- (1.) D. K. Set, J. The petitioner has challenged the order dated 26th December, 1995 being Annexure 10 to the writ petition, by which recogni tion was granted to the Committee of Management of the minority institu tion on the ground that the said election was not held in accordance with the Scheme of Administration. Mr. Baghel, learned counsel for the peti tioner, pointed out that according to the Scheme of Administration, a person below the age of 35 years was not eligible to contest the election but two of the candidates who were below the age of 35 years were elected, though, however, those two candidates have tendered their resignation after the interim order was passed in the present writ petition. He further contends that two of the persons elected did altogether not file any nomina tion paper. His third contention was that two of the office bearers were related to each other. According to the Scheme of Administration, two related persons cannot be member of the Committee of Management. He further claims that this objection was raised before the election had taken place before the Election Officer. He also claims that such an objection was raised on 26th December, 1995 before the District Inspector of Schools, hereinafter referred to as 'the DIGS', who without considering the said objection, had granted recognition to the Committee of Management on 36th December, 1995. According to him, this is not a dispute with regard to the election process. It goes to the root of the formation of the Com mittee of Management and, as such, the Committee, on the face of it, cannot be said to be authorised or validly elected. Mr. Baghel contends that though the DIGS is not supposed to enter into the question of election or validity thereof, but even then, while granting recognition, he cannot act as mere rubber stamp and recognise every and any Committee of Manage ment which puts forward its claim without looking into the invalidity staring on the face of it. He has to see that no rank outsider is being authorised to run the management of an institution. His further contention is that in the present case, the fact appears to be admitted by reason of statement made in the counter-affidavit and that there is no disputed question of fact and, therefore, this Court is not called upon to enter into any disputed question of fact. According to him, by reason of the approval of Scheme of Administration under Section 16-A, the Scheme of Administration has statutory force. Contravention of statutory obligation can very well be interfered with in exercise of writ jurisdiction. In the present case, accord ing to him, the election cannot be said to have been held according to the Scheme of Administration, namely, that two of the candidates were admit tedly below the age of 35 years and that two of the candidates were related to each other. However, the question of non-filing of nomination paper by three other candidates, as has been pleaded in paragraph 14 of the writ petition, though has not been denied in paragraph 10 of the counter-affidavit, Mr. Zaidi, learned counsel at the Bar, attempts to dispute the facts by referring to paragraph 8 of the counter-affidavit which appears to deal with the statement made in paragraphs 11 and 12 of the writ petition. Mr. Zaidi contends that this is really a dispute with regard to the election and that it involves certain factual disputes as well. Therefore, this Court cannot go into the question of factual dispute. He further contends that the DIGS is not authorised under the provisions of the U. P. Intermediate Education Act to question the validity of the election. He also refers to a judgment in the case of Committee of Management, Lai Bahadur Shastri Uchchtar Madhyamik Vidyalaya, Kakrai, District Bulandshahr v. Deputy Director of Education, 1st Region, Meerut 1994 (3) UPLBEC 1494 and contends that even if the Committee of Management is treated as validly elected and given recognition, another set asserted themselves to be validly elected which results in factual disputes as to the persons who are validly elected and, as such, cannot be decided in writ proceedings. He further contends that the petitioner did not raise this objection before the DIGS. He disputes the objection filed by the petitioner on the ground that the same was not filed before the recognition was granted. According to him, there was nothing before the DIGS so as to find out that the election was invalid as staring on its face. He further contends that the petitioners having not been diligent cannot take advantage of it. According to him, the real remedy available to the petitioner is by way of a civil suit.
