# Committee of Management, Islamia Inter College Firozabad & Anr v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-26
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-islamia-inter-college-firozabad-anr-v-state-of-u-p-ors-42811
- **Pages:** 6

## Headnote

C.S.C., Sri R.K. Ojha, Sri Namit Srivastava
Sri Parul Srivastava

U.P.
High
School
&
Intermediates
Colleges(Payment of salaries of teachers
and other employees) Act 1971-Section
5(2)-Single operation order-DIOS-failed
to consider the clause-VII of scheme of
Administration-affirmed by in special
Appeal-providing the old management
shall to look after the affairs till validity
elected
new
successor-takeover
in
absence of those contingencies justifying
action
of
passing
Single
operationquashed.

Held:Para-19
From the perusal of the impugned order
it is manifest that the only reason in the
order is that since the election has not
been
held
within
time
and
the
Committee of Management has outlived
its period, therefore, it was necessary to
invoke sub-section (2) of Section 5 of the
Act No. 24 of 1971. In the order no
finding has been recorded by the DIOS
that
there
was
any
difficulty
in
disbursement of salary or Management
has failed to comply the provisions of
Section 5(1) of the Act, 1971, which
provides that the Management shall
deposit
certain
percentage
of
fee
realized from the students. The reason
mentioned by the DIOS for invoking
Section
5(2)
of
the
Act,
1974
is
unsustainable. The said reason was
considered by the Division Bench while
considering the order of the single
operation of the same Institution. The
Division Bench held that in view of
clause-VII
of
the
Scheme
of
Administration the office bearers shall
continue till his successor is elected.

## Text

566 INDIAN LAW REPORTS ALLAHABAD SERIES
period contempt petition was moved and
orders were passed on 29.3.2012 for
compliance of the resolution dated 5.1.2012
passed by the Board of Directors. It was
directed that in case the decision has not been
taken in compliance of the court's order
respondent no. 1 i.e. Principal Secretary shall
appear on 17.4.2012.

26. When the Principal Secretary was
summoned he rejected the resolution /
recommendation of the Managing Director
on 16.4.2012 in great haste with malice
towards the petitioner as well as contempt
petitioners. The contempt petition naturally
failed and the endeavour of the petitioner
was thwarted. When the temperature cooled
down in the office of the Principal Secretary
the same officer granted the permission for
extending the age of superannuation after
three months on the recommendations made
in the month of April itself. It was made
prospective so that benefit may not accrue to
the petitioners in a way it was a attempted to
teach them a lesson.

27. In the case of S.R. Bommai Vs.
Union of India & others (1994) 3 SCC 1,
the Hon. Supreme Court has held that
"when the Act is alleged to be malafide
and there is no reason except which
occasion to exercise the said powers, the
said Act should be considered to be exfacie arbitrary and malafide. In those
circumstances, the Court has to interject
itself, otherwise, it would result into
failure and / or miscarriage of justice."

28. Taking the facts and circumstances
of this case mentioned above and the law laid
down by the Hon'ble Supreme Court, the
court finds that a case has been made out by
the petitioners. Although the permission has
been given with prospective effect but the
petitioners case was already covered by the
court's order. As per the court's order passed
in W.P. No. 527 of 2012 ( Sitaram Singh and
two others) dated 30.1.2012. The said order
has already been quoted in the body of the
order. Since the retirement of the petitioner
was subject to the decision of the State
Government and State Government has
taken a positive decision on extending the
age of retirement from 58 to 60 years, hence,
the case of the petitioner should be included
in the benefit given to others vide order dated
24.7.2012.

29. The writ petition is, thus,
allowed.

30. The petitioners will be treated to
have retired after attaining the age of 60.
If they have already completed the age of
60 years they will be entitled to the salary
and other benefits including allowances
till they have attained the age of 60 years.
They will be treated to be in service
during this period. The benefit will only
be available to the persons who are
included in this bunch of writ petitions.

31. The order dated 24.7.2012
(contained as Annexure no. 1 to the writ
petition)
the
order
dated
26.7.2012
(contained in Annexure no. 2 to the writ
petition) shall be quashed to the effect which
denies the benefit to the petitioners by being
prospective in nature. This prospectiveness
shall remain intact for others who are
governed by that government order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05. 2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 8730 of 2014.
2 All] Committee of Management, Islamia Inter College Firozabad & Anr. Vs. State of U.P. & Ors. 567
Committee
of
Management,
Islamia
Inter College, Firozabad & Anr.
 .Petitioners
Versus
State of U.P. & Ors. .......Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Anil Bhushan

Counsel for the Respondents:
C.S.C., Sri R.K. Ojha, Sri Namit Srivastava
Sri Parul Srivastava

U.P.
High
School
&
Intermediates
Colleges(Payment of salaries of teachers
and other employees) Act 1971-Section
5(2)-Single operation order-DIOS-failed
to consider the clause-VII of scheme of
Administration-affirmed by in special
Appeal-providing the old management
shall to look after the affairs till validity
elected
new
successor-takeover
in
absence of those contingencies justifying
action
of
passing
Single
operationquashed.

