# C/M Visheshwar Uchchatar Madhyamik Vidyalaya and another v. State Of U.P. and others

- **Citation:** (2011) 1 ILRA 361
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-20
- **Case number:** Civil Misc. Writ Petition No. 12826 of 2011
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-visheshwar-uchchatar-madhyamik-vidyalaya-and-another-v-state-of-u-p-and-41898
- **Pages:** 3

## Headnote

Payment of Salary Act, Section-6(3)-
order of single operation-on ground the
term of management already elasped-No
right to hold office -held-order of single
operation can not be passed-but in garb
of
amendment
in
scheme
of
administration extending period from 3
to 5 years-without approval-no right to
hold the office-Regional Joint Director to
allow the DIOS to act as authorized
controller who shall proceed to hold
election within 3 month.

Held: Para 12

Accordingly it is hereby declared that the
power invoked by the Regional Joint
Director of Education under Section 6(3)
of the U.P.Act No.24 of 1971 was not
available as there was no default in
payment of salary.
Case law discussed:
2005 (1) UPLBEC 85

## Text

1 All] C/M Visheshwar Uchchatar Madhyamik Vidyalaya and another V. State of U.P. and others 361
under Article 226 of the Constitution of
India.

11. Accordingly, this court does not
find any good reason to continue the
interim order dated 20.04.2010 or to set
aside the impugned notification dated
20.08.2009 issued under Section 4 of the
U.P.C.H. Act, 1953.

12. In view of this, the interim order
dated 20.04.2010 is vacated the writ
petition is dismissed.

13. It shall be open to the petitioners
to approach the State Government for the
redressal of their grievances in the light of
the observations made hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. 12826 of 2011

C/M Visheshwar Uchchatar Madhyamik
Vidyalaya and another
 ...Petitioner
Versus
State Of U.P. and others ...Respondent

Counsel for the Petitioner:
Anil Bhushan

Counsel for the Respondent
C.S.C.

Payment of Salary Act, Section-6(3)-
order of single operation-on ground the
term of management already elasped-No
right to hold office -held-order of single
operation can not be passed-but in garb
of
amendment
in
scheme
of
administration extending period from 3
to 5 years-without approval-no right to
hold the office-Regional Joint Director to
allow the DIOS to act as authorized
controller who shall proceed to hold
election within 3 month.

Held: Para 12

Accordingly it is hereby declared that the
power invoked by the Regional Joint
Director of Education under Section 6(3)
of the U.P.Act No.24 of 1971 was not
available as there was no default in
payment of salary.
Case law discussed:
2005 (1) UPLBEC 85

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Anil Bhushan learned
counsel for the petitioner and the learned
standing counsel for the respondent nos. 1,2
and 3.

2. In view of the nature of the order
that is proposed to be ,passed it is not
necessary to issue any notice to the
respondent no.4 at this stage.

3. Needless to mention that the
petitioner had earlier filed Writ Petition No.
10093 of 2011 which was dismissed as
withdrawn with liberty to file a fresh writ
petition keeping in view the order dated
8.7.2008 and this writ petition has been
filed assailing the said order dated 8.7.2008.

4. The present writ petition assails the
order dated 28.1.2011 whereby Committee
of Management has been superseded in
exercise of powers under Section 6(3) of the
Payment of Salary Act under U.P.Act
No.24 of 1971 on the ground that the
Committee which had been validly elected
in Jan.,2006 had not been recognised and an
oder has been passed on 8.7.2008 refusing
to grant recognition. Accordingly the said
Committee has no right to continue. The
period of the Committee of Management
362 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
according to the approved Scheme of
Administration is three years which has
already expired, therefore an Authorised
Controller has to be appointed to hold fresh
elections.

5. Accordingly the complaint of the
respondent no.4 has been accepted and a
direction has been issued to the District
Inspector of Schools , Gorakhpur to act as
Prabandh Sanchalak with a further direction
to hold the elections in terms of the
government order dated 21.11.2008.

Sri Anil Bhushan learned counsel for
the petitioner contends that the impugned
order is in violation of principles of natural
justice inasmuch as according to the
impugned order itself the petitioner had not
responded to the aforesaid claim. Learned
counsel for the petitioner further submits
that as a matter of fact no notice was ever
served upon the petitioner therefore the
impugned order deserves to be set aside on
this ground alone.

6. The second submission of Shri
Bhushan is that the order has been passed
in exercise of powers under U.P.Act No.24
of 1971 which is totally unconnected with
the ingredients that are available in the
aforesaid
Act
for
the
purpose
of
superseding
the
Committee
of
Management. Sri Bhushan relies on the
judgment in the case of Committee of
Management, Shahid Sansmaran Inter
College, Sherpur and another Vs. Deputy
Director of Education Varanasi and
another reported in 1993 ALJ 318.

7. The third submission of Sri
Bhushan is that even otherwise the order
dated 8.7.2008 is incorrect inasmuch as the
same was passed behind the back of the
petitioner. For this he submits that the
petitioner no.2 has continued to pass salary
bills and to function as Manager in the
Institution through out and therefore the
order dated 10.8.2008 was never executed.
It is therefore submitted that passing of an
order to appoint an Authorised Controller
under the Payment of Salary Act in such
circumstances is wholly unjustified.