(2.) MR. Baghel, on the other hand, relying on the case of Srikant Kashinath Jituri v. Corporation of the City of Belgaum, JT 1994 (6) SC 496, contends that if the facts are not disputed, in that event, this Court can go into the question of the validity of the election if on the face of it, it appears to have been held in contravention of the statutory rules. The decision in the case of Committee of Management, Lal Bahadur Shastri Uchchtar Madhyamik Vidyalaya (supra) is related to a question between two rival Committees where there were factual disputes involved. In the present case, at least three of the factual disputes have been raised in the writ petition and those disputes having been admitted in the counter-affidavit, it cannot be said that those three facts were disputed. Looking into those facts, taking aid of the Scheme of Administration, it has been pointed out by Mr. Baghel and not being disputed by Mr. Zaidi, it appears that a person below the age of 35 years cannot contest the election of office bearers as well as two relations can also not be elected as office bearers and are clearly in contravention of the approved Scheme of Administration. Further three persons had participated in the election without filing nomina tion is a question of fact which is also not disputed. According to Mr. Baghel, these are also in contravention of the Scheme of Administration inasmuch as the Scheme of Administration requires filing of nomination in order to participate in the election. Therefore, it is apparent that these are glaring instances which show that the election is being held in contra vention of the Scheme of Administration which appears to be glaringly apparent on the face of the record. In the present case, as contended by Mr. Baghel, it appears that there was an objection raised on 26th December, 1995 regarding the election so held. The recognition was granted on the same date. It does not appear from the copy being annexed with the writ petition as to on which date the same was received by the DIGS. However, the averment in support of the said document as made in paragraph 16 of the writ petition is clear that the same was received by the DIGS on 26th December, 1995 which fact has not been specifically denied in paragraph 12 though, however, a general denial has been made.
(3.) ADMITTEDLY, the only provision available under the U. P. Inter mediate Education Act, 1921 is Section 16-A (7) of the said Act which deals with dispute with regard to the persons who may be recognised to constitute the Committee of Management in case of dispute with respect to the Management of an Institution. But the present case does not come within the purview of the said section where no rival claim has been lodged by any other person. The said Act does not provide for any machinery under which a dispute with regard to the validity of election can be decided though, however, it is an established principle of law as has been decided in various decisions that a decision within the ambit of Section 16-A (7) can be decided by the Deputy Director, but while deciding such dispute though he can incidentally go into the question of election, he cannot sit as Election Tribunal and decide the question of election as the main or principal issue. The scope of such decision is only to see that a rank outsider is not permit ted to run the show. The recognition is more necessary in view of Section 5 of the U. P. High School and Intermediate Colleges (Payment of Salaries) of Teachers and other Staffs Act, 1971 which provides in Section 5 the procedure for payment of salary. The said section provides for opening of Bank Account in a Scheduled Bank or a Co-operative Bank to be operated jointly by the representative of the Management and by the Inspector or such other officer as may be authorised by the Inspector in that behalf. It also provides for operation of such Bank Account by the Inspector alone if he is satisfied of its acceptance in public interest. The recognition of the Committee of Management is more necessary because of this provision, though I have not been led to any provision by either of the counsel appear ing on behalf of the parties under which the recognition or procedure therefore is granted except that provided under Section 5 of the Payment of Salaries Act. There is nothing in the said Act as well under which an election dispute can be decided by any of the authorities either under the U. P. Intermediate Education Act or under the Payment of Salaries Act. Therefore, within the limits of the said Act, an election dispute can only be decided by means of a civil suit, if there is any, but, at the same time it cannot be said that the submission of Mr. Baghel, to the effect that while granting recognition the DLOS does not act merely as a rubber stamp is without any substance. Section 5 of the Payment of Salaries Act has been incorporated with a view to ensure payment of salaries to the Teachers by the Committee of Management which is elected in pursuance to the Scheme of Administration as approved under Section 16-A (7) of the Act. All these provisions having statutory force, the authority created under the said Act are required to satisfy at least that they are not giving recognition to rank outsiders who cannot come or pose themselves as members of the Com mittee of Management. If it appears on the face of the record, it does not require any decision of a disputed question of fact. If it appears on the face of the record that there are clear violation of contravention which does not require any probe into any factual aspect, in that event, the DIGS, while exercising his power under Section 5 of the Payment of Salaries Act and thereby granting recognition has to see whether he is recognising a rank outsider or not. Though, however, he is not called upon to sit as Election Tribunal or decide the dispute as a Civil Court, yet the authority given to him cannot be exercised mechanically and act as merely a rubber stamp. He has to apply his mind to the limited extent as indicated above. He should also take care that he is not encroaching upon the jurisdiction of the Deputy Director of Education as provided under Section 16-A (7;. His power is confined only to the grant of recognition to the above extent with out deciding any disputed question of fact and proceeding on the basis of admitted facts alone. In that view of the matter, the order dated 26th December, 1995 shall remain in abeyance till a fresh decision is given by the DIGS with regard to the grant of recognition and authorisation of claim after consi dering objection raised by the petitioners in their representation dated 26th December, 1995 on the basis of the admitted facts in the light of the observations made above within a period of 3 week from the date a certified copy of this order is produced before the concerned District Inspector of Schools.;