JUDGMENT
V.K. Shukla, J.
1. At Katghar in District Moradabad, there is a Society registered under Societies Registration Act, 1860 which runs and manages an Educational Institution in the name and style of Phoolwati Devi Kanya Inter College. Said institution is governed as per the provisions as contained under U.P. Intermediate Education Act, 1921. Affairs of the aforementioned institution is to be run and managed strictly as per provisions as contained under the Scheme of Administration framed in exercise of power vested under Section 16-A of U.P. Intermediate Education Act, 1921. Provision of U.P. High School and Intermediate Colleges (Payment of Salary to Teachers and Other Employees) Act, 1971 are also applicable to the aforementioned institution. On 13.12.1983 amendment was proposed in the Scheme of Administration after introduction of Section 16-CCC of U.P. Intermediate Education Act, 1921. Said amendment was subject matter of challenge before this Court wherein said proposed amendment was stayed by this Court. Last undisputed election had been held on 6.6.1999 wherein one Gopal Singh Yadav had been elected as President and one Sunil Mohan Dubey as Manager alongwith other office bearer and members. Said elections were duly recognised. Civil Misc. Writ Petition No. 29219 of 1999 was filed before this Court questioning the validity of aforementioned election but same was dismissed with observations that against aforementioned recognition representation can be made before Joint Director of Education. Special Appeal preferred against the same also met with the same fate. Thereafter on 1.12.2002 fresh elections are alleged to have been held by out going Managing Committee and papers in respect to the same were got received on 2.12.2002. On same date another set of elections have been claimed to have been held wherein one Virendra Pal Singh was elected as Manager and Shyam Putt Dubey as Manager and papers in respect to this election also were got received in the officer of District Inspector of Schools on 7.1.2003. District Inspector of Schools on 7.1.2003 referred the matter for adjudication under Section 16-A(7) of U.P. Act No. 2 of 1921 and made various remarks in respect of the authority of holding of election and validity of election. District Inspector of Schools on 15.1.2003 passed order of single operation. Said order of single operation was subject matter of challenge in Civil Misc. Writ Petition No. 6019 of 2003. Said writ petition was dismissed on 3.2.2003 and concerned authority was directed to decide the disputed independently of the observations made by District Inspector of Schools. Joint Director of Education on 7.6.2003 declared both the elections to be illegal. Against the order passed by the Joint Director of Education two set of writ petitions were filed before this Court being Writ Petition No. 27554 of 2003 and 27560 of 2003 and this Court on 4.8.2003 allowed the aforementioned writ petitions and asked Regional Committee to decide the dispute. Thereafter on 29.9.2003 Joint Director of Education did not accord approval to the election which have been held and to the contrary passed order directing appointment of Prabandh Sanchalak. Said order dated 29.9.2003 is subject matter of challenge in Writ Petition No. 55052 of 2003 before this Court. This Court on 15.12.2003 passed following order which is being quoted below :
“Learned Standing Counsel has accepted notice on behalf of respondents No. 1, 2 and 3.
Issue notice to respondent No. 4. Each one of the respondents is granted six weeks’ time to file counter affidavit. Two weeks time, thereafter is allowed to file rejoinder affidavit.
List on 12.2.2004.
Till the next date of listing operation of the order dated 29.9.2003 passed by respondent No. 2 (Annexure-8 to the writ petition) shall be kept in abeyance.”
2. In between, it appears that on 11.12.2003, Deepak Dwivedi represented the matter before Joint Director of Education and Joint Director of Education passed order disapproving elections held by Deepak Dwivedi but mentioned that by virtue of being legal heir and dependent of Smt. Phoolwati Devi he be recognised as Manager. Further directives were issued that District Inspector of Schools, Moradabad shall get fresh election held under his supervision and further Deepak Dwivedi would extend all possible cooperation to the District Inspector of Schools in acceptance of documents and further mentioned that order of single operation shall continue. This order is subject matter of challenge in Civil Misc. Writ Petition No. 10753 of 2004. On the presentation of this writ petition, this Court on 18.3.2004, passed following order which is being quoted below :
Learned Standing Counsel has accepted notice on behalf of opposite parties 1 to 3 and 5. Shri V.C. Mishra assisted by Shri Gopal Mishra has entered appearance on behalf of respondent No. 4.
Each one of the respondents is granted a month’s time to file counter affidavit. One week time is, thereafter, allowed for filing rejoinder affidavit. List this petition on 27.4.2004.
Till the next date of listing, election pursuant to the orders dated 21.2.2004 and 28.2.2004, shall go on and the result of the same shall also be declared but the same shall not be implemented except with the leave of this Court.