8. On the other hand learned standing
counsel submits that the position as
admitted on today is that the amendment in
the Scheme of Administration as alleged
extending the tenure to 5 years has not
been approved by any competent authority
and such an amendment is invalid keeping
in view the provisions of Section 16-A (5)
of the U.P. Intermediate Education Act,
1921. In absence of that approval the
proposal cannot be relied upon by the
petitioner and the tenure of the petitioner
cannot be treated to be five years. Learned
standing counsel further contends that
mere continuance of the petitioner and
passing of salary bills does not amount to a
lawful effective control of the petitioner so
as to claim further continuance and the
District Inspector of Schools had already
rejected the the elections of 2006. In such a
situation the impugned order cannot be
faulted with.

9. So far as the question of violation
of
principles
of
natural
justice
is
concerned,learned
Standing
Counsel
contends that in view of the Full Bench
decision in Committee of Management,
Pt.Jawahar Lal Nehru Inter College
Vs.Dy.Director of Education and others
reported in 2005(1) UPLBEC 85 the
petitioner Committee has to be superseded
for holding of free and fair elections as no
elections had been admittedly held within
time.
1 All] Janardan Singh and others V. D.M. Varanasi and others
363

10. Having heard learned counsel for
the parties, the contention raised by the
learned counsel for the petitioner that
Section 6(3) of the U.P.Act No.24 of 1971
could
not
have
been
invoked
for
superseding
the
Committee
of
Management, appears to be correct. There
has to be default in the payment of salary as
held in the case of Committee of
Management, Shahid Sansmaran Inter
College (supra). Learned counsel for the
petitioner contends that there was no default
in the payment of salary and there are
decisions which hold that if there is no
validly elected Committee of Management
then in such circumstances an order of
single operation may be passed pertaining
to the salary of staff and other employees of
the institution. Sri Anil Bhushan then
contends that in view of the provisions
relating to the tenure of the Committee of
Management as contained in clause 8 of the
Scheme of Administration the earlier office
bearers are entitled to continue. Clause 8 of
the Scheme of Administration is quoted
below:

^^izca/k lfefr ds inkf/kdkfj;ksa rFkk lnL;ksa dk
^^izca/k lfefr ds inkf/kdkfj;ksa rFkk lnL;ksa dk
^^izca/k lfefr ds inkf/kdkfj;ksa rFkk lnL;ksa dk
^^izca/k lfefr ds inkf/kdkfj;ksa rFkk lnL;ksa dk
dk;Zdky insu lnL; dks NksMdj muds fuokZfpr
dk;Zdky insu lnL; dks NksMdj muds fuokZfpr
dk;Zdky insu lnL; dks NksMdj muds fuokZfpr
dk;Zdky insu lnL; dks NksMdj muds fuokZfpr
frfFk ls mudk dk;Zdky rhu o"kZ dk jgkA fdUrq
frfFk ls mudk dk;Zdky rhu o"kZ dk jgkA fdUrq
frfFk ls mudk dk;Zdky rhu o"kZ dk jgkA fdUrq
frfFk ls mudk dk;Zdky rhu o"kZ dk jgkA fdUrq
iqjkus lnL; rc rd dk;Z djrs jgsaxs tc rd fd
iqjkus lnL; rc rd dk;Z djrs jgsaxs tc rd fd
iqjkus lnL; rc rd dk;Z djrs jgsaxs tc rd fd
iqjkus lnL; rc rd dk;Z djrs jgsaxs tc rd fd
muds LFkku ij u;s fuokZpu lkslkbVh }kjk u gks
muds LFkku ij u;s fuokZpu lkslkbVh }kjk u gks
muds LFkku ij u;s fuokZpu lkslkbVh }kjk u gks
muds LFkku ij u;s fuokZpu lkslkbVh }kjk u gks
tk;sA^^
tk;sA^^
tk;sA^^
tk;sA^^

11. This provision was also dealt
with in para 38(3) by the Full Bench
decision in the case of Committee of
Management, Pt. Jawahar Lal Nehru Inter
College (supra) . In such a situation the
petitioner committee of management
cannot
continue
perennially
without
holding of elections and the tenure of the
Committee of Management as prescribed
in the Scheme of Administration has to be
honoured and respected in letter and
spirit. It is the admitted case of the
petitioner that no elections have been
held. The proposed amendment in the
Scheme of Administration has not been
approved.

12. Accordingly it is hereby
declared that the power invoked by the
Regional Joint Director of Education
under Section 6(3) of the U.P.Act No.24
of 1971 was not available as there was no
default in payment of salary.

13. Nonetheless in view of the
reasons recorded herein above and in
view of the decision of the Full Bench of
this Court as indicated above the
Committee of Management could not
have continued without holding elections.
Accordingly the Regional Joint Director
of Education shall allow the District
Inspector of Schools to continue as the
Authorised Controller in view of the
conclusions drawn herein above and the
District Inspector of Schools shall now
proceed to hold elections after finalisation
of the electoral college in accordance with
law within a period of three months.

The writ petition is disposed of.
---------
ORIGINAL JURISDITION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2011

BEFORE
THE HON'BLE A.P.SAHI,J.

Civil Misc. Writ Petition No.63495 of 2009

Janardan Singh and others ...Petitioner
Versus
D.M. Varanasi and others ...Respondents

Counsel for the Petitioner:
Sri Aditya Naryan
Sri S.K. Pandey