Rajes Kumar, J. - (1.) THIS is an appeal against the order dated 8.12.2008 passed by the learned Single Judge in Writ Petition No. 63078 of 2008, Rajeshwar Prasad Singh and others v. state of U.P. and others.
(2.) BRIEF facts of the case giving rise to the present appeal are that there is a college, named, as Sri Gandhi Vidyalaya Intermediate College, Kachhwa, District Mirzapur (hereinafter referred to as "institution") a recognized Intermediate College and is under grant-in-aid. The provisions of U.P. Intermediate Education Act (hereinafter referred to as "Act") and Payment of Salaries Act, 1971 are applicable. The institution was established by a registered Society known as Sri Gandhi Vidyalaya Higher Secondary School, Kachhwa, Mirzapur (hereinafter referred to as "Society"). The Society has its own registered bye laws and the institution has its approved Scheme of Administration approved by the Deputy Director of Education, Varanasi Region, Varanasi. It appears that the Scheme of Administration was amended by the Deputy Director of Education, 5th Region, Varanasi w.e.f. January, 1985. It appears that on account of certain irregularities being found in the institution, State Government passed an order under Section 16-D of the Act, appointing an Authorized Controller in the institution in the year 1981 and since then, the Authorized Controller is continuing in the institution and no election on the basis of Scheme of Administration with valid members could be held for such a long time. It appears that Writ Petitions were filed by one Sri Parmanand Dubey being Writ Petition No. 56441 of 2003 and by the alleged Committee of Management Sri Hari Mohan Singh being Writ Petition No. 3022 of 2004. Both the Writ Petitions were decided by the learned Single Judge of this Court on 1.10.2007 directing the District Inspector of Schools, Mirzapur to hold the election of Committee of Management of the institution in accordance with law as per approved Scheme of Administration within a period of two months from the date of production of certified copy of the order. It appears that to hold the valid election the process of preparation of voter list has been started by the District Inspector of Schools, Mirzapur. The petitioners-respondents filed the list of 35 members to be included in the voter list to be allowed to participate in the election. Appellant and other life member filed a list of valid members before the District Inspector of Schools, Mirzapur and stated that there are only 9 life members of the institution, who alone are entitled to be allowed to participate in the election. It appears that Ex. District Inspector of Schools, Mirzapur Smt. Malti Rai has included 35 members to be valid voters vide order dated 2.5.2008. However, it has been directed to the Authorized Controller that in case there would be any concealment in the averment of affidavit, which is found later, then membership shall not be held valid and further direction was given to hold the election after the verification of affidavit. Challenging the order of District Inspector of Schools, Mirzapur dated 2.5.2008, Writ Petition No. 26346 of 2008 was filed. This Court vide order dated 28.5.2008 has directed the parties to exchange the affidavit. However observed that "learned counsel for the petitioner states that District Inspector of Schools has passed all order directing the Authorised Controller to examine the receipts and the affidavits. This Court has no reason to doubt that such a direction shall not be followed". Court further observed that the result of election shall be abide by the decision of the writ petition. It appears that in view of the judgment and observation of this Court dated 28.5.2008 passed in Writ Petition No. 26346 of 2008, Authorized Controller issued notices to the persons named in the order dated 2.5.2008 passed by the District Inspector of Schools Mirzapur to be present before him on 6.6.2008 so that their identity from the affidavits and the receipts filed by them may be verified. On 6.6.2008, Authorized Controller proceeded to make verification of the identity of members on the basis of their affidavits. It appears that during the course of verification some incident took place. Therefore, the election programme was postponed and the Authorized Controller wrote letter to Joint Director of Education, Vindhyachal Region, Mirzapur as well as to the District Inspector of Schools, Mirzapur with a request that he is unable to hold the election, hence some other person may be appointed as Authorized Controller. On the basis of said report, election programme was postponed and Joint Director of Education appointed Sri Vijay Shanker Mishra as Authorized Controller to hold the election after verification of the identity of the members. Due to aforesaid reasons, the election scheduled for 14.6.2008 could not be held. The newly appointed Authorized Controller took the charge on 26.7.2008. The newly appointed Authorized Controller after taking over the charge proceeded to hold the election and for verification and the identity of the members with their affidavits and other documents fixed 31.10.2008. On that day, through vediography verification was done and by order dated 15.11.2008, the final list of members was approved and published by the Authorized Controller and with proper permission of the District Inspector of Schools, Mirzapur, he chalked out the election programme and published in the newspaper "Amar Ujala" and "Dainik Hindustan" on 27.11.2008 and 28.11.2008 respectively. As per the programme of election, nomination was to be started from 10.12.2008, scrutiny of the nomination was to be made on 10.12.2008, the withdrawal of the nomination on 10.12.2008 and in the case of contest, the date of voting was fixed on 12.12.2008. Sri Rajeshwar Prasad Singh and others then filed Writ Petition No. 63078 of 2008 challenging the voter list approved by the Authorized Controller on 15.11.2008 and also prayed for holding election with the members as directed by the District Inspector of Schools, Mirzapur vide order dated 2.5.2008. In the said Writ Petition, following impugned order has been passed on 8.12.2008: "Learned Standing Counsel has accepted notice for the respondents No. 1 to 3 and Sri Anil Bhushan for the respondent No. 6. They pray for and are granted a month's time to file counter affidavit. The petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter. Issue notice to the respondents No. 4 and 5 fixing a date immediately after six weeks. On the next date, the respondent No. 5 shall file his personal affidavit explaining as to why the elections which were announced on 24.5.2008 had been postponed even when there was no interim order granted by the High Court and further when the said election was postponed then on what basis he has changed the list of members which were earlier found to be 46 life members and one founder member and now the list is of only 10 members. Considering the facts and circumstances of this case, it is directed that the elections in pursuance of the order dated 15.10.2008 passed by the Authorized Controller shall remain stayed."
(3.) CHALLENGING the aforesaid order, present appeal has been preferred. Heard Sri Nirvikar Gupta, Advocate assisted by Sri C.B. Dubey, learned counsel appearing on behalf of the appellant and Sri P.S. Baghel, learned counsel appearing on behalf of respondent Nos. 6 to 13.;