Held:Para-19
From the perusal of the impugned order
it is manifest that the only reason in the
order is that since the election has not
been
held
within
time
and
the
Committee of Management has outlived
its period, therefore, it was necessary to
invoke sub-section (2) of Section 5 of the
Act No. 24 of 1971. In the order no
finding has been recorded by the DIOS
that
there
was
any
difficulty
in
disbursement of salary or Management
has failed to comply the provisions of
Section 5(1) of the Act, 1971, which
provides that the Management shall
deposit
certain
percentage
of
fee
realized from the students. The reason
mentioned by the DIOS for invoking
Section
5(2)
of
the
Act,
1974
is
unsustainable. The said reason was
considered by the Division Bench while
considering the order of the single
operation of the same Institution. The
Division Bench held that in view of
clause-VII
of
the
Scheme
of
Administration the office bearers shall
continue till his successor is elected.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioners have filed this writ
petition aggrieved by the order of the
District Inspector of Schools dated 30
December 2013, whereby he has passed
an order of single operation under Section
5(2) of the Uttar Pradesh High Schools
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
other
Employees) Act, 1971 (U.P. Act No. 24
of 1971). This writ petition is in respect of
the
educational
Institution
namely
Islamiya Inter College, which has been
founded by the petitioner no.2.

2. Briefly stated facts of this case
are; last election of Committee of
Management of Islamia Inter College,
Firozabad (for short, "the Institution")
was held on 27.01.2008 wherein Gulab
Navi-petitioner no. 2 in the instant writ
petition was elected as Manager and one
Mohd. Ubedulla was elected as President.
The signatures of the petitioner no. 2 was
attested by the District Inspector of
Schools (for short, "the DIOS") vide order
dated 19 January 2009. The term of the
office bearers of the Committee of
Management is three years. The fresh
election was held on 19 December 2010.
The petitioner no. 2 was again elected as a
Manager and Mohd. Ubedulla was elected
as President. After the election the papers
were forwarded to the DIOS for the
recognition
of
Committee
of
Management. The DIOS sent the matter
to the Regional Level Committee for
consideration of recognition but in the
meantime on 04 March 2011 he passed an
order of single operation.
568 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Aggrieved by the said order the
Committee of Management preferred a
Writ Petition No. 14663 of 2011. The said
writ petition was dismissed by this Court
on the ground that the term was
admittedly expired and the DIOS has
made arrangement for single operation
keeping in view the interest of the
teachers and employees of the Institution
since the managerial dispute was pending
before the Regional Level Committee.

4. Dissatisfied with the order of the
learned Single Judge dated 10 March
2011 the petitioners preferred a Special
Appeal No. 420 of 2011. The said special
appeal was allowed on 17 March 2011
and the order of learned Single Judge was
modified setting aside the order of single
operation. The Division Bench was of the
view that the Scheme of Administration
specifically provides that the erstwhile
office bearers and members of the
Committee of Management were entitled
to continue till their successors are
chosen, therefore, the office bearers of the
Committee of Management were held to
be entitled to continue and manage the
affairs of the College. The Division
Bench maintained the direction of the
learned Single Judge, whereby He had
directed the Regional Level Committee to
decide the managerial dispute within
certain time.

5. The Regional Level Committee
after hearing the concerned parties held
that the election dated 19 December 2010
wherein the petitioner no. 2 Gulab Navi
was elected as Manager and Mohd.
Ubedulla as President, was a valid
election and it rejected the claim of the
rival faction who had held their election
on 19 December 2010. In compliance
thereof
the
DIOS
recognized
the
petitioner no. 2 as Manager and his
signatures were attested. A copy of the
order of the Regional Level Committee
and the DIOS are on the record as
annexure-7 & 8 to the writ petition.

6. It is averred that the previous
election was held on 19.12.2010. The
process for the fresh election was initiated
on 22 December 2013. It is stated that due
to some unavoidable reason the meeting
could not be held on 12 December 2013,
therefore, a fresh agenda was issued on 22
December 2013 for holding the election
on 12 January 2014. The DIOS was
requested to send an Observer and the
notice was published in the local
newspaper. A copy of the said notice is on
the record as annexure-11 to the writ
petition.

