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Committee of Management, ColvIn Taluqdars' College and Ors. Vs. Chandra Mohan Asthana and Ors. (19.07.1977 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpl. Appeal No. 21 of 1976
Judge
Reported inAIR1978All93
ActsConstitution of India - Article 226; Uttar Pradesh Intermediate Education Act, 1921 - Sections 16A and 16D
AppellantCommittee of Management, ColvIn Taluqdars' College and Ors.
RespondentChandra Mohan Asthana and Ors.
Appellant AdvocateL.P. Shukla, Adv.
Respondent AdvocateJ.B. Srivastava, Adv.
DispositionAppeal partly allowed
Excerpt:
.....act, 1921 and article 226 of constitution of india - aided and recognised school not submitted scheme of administration - services of employee terminated by committee of management - writ petition by terminated employee seeking direction to respondents to take action for enforcement of provisions of act by submitting scheme of administration - held, ex-employee is not aggrieved person and has no locus standi to seek writ. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the..........said institution was governed by the provisions of the act it was incumbent that it should have a scheme of administration as required by section 16-a of the act the institution should have been managed by a committee of management constituted in accordance with the provisions of the act. the institution has, however, not got any scheme of administration approved by the competent authority and continues to be run in disregard and violation of the act and the educational code. the existing managing committee was illegally constituted inasmuch as it did not include two teachers' representatives as required by law. the management committee has the principal as its official secretary and not as an ex-officio member. the petitioner further maintained that the management did not hold proper.....
Judgment:

T.S. Misra, J.

1. This appeal is directed against the decision rendered by a learned single Judge in a writ petition filed by the respondent No. 1 against the appellants and the respondents Nos. 2 to 5. The respondent No. 1 had claimed for the issue of a writ in the nature of quo warranto commanding the appellants and the respondent No, 5 to show as to by what authority they were holding their respective offices and that they may be ousted from their respective offices. The respondent No. 1 had also asked for the issue of a writ in the nature of mandamus commanding the present respondents Nos. 2, 3 and 4 to take action for enforcement of the provisions of the U. P. Intermediate Education Act (hereinafter called the Act) according to law and to quash all acts and actions of the present appellant No. 1 as ineffective, illegal and void. The learned single Judge has by his impugned order issued the writ in the nature of quo warranto and has ousted the appellants Nos. 2 to 18 as well as the respondent No. 5 from the Committee of Management. The learned single Judge has, however, refused to issue the writ in the nature of mandamus as prayed by the respondent No. 1.

2. The facts leading to the writ petition lie within a narrow compass. The respondent No. 1 was employed as a teacher in the Colvin Taluqdars' College, Lucknow which admittedly is a recognised and aided educational institution imparting education for the High School and Intermediate Examinations of the U. P. Board of High School and Intermediate Education. Sri H. L. Dutt the appellant No. 2 was at the relevant time serving as Principal of the said College. The petitioner was appointed as a woodcraft teacher. His services were, however, terminated in July, 1969. The petitioner maintained that as the said institution was governed by the provisions of the Act it was incumbent that it should have a scheme of administration as required by Section 16-A of the Act The institution should have been managed by a Committee of management constituted in accordance with the provisions of the Act. The institution has, however, not got any scheme of administration approved by the competent authority and continues to be run in disregard and violation of the Act and the Educational Code. The existing Managing Committee was illegally constituted inasmuch as it did not include two teachers' representatives as required by law. The Management Committee has the Principal as its official Secretary and not as an ex-officio member. The petitioner further maintained that the management did not hold proper and fair selection for the post of the Principal and the appointment of Sri H. L. Dutt to the said post was illegal and void, that the existing Managing Committee as constituted did not intend to abide by the provisions of the Act unless those provisions were specifically enforced and that the Education Department was, therefore bound to follow and enforce those provisions.

