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Judgment
Rakesh Tiwari, J.—Heard Sri R.K. Ojha, counsel for the petitioner and Sri K. Ajeet appearing for caveator - respondent No. 4 and the standing counsel.
This petition is directed against the impugned order dated 3.4.2008 passed by the Regional Level Committee head by Joint Director of Education, Agra Region, Agra, by which election of the committee of management held on 24.6.2007 headed by Sri Narain Singh as President and Sri Shiv Nath Dubey as Manager has been recognized whereas elections conducted by the petitioner on the same day electing Sri Bhuvnesh Kumar Dubey as President and Sri Vinay Kumar Dubey as Manager has been rejected.
Contention of the counsel for petitioner is that the impugned order of the Regional Level Committee shows that the petitioner was present on 22.2.2008, the date fixed by the Joint Director of Education, Agra Region, Agra, but he himself was not present on 22.2.08, as such no hearing was done on that date. It is stated that instead of fixing another date, the order impugned has been passed ex parte in violation of the principles of natural justice denying any opportunity of hearing to the petitioner.
The second leg of contention of the counsel for petitioner is that the amended scheme of administration which is approved by the Joint Director of Education on 4.12.2006 and effective from 5.12.2006, provides for tenure of the committee of management and its paragraph 8 stipulates that if tenure of the committee of management has expired, then it will cease to function and the election has to be held under the supervision and control of the authorised controller.
It is submitted that in the present case, though the authorised controller has been appointed on expiry of the term of the committee of management, yet the elections are said to have been set up by two rival committees of management, therefore, the recognition granted by the Regional Level Committee to respondent No. 4 - committee of management, is against the provisions of scheme of administration. In this regard, the counsel for the petitioner has relied upon the decision in Committee of Management, Pt. Jawahar Lal Nehru Inter College, Gorakhpur Region and Another Vs. Deputy Director of Education and Others, wherein it has been held that if tenure of the committee of management has expired, then it is the authorised controller who can hold the elections and not any other person.
The counsel for petitioner has assailed the impugned order also on the ground that in so far as the election of respondent No. 4 held on 24.6.2007 is concerned, it was never held in the college campus nor the election proceedings were ever initiated. The said election is said to have been conducted on papers only which are manufactured and procured at the residence of the election officer. It is also stated that the election observer also never attended the election proceedings as he was performing his office duties which fact can be verified from his office record.
It is lastly submitted by the counsel for petitioner that the petitioner had tried to submit his detailed objection before the Joint Director of Education but since he was not present in his office on 22.2.08, therefore, the objection could not be given to him and the impugned order has been passed which is absolutely arbitrary, illegal and unjust.
Sri K. Ajeet, counsel for the caveator-respondent No. 4 submitted that the petitioner had earlier been given four opportunities but he neither appeared before the authorities nor submitted any documents in support of his election. It is stated that he has rather submitted medical certificates on every date fixed earlier by the Joint Director of Education only with a view to delay the proceedings there. In the circumstances, the authority had clearly indicated in its order that the petitioner can submit his written submissions alongwith document through any person if he is so desires or is not able to appear in the proceedings due to his illness.
It is vehemently urged by Sri K. Ajeet that all the points that are being raised in this writ petition have earlier been settled by the High Court in Writ Petition No. 8032/2001, Karhal Education Society, Karhal, Mainpuri and Ors. v. the Assistant Registrar, Firm, Societies and Chits, Agra and Ors. alongwith Writ Petition Nos. 42959 of 2001, 19874 of 2002 and 47239 of 2003, decided on 14.7.2006 and thereafter confirmed by Division Bench decision rendered in Special Appeal No. 989 of 2006, Krishna Kumar Dubey and Ors. v. Karhal Education Society, Mainpuri and Ors., alongwith Special Appeal Nos. 990 of 2006, 991 of 2006 and 992 of 2006, decided on 4.9.2006, holding that the respondent was improperly removed from the committee of management. The order passed by the Division Bench in aforesaid special appeals reads as under:
We are in respectful agreement with the reasoning given and the order passed by Hon''ble Mr. Justice Rajes Kumar on the 14th of July 2006. Our present order will govern the fate of all four writ applications, all of which were disposed of by His Lordship by the said impugned order.
The centre of the controversy is the validity or otherwise of the order passed by the Assistant Registrar on the 6th of February 2001. The subsequent orders were all made expressly subject to the decision to be given in Writ Petition No. 8032 of 2001 and that Writ petition was filed by the respondents before us challenging the said order of the Assistant Registrar.
The said order was in respect of the removal of two members of the society, being the two "Dubeys". Mr. Khare''s client, supporting the appeal, submitted that those two persons, who were the writ petitioners 2 and 3 in the said writ petition No. 8032 of 2001, were not conducting the affairs of the Society properly and as such the Managing Committee removed them by a no confidence motion being passed to that effect on the 13th of August 2000. Their further case is that this removal was vetted by the general body which met on the very same day at 11.00 A.M. It is not disputed between the parties that for the purpose of removal, it is essential that a decision be given by the General Body and that a mere reference to the General Body by the Managing Committee approving of such no confidence or removal is not by itself enough.