3. Thereafter order dated 23.7.2004 has been communicated by the District Inspector of Schools addressed to Deepak Dwivedi mentioning therein that pursuant to decision of Mandaliya Samiti dated 19.6.2004 and consequential order dated 23.7.2004, passed by Joint Director of Education election which has held on 21.3.2003, in presence of District Inspector of Schools are found to be valid and said Committee will start functioning, after Civil Misc. Writ Petition No. 10753 of 2004, is decided. Further it has been directed that as per the provision as contained in Scheme of Administration, the Committee elected on 6.6.1999 be permitted to continue to function and further signature of Deepak Dwivedi is being attested by virtue of being dependent of Phoolwati Devi. At this juncture Civil Misc. Writ Petition No. 33601 of 2004 has been filed.
4. With the consent of the parties records of all the three writ petitions are being clubbed and parties to the dispute have agreed that on the basis of pleadings exchanged in Civil Misc. Writ Petition No. 10753 of 2004, matter be finally heard and decided/adjudicated.
5. Counter affidavit has been filed by Smt. Neelima Dwivedi on behalf of respondent No. 4 and it has been asserted therein that as per order dated 28.2.2003, passed by respondent No. 2 directing fresh election to be held, and for getting permission pursuant to that order from District Inspector of Schools, letter dated 8.3.2004 was sent alongwith membership certificate, membership cash book membership fee receipts and other relevant documents. After full satisfaction District Inspector of Schools issued order dated 8.3.2004 for conducting election under the observation of Assistant District Inspector of Schools as per the provisions as contained in Scheme of Administration. It has further been asserted that Agenda Notice was served to the membership certificate holders’ of the institution by advertisement in daily newspaper “Amar Ujala”. Further notices were also sent by U.P.C. post. Assistant District Inspector of Schools on 19.4.2004, wrote a letter to S.S.P. for police force to restrain outsiders and permit only membership certificate holder in the campus. It has been contended that at the time of nomination petitioner submitted 11 incomplete nomination form with the said membership fee slips and said fee slip were shown to be received for the period of 2000-2002 with signatures of Shiv Autar Dwivedi whereas at that point of time Sunil Mohan Dwivedi was the Manager and Shiv Autar Dwivedi was not even member of the Executive Body. It has further been contended that during scrutiny of nomination form out of 24 nomination forms only 12 nomination forms were found to be valid. In respect of forged membership receipts, queries were made by Assistant District Inspector of Schools. Fresh elections have been claimed to have been held on 21.3.2004 in presence of Assistant District Inspector of Schools and thereafter report is alleged to have been submitted on 12.4.2004. Much emphasis has been laid on the fact that claim of petitioner is based on forged and fictitious receipts and Shiv Autar Dwivedi has clearly disowned issuance of any such receipts in favour of petitioner and other persons. It has also been contended that petitioner is colluding with suspended Principal Smt. Indira Singhal. Petitioner has encroached upon the land of the institution which was cleared after interference by Moradabad Development Authority. Fact has also been mentioned in respect of disqualification of Ramesh Chandra Trivedi. It has also been asserted that Ramesh Chandra Trivedi has disowned to participate in any election and of his being elected. Similar fact has been mentioned in respect of one Rakesh Sharma and Smt. Manorma that they have not participated in any election. It has also been contended that Civil Suit No. 298 of 2003 has also been filed by the petitioner wherein he failed to get any interim injunction. It has further been contended that all these facts have been concealed, and further as per the provisions as contained in Scheme of Administration there is no provision for election be held on the post of Manager as same only be legal heir of Smt. Phoolwati Devi. In this background it has been contended that writ petition is liable to be dismissed.
6. Rejoinder affidavit has been filed and it has been contended that receipt which has been issued by Shiv Autar Dwivedi is in the capacity of Secretary of the Society under his own signature and further membership has not been finalised in proper manner. This fact that members who were included in the list filed original suit No. 298 of 2003, in the Court of learned Civil Judge (Senior Division), Moradabad has not been disputed. It has further been contended that exercise done by Deepak Dwivedi is totally in contravention of the Order dated 28.2.2004, passed by Regional Joint Director of Education. It has also been contended that Deepak Dwivedi was only directed to co-operate in the election but no election were to be held under his signature. It has also been contended that District Inspector of Schools and Assistant District Inspector of Schools had been colluding with Deepak Dwivedi and were adamant to place him as Manager of the Committee of the institution, and as such no norms have been followed, while installing Deepak Dwivedi has Manger of the institution. Election undertaken have been termed to be totally without jurisdiction. It has also been contended that Shiv Autar Dwivedi is life long Secretary of the Society and he had issued receipts. It has also been admitted that civil suit in respect of membership is pending. In this background it has been asserted that writ petition is liable to be allowed.