7. It is stated that the election was
held on 12 January 2014 and the copy of
the election proceeding and other papers
were forwarded to the office of the DIOS
for the approval of the Regional Level
Committee. The DIOS instead of taking
the recognition of the Committee of
Management, has passed the impugned
order of single operation.

8. I have heard Sri Ashok Khare,
learned Senior Advocate assisted by Sri
Anil Bhushan, learned Counsel for the
petitioners, Sri R.K. Ojha, learned Senior
Advocate
assisted
by
Sri
Namit
Srivastava, learned Counsel for the
complainant,
and
learned
Standing
Counsel
appearing
for
the
State
respondents.

9. Sri Ashok Khare, learned Senior
Advocate, submits that the Regional
Level Committee had approved the
election of the petitioners and earlier
2 All] Committee of Management, Islamia Inter College Firozabad & Anr. Vs. State of U.P. & Ors. 569
order passed by the DIOS was set aside
by this Court and in the Special Appeal it
was held that as per the Scheme of
Administration the office bearers shall
continue till their successors are elected.
He further submits that the fresh election
has also been held on 12 January 2014
and papers have been sent to the office of
the DIOS. Before the decision has been
taken, the DIOS on the basis of complaint
has passed the order of single operation.

10. Lastly he urged that the DIOS
has illegally invoked his power under
Section 5(2) of the U.P. Act No. 24 of
1971 as none of the conditions for
invoking said power is specified in the
facts of this case as there was no fault of
Management
in
depositing
the
Management fund or there was no
difficulty in disbursement of the salary of
teachers and employees.

11. Learned Senior Advocate Sri
R.K. Ojha submits that the term of the
Committee of Management is over and
the fresh election has not been recognized
by the authorities, therefore, the DIOS has
rightly invoked his power under Section
5(2) of the U.P. Act No. 24 of 1971.

12. I have heard learned Counsel for
the
parties
and
considered
their
submissions.

13. The petitioner's Institution is a
minority
Institution.
The
undisputed
election was held on 27.01.2008. In the
said election the DIOS has recognized the
petitioner no. 2 as Manager and attested
the signatures on 19 January 2009. The
fresh elections were held on 19 December
2010, wherein the petitioner no. 2 was
again elected as Manager of the College.
The dispute arose with regard to the said
election and the matter was decided by
the Regional Level Committee on 30 July
2011, wherein it was found that the
petitioner no. 2 was validly elected
Manager
of
the
Committee
of
Management. The DIOS had passed a
consequential order on 19 August 2011
attesting the signatures of petitioner no. 2.

14. Pertinently, while the matter was
pending before the Regional Level
Committee previously also the single
operation order was challenged by the
petitioner by a Writ Petition No. 14663 of
2011, which was disposed of by this
Court on 10.03.2011 with a direction to
the Regional Level Committee to decide
the matter expeditiously but the learned
Single Judge refused to interfere with the
order of single operation.

15. Feeling aggrieved by the order of
learned Single Judge the petitioners had filed
a Special Appeal No. 420 of 2011. In the said
Special Appeal, vide order dated 17.03.2011,
the order of learned Single Judge was
modified and it was found that clause-7 of
the Scheme of Administration provides that
every office bearer shall continue till his
successor is elected. Clause-7 of the Scheme
of Administration reads as under;

VII. Term of Members :-.

The term of office bearers and members
V(a) & (c) other than ex-officio members
shall be three years from the date they are
chosen, provided that the term of every office
bearer shall be deemed to have continued till
his successor is chosen. The term of the exofficio members shall be governed by the
regulations of the Act.

16.
The
Division
Bench
has
considered the said clause in its judgment
570 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 17 March 2011 and set aside the
order of the DIOS for single operation.
The relevant part of the order is extracted
hereunder;

"Sri Khare invited the attention of
the Court to Clause 7 of the Scheme of
Administration, which finds place at page
50 of the paper book wherein terms of the
office bearers and members has been
provided to be three years from the date
they are chosen but they shall continue till
their successor is chosen. He, therefore,
submitted that the appellant is validly
elected committee of management and till
such time the rival claims are decided the
appellants are entitled to continue to
function as the committee of management
and, therefore, the order of single
operation could not have been passed.

Sri J.J. Munir, learned counsel could
not successfully challenge the aforesaid
submission.