The crux of this case is that we have searched and searched again, but every time in vein, for any solid and indisputable material, which would bear out the fact that the General Body did in fact approve the removal of the two ''Dubeys''. A material in this regard is absolutely essential, especially in the background of the circumstance that the control of the Society is still being carried on by, amongst others, these two ''Dubeys'' and this has continued for the last five years.
In the impugned order of 6.2.2001, however, the Assistant Registrar mentions in two places that the removal by the Managing Committee has been ratified by the General Body.
Moreover, the writ petition No. 8032 of 2001 does not in very happy terms proceed on the fair and square basis that such finding by the Assistant Registrar was given on no material and was either perverse or without jurisdiction.
Be that as it may, the papers and pleadings have all now come before Court. The Court has to give thereon the fairest possible decision which can, on those material and the arguments be made. In the absence of a document coming from the General Body, it would be an incursion of justice to go on the abstract doctrines of pleading and denial, or proceed to infer that by reason of those technicalities only, it would be held that before the Assistant Registrar there was a presumptively a document showing the vetting by the General Body, even though that document itself is nowhere to be found. Had the document been in the possession of a third party, or somebody over which the parties have no control, or to whose possession the parties have no acess, this might have been a possible procedure. But here, all parties have all the documents which are necessary, that is, all the documents, which are genuine and on the basis of which the Court can proceed.
In this view of the matter, it is not possible to hold that the ''Dubeys" were properly removed in accordance with the rules by a resolution of the General Body. Once this conclusion is reached, the other orders passed by His Lordships follow merely as a consequence. We must here point out that there are some typewriting or other slips in he judgment like the Assistant Registrar''s order has been referred to as an order passed on 3.3.2001, although it was passed on 6.2.2001, that that the Assistant Registrar is said to have referred to the Managing Committees meeting on 13.8.2000 as being held at 9.00 A.M., although he did not make such exact reference.
Those are errors without significance and cannot touch the substance of the decision.
The appeals are accordingly dismissed. There will be no order as to costs.
It appears from the record that Azad Hind Inter College, Karhal, district Mainpuri, is a recognized and aided institution on which the provisions of the U.P. Intermediate Education Act 1921 as well as Payment of Salaries Act 1971 are applicable; that the petitioner as well as the respondent both claim to have held elections of the committee of management on 24.6.2007 in pursuance of the letters dated 13.6.07 and 2.6.07 issued by the DIOS, Mainpuri. The Regional Level Committee has found that prior to 22.2.2008, four opportunities had been given to the petitioner for submitting the written arguments on the basis of medical certificates submitted by him. The authority in its orders of adjournment has clearly stated that the petitioner may submit his written arguments alongwith the documents through some person if he was not able to appear before the authority due to his illness. If the petitioner was present on 22.2.08 as claimed by him, he could have submitted the written arguments as well as the documents in support of his case as had been directed by the authority in his letter granting adjournment to him earlier, but these opportunities do not appear to have been availed of by the petitioner.
The authority has noted that till the date of passing of the order, neither the written arguments nor documents in support of his case, were ever submitted by the petitioner, whereas the respondents had appeared on each and every date and had participated in the proceedings. It might be that the petitioner appeared on 22.2.08 but he has not submitted any document in the office of the Regional Level Committee in this regard as stated earlier.
It is also an admitted fact that by order dated 19.10.06 the Joint Director of Education had declared the earlier elections held on 16.4.2007 and 14.5.2006, to be invalid and had directed the DIOS, who had been appointed as Prabandh Sanchalak, for holding fresh elections which were in fact held on 24.6.2007 by the respondent which is under challenge.
It also appears from record that a Civil Suit No. 575 of 2007, Avanish Kumar Dubey v. Joint Director of Education and Ors., was also filed by one of the contesting party to the election of committee of management aforesaid. In the said suit, earlier an interim order was granted directing the parties to maintain status quo, but that order was vacated by the order dated 16.11.2007 later on.
