# Gulab Dhar Pandey / v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-08
- **Case number:** Special Appeal No. 31 of 2009
- **Bench:** Janardan Sahai, Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulab-dhar-pandey-v-state-of-u-p-and-others-41306
- **Pages:** 8

## Headnote

Constitution
of
India
Art.
226jurisdiction
of
writ
court-once
programme for election of management
society notified-voter list published-can
not be interfered by writ court-order
passed by learned Single Judge staying
election programme set-a-side-However
the list of voters list can be challenged
after the election is over.

Held: Para 16

This Court has consistently held that
once the election process has been
started this court should not interfere. If
any party has any grievance about the
finalization of the voter list or about the
voter list, it is always open to such
person to challenge the same in the
appropriate proceeding, namely, under
the statute, Rules or Regulations or by
filing suit in the Competent Court of law.
Therefore, we are of the view that after
the
declaration
of
the
election
programme, interference by this Court is
wholly unjustified. After the order dated
02.05.2008 passed by the Ex. District
Inspector of Schools the issue relating to
voter list had not become final. The order
of the District Inspector of Schools was
subject
to
further
scrutiny
and
verification and in pursuance thereof,
the process of verification was started by
the Authorized Controller. Such further
proceeding has not been challenged by
the
petitioners-respondents
rather
petitioners-respondents
submitted
before the Authorized Controller for the
purpose of verification. Therefore, it
cannot be said that process started for
the finalization of the voter list after
02.05.2008 was not justified. However,
it is always open to the petitionersrespondents to challenge the voter list
after the election in an appropriate
proceeding, referred herein above.
Case law discussed:
(1993) 2 UPLBEC, 1333, (1950-91) 4 AlEC,
155, 1998 (32) ALR 453, (1995) 1 UPLBEC, 51,
(1996) 2 UPLBEC 1245, (1996) 1 ESC (All),
449, (1999) 1 UPLBEC, 461.

## Text

1 All] Gulab Dhar Pandey V. State of U.P. and others
247
APPELLATE JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 04.03.2009

BEFORE
THE HON'BLE JANARDAN SAHAI, J.
THE HON'BLE RAJES KUMAR, J.

Special Appeal No. 31 of 2009

Gulab Dhar Pandey
...Respondent/
 Appellant

Versus
State of U.P. and others

...Petitioners/Opposite Parties

Counsel for the Appellant:
Sri Nirvikar Gupta
Sri C.B. Dubey

Counsel for the Respondents:
Sri P.S. Baghel
S.C.

Constitution
of
India
Art.
226jurisdiction
of
writ
court-once
programme for election of management
society notified-voter list published-can
not be interfered by writ court-order
passed by learned Single Judge staying
election programme set-a-side-However
the list of voters list can be challenged
after the election is over.

Held: Para 16

This Court has consistently held that
once the election process has been
started this court should not interfere. If
any party has any grievance about the
finalization of the voter list or about the
voter list, it is always open to such
person to challenge the same in the
appropriate proceeding, namely, under
the statute, Rules or Regulations or by
filing suit in the Competent Court of law.
Therefore, we are of the view that after
the
declaration
of
the
election
programme, interference by this Court is
wholly unjustified. After the order dated
02.05.2008 passed by the Ex. District
Inspector of Schools the issue relating to
voter list had not become final. The order
of the District Inspector of Schools was
subject
to
further
scrutiny
and
verification and in pursuance thereof,
the process of verification was started by
the Authorized Controller. Such further
proceeding has not been challenged by
the
petitioners-respondents
rather
petitioners-respondents
submitted
before the Authorized Controller for the
purpose of verification. Therefore, it
cannot be said that process started for
the finalization of the voter list after
02.05.2008 was not justified. However,
it is always open to the petitionersrespondents to challenge the voter list
after the election in an appropriate
proceeding, referred herein above.
Case law discussed:
(1993) 2 UPLBEC, 1333, (1950-91) 4 AlEC,
155, 1998 (32) ALR 453, (1995) 1 UPLBEC, 51,
(1996) 2 UPLBEC 1245, (1996) 1 ESC (All),
449, (1999) 1 UPLBEC, 461.

(Delivered by Hon'ble Rajes Kumar, J.)

1. This is an appeal against the order
dated 08.12.2008 passed by the learned
Single Judge in Writ Petition No. 63078
of 2008, Rajeshwar Prasad Singh and
others Versus State of U.P. and others.

2. Brief fact 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
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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
member could be held for such a long
time.

3. 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 01.10.2007 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
petitionersrespondents 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 members 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 arc 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 02.05.2008. 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
02.05.2008, Writ Petition No. 26346 of
2008 was filed. This Court vide order
dated 28.05.2008 has directed the parties
to exchange the affidavit. However
observed that "learned counsel for the
petitioner states that District Inspector of