7. After pleading inter se parties have been exchanged, all three writ petitions are being taken up together and are being heard and decided together with the consent of the parties.
Civil Misc. Writ Petition No. 55052 of 2003 :
8. Sri Irshad Ali, Advocate has assailed the validity of the order dated 29.9.2003 passed by Joint Director of education, on the ground that Joint Director of Education has no authority to declare the election to be illegal and dispute in question ought to have been adjudicated within the four corners of the provisions as contained under Section 16-A (7) U.P. Intermediate Education Act, 1921 and as same has not been done, as such order impugned is bad in the eyes of law and liable to be set aside.
9. Sri Gopal Misra Advocate on the other hand contended with vehemence that Joint Director of Education has full authority to go into the validity of election and only when election is found to be valid then only question of effective control is to be seen and in the fact of the present case order in question does not suffer from any infirmity.
10. In the light of the submission, which have been made, impugned order in question has been perused. Joint Director of Education has recorded categorical finding of feet that no documentary evidence had been produced in respect of verification of list of members by B.P. Singh and further objections were raised by him only in respect of list of members produced by Deepak Dwivedi. It has been also categorically observed that it would be appropriate that District Inspector of Schools shall examine the list of members and list which would be finalised shall be subject to the order which would be passed in original suit No. 298 of 2003 (Shyam Dutt Dubey v. Ram Gopal Dubey). Joint Director of Education has got full authority to go into the question of validity of members, inasmuch as, validity of electoral College is the essence the valid election and where electoral college itself if disputed and doubtful then that by no means the said election can be said to be valid. Full Bench of this Court in the case of Committee of Management v. Deputy Director of Education, reported in 2004(4) E&C 2257, has taken the view that in exercise of power under Section 16-A (7) Joint Director of Education has full authority to go into the question of validity of election prima facie and only after election are prima facie found valid then question of effective control is to be seen. Relevant extract of said judgment paragraph 38 is being quoted below :
“38. Accordingly, we answer the questions as follows :
(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 recognise one or the other Committee of Management, arid 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 no such provision in the Scheme of Administration he shall appoint an Authorised 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.”
11. As Joint Director of Education has concluded that none of the parties to the dispute had satisfied qua the list of members on the basis of which elections had been held, and investigation was required at the level of District Inspector of Schools, in this background Joint Director of Education has rightly proceed not to recognize any one of the elections. Next question which is arising is that to the effect as to whether directives could have been issued for appointment of Prabandh Sanchalak as has been done in the present case. Provisions as contained in Scheme of Administration clearly provide that erstwhile Committee of Management except for Ex-officio Members and Manager shall continue to function till successors are elected. Mere holding of election is not sufficient, the validity of said election has also to be seen and decided/adjudicated and once said elections are held to be valid election, the erstwhile Managing Committee would go and newly elected Managing Committee so elected will take over the charge. Thus, there is no provision of appointment of Prabandh Sanchalak in the institution as per the provisions contained in the Scheme of Administration. However Full Bench of this Court as referred to has taken the view that after elections have been found invalid in case it has been provided for in the Scheme of Administration then Prabandh Sanchalak has to be appointed and even in cases it where is not provided for then in the Scheme of Administration, Authorised Controller has to be appointed for holding of the elections.
12. Here in the present case as both the elections had not been accepted in the absence of there being determined electoral College, there is no infirmity whatsoever, in impugned decision, as such present writ petition is dismissed.
Civil Misc. Writ Petition No. 10753 of 2004 :
13. Sri Irshad Ali, Advocate, has assailed the validity of order dated 28.2.2004 principally on the ground that said order is ex parte and further once elections were held to be invalid then by so stretch of imagination it was open to the authority concerned to authorize Deepak Dwivedi to extend cooperation in the capacity of Manager and as such order impugned is illegal and liable to be set aside. Further much stress has been laid on the fact, that Clause 8(3) of the Scheme of Administration, provides monopoly in favour one particular family, as such same is in consistent to the provisions as contained under Section 16-CC of U.P. Act II of 1921 and said provision is to be treated as redundant provision, and as such directive issued by authority concerned is liable to be quashed.