In so far as the petitioner''s claim is concerned, the authority has considered the same and has held that:
Jh fou; dqekj nqcs dks iz''kklu ;kstuk ds vuqlkj pquko djkus dk vf/kdkj ugh Fkk vkSj ftu lnL;ks ls mUgksus pquko djk;k] og jftLV�kj }kjk vekU; dj fn, x;s Fks A vr% mUgksus fookn djus ds fy, QthZ pquko nkf[ky dj fn;k x;k] vkSj vkt rd lquokbZ ds fy, mifLFkr ugh gq, vkSj QthZ esfMdy lfVZfQdsV ds vk/kkj ij lquokbZ Vkyus dk iz;kl dj jgs gS] ftlls fuokZpu izca/k lfefr dk;ZHkkj xzg.k u dj lds A
Jh fou; dqekj nqcs �nkosnkj izca/kd� dk vfHkdFku%
budk dksbZ fyf[kr o ekSf[kd c;ku izkIr ugh gqvk tc fd iz''uxr izdj.k eas mijksDrkuqlkj lquokbZ gsrq fnukad 18&8&2007] 1&9&200&] 18&9&2007 ,oa 22&2&2008 dh frfFk;ak fu/kkZfjr dh xbZ A fu/kZkfjr frfFk;ks esa fnukad 22&2&2008 ds Jh fot; dqekj nqcs vHk; mifLFkr gq, tc fd vU; mDror frfFk;ksa esa ls fdlh Hkh frfFk dks Jh fou; dqekj nqcs mifLFkr ugh gq,] mUgksus viuh vLoLFkrk laca/kh fpfdRlk izek.ki= yxkrkj izkIr djk;s gS A fu/kZkfjr dh xbZ frfFk;ksa es mifLFkr gksus lEcU/kh fuxZr i=ks@vkns''kks esa ;g Li"V fy[kk x;k] fd fdUgh dkj.kks ls lquokbZ eas vki mifLFkr ugh gks ldrs gS] rks ml fLFkfr esa vius fdlh izfrfuf/k ds ek/;e ls viuk fyf[kr vfHkdFku izkIr djk ns fdUrq blds ckotwn Jh fou;dqekj nqcs �nkosnkj izca/kd� }kjk dksbZ vfHkdFku fyf[kr@ekSf[kd izkIr ugh djk;k x;k A
The authority further held that:
�c� Jh Hkqous''k dqekj nqcs v/;{k o Jh fot; dqekj eq>s izca/kd fuokZfpr n''kkZ;s tkus okys pquko fnukad 24&6&2007 esa iz''kklu ;kstuk ds vUrZxr fn;s x;s izkfo/kku ds vuqlkj rnFkZ pquko vf/kdkjh dh fu;qfDr djus ds lEca/k esa dksbZ lk{; izLrqr ugh fd;k x;k gS vkSj u gh 24&6&2007 ls iwoZ lkslk;Vh dh cSBd pquko fo"k;d vkgwr djus dk Hkh dksbZ lk{; izLrqr gS A blds lkFk pquko lEiUu djkus tkus gsrq foKfIr izdkf''kr djk;s tkus ds lEca/k esa fdlh v[kckj dh izfr Hkh layXu ugh gS A pquko dk ikjn''khZ ,oa fu"kd"kZ djkus gsrq pquko i;Zos{kd dh Hkh fu;qfDr ugh dh xbZ gS A
lnL;ks dks pquko dh lwpuk Hkstus ds lEcU/k esa dksbZ vfHkys[k i=ktkrksa ds lkFk izLrqr ugh fd;k gS A bl izdkj bl pquko dk;Zokgh esa iz''kklfud ;kstuk ds izkfo/kkuks dk ikyu ugh fd;k x;k gSA
Thus, after considering case of the parties, the authority has disapproved the election of the committee of management of the petitioner.
In 1997(1) A.W.C. 416 Committee of Management, Sukh Nandan Inter College, Math Mohammadpur, Mau through its Manager Deepan Singh Chauhan and Anr. v. State of U.P. and Ors., while dismissing the writ petition, the Court observed that where observance of the principles of natural justice would have made no difference and admitted or indisputable or irrefutable facts lead to situation where only one conclusion is possible under law, in that case issuing of writ to compel observance of natural justice is not called for.
In the present case, in my opinion, sufficient opportunity was granted to the petitioner to place his case before the authority concerned. Even though the petitioner claims to be present on 22.2.2008 but as the authority was not there, he could have submitted his written argument in the office and brought the same on the record as last opportunity had already been granted to him on the medical certificates given by him four times earlier. It is not in dispute that earlier also atleast four opportunities were granted to him for submitting his reply/objections but he did not do so and has only sought adjournments by submitting medical certificates.
It is also not in dispute that suit No. 575 of 2007 has also been filed. It appears from the record that the petitioner has raised same objections before the Regional Level Committee which he had raised in the earlier writ petition and was set at rest by the Single Judge and thereafter confirmed by the Division Bench in the Special Appeal referred to above.
The petitioner has again raised the same facts in this writ petition which had already been settled. In any case, since he has challenged the election of respondent-committee of management which has been recognized by the Regional Level Committee, in the opinion of this Court, he has an alternative efficacious remedy to challenge the same by means of a civil suit as points raised by the petitioner regarding factual aspect of the matter may require adjudication on the basis of oral and documentary evidence which the parties may adduce in the civil court. The respondent-committee of management being already in office pursuant to the election held on 24.6.2007, it would not be justifiable to set aside the said election at this stage after about ten months under Article 226 of the Constitution by the Court.
For the reasons stated above, the writ petition is dismissed on the ground of alternative efficacious remedy available to the petitioner. No order as to costs.