C/M Dr Lohiya Inter College Sagarpur and Another Vs State of U.P. and 2 Others

Court No. - 39

Case :- WRIT - C No. - 4598 of 2020

Petitioner :- C/M Dr Lohiya Inter College Sagarpur And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Shukla Counsel for Respondent :- C.S.C.,Lal Mani

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Hon'ble Ashwani Kumar Mishra,J.

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Heard learned counsel for the petitioner and Sri Ramesh Rai, who represents some of the life members of the society, which manages the educational institution.

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Dr. Lohiya Inter College Sagarpur Banwai, District Sant Ravidas Nagar Bhadohi is a recognized Intermediate institution, which is being managed by its scheme of administration. It is alleged that elections were conducted in the year 2009 and again in 2014, but on account of rival claim raised by the parties the matter was brought before this Court in Writ Petition No.54487 of 2014. The petition was disposed of vide following orders passed on 15.10.2014:-

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" 1. Last admitted elections of the institution had been held on 3rd November, 2009. The outgoing committee of management initiated steps for fresh election and an observer was sought. The District Inspector of Schools, however, proceeded to pass an order holding that so long as the issue of membership is not decided in the pending suit, the observer cannot be sent and the request to send observer was refused, and an order of single operation was also passed. The aforesaid orders were challenged by the petitioner by filing Writ Petition No. 2174 of 2013, which has been allowed on 16th January, 2013 and both the orders were quashed by making following observations:-

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"The order refusing to appointment observer records only one reason i.e. a suit has been filed and similarly single operation of accounts has been directing after recording the pendency of the suit and that the term of the Committee of Management has expired. The order does not refer to any provision of scheme of administration, wherein it can be said that the Committee of Management had become time barred and its office bearers cannot continue, even otherwise, the order has been passed in violation of principles of natural justice.

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In these circumstances, both the orders impugned cannot be legally sustained and are hereby quashed.

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Let the District Inspector of Schools pass a fresh order both on the request made by the petitioner for an observer being sent as well as in the matter of committee of Management having become time barred, preferably within four weeks from the date a certified copy of this order is filed before him. He shall pass a reasoned speaking order after affording opportunity of hearing to the parties concerned.

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The present writ petition is allowed subject to the observations made above."

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2. It appears that thereafter the petitioner committee proceeded to initiate elections but on one pretext or the other, the observer was not made available by the District Inspector of Schools. Thereafter Contempt Application (Civil) No. 2498 of 2014 was filed, which was also disposed of. According to petitioner, the process of election was again initiated

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and a request was made to District Inspector of Schools to appoint an observer. In response to the request made by the petitioner, the District Inspector of Schools proceeded to appoint an observer vide order dated 12.9.2014. The observer also issued a letter on 22.9.2014 to the Principal requiring him to make necessary arrangements for holding of election on 23.9.2014 of the institution. It appears that thereafter an objection was filed by the Principal objecting to the holding of the elections on the ground that the membership issue itself has not been adjudicated and is pending adjudication in civil suit and, therefore, observer be not allowed to supervise the elections. On the basis of such complaint, the District Inspector of Schools has proceeded to pass the impugned order, whereby the order appointing the observer has been recalled, without any notice or opportunity to the petitioner and a direction has been issued that after determination by Assistant Registrar of list of valid members, the proceedings for elections be initiated.

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3. Learned counsel for the petitioner states that holding of the election is being repeatedly deferred due to intervention of the Principal and despite the fact that previous attempts to install the holding of the elections have not found favour with this Court, yet the elections are not being held. Reliance has been placed upon the order of this Court dated 16th January, 2013. It is contended that once the election has been notified, and was being held in accordance with the scheme of administration, with due intimation to authorities, it was not open for the District Inspector of Schools to pass the impugned order withdrawing the appointment of observer. The observation in the impugned order that the list of members be got verified and certified from the Assistant Registrar before holding the election, has also been challenged on the ground that it is only the list of office bearers, which is registered by the Assistant Registrar and there is no provision in the Act, which permits the Assistant Registrar to register the list of general body itself. Learned counsel for the petitioner further contends that since the election process had already commenced in accordance with law and the withdrawal of observer was at the very last juncture, without any notice or opportunity to the petitioner, therefore, the elections were held on 23rd September, 2014, as scheduled, and papers for attestation of signature have been forwarded on 26th September, 2014 to the District Inspector of Schools.

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4. An impleadment application has been filed on behalf of one Sewa Lal, who claims that he has been elected as Manager on 23rd September, 2014. An order dated 8.10.2014 of D.I.O.S. has been annexed to show that claim of election of petitioner and of applicant have been forwarded to the Regional Level Committee.

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5. A caveat application has been filed by Hari Shankar Bind, claiming to be Deputy Manager, who has also been heard.

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6. From the perusal of the records of the writ petition, this Court finds substance in the argument advanced by learned counsel for the petitioner that though the Principal has no concern with the election of the institution but the elections are unnecessarily getting adjourned at his instance. The order impugned clearly mentions that it has been passed on account of objection filed by the Principal. This Court is at a loss to understand the locus of the Principal to interfere in the election of the committee of management of the institution. It is further apparent from the order impugned that the decision to recall the observer has been taken just a day prior to the date fixed for holding of election without issuing any notice or affording opportunity of hearing to the petitioner, which cannot be sustained.