In this view of the matter, even
otherwise, we find that Clause 7 of the
Scheme of Administration specifically
takes care of such contingency and the
erstwhile office bearers and members of
the committee of management are entitled
to continue till their successor is chosen
and, therefore, the appellants are entitled
to continue and manage the affairs of the
College including that of operating the
accounts. The order dated 4th March,
2011 passed by the District Inspector of
Schools, Firozabad directing for single
operation is, therefore, set aside."

17. In the instant case the petitioner
no. 2 was recognized in two consecutive
elections of 2008 and 2010 and the fresh
election has also been held, papers of
which have been submitted in the office
of the DIOS but no order has been passed
by the DIOS or the Joint Director of
Education. Therefore, there was no
difficulty in disbursement of the salary in
the Institution.

18. The Section 3 of the U.P. Act
No. 24 of 1971 enjoins that the salary of
teachers and employees shall be paid
within a time frame mentioned in the said
Section without deduction of any kind
except those authorized by the regulations
or by any rules made under the Act.
Section 5 of the U.P. Act No. 24 of 1971
provides the procedure for payment of
salaries.

19. From the perusal of the
impugned order it is manifest that the
only reason in the order is that since the
election has not been held within time and
the Committee of Management has
outlived its period, therefore, it was
necessary to invoke sub-section (2) of
Section 5 of the Act No. 24 of 1971. In
the order no finding has been recorded by
the DIOS that there was any difficulty in
disbursement of salary or Management
has failed to comply the provisions of
Section 5(1) of the Act, 1971, which
provides that the Management shall
deposit certain percentage of fee realized
from the students. The reason mentioned
by the DIOS for invoking Section 5(2) of
the Act, 1974 is unsustainable. The said
reason was considered by the Division
Bench while considering the order of the
single operation of the same Institution.
The Division Bench held that in view of
clause-VII
of
the
Scheme
of
Administration the office bearers shall
continue till his successor is elected.

20. Having regard to the facts and
circumstances of the case, I am of the
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors.
571
view that the order of the DIOS is
contrary and in teeth of the judgment of
the Division Bench in Special Appeal No.
420 of 2011 dated 17.03.2011. For the
said reason the order of single operation
passed by the DIOS needs to be set aside.
Accordingly, it is set aside. It is provided
that the papers relating to the election
dated 12.01.2014, which have been
submitted to the office of the DIOS, is
pending consideration. The DIOS is
directed to take appropriate decision on
the papers submitted by the Committee of
Management in terms of the Government
Order dated 19 December 2000 and 21
October 2008 as early as possible
preferably within eight weeks from the
date of communication of this order, but
in any case, not later than three months.

21.

Thus
writ
petition
is,
accordingly, allowed.

22. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Writ Petition No. 17066 of 2014

Prof. Ram Chandra. .................Petitioner
Versus
State of U.P. & Ors. ............Respondents

Counsel for the Petitioner:
Sri J.P. Kushwaha, Sri Virendra Kumar, Sri
R.K. Ojha

Counsel for the Respondents:
C.S.C., Sri U.N. Sharma, Sri Neeraj Tiwari,
Sri Neeraj Tripathi
(A)State Universities Act-1973-Section
68-Suo
moto
action
by
chancellorpetitioner was appointed on post of
lecturer
in
Geology-while
vacancy
advertised for post of Professor-in which
petitioner
not
found
suitable-heldappointment against vacancy without
advertisement-illegal.

Held:Para-18
We, therefore, see no reason to interfere
with the order of the Chancellor wherein
he has held the appointment of the
petitioner as Lecturer in the year 2002
and Reader in the year 2003 in the
subject of Geology was illegal being in
the teeth of the statutory provision of
Section 31 of the U.P. State Universities
Act, 1973.

(B)State
Universities
Act-1973-Section
31(1) and (4)-Appointment on post of
reader-selection committee not constituted
as per statutory requirement-V. C.-due to
the reason best to him-constituted same
selection
committee-who
had
earlier
recommended for appointment on post of
lecturer without advertisement-held-illegalhowever salary already drawn by petitioner
shall not be returned.

Held:Para-25
Even otherwise if substantial justice against
technical objection are pitted against each
other interest of substantial justice must
prevail. Universities are institutions of
learning and if illegal appointments are
permitted
to
be
perpetuate
in
such
institutions,
only
God
can
save
the
education
in
the
State.
If
the
Vice
Chancellor who is the Chief Executive of the
University himself acts unfairly as has been
noticed by the Chancellor in the order
impugned, this Court will not interfere with
the order of the Chancellor which has the
effect of curing the said illegality.

Case Law Discussed:
Civil Appeal No. 979 of 2014; AIR 1936 PC
253.

(Delivered by Hon'ble Arun Tandon, J.)