the respondent No. 4, it is always open for him to canvas the aforesaid issue before appropriate court.
15. In view of the aforesaid the writ petition is allowed and the order of the Joint Director of Education 21st September, 2004, is set aside. It is further provided that the District Inspector of Schools shall complete the proceedings as remanded under the order of Joint Director of Education dated 16.9.2004 within a period of one month from the date a certified copy of this order is produced before him.