3. The petition was resisted by the present appellants. It was contended, inter alia, by the appellants in the counter-affidavit filed by them that the Colvin School Society was duly registered under the Societies Registration Act No. XXI of 1860. A copy of the Memorandum and Rules and Regulations of the said Society is annexed as Annexure 'F' to the counter-affidavit of Sri Dutt dated 22-9-1970. The management of the Society is entrusted to a governing body which was at the relevant time constituted of 18 persons mentioned in para. 6 of the writ petition as amended. Two teachers of the Luck-now University are the members of the Managing Committee though of course no teacher of the College is a member of that Committee. This Managing Committee manages the affairs of the said College. It was asserted that the College has been functioning since 1892 on public school lines and has always been treated as a special type of institution. This College was admitted as a full member of Indian Public School Conference from January 1965. It imparts educa-tion through English and Hindi medium. It is further asserted in the counter-affidavit that a Scheme of Administration had been submitted by the Management which has not yet been finalised by the Education Department. Modification of certain clauses of the scheme of Administration had been sought for. It was maintained that the appointment of Sri H. L. Dutt as Principal was perfectly legal. However, it was asserted that the membership of the management Committee and the office of Principal on the College were not public offices amenable to a writ of quo warranto. In the counter-affidavit filed on behalf of the opposite parties Nos. 3, 4 and 5 it was stated that due to disobedience of the departmental orders and not following the provisions of the Act by the Colvin Taluqdars' College recommendations had been made to the State Government to remove the name of the College from the list of aided institutions and not to sanction any recurring or non-recurring grants to the College. This matter is under consideration of the State Government. In his rejoinder affidavit the present respondent No. 1 stated that the College was functioning without a scheme of administration for the last 15 years or so. Hence the Managing Committee was functioning in contravention of Section 16-A of the Act and, therefore, it was illegally constituted.

4. In short, the grouse of the respondent No. 1 was that the Managing Committee managing the affairs of the said College was an illegally constituted body and the members of the Managing Committee were illegally exercising jurisdiction relating to appointment and dismissal of teachers. It was acting not in conformity with the provisions of the Act and the present appellants as well as the respondent No. 5 were usurpers of the office of Managing Committee as contemplated under the provisions of the Act which was a statutory body. The other grievance was that the said illegal body of the Managing Committee had illegally appointed Sri H. L. Dutt as Principal of the College who did not possess the essential qualifications prescribed under the Act and Regulations framed thereunder. The third grievance was that the Managing Committee which consisted of high dignitaries wielded influence on the Education Department and thus violated the provisions of the Act. Hence it was necessary to issue a writ in the nature of mandamus commanding the Director of Education and the Board of High School and Intermediate Education to take necessary stops in accordance with the provisions of the act to compel the College authorities to discharge the obligations contemplated by the Act and the Regulations framed thereunder.

5. The learned single Judge accepted the contention of the respondent No. 1 that the said institution is not a public school nor is it run by a local body. The Managing Committee which came into existence by virtue of memorandum of association is not created by scheme of administration as stipulated by the Amendment Act 1958. The learned single Judge held that an extremely defiant attitude has been adopted and followed by the institution in not submitting a scheme of administration and that the Managing Committee which has not been a creation of a statute as is contemplated by the Amendment Act cannot be allowed to usurp the function of a Committee of Management to be constituted under the Scheme of Administration. The learned Single Judge further held:--

'... ... ... That a recognised institution can only be managed by a committee of management which is to come into existence by submission of a scheme of administration to be approved by the Director of Education, The Committee of Management contemplated under the Amendment Act, 1958 is thus a creation of statute. It is only this Committee of Management created by a statute provided under the Amendment Act which can manage the affairs of an institution. That being so, the present Managing Committee is nothing but usurper of the statutory body. The present Managing Committee, therefore, legitimately cannot be allowed to usurp the function of the statutory body and accordingly each one of the members who are at the moment functioning on the Managing Committee is causing interference in the administration, no matter how high a social status they might be enjoying. All these persons even though might be managing the affairs of the institution smoothly and there may not be any mal administration yet an illegal body, in my opinion, cannot be allowed to continue and usurp the functions and responsibilities of statutory body.'

6. It was also held by the learned single Judge that the office of the Principal is both a public and statutory office and that as the appointment of Sri Dutt suffered from legal infirmity, and it was illegal. In these circumstances the learned single Judge issued the writ of quo warranto as prayed. He, however, found that the petitioner had no legal subsisting right for maintaining the petition for a writ of mandamus. Hence he declined to issue that writ.

