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Judgment
O. P. Jain, J.—Heard Sri Dr. R. G. Padia, Sri K. N. Rai and Sri Ravi Kant, learned counsel for the petitioners and Sri M. D. Singh and S.P. Pandey, learned counsel for the respondents. The learned Standing Counsel has also been heard.
The above two writ petitions are being disposed of by a common judgment because Writ Petition No. 20915/94 is the main petition and Writ Petition No. 30699/94 is of a consequential nature.
The dispute between the parties relates to the Management of Nehru Intermediate College. One group is led by Sri Rana Pratap Singh and the other group is led by Sri Awadesh Kumar Singh. The dispute between the two group is continuing from 1982. It is not necessary to trace a history of the litigation between the parties because the same is given in Annexure ''14'' judgment of this Court. It is sufficient to say that while giving judgment Annexure ''14'' this Court was dealing with two writ petitions and on 2191993 this Court quashed the order dated 361993 passed by the D.I.O.S. and also quashed another order passed by the D.I.O.S. on 1891993. It was held that there was a dispute between two rival committee and, therefore, the D.I.O.S. should have referred the matter to the Dy. Director of Education under Section i6A (7) of the Act, 1921. The court directed the D.I.O.S. to refer the dispute to the Dy. Director within one month and further directed the Dy. Director of Eduction to decide the matter within four months. In pursuance of this order the Dy. Director of Education has passed impugned order Annexure ''20'' dated 2451994.
The main contention on behalf of the petitioner is that the Dy. Director has not given any finding as to which of the rival claimants was in effective control of the Institution and he has gone into the legality of the election.
Both the parties have relied on some authorities in respect of their respective contentions. 1988 (1 ) UPLBEC 402 and 1057 have been cited in support of the contention that the Dy. Director has to examine the validity of election before coming to the conclusion that a particular party was in effective control of the Management of the Institution. 1982 UP LBEC 38 and 1985 ALJ 471 have also been cited in support of the same contentions, 1992 (2) UPLBEC 1042 Para 16 has also been cited in which it has been held that in an enquiry to be made under the provisions of Section 16 A (7) the D.D.B. has to decide as to which of the two rival Committee of Management is in effective control of the Institution. The D.D.E. has also to satisfy himself that the Committee of Management recognised by him to be in effective control has been duly elected.
The learned counsel for copy of the judgment of Hon''blen the respondent has produced a photo Supreme Court in SLP No. 1806667/93.
A perusal of that judgment shows that in cited case the Dy. Director had given a clear finding that neither of the two factions were in the effective control of the Management of the Institution in dispute on the said date. In the case before this Court no such finding has been recorded by the Dy. Director and, therefore, the ruling relied upon by the respondent is not applicable to the facts of the case.
There can be no dispute regarding the principle that the Dy. Director of Education can and should incidentally decide the question of legality of election on the basis of which a party assert to be in effective control. But the Dy. Director of Education should concentrates on the question of effective control which is of primary importance in view of the phraseology used in Section 16A (7). The Dy. Director cannot hand over the Management of the Institution to a Stranger or a rank outsider in the name of effective control. But if the party which is in effective control has a semblance of legality. the Dy. Director should not delve deeply into the legality of the election.
In the instant case impugned order Annexure ''20'' is a highly unsatisfactory order from any point of view. The order runs into 45 typed pages. In the first 5 pages the Dy. Director has given a history of the litigation and has verbatim reproduced the direction given by this Court in judgment Annexure ''14'' dated 2191993. From page 5 to page 11 the Dy. Director has reproduced almost word by word the representation of Awadesh Kumar Singh and Jai Prakash Singh. From page 11 to 19 he has reproduced the representation of Rana Pratap Singh. Again from page 9 to 27 a rejoinder given by Awadesh Kumar Singh and Jai Prakash Singh has been reproduced From page 27 to 43 the reply given by Rana Pratap Singh has been reproduced,
At page 44 of impugned order Annexure ''20'' dated 2451994 the Dy. Director has said that the election of Jai Prakash iSingh and Awadesh Kumar Singh cannot be recognised because they have failed to produce documentary evidence to establish the validity of the list of 123 members submitted by them. The claim of Rana Pratap Singh has been negatived on the ground he has failed to produce documentary evidence to establish the validity of list of 45 members,
In an earlier litigation between the parties this Court vide its judgment dated 6111992 Annexure ''4'' had observed that the correctness of the voter list cannot be gone into by this Court under Article 226 of the Constitution ,and the proper remedy in this respect is to approach the civil court. A review application (Annexure ''5'') was filed against Annexure ''4'' and it was disposed of by Annexure''6'' on 911993. This Court refused to modify the order and declined to accept the prayer that the validity of the list may be determined by the D.I.O.S. instance of civil court. In spite of this the D.I.O.S. in the impugned order Annexure ''20'' has based all his conclusion on the validity or invalidity of the lists submitted by the rival parties The Dy. Directory has not said a single word about the effective control. Though the Dy. Director can incidentally go into the validity of the election, there was no justification to omit to discuss the main question i.e. the effective control of the Institution. In the operative portion at page 47 the Dy. Director has ordered the D.I.O.S. (who also happened to be the Prabandh Sanchalak) to examine the validity of the list of members furnished by both the parties and to conduct an election within two months. In this way without deciding anything for himself the Dy. Director has shifted the responsibility on the D.I.O.S. He has passed as an order for the examination of the validity of the list which is against the order passed by thi9 Court between the same parties on 6111992 vide Annexre ''4''.
The writ petition is, therefore, fit to be allowed and impugned order Annexure ''20'' passed by Dy. Director of Education on 2451994 is liable to be quashed.
Coming to writ petition No. 30699/94 the contention on behalf of the petitioner is that after the passing of the above order by the D.I.O.S. an interim order was obtained by Rana Pratap Singh on 22794 to the effect that if the process of election has not begun it will not be started and in case the process has already begun, then the result shall not be declared. It land alleged that in spits of this stay order the D.I.O.S. attested the signatures of Jai Prakash Singh on the basis of an election which is said to have taken place after the passing of the interim order mentioned above. It is argued that the election which is said to have taken place was against the interim order passed by this Court and, therefore, it should be set aside.
It is argued on behalf of the respondents that the interim order was to the effect that if the process of election has already begun the election may be held. There is no substance in the contention on behalf of the respondent'' because this Court clearly ordered on 2271994 that in any case the result shall not be declared. This was again clarified by order dated 1181994. Therefore, that result which was declared and the attestation of signatures on the basis of such declaration of result is invalid and must be quashed. It may also be mentioned that the election of Jai Prakash Singh which is said to have been held on 1781994 was conducted in pursuance of the order passed by the Dy. Director ,of Education on 2451994. When the order passed by Dy. Director on 2451994 (Annexure ''20'' in Writ Petition No. 20915) itself has been quashed, any election which may have taken place in pursuance to that order cannot to be upheld.
In view of the above discussion the Writ Petition No. 20915/94 is allowed and impugned order Annexure ''20''dated 2451994 is quashed. The Dy. Director ol Education, Region 7th Gorakhpur is directed to decide within three months the question of effective control of the Institution after hearing both the parties. He may also incidentally decide the question of legality of election of rival parties. The Dy, Director of Education will be free to make interim arrangements for the day today Management of the Institution.
Writ Petition No. 30699/94 is accepted and impugned order Annexure ''9'' is quashed.