M Katju, J. - (1.) THIS writ petition has been filed against the impugned order of tbe Dy. Director of Education dated 10-9-1992 (Annexure-13 to the writ petition) which has been passed under section 16-A (7) of the U. P. Intermediate Education Act. By the said order the Deputy Director of Education has held that the alleged election held on 12-11-1989 was not valid The question arises whether the validity of an election can be decided under section 16-A (7) of U. P. Intermediate Education Act, hereinafter referred to as the Act
(2.) IN Jaswant Singh v. District INspector of Schools, 1990 ALJ 174, a Division Bench of this Court held that where there is a dispute between rival committee of management, each of which claims to have been validly elected, It is for the civil court to decide the controversy. However, since the duties of the District INspector of Schools under the U. P. INtermediate Education Act and the Payment of Salaries Act cannot be discharged unless he finds out on an administrative leval as to who are the valid office bearers of the Committee of Management, the District INspector of Schools may make a summary enquiry for this purpose and give a determination, which will be subject to the decision of the civil court. Subsequent to this decision an amendment was made in 1981 by introducing section 16-A (7) which states that when there is s dispute with respect to the Management the persons found to be in actual control by the Deputy Director may be recognised to constitute the Committee of Management. It may be noticed that under the above provision enquiry by the Deputy Director of Education is only as regards who is in actual control of the affairs of the institution. Thus, what the Deputy Director of Education has to see is a factual situation, and not a legal situation There is nothing in section 16-A (7) of the Act which entitles the Deputy Director of Education to adjudicate upon the validity of an election. The Explanation to the said provision also hears out this interpretation The Explanation says that in determining who is in actual control the Deputy Director of Education is to see who has control over the funds of the institution and over the administration etc. Thus, the Deputy Director of Education, in deciding who is in actual control should see (1) under whose signature the salary bills of the staff are being passed, and who has been handling the finances of the institution (2) who has been appointing the Principal and Teachers under section 16-E of the Act, and (3) Who has been discharging the other functions of the Management under the Intermediate Education Regulations and other roles and circulars.
(3.) IN S. P. Srivastava v District INspector of Schools, 1985 (1) UP LB EC 751, a Division Bench held that the question as to who was validly elected can prima facie be gone into by the Deputy Director of Education under section 16-A (7) of the Act IN Committee of Management v. Deputy Director of Education, 1988 (1) UP LB EG 241, it was held that the Deputy Director of Education cannot go info the question of election except incidentally. IN my opinion, these decisions do not lay down the correct law. To say that the Deputy Director of Education can decide the question about the election incidentally will only lead to confusion as to what is incidental and what is not. The correct legal position, in my opinion, is that the Deputy Director of Education cannot go into the question of validity of the election at all, not even incidentally. The correct view, even after the insertion of section 16-A (7), is as laid down in Jaswant Singh's case (supra). In Committee of Management v. Regional Deputy Director of Education, 1988 UP LB EC 402, a Division Bench of this Court has held that If the issue of actual control is inextricably mixed up with the issue of the validity of the election, the Deputy Director of Education can decide the validity of the ejection under section 16 A (7) of the Act. The Division Bench has relied on some observations made by an earlier Division Bench.;