- (1.) D. K. Seth, J. The order dated 3-4-1995 passed by the Regional Deputy Director of Education, Vth Region, Varanasi, which is Annexure '5' to the writ petition is under challenge. Mr. Sankatha Rai, learned counsel for the petitioner, contends that the election had taken place on 21st July, 1991. Therefore, the subsequent election which was held on 24th August, 1994 and the result whereof was declared on 25th August, 1994 is invalid and the Committee so elected cannot be allowed to continue and recognised in view of the provisions contained in the Regulations framed under the U. P. Intermediate Education Act, 1921. In support of his contention, he relies on various decisions to which reference would be made shortly hereafter.
(2.) MR. Sahi, learned counsel for the respondents, on the other hand, contends that there is no dispute about the legal proposition that an election is to be held within three years and one month. But in the facts and circumstances of the case where the election process had started within the prescribed period with the approval of the District Inspector of Schools but the ultimate election having been held three days after the expiry of the period of three years one month does not attract the penal consequences or invalidate when the said election has been held with the approval of the District Inspector of Schools. He hat referred to various portions of the impugned order and had translated the same at the Bar had pointed out that even the petitioners had admitted, as has been observed in the said order, that the petitioners had no effective control. In the order itself, the entire question has been go tie into and it has been specified that with the approval of the District Inspector of Schools, the election process had started within the prescribed period and the same held on 24th August, 1995 and the result was declared on 25th August, 1 994 with the approval of the District Inspector of Schools. According to Mr. Sahi, the cases cited by Mr. Rid does not specify as to what would be the effect where such election had been held with the approval of the District Inspector of Schools when the election process had started before the expiry of the prescribed period and 3/4 days. Therefore, all the said cases are distinguishable. Mr. Sankatha Rai, learned counsel for the petitioners, on the other hand, contends that in view of the specific provision, the election is to be held within the period before its expiry. Even if the election process had started within the period but the same cannot render the election valid when the same has been held after the expiry of the said period, may be within 3/4 days after such expiry. According to him, there is no provision authorising the District Inspector of Schools to approve such date of election. His authorisation cannot cure the specific legal provision provided in law. Therefore, according to him, the judgment cited by him applies in full force.
(3.) IN the case of Committee of Management Brig. Hoshiar Singh Memorial INter College, Shamli v. Deputy Director of Education, 1st Region, (1995) 1 UPLBEC 149 and (1994) 3 UPLBEC 1728, cited by Sri Sankatha Rai, learned counsel for the petitioner, Hon'ble Mr. Justice R. A. Sharma while delivering the judgment in the Division Bench, had held that the election held after the expiry of three and one month from the date of election is wholly illegal. IN the said case the earlier election took place on 27-7-1981. Admittedly three years and one month expired on 27-8-1989, whereas the election had taken place on 5-3-1990. IN the case of M. M. I. INter College Nehtour Bijnor v. Deputy Director of Educa tion, 10th Circle Moradabad, 1995 ACJ 132, Hon'ble Mr. Justice R. A. Sharma, speaking for the Division Bench relying on the decision of another Division Bench in Ram Kripal Singh v. Committee of Management, 1993 (4) UPLBEC 341, held that election held on 16-10-1991 when the term of the Committee of management had ended in 1990 after being elected in 1987 is illegal. IN the case of Ram Kripal Singh (supra), cited by the learned counsel for the petitioner, Hon'ble Mr. Justice K. A. Sharma, speaking for the Division Bench held the same view where election had been held on 5-5-1986 and the life of the Committee of Management expired on 4-6-1989 but the subsequent election was held in -9-11-1992. The decision in the case of Malkiyat Singh v. Cane Commissioner, U. P. , (1992) 2 UPLBEC 937, cited by Sri Sankatha Rai, learned counsel for the petitioner, has no manner of application in the present case and no inspiration can be drawn from the said decision in order to decide the present question. Inasmuch as the said decision relates to the term of the Committee of Management elected under Rule 445 of the U. P. Co operative Societies Rules, 1968, which is altogether different from the provisions by which the election of. the Committee of Management of an educational institution is governed. Therefore, no reliance can be placed on the ratio decidendi in the said case for the purposes of substantiating the contention of Sri Sankatha. On the other hand if reliance is placed on the said decision and anology is drawn in that event it would rather support the contention of Sri Sahi is as much as in the said decision it was held that the Committee of Management was elected earlier but the same could neither take charge nor could function till 2-2-1989 and the first meeting of the Committee of Management was held on 2-1-1989 and, therefore, the term should be commenced on the date when the Committee of Management had assumed charge and had started functioning, namely, three years period to be counted from 2nd January, 1989. If that is so in that event in the present case when the election had taken place on 21-1-1991 the first meeting must have taken place thereafter and if the date of first meeting is taken in that event the lire of the Committee of Management would expire after 25-8- 1994. My above reasoning finds support from the decision in the case of the Committee of Management Jangali Baba Intermediate College Garwor district Balia v. Deputy Director of Education Vth Region Varanasi, (1991) 2 UPLBEC 1183, in which Hon'ble Mr. Justice A. P. Misra, speaking on behalf of Division Bench, held that the term of three years is to be counted from the date on which the Committee of Management takes over charged and started function, as such. Once the charge starts running the same can not be stopped even if the Committee of Management is unable to function intermittently in between for some reasons or the other. His Lordship was pleased to observe, that, ''the purpose of prescribing period of three years is that elected Committee of Management to function. If for some reasons even after the election the newly elected Committee of Management is not made to take charge from the earlier Committee of Management or from the Prabandh Sanchlak the period of that Committee of Management would not start. However, the day such elected Committee of Management take over charge and or starts functioning as such, then the period of three years starts running. By looking to the relevant clause of the Scheme of Administration we feel thereafter the period of three years is fixed and in no case extended even if intermittently such Committee of Manage ment is not able to discharge its function on account of in fighting litigations between the parties or on account of stay order passed by this Court. It is thus necessary for the authority to come to the conclusion, in case of such dispute, of the date from which the elected Committee of Management has taken charge or started to function as such. In the present case the dispute raise by the petitioner is that even after the election on 7th July, 1985 on account of stay order of the court as aforesaid it could neither take charge nor start functioning, thus the period of three years could not be from the date of election and thus the impugned order holding its period having come to an end is legally not justified. ";