7. For the appellants it was urged that the learned single Judge fell in error in holding that the existing Managing Committee or the Managing Committee as envisaged under the Act is a statutory body. The submission was that the Managing Committee is not a statutory body and is not and cannot be said to be a public office in respect of which a writ of quo warranto could issue, in this connection it was further urged that the non-compliance with the provisions regarding the scheme of administration is a matter to be decided by the State Government and there was no charge of any mis-management on the part of the Principal or the Managing Committee nor the management of the institution had failed in performance of its duties. Hence the learned single Judge had not been justified in holding the Committee of Management to be an illegal body or the office of the Principal to have been filled up illegally.

8. The principal questions for determination in this appeal, therefore, are these :

1. (a) Whether a Committee of Management constituted in accordance with the Memorandum of Association and the Regulations of a Society registered under the Societies Registration Act is a statutory body

(b) Whether a Committee of Management constituted in terms of Section 16-A of the U. P. Intermediate Education Act and in accordance with the Scheme of Administration is a statutory body

2. Whether a Committee of Management of an institution governed by the said Act existing from before the enforcement of the provisions of Sections 16-A to 16-D of the said Act and constituted in accordance with the provisions of the Memorandum of Association shall cease to function or shall become incompetent to administer, govern and control all the affairs of the institution on the enforcement of the provisions of the said Sections 16-A to 16-D

3. What is the consequence of not submitting a Scheme of Administration as required by Section 16-A of the said Act?

9. A Committee of Management of a Society, constituted in accordance with the memorandum of Association and the Rules of the Society is not a statutory body. A Society registered under the Societies Registration Act is itself not a statutory body inasmuch as it is not a body created by or under a statute. It is only that body which is created by or under a statute, is a statutory body: (See Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888 : (1976 Lab IC 576). The Colvin Taluqdars' School Society, which was registered under the Societies Registration Act, was not created by or under any statute. It is, therefore, not a statutory body. The Managing Committee of the instant institution constituted in accordance with the Memorandum of Association and the Rules of the Colvin Taluqdars' Schools Society is also for the same reason not a statutory body.

10. The question whether the Committee of Management of an Intermediate College is a statutory body now stands concluded by a decision of a Full Bench of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad decided on 15-10-1976 (Civil Misc. Writ No. 9410 of 1975) : (AIR 1977 All 539) (FB), wherein it has been held that the Committee of Management of an Intermediate College is not a statutory body; nevertheless, a writ petition filed against it is maintainable if such writ petition is for enforcement of performance of any legal obligations or duties imposed on such Committee by a statute.

11. The clue to the answer to the second question mentioned above may also be found in Aley Ahmad Abdi's case (AIR-1977 All 539) (FB) (supra). After examining the scope and scheme of the provisions of Sections 16-A and 16-G of the Act, the Full Bench observed :--

'We find it difficult to accept the contention of Sri Gupta that a Committee of Management of a recognised Intermediate College constituted under a scheme of Administration, is entirely a new body different from the Committee of Management which such College might have had before Section 16-A of the Act came into force. What the Scheme of Administration framed under Section 16-A does is to modify the constitution of such Committee and to regulate and control it rather than to supplant it or to substitute it by altogether a new Committee of Management. Even if such Committee is constituted for the first time after Section 16-A came into force, the constitution and functions of such a Committee are merely required to be in conformity with the provisions of the Act and the Regulations thereunder. There is no reason why such committee should not continue to exist even if Section 16-A should be repealed; such committee will merely cease to be governed by the provisions of that section and the Regulations made thereunder.'