14. Sri Gopal Misra, Advocate, on the other hand contended with vehemence that order dated 28.2.2004, is not pre-judicial to the petitioner on any count whatsoever, inasmuch as, elections have been directed to be held through the agency of District Inspector of Schools which is free, fair and impartial agency and as far as Deepak Dwivedi is concerned he has merely directed to assist by submitting documents and further impugned order itself reflects that signature has not been attested as Manager nor he has been authorised on administrative front or financial front to function as Manager and to the contrary single operation has been implemented. In this background it has been submitted that there is no infirmity in the impugned order. It has also been submitted that provisions contained in Clause 8(3) of the Scheme of Administration, is not at all inconsistent with the provisions of Section 16-CC of U.P. Act No. II of 1921 and legal heir of Smt. Phoolwati are entitled to function as Manager, as per her will, and as such, no interference is warranted by this Court.
15. After respective arguments have been advanced, factual position which is emerging is to the effect that while passing order dated 29.9.2003 authority concerned had categorically mentioned that none of the parties had established factum of validity of electoral College and determination of electoral College was to be made by District Inspector of Schools. By means of order dated 28.2.2004, election wherein Deepak Dwivedi claims himself to have been elected, same has not at all been accepted and said election has been disapproved and directives have been issued for holding of election through agency of District Inspector of Schools, Joint Director of Education while passing order dated 28.2.2004 taking aid of Clauses 8(2) and (3) of Scheme of Administration has asked Deepak Dwivedi to extend documentary support in the capacity of Manager. This part of the order is not at all correct order, inasmuch as, in case assistance was to be rendered then pergrative ought to have been left with the District Inspector of Schools, without naming any particular individual from whom assistance was to be taken. At this juncture, two question, which are relevant are to be looked into. The first question, is as to whether provisions are contained under Clause 8(2)(3) of Scheme of Administration inconsistent to the provisions, as contained under Section 16-CC of U.P. Act No. II of 1921. In order to deal with this problem, provision as contained under Clause 8(2)(3) of Scheme of Administration, Section 16-CC and 16-CCC of U.P. Act No. II of 1921 and the principles, laid down in Third Schedule are being quoted below.
Scheme of Administration, Clauses 8(2) and (3) :-
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“Section 16-CC. The Scheme of Administration in relation to any institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1980 shall not be inconsistent with the principles laid down in the Third Schedule.
Section 16-CCC. (1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 16-A or Section 16-B or Section 16-C, at any time before the commencement of the Intermediate Education (Amendment) Act, 1980, and such Scheme of Administration is inconsistent with the provisions of this Act, the Director shall send within a period of (Three Years) from such commencement, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh Scheme of Administration or to amend or alter the existing Scheme.
(2) While making any suggestion in the Scheme of Administration under Sub-section (1) the Director shall give his reasons therefore and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice.
(3) The Director shall consider any representation made in the accordance with Sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or modification suggested under Sub-section (1) or with any other changes as may appear to him to be just and proper :
Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall given opportunity to the institution to make a representation which such period as may be specified by him.
Third Schedule.–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) Provided for the qualifications and disqualifications of the members and office bearers of the Committee of Management and the term of their offices :
Provide 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 meeting 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 and auditing of accounts.”
16. Scheme of Administration of recognised educational institution provides for constitution of Managing Committee of the institution, which is entrusted with the task of running and managing the affairs of the institution. Section 16-CC of U.P. Act No. II of 1921, provides that Scheme of Administration in relation to an institution whether recognised before or after the commencement of U.P. Intermediate Education (Amendment) Act, 1980 shall not be inconsistent with the principles laid down in the Third Schedule. Third Schedule, deals with the principles on which approval to Scheme of Administration is to be accorded. Section (1) of Section 16-CCC of U.P. Act No. 1921 deals with situation wherein Scheme of Administration appears to be inconsistent with the provisions of the Act. In this situation, Director is enjoined upon to issue notice to Management suggesting alteration or modification, or to submit, fresh Scheme of Administration or to alter or amend the existing Scheme. Sub-section (2) of Section 16-CCC talks of reasons and providing of opportunity to represent against the same. Thereafter Director is to take decision in terms of Sub-section (3) of Section 16-CCC of U.P. Act No. II of 1921. Thus, full-fledged procedure has been provided for, in order to declare, particular provision of Scheme of Administration to be inconsistent with the provisions of this Act. This Court, cannot by-pass the aforementioned procedure and till no orders are passed in exercise of powers, vested under Sub-section (3) of Section 16-CCC, declaring particular provision to be inconsistent the said provisions will have to be treated as part of the Scheme of Administration.
