Hon''ble Sunil Hali, J.@mdashDwarika Prasad Inter College is a recognized educational Institution aided up to High School level and unaided up to Intermediate level. It has a common Managing Committee for the College and the Society. Ever since its inception, the rival Committees of Management have been engaged in litigation. Every new election to the Management Committee has landed-up in this Court for one reason or the other. General Body of the Managing Committee of the Society constituted its Electoral Colleges. The eligibility of the members of the Electoral College is determined by the Scheme of Administration which is required to be formulated in terms of the Section 16-A of the Intermediate Education Act 1921 (in short ''Act''). Fluctuation in the size of the Electoral College is an inevitable process. It is this process which becomes bone of contention between the rival Managing Committees. Disputes are always raised in respect of the strength of the Electoral Colleges, more particularly on the registration of the new members or eligibility of the members by the rival claimants. There are three types of the members, which constitutes the Electoral College of the society viz; (i) Permanent Members; (ii) Temporary members; (iii) Enrollment of fresh members.
2. Source of dispute in the present writ petitions is also some how similar. Two sets of writ petitions have been filed in which the petitioners claim to be legally constituted Committee of Management of the College and seeking declaration to the extent that election of the respondents no. 5 & 6 to be illegal and in violation of the rules. In both the writ petition constitution of the Committee of Management of the respondent nos. 5 & 6 is subject matter of challenge. Since in both the writ petitions common questions of facts and law are involved hence they are being dealt together and decided by a common judgment. In order to appreciate the controversy involved in both the writ petition, it is necessary to give brief facts for proper adjudication of the case.
Facts in Civil Misc. Writ Petition No. 38672 of 2008
3. The petitioners claim to be a legally constituted Committee elected by an Electoral College consisting of 221 members. Aaditya Naraya Tiwari is the Manager of the Committee of Management of the said College. The contention raised by the petitioners in the instant writ petition is that the election process by which Committee of Management was constituted by respondent nos 5 & 6 was an act of fraud committed by them. It is alleged that there was no intimation sent to the members of the society by registered post which fact stands affirmed by this Court vide its order dated 27.9.2007 passed in Civil Misc. Writ Petition No. 47314 of 2007. Having held the process of election actuated by fraud and malafide renders the Committee of Management void-ab-initio.
4. Further, the order of Regional Committee in affirming the election of respondent No. 5 ignoring the direction of the Court which has held that the process of election was tainted with fraud as such the impugned order is required to be quashed.
5. Further the decision was vitiated on account of one of its member respondent no. 4 having not participated in the hearing but had only signed the decision.
Facts in Civil Misc Writ Petition No. 38675 of 2008
6. In this writ petition, the petitioners claim to be legally constituted Committee of Management based upon the Electoral College of 60 members which is said to have been approved by the authority. Reliance has been placed on the election conducted by Ram Lakhan Shukla in the year 1998. Issue with respect to the authenticity of the Electoral College constituted by 60 members continued to remain in force as no direction has been passed while disposing of the Civil Misc Writ Petition No. 39207 of 2003.What is contended is that the impugned order in the said writ petition has not been set aside. Following issues have been raised in the writ petition:
(i) That the authenticity of the Electoral College consisting of 60 members having remained intact the election of Committee of Management based upon the said college was authorized and any election held on the basis of any other Electoral College is vitiated.
(ii) Assuming that the direction of the Division Bench passed in review relating to review/up-dating of the Electoral College was in existence but no such review in terms of the direction has been undertaken. The election of respondent no. 5 cannot be sustained.
(iii) After publication of the election schedule by the respondent nos. 5 & 6, respondent no. 5 did not participate in the said election process which was required to be conducted in presence of nominee of District Inspector of Schools Sri Vijay Kumar Singh. Once the election was conducted in pursuance to the aforesaid election schedule consisting of the Electoral College of 60 members afresh there was no occasion to hold another election conducted by respondent no. 6 on the basis of Electoral College consisting of 121 members.