12. The Act does nowhere say that on the enforcement of the provisions of Sections 16-A to 16-G the existing Committee of Management of an institution, which is governed by the Act, shall cease to function or shall become incompetent to administer and control the affairs of the institution. Rather it is otherwise. Under Section 16-B the institution has to submit a Scheme of Administration within six months of the enforcement of the Intermediate Education (Amendment) Act, 1958 and on sufficient cause being shown by the institution this period can be further extended by the Director of Education. If a Scheme of Administration submitted within the period allowed is found deficient, the Director may get the defects removed. A right to make representation is given to the institution vide Sub-section (5) of Section 16-A of the Act. Obviously, it takes some time before the Scheme of Administration is finally approved. Again, if a Scheme of Administration is not submitted within the time allowed, the Director may take action in accordance with the provisions of Section 16-D (3) and the State Government may take action under Sub-section (4) of Section 16-D of the Act against the institution and appoint an Authorised Controller to manage and Control the Affairs of the Institution for the time being. The institution may even then submit a Scheme of Administration and get it approved. But so long as action under Section 16-D (4) is not taken by the State Government and an Authorised Controller is not appointed, there shall be no vacuum and the existing Committee of Management shall continue to manage and control the institution. Even when the Scheme of Administration is approved, the existing Committee of Management shall not be supplanted or substituted. It would be merely modified. The existing Committee of Management does not, therefore, cease to function nor does it become incompetent to manage and control the institution on the enforcement of Sections 16-A to 16-D of the Act.

13. In the instant case the institution is being run by a Committee of Management which it had before Section 16-A of the Act came into force. The Committee of Management is constituted in accordance with the Memorandum of Association of the Society and is responsible for the management of the affairs of the institution. It seems that no scheme of administration has so far been got approved by the institution, which of course is not proper. However, as pointed out by the Full Bench in Aley Ahmad Abdi'e case, (AIR 1977 All 539) (FB) (supra) the existing Committee of Management would not be supplanted on the approval of a scheme of administration. It would merely be modified and the constitution and functions of the Committee of Management, to be constituted on the approval of the Scheme of Administration, would be in conformity with the provisions of the Act and the Regulations thereunder. That being so, the existing Committee of Management cannot be said to be illegally constituted. It was not the case of the respondent No. 1 that any member of the said Committee had been appointed therein not in accordance with the Memorandum of Association and the Regulations of the Society. The grouse was merely confined to the fact that the institution had not submitted a Scheme of Administration and a committee of Management has thus not been constituted in accordance with Section 16-A of the Act; hence, the present Managing Committee and the members thereof were usurpers of the office. We find no merits in this contention. True it is that no Scheme of Administration seems to have been got approved by the institution which of course is not proper, but as pointed out by the Full Bench in Aley Ahmad Abdi's case, supra, the existing Committee of Management would not be completely supplanted on the approval of Scheme of Administration. It would merely be modified.

14. The third question referred to hereinabove is answered by Sub-section (3) of Section 16-C of the Act which says that if the Scheme of Administration is not submitted within time, the Director of Education shall take action in accordance with Clause (a) or (b) of Sub-section (3) of Section 16-D. Under Clause (a) of Sub-section (3) of Section 16-D the Director of Education may, after considering the explanation or representation, if any, given or made by the Management refer the case to the Board of High School and Intermediate Education for withdrawal of recognition. Under Clause (b) of Sub-section (3) the Director may recommend to the State Government to proceed against the institution under Sub-section (4). Sub-section (4) of Section 16-D provides that if on receipt of a recommendation under Sub-section (3) the State Government is satisfied that the draft of the Scheme of Administration has not been submitted within the time allowed, it may, by order make provisions for exercising control over such institution by authorising any person to exercise with respect to such institution and its management for such period as may be specified by the Government such functions of control as may be specified in the order, and on the making of such order the institution and its management as the case may be, shall, so long as the order continues in force, be conducted and carried on in accordance with any direction given by the Authorised Controller in accordance with the provisions of the order. The State Government may revoke its order at any time. Manifestly the Director of Education can, therefore, take action against the said institution in accordance with Sub-section (3) of Section 16-D if the Scheme of Administration has not been submitted by the institution within the time allowed. It is borne out from the affidavit of Liaq Ahmad, an Assistant in the Director of Education, dated 22nd Aug. 1975 that due to disobedience of departmental orders and not following the provisions of the Intermediate Education Act by the Colvin Taluqdars' College recommendation have been made to the State Government to remove the name of the College from the list of aided institutions and not to sanction any recurring or non-recurring grants to the College and that the matter is under consideration of the State Government. The State Government has to decide as to what action should be taken against the said institution for not complying with the provisions of Section 16-A of the Act. The respondent No. 1 was, however, not entitled to seek a writ of mandamus in this respect. He cannot be said to be an aggrieved person. No one can ask for a mandamus without a legal right. He must possess a legal right before demanding mandamus. In other words, there must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. The respondent No. 1 was a dismissed employee of the said institution and he had no legal right in the matter. His claim for a writ of mandamus prayed for was obviously unsustainable and the learned Single Judge was, therefore, justified in not granting that relief to him. We would, however, like to add that it is incumbent on the said institution, which is governed by the provisions of the U. P. Intermediate Education Act to submit a scheme of Administration in accordance with the provisions of the Act. Failure to comply with that provision entitles the Director of Education and the State Government to take suitable action under Section 16-D of the Act, Any person having a judicially enforceable right as well legally protected right in that behalf, may, if there is inaction on the part of the said authorities in the matter, approach them for justice. It is only when justice demanded is refused by the authority concerned that a petition under Article 226 of the Constitution can be moved in this Court for a writ of mandamus.