17. Accepting the aforementioned provision, to be part of Scheme of Administration, the observations made by Joint Director of Education is to be seen. Joint Director of Education has mentioned, making reference of the decision of Regional Committee, that Deepak Dwivedi can be accepted as Manager. In the earlier part of the order while taking note of the will, it has been noted that such legal heir will function as Manager, in whose favour rest of the legal heirs have given there written consent. At no point of time any exercise has been undertaken on this front, as to whether there was any written consent in favour of Deepak Dwivedi, by order legal heirs authorizing him to function as Manager. Thus slightest reference qua Deepak Dwivedi as Manager was uncalled for in the facts of case. However, there is no error in directing District Inspector of Schools to get elections held. The present writ petition is disposed of subject to observations made above
Civil Misc. Writ Petition No. 33601 of 2004 :
18. Sri Irshad Ali assailed the validity of the order dated 23.7.2004, on the ground that entire proceedings are ex-parte, further Deepak Dwivedi had no authority to the elections as he was merely asked to assist and further electoral College had been incorrectly determined, and entire election proceedings are collusive proceeding, as such impugned order in question is liable to be quashed. Further by no means Deepak Dwivedi could have been authorised to function as Manager as has been sought to be done by means of impugned order.
19. Sri Gopal Misra, Advocate, countered the said submission, by contending that petitioner had participated in the election, civil suit or membership is still pending, and contesting Respondents being legal heir of Smt. Phoolwati in all eventuality is entitled to function is Manager as such no interference is required by this Court.
20. After respective arguments have been head, factual position which is emerging in the present case is that there is serious dispute, to the fact, as to whether Shyam Dutt Dubey is member of General Body of the Society or not. Shyam Dutt Dubey claims have been enrolled as Member no the strength of receipt issued Shiv Awtar Dwivedi who is no one else than the father of Deepak Dwivedi Shiv Awtar Dwivedi has disowned issuance of such receipt. As far as this Court is concerned, this Court cannot proceed to adjudicate this disputed question of fact, in respect of membership and this question can be effectively dealt with by the authorities concerned or in civil suit.
21. List of members has been finalised by District Inspector of Schools pursuant to order passed by Joint Director of Education. Petitioner submits that said list is incorrect list and member-ship has not at all been adverted to in its correct perspective. Joint Director of Education himself had mentioned that member-ship which would be determined by the District Inspector of Schools same shall be subject to decision of civil suit. However, Regional Committee is also competent to go into the question of validity of members for prima facie satisfaction that persons who have participated, had right to participate. Election held on 21.3.2004 has been alleged to have been held through the agency of District Inspector of Schools which fact has been sought to be disputed by petitioner. Validity of election, can not be examined by this Court, as same will require, various investigation of fact. On one hand it is being contended by the petitioner that electoral College has not rightly been determined whereas respondents submit that petitioner is not even primary member of General Body.
22. As in the present case, entire proceedings are ex-parte to petitioner, and as to whether petitioner is member of general body of the Society or not is yet to be examined, as such liberty is given to the petitioner to make fresh comprehensive representation before the Joint Director of Education within a period of one month, from the date of delivery of judgment, and the Joint Director of Education shall place the aforementioned matter before Regional Committee. Regional Committee shall proceed to determine; (1) As whether Shyam Dutt Dubey is valid member of the General Body the Society or not. (2) As to whether Electoral College which has been determined by the District Inspector of Schools is valid Electoral College or not. (3) As to whether elections which have been held on 31.3.2004, same are in consonance of the provisions as contained in the Scheme of Administration, (4) As to whether, in favour of Deepak Dwivedi, other legal heirs, have given their consent asking him to function as Manager.
23. Apart from this, in present case Joint Director of Education has clearly erred in law while passing order directing that elections dated 21.3.2004 are liable to be approved and further Deepak Dwivedi would function as Manager. Authority concerned has totally erred in law by directing that Deepak Dwivedi would function as Manager while directing Committee of Management elected on 6.6.1999 would function. Once directives were issued that Managing Committee elected on 6.6.1999 would function then Manager who had been functioning pursuant to election dated 6.6.1999 was entitled to function and not Deepak Dwivedi as has been sought to be done in the present case However as appointment of Prabandh Sanchalak, has been upheld, in the earlier part of the judgment as such said part of the order is quashed. As entire proceedings are ex-parte and re-determination on various issues has been desired, as such order dated 19.6.2004 as communicated by letter dated 23.7.2004 is hereby quashed and set aside. Regional Committee is directed to decide the matter afresh after providing opportunity of hearing to the petitioner as well as respondents within four months from the date of presentation of certified copy of this order.
24. Till the dispute is decided afresh, Prabandh Sachalak shall continue to run and manage the affairs of institution.
25. Subject to above observations, Civil Misc. Writ petition No. 55052 of 2003 is dismissed, Civil Misc. Writ Petition No. 10753 of 2004 is disposed of and Civil Misc. Writ Petition No. 33601 of 2004 allowed.