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7. Learned Standing Counsel as well as the counsel appearing for the caveator and intervener, who appear for the respondents, do not dispute the proposition that the order has been passed without any notice or opportunity to the petitioner, and that the Principal of the institution has no locus in the matter.

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8. Since the elections are being continuously deferred since the year 2012, it would not be appropriate for this Court to further delay the process by inviting a counter affidavit from the Principal, who has been arrayed as respondent no.4, particularly in view of the fact that the Principal has no locus in the matter, and learned Standing Counsel representing State respondents does not propose to file a counter affidavit.

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9. In view of the discussions made above, writ petition succeeds and is allowed and the order impugned dated 22nd September, 2014 is quashed. In view of the fact that District Inspector of Schools i.e. respondent no.3 has already transmitted the papers relating to the election of petitioner committee of management held on 23rd September, 2014 to the

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Regional Level Committee, it would be appropriate to direct it to examine the question of validity of petitioner's election in accordance with law, after affording opportunity of hearing to the parties concerned. The required exercise would be undertaken, within a period of six weeks, from the date of presentation of the certified copy of this order. So far as the claim of applicant Sewa Lal is concerned, the Regional Level Committee while considering the claim of the petitioner may also examine the claim of applicant Sewa Lal.

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10. No order is passed as to costs. "

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It appears that claim of election was thereafter set up by the petitioner and the matter was referred to the Regional Level Committee. The Regional Level Committee vide its order dated 2nd March, 2015 noticed that parent body which manages the educational institution is the society and a dispute of membership in respect thereof is pending in Original Suit No.90 of 2012. It, therefore, proceeded to observe that after the suit is decided the elections would be got conducted and till then the payment of salary to employees would be ensured by way of an order of single operation. This order of the Regional Level Committee although was assailed but no interference has been made. It is thereafter that the present petitioner filed Writ Petition No.38620 of 2019 stating that petitioners be permitted to conduct the election as the Original Suit No.90 of 2012 has finally been decided. The writ petition has been disposed vide following orders passed on 26.11.2019:-

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" Heard Sri Santosh Kumar Shukla, learned counsel for the petitioners and learned standing counsel appearing for the State-respondents.

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By this petition, the petitioners have prayed for issuance of a direction in the nature of mandamus commanding the D.I.O.S., Bhadohi to appoint an observer for holding election of the committee of management of the petitioner-institution in terms of the order dated 2.3.2015 of the Regional Level Committee, within a stipulated period of time.

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Submission of the counsel for petitioner is that election of the committee of management dated 23.9.2014 was challenged before the Regional Level Committee, who vide order dated 2.3.2015 directed the institution not to hold any election so long the Original Suit No. 90 of 2012 filed by the members, is pending and further that till reconstitution of the new committee of management, the teaching and non teaching staff will be entitled for their salary by single operation as per section 5(2) of the Payment of Salaries Act, 1971.

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Contention of the counsel for petitioners is that the two members who filed the suit are now dead and hence the suit has been abated vide order dated 17.8.2017, and therefore as per direction of the Regional Level Committee, now the election process can be started. It is further contended that in this regard, the petitioner has already made an application before the DIOS on 5.10.2019,appended as annexure-20 to the writ petition for appointment of observer for the purpose of election but no order has been passed on the said application till date.

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In the facts and circumstances, in the opinion of this Court, no useful purpose would be served by calling the counter affidavit and keep the petition pending.

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Therefore, this petition is being finally disposed of by issuing a direction upon the respondent no. 3-DIOS, Bhadohi to decide the petitioners' representation dated 5.10.2019 in accordance with law expeditiously within a period of six weeks from the date of production of a certified copy of this order alongwith fresh copy of the said representation. No order as to costs. "

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It is pursuant to the above order that the District Inspector of Schools has passed the order impugned observing that after disposal of the previous suit, another Suit No.370 of 2017 has been instituted, which is pending, and therefore there would be no justification to nominate an observer for holding of the election.

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As per the scheme of administration the term of office bearers is five years. From the materials placed on record, it is apparent that the term of last elected committee has expired. The payment of salary in the institution is being made under an order of single operation. No valid committee appears to be in existence for the last several years only because of pendency of dispute regarding membership of society before the civil court. After the earlier suit has been dismissed on the ground of death of members, who have instituted it, a fresh suit has again been filed. Mere fact that a suit is pending without any injunction granted therein, the holding of elections of the educational institution cannot be deferred. In the facts of the present case, since none of the parties appear to be in control over the institution, it would be appropriate to call upon the Joint Director of Education to exercise his powers by virtue of Clause 25 of the scheme of administration and to ensure that fresh elections be got conducted under the supervision of an authorized controller to be appointed by him. The Authorized Controller shall get the membership of the general body of institution determined as per the scheme of administration and thereafter election would be got conducted within a period of four month. It would be open for the authority concerned to call for necessary records of society from the office of Assistant Registrar.

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Writ petition stands disposed of in terms of the directions, aforesaid.

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Order Date :- 7.2.2020 Anil

C/M Dr Lohiya Inter College Sagarpur and Another v. State of U.P. and 2 Others

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C/M Dr Lohiya Inter College Sagarpur and Another v. State of U.P. and 2 Others

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