15. The existing Committee of Management or the members of that Committee cannot, however, be said to be usurpers of the functions of the Committee of Management to be constituted in accordance with the Scheme of Administration. As already discussed, the present Committee of Management would simply be modified and not substituted when the Scheme of Administration is approved. That being so, there is no justifiable ground to issue a writ in the nature of quo-warran-to ousting the appellants Nos. 2 to 18 and respondent No. 5 from the existing Committee of Management. They are not usurpers of the office. There is nothing to show that any of them was illegally appointed to the existing Committee of Management.

16. The learned Single Judge has held that the appointment of the appellant No. 2 Shri H. L. Dutta as Principal of the College was illegal and that he was a usurper to the said Office, hence the learned Single Judge ousted him from the office of the Principal and declared the post vacant. The learned Single Judge had found that the appointment of Sri Dutta as Principal was made without obtaining prior approval of the Deputy Director of Education. The fact, however, remains that the Deputy Director of Education had accorded approval to the appointment of Sri Dutta as Principal of the college but this approval was obtained subsequent and not prior to the appointment. Relying on a Division Bench of this Court in Arya Kanya Pathashala v. Manorama Devi (1971 All LJ 983) the learned Single Judge held that the appointment of Sri Dutt suffers from illegality inasmuch as it was made without prior approval of the Deputy Director of Education. The appellants could not make out that the prior approval of the Deputy Director of Education was obtained in the matter. In the circumstances the learned Single Judge was, in our view, justified in holding that the appointment of the opposite party No. 2 was not in accordance with law. We are, however, unable to agree with the learned counsel for the respondent No. 1 that the existing Management Committee has had no jurisdiction to appoint a Principal or a teacher of the College. The contention that the Committee of Management as constituted in accordance with the Scheme of Administration alone can appoint and that the existing Committee of Management had no jurisdiction or authority to appoint any teacher or Principal of the College cannot be accepted. In our opinion, so long as the Scheme of Administration is not got approved the existing Committee of Management shall continue to control the affairs of the College. It is for the Director of Education and the State Government to take action against the institution for not submitting the Scheme of Administration but the authority to run the college and manage its affairs by the existing Committee of Management is not impaired before any action as contemplated by Section 16-D is actually taken. It was, however, stated at the Bar that Sri. H. L. Dutt is no more the Principal of the College.

17. In the result, the appeal Is partly allowed. The impugned order of the learned Single Judge is modified. The order of the learned Single Judge to the effect that the present appellants and the respondent No. 5 are the usurpers of the office of the Committee of Management, and are therefore, ousted from the same is set aside. The order that the opposite party No. 2 is ousted from the office of the principal, Colvin Taluqdars' College is maintained on the ground Stated hereinabove. The relief asked for by the respondent No. 2 In his writ petition to the effect that a writ of quo warranto be issued ousting the opposite parties Nos. 6 to 22 of the writ petition from the Committee of Management is accordingly refused and the writ petition for that relief Is accordingly dismissed. In the circumstances of the case, we direct that the parties shall bear their own costs of this appeal as also of the writ petition.


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