Udaibhan Singh and another vs Deputy Director of Education and others

R. A. Sharma, J.—The dispute relating to the right to manage Intermediate College was referred to the Deputy Director of Education, under Section 16A (7) of the Intermediate Education Act (hereinafter referred to as the Act). The Deputy Director vide order dated 861994 held the election of the Committee of Management of which Udaibhan Singh, appellant No. 1 is the manager, as valid. In pursuance of the above oraer ol the Deputy Director, the signatures of Udaibhan Singh were attested by the District Inspector of Schools on 2561994. The Committee of Management of which Ghan Shyam is the manager, filed a writ petition challenging the above order dated 861994 of the Deputy Director ot Education before this Court. The learned Single Judge, while admitting the writ petition, passed the following interim order :

"Admit Sri D D. Chauhan, Advocate represents respondent No. 3. Notices on behalf of opposite parties 1 and 2 have been accepted by Chief Standing Counsel. The opposite parties are granted four week''s time to file counter affidavit. In case counter affidavit is filed, the petitioners may file rejoinder affidavit within two weeks. Meanwhile the operation of order dated 861994 passed by the Deputy Director of Education, Vll Region Gorakhpur shall remain stayed and authorized Controller shall discharge the function as before.

Sd/571994"

Against the above interim order, this appeal has been filed by the appellants who are arrayed as respondents in the writ petition.

Learned counsel for the appellants, has made two submissions in this appeal, namely (i) the learned Single Judge, has by means of the interim order granted the relict which could have been granted only at the time of final disposal of the writ petition, (ii) As the signatures of the appellant no. 1 had been attested by the District Inspector of Schools on 2561994 in pursuance of above order of the Dy. Director, this court ought not to have granted the interim order.

We have heard the learned counsel for the appellants and learned counsel for the respondent no. 3.

It is true that relief which could be granted at the time of final disposal of the writ petition, cannot be granted by means of the interim order, unless there is any special reason to be indicated in clear term. But in the instant case, this is not the position. The relief claimed by the respondent no. 3 in the writ petition is for quashing of the order dated 861994 passed by the Dy. Director under Section 16A (7). This relief has not been granted by the learned Single Judge, in as much as the said order has not been quashed. The learned Single Judge has merely stayed the operation of the above order of the Dy. Director. Staging the operation of an order is different from quashing it. Hon. Supreme Court in M/s Chaumundi Mopeds Limited v. Church of South India Trust Association. AIR 1992 SC 1439, has pointed out the distinction between the quashing of an order and the staying of operation of the order. It was held that result of the stay order was that the order stayed would not be operative from the date of passing of the stay order, and that order is that wiped out from existence. But when the order is quashed, it ceases to exist and position as it stood on the date of passing of the order is restored. By staying the operation of the order, the relief which could be granted at the time of final disposal of the writ petition cannot be said to have been granted. Same is the position when the court grants interim injunction.

As regard the second submission, it is true that signature of the appellant no. 1 was attested on 2561994 but when this Court has directed authorised controller to function as before, the appellant cannot function Attestation of signatures of the appellant no. 1 by the District Inspector of Schools, does not deprive this Court of the power to pass appropriate interim order.

As learned Single Judge, in addition to passing order of stay, has also granted interim injunction, the appeal filed by the appellant is maintainable. As learned Single Judge has not given any reason while granted the interim injunction we have looked into the order impugned in the writ petition and the pleadings of the parties. The Dy. Director of Education under Section 16A(7) of the Intermediate Education Act, which is reproduced below, recognise that Committee of Management of an institution, which is found in actual control of its affairs and such order continues until a court of competent jurisdiction directs otherwise :

Sec 16A(7) : Whenever there is dispute with respect to the Management of an institution persons found by the Regional Deputy Director of Education upon such enquiry as is deemed fit to be in actual control of its affair may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a Court of competent jurisdiction direct otherwise :

Provided that the Regional Deputy Director of Education shall, before making an order under this subsection, afford reasonable opportunity to the rival claimants to make representations in writing

Explanation In determining the question as to who is in actual control of the affairs of the institution, the Regional Deputy Director of Education shall have regard to the control over the funds of the institutions and over the administration, the receipt of income from its properties, the Scheme of Administration approved under subsection (5) and other relevant circumstances."

In the instant case, the Deputy Director has not recorded a finding on the question as to whether the Committee which is recognised by him is in actual control on the affairs of the institution. Primafacie it appears that in the absence of any such finding, the order may not be sustainable. The question of validity of election of the Managing Committee can be gone into by the Deputy Director only incidently while deciding the question of actual control of the affairs of the institution. It is not appropriate to permit a person or authority to manage the college, if he was not in the actual control of its affairs, otherwise there may be problem in running and managing the college, which may cause irreparable loss to it. In the interest of the institution, permitting authorised controller to manage the college cannot be said to be arbitrary or perverse. All three conditions, namely, prima facie case, balance of convenience and irreparable loss were satisfied when the order of interim injunction was passed by the learned Single Judge. The impugned order, as such, does not suffer from any infirmity.

Before parting with this case, it may be observed that we are not recording any conclusive findings. We have looked into the whole matter from the point of view of the prima facie case, balance of convenience and irreparable loss. View expressed by us in this judgment will not be binding while disposing of the writ petition on merits, because it is settled that any observations made at the stage of dealing with the interlocutory application, are not binding on the court when the case is finally decided.

This appeal lacks merit and is accordingly dismissed.

(Appeal dismissed)