(iv) The finding recorded by the Regional Committee that in the election of respondent nos. 5 & 6, 78 members had participated is not borne by any record. In absence of that election could not have been validated by the Committee.
7. On the other hand the stand of the respondents in both the writ petitions is as follows:
(i) That there was no finding recorded by this Court in respect of any fraud having been committed by the respondents no. 5 & 6 in the election process. That the order of the Court only connotes that the matter be remitted back to the Regional Committee for fresh hearing.
(ii) That the power to conduct the election was with erstwhile Managing Committee as provided by the Scheme of Administration. It is the President and the Manager who hold the proceedings for conducting the election in which neither DIOS nor any election officer has a right nor any power to finalize the Electoral College. The power to finalize the Electoral College rest with the erstwhile committee.
(iii) That initial Electoral College consisting of 60 members was enhanced to 121 in the year 1994 in accordance with the Scheme of Administration and provision of the bylaws. A dispute was raised by the petitioners in this behalf and same has been settled by the Deputy Director of Education vide its order dated 15.7.1997 in the proceedings held by him u/s 16-A(7) of the Act. A list of 121 members also stands approved by the Assistant Registrar, Firms and Society Chits, Varanasi Region, Varanasi. The said orders were questioned in Civil Misc Writ Petition Nos. 24998 of 1997 and 4267 of 1998. Both the writ petitions were heard together and by a common order dated 1.9.1998 approved the order of the Assistant Registrar. Fresh elections were held on 13.11.2002 on the basis of the Electoral College of 121 members which stands attested by the DIOS, Jaunpur. This election was also questioned in Civil Misc Writ Petition No. 39207 of 2003, 44460 of 1998 along with Civil Misc Writ Petition No. 43326 of 1998.The order dated 1.7.2003, 23.7.2003 and 24.7.2003 were quashed on 20.5.2005. After having confirmed the strength of the Electoral College to be 121 a fresh election for 2005 was conducted on the basis of the said Electoral College. What has been contended is that the authenticity of the Electoral College stands affirmed by this Court as such any election sought to have been conducted on the strength of any other Electoral College cannot be entertained.
(iv) That even if it is assumed that no registered notices were issued to the members about the schedule of the election it was published in the news papers and all those members who have participated in the said elections were aware of the date and schedule of election. Election process cannot be vitiated merely on the ground that in absence of registered notice not been served when the members had intimation about the schedule of election which was published in the news paper which aspect has not been denied by the other side.
8. After noticing the contention of the either side following issues are required to be determined in these writ petitions which are as under:
(i) Whether the direction issued by this Court in the year 2007 tantamounts to declaring the election process conducted by the respondent nos. 5 & 6 as void on the premise that the finding of fraud has been recorded by the Court?
(ii) Whether the elections process could be initiated by any person or the DIOS while the legally constituted Committee of Management was in saddle?
(iii) Whether in the face of the judgments passed by this Court affirming the Electoral College of the Committee as 121, can legality be attached to any election process conducted by the rival committees of Management on the basis of the Electoral College consisting of members whose authenticity and eligibility has not been certified by the outgoing Managing Committee or an authority under the Act?
(iv) Whether the impugned order in this writ petition has not addressed the controversy raised by the parties before it?
9. In order to appreciate the controversy raised in the issue no. 1, it is important to indicate the direction dated 27.9.207 passed by this Court in Writ Petition No. 47314 of 2007.
From the record, it is apparent that the Regional Committee has accepted the claim of respondent nos. 5 & 6 on the basis of election notice dated 15.10.2005. It is also apparent that the petitioner, assuming that the election of the respondent nos. 5 & 6 was based on the registry dated 5.10.2005, had obtained information under the right to Information Act submitted by the postal authorities vide their letters dated 14.12.200 and 25.1.2007 that no registry was booked at the Tilora post office on 5.10.2005 and the stamp and signatures of the official are also forged. As observed hereinabove, the Regional Committee found that the election notice was registered on 15.10.2005 and has rendered the impugned order on that basis. After rendering of the order, Ram Lakhan Shukla the third contender wrote a letter to the Postal Authorities and sought information with regard to the registry of 15.10.2005. The superintendent of Post Office through his letter dated 2.7.2007 informed him that no registry was booked at Tilora Post Office on 15.10.2005 and the stamp and signature to that effect were forged in the registry. This information was passed on to the District Inspector of Schools who himself sought verification from the postal authorities of the aforesaid information. The postal authorities vide their letter dated 16.7.2007 informed the District Inspector of Schools that the information given above was correct. The District Inspector of Schools, thereafter, informed the Joind Director, Varanasi through his letter dated 22.8.2007 that the very basis of the election of respondent no. 5 was based on misrepresentation.
Lastly, it is urged that the entire hearing of the matter before the Regional Committee concluded on 31.1.2007 when once of the three members was Sri Kanojia, who was the District Inspector of School. The said Sri Kanojia was transferred on 19.2.2007 and in his place Sri Awadh Kishor was appointed and remained on that post till 4.8.2007. Though Sri Awadh Kishor did not hear the matter at all but has appended his signatures on the impugned decision dated 2.6.2007 and, therefore, also the order is vitiated. If this position is correct that one of the members, who had not heard the matter, had signed the impugned order, the order becomes vitiated. Since no counter affidavit is sought to be filed on behalf of the respondents, this statement of fact is deemed to be correct.
In view of the aforesaid, this petition succeeds and is allowed and the impugned order dated 2.6.2007 and the consequential attestation of signatures dated 21/7/2007 is also quashed. The matter is remanded to the Regional Committee, who will re-hear the matter and take a decision afresh keeping in mind the aforesaid observation and findings after hearing the parties.
10. While examining the import of the judgment it no where gets reflected that a direction has been issued declaring that the election process undertaken by the respondents No. 5 & 6 was actuated by fraud. Direction was issued to the Committee to rehear the matter for examining the issue as to whether the election could be conducted without serving members through registered posts informing them about the schedule of election. It is in the light of this that the Regional Committee was directed to examine the matter as fresh and to find out (a) as to whether the election process could be conducted without informing the members through registered post as provided under the Scheme of Administration; (b) and whether failure to do the same would render the election process as a whole being vitiated by fraud on account of wrong statement given by the respondents no. 5 & 6; that they had served the members through registered posts.
11. While examining the arguments of the learned counsel for the petitioners in this behalf it no where appears that any such direction has been issued declaring the election to be vitiated by fraud. Import of the direction issued by the learned Single Judge herein above was to remit the case back to the authority and address the controversy in respect of determining the legality of election process of all the rival committees and also to determine the effect of not serving notice to members through registered post. Question would arise as to whether the members had intimation regarding the election schedule or not. Object of sending intimation is to only inform the members for which one of the mode provided under the Scheme is registered post. This is not the only mode by which intimation can be given to the members. It is admitted fact that the election schedule was communicated to the members through publication in the news paper. In pursuance to this out of 121 members 78 members participated in the election process for casting their votes in selecting the Committee of Management for respondents no. 5 & 6. There is no dispute raised by any of the members who did not participated in the said election process that they had no intimation about the election schedule. As a matter of fact they are the aggrieved persons to approach the authorities in this behalf. None of the said aggrieved person have questioned this before any forum. Presumption which can safely be derived is that they too have sufficient knowledge of the election schedule published in the news paper.
12. It is not in dispute that other mode could also be adopted by the Committee in informing the members of the electoral college for seeking their participation in the election process. Even if it is assumed that no such registered notice was issued same would not vitiate the election process. This Court has rightly vide its order dated 27.9.2007 left it open to the Regional Committee to determine the legality of the election process held by respondents no. 5 & 6. Even if statement given by the respondent nos. 5 & 6 that the registered post were sent, which on fact was found not to be correct, would it vitiate the election process. Answer would be no as the object and purpose of sending the information by registered post is to inform the members about the election schedule, which information has been conveyed through publication in the news paper. I do not agree with the contention of the learned counsel for the petitioners that merely because notices were not sent through registered posts election process would be vitiated.
13. This question is accordingly answered.
Issue No. 2
14. In order to determine the issue no. 2, reference has to be made to the Scheme of Administration which is required to be formulated in terms of the mandate of the Section 16-A of the Intermediate Education Act, 1921. Scheme of Administration shall amongst other matters provide for the constitution of Committee of Management vested with the authority to manage and conduct the affairs of the Institution. It in essence is the bye-laws of the Society which are required to be formulated by mandate of law. Scheme of Administration of the present Society deals with (a) procedure for enrolling the original members; (b) Constitution of Committee of Management and office bearers of the said society and its power; (c) tenure of the said committee of Management; (d) procedure for conducting the election; (e) tenure of the committee of management. In the present case, I am only concerned with the election process for constitution of the committee of management. Scheme of Administration clearly envisages that the tenure of the committee of Management shall be for a period of three years. However, they are permitted to function for one month after the tenure is over. During this period new committee must come into existence. Extension of committee beyond this period will be in violation of the Scheme of Administration. Process for conducting the election is vested with the existing committee of management. Two months prior to the election, they are required to inform the concerned authority for initiation of election process for constitution of new committee. Scheme also provides that six months before the tenure of the committee of management expires the process for enrolling the fresh members is to be initiated. Scheme of Administration also provides that for initiating the electoral process the President and the Manager of the society shall call the general body meeting in this behalf. The import of the Scheme of Administration clearly show that it is existing committee of management which is authorized to call for the general body meeting for holding of the election; for enrolling fresh members six months prior to the expiry of their tenure; and notice to be given for conducting the election to the concerned authorities. It clearly emerges that it is the existing committee of management which is authorized to conduct the election of the committee of management. The Scheme of Administration does not envisage or provide any intervention on the part of the authorities to either initiate the process of the election or to conduct such election. In the present case it is not in dispute that the committee of management constituted under the membership of Sabhajeet Yadav was the legally constituted committee whose signature as Manager was attested by the D.I.O.S. Jaunpur.
15. Consequently, this committee alone was competent to hold the fresh election for 2005-08 for the said committee of management. All the ancillary process in the election were required to be conducted by the said Committee. The Committee headed by Sri A.N. Tiwari and R.L. Shukla had no legal right to call for meeting for election. The contention of learned counsel for the petitioner Mr. Shailendra is that on the asking of the Manging Committee observer from the officials respondents were called for which a date was fixed for convening of the said meeting. However, despite initiating the process, respondents no. 5 & 6 did not attend the meeting where the election process was to be conducted. Question would arise as to whether this can tantamount to be a process initiated by the Committee. The contention of the respondents in this behalf is that for holding the election information was given to the DIOS who has passed the order on 14.9.2005 for holding the election in accordance with the provision of the Scheme of Administration. It is further contended that appointment of Dr. Vijay Kumar Singh as Election Officer is being denied. According to the respondents No. 5 & 6 his appointment has been made by the DIOS who was not competent to do. Assuming that he was appointed as Election Officer, same was not permissible under the Scheme of Administration. It is the erstwhile Committee of Management who is competent for appointing the Election Officer for holding the election. It clearly emerges that even if it is assumed that the Election Officer was appointed by the DIOS, it did not clothe it with the authority to hold or to conduct the election. The power to hold election by the DIOS arise only in a situation where the authorized controller has been appointed. It is in that eventuality that the election process is required to be conducted by him. In a situation where the Managing Committee is in saddle no such process can be initiated by him.
16. The argument of learned counsel for the petitioner Mr. Shailendra cannot be accepted that the elections were held under the supervision of DIOS who had no authority either to conduct the election or to supervise them. He could at the best be called as an observer by the existing committee of management. Question is accordingly answered. Any process of election conducted by any other authority except the committee of management constituted in the year 2002 would be in violation of the Scheme of Administration.
17. The question is accordingly answered.
Issue No. 3
18. In order to determine the issue no. 3, three rival committees of management claim to be legally constituted committees of management. The question for determination which fell for consideration before the Regional Committee was as to which of the elections were held in accordance with the Scheme of Administration. In this behalf, rival contentions of the parties has already been stated herein supra. The election process as already discussed had to be initiated and conducted by the erstwhile committee of Management constituted in the year 2002. There is no other body competent to hold the election or to initiate process of election in this behalf.
19. The contention of Mr. Gajendra Pratap Singh in Civil Misc Writ Petition No. 38672 of 2008 (C/m of Dwarika Prasad Inter College and Another Vs. State of U.P. and Others) is that electoral college of the society constituted by 221 members have elected the committee of management headed by A.N. Tiwari. On the other hand, contention of Mr. Shailendra is that in Civil Misc. Writ Petition No. 38675 of 2008 (C/M of Dwarika Prasad Inter College and Another Vs State of U.P. Through Secretary and Others) the electoral college of 60 members was confirmed in the year 1998 which continue to remain in force till date. It is stated that the said electoral college elected managing committee headed by Sri R.L. Shukla. While the stand of the respondents is that the committee of Management constituted in 2002 consisting of electoral college of 121 members was recognized by the department as legally constituted committee of management and they alone can hold the election. While addressing the issue raised by the petitioners, it be seen that the process of election has been conducted by a body which was not authorized under the Scheme of Administration. It is not their case that the elections were conducted by a duly constituted committee of management elected for the year 2002-05. Their case is based upon the fact that the members of the general body had constituted respective committees of management which is required to be recognized by the respondents. It is already stated herein supra that issue with regard to the legality of the Committees constituted by the respective committees elected by the petitioner was not done by an authorized authority. As such no legal sanctity can be attached to the said election process. Dispute with respect to the legality of the members can be raised by the petitioners only before the authorized Managing Committee and any adverse order passed by them can be challenged before the competent forum. This is an area where the members are seeking enforcement of their private rights which cannot be adjudicated upon either by the Regional Director or by the Regional Committee constituted by the Government as this process would involve determination of their private rights.
20. Scheme of Administration provides various steps to be taken by the Managing Committee to conduct the election for constituting of the Managing Committee. Validity of the election can be questioned only u/s 16-A(7) of the Intermediate Education Act before the Joint Director of Education and the Regional Committee constituted under the Government Order dated 19.12.2000. Area of determination of the two authorities stands determined by the various judgment of this Court. A Full Bench of this Court in the case of
21. The aforesaid Full Bench while considering the scope and ambit of Section16-A(7) of the Act has also held that the Scheme of the statute shows that the power exercised u/s 16-A(7) is quasi judicial in nature and while deciding a dispute u/s 16-A (7)of the Act it must decide the question of validity of the election for the purpose of finding as to who is in actual control of the affairs of the institution. He may consider and record finding as to which of the rival claimants is prima facie validly elected in accordance with the Scheme of Administration so as not to allow a mere rank trespasser or a committee of management who has been holding over beyond its terms claiming control over the institution and the funds etc. However, the entire enquiry into the validity of the election is incidental only to find out whether the persons claiming control have been validly elected or not. It further held where the authority did not find election of any of the party to be held validly, it is empowered to appoint an authorized controller or to hold elections in accordance with the Scheme of Administration. The area of determination to be exercised by the said authority has been broadly discussed by the Full Bench.
22. While dealing with the question as to who actually control the affairs of the Society, the area of determination shall remain confined to the issue relating to legality of the election process which has been undertaken by the rival committees. What are the possible disputes which can be raised before the said authority. Two types of authorities are required to conduct the election of Managing Committee. One is the existing Managing Committee recognized by the DIOS and other by the Authorized Controller. Once the elections are conducted by the Managing Committee than the only area of dispute which can be raised (a) that the elections have been conducted in violation of the Scheme of Administration; (b) that the authorized Managing Committee suffers from any legal impediment in conducting the election; (c) that the members of the Committee have not been allowed to participate in the said election process whose authenticity stands verified by the concerned authority; (d) that the Managing Committee has initiated the election process after their tenure was over. These will be the issues which shall be determined on the basis of the record. It is only in this area that the dispute can be determined by the authority. Regional Committee constituted under the Government Order dated 19.12.2000 is required to give approval to the decision taken by the Joint Director. While doing so the following things are required to be examined i.e. handing over of the Managing Committee and attestation of the signatures of the Manager. While deciding the issue of actual control the following things which are required to be considered in this behalf i.e. (a) control over the funds of the Institution and Administration; (b) receipts of the Income from its properties; (c) While dealing with the issue of actual control which permits the authority incidentally to examine the validity of the election shall always have reference to the control of the Managing Committee on its Administration and funds as also receipts of Income received by such Society. This determination is subject to any decision taken by competent Court of jurisdiction. It is only to record a prima facie view as to which of the Managing Committee is in actual control and the area of determination would be what has been stated herein supra. Any dispute with respect to the membership shall be determined by Civil Court and till such decision is taken the Joint Director is competent to determine as to which of the rival claimants are in control of the managing Committee.
23. The irresistible conclusion from the aforesaid discussion is that election conducted by the petitioners in electing their managing Committee is not authorized by the Scheme of Administration as such it cannot be clothed with any legal sanctity. It is settled proposition of law that existing Committee of management is competent under the Scheme of Administration to Institute and conclude the election process. No authority is vested on any other person to initiate and conduct the election process. As already stated herein supra the validity of the election process can always be raised by any member of the electoral college of the Society in respect of the manner in which the election process has been initiated and concluded. Unless and until the outgoing Managing Committee is displaced during its tenure in accordance with the Scheme of Administration no other body can claim itself to be legally constituted managing Committee authorized to hold election. It is only the manner of initiation and conclusion of the election process which can be a subject matter for determination.
24. Viewed thus, it clearly emerges that the election process conducted by the petitioner in both the writ petitions cannot be given any legal sanctity. As the process of election initiated by them was clearly in violation of the Scheme of Administration. Rival committees of Management constituted by the petitioners on the basis of the electoral colleges consisting of 60 & 221 members has not been authenticated by any competent authority nor by the managing Committee as already stated herein above. Any fresh membership or legality of existing members has to be determined by the outgoing Managing Committee six months prior to expiry of its tenure. No other authority is competent to conclude that the electoral college on the basis of which rival Committees have been constituted are legally constituted Committees.
25. Issue no. 3 is accordingly answered.
Issue No. 4
26. The plea taken by the respondents that the Regional Committee while dealing with the question of right of rival committees of management has not addressed itself to the issue raised before it. The dispute in the present case was confined to the issue as to which set of the elections is legal and valid. Petitioners had claimed that in view of the fresh election held in the year 2005 they are entitled to be recognized as lawful committee of Management who are to be put in actual control of the affairs of the Institution. While dealing with this issue, Regional Committee has held that the rival claims of the petitioners that they are duly elected Managing Committee cannot be accepted as the elections have been held in violation of the Scheme of Administration which authorizes only outgoing Managing Committee to hold such election. The plea has been raised by Mr. Shailendra that the Regional Committee has not gone into the question as to which of the electoral college was valid for the purpose of electing the Committee of Management. According to him, electoral college of 60 members continues to hold good as on today. Regional Committee was not required to go into this question as the validity of electoral college of 121 members had already been affirmed by this Court in its judgment stated herein above and on the basis of that electoral colleges Managing Committee 2002-05 was constituted regarding which there is no dispute. It was this body alone which was competent to hold the election for 2005-08. The contention raised by Mr. Gajendra Pratap Singh is that the Regional Committee was required to declare the election as void in view of the finding recorded by this Court as the same have been held fraudulently. Regional Committee has specifically dealt with this issue by stating that mode of communicating the election schedule has been done through the publication which is sufficient compliance with the Scheme of Administration. This issue has already been discussed herein supra.
27. For the reasons stated above, I find no merit in the writ petition. The writ petition is liable to be dismissed and is hereby dismissed. No order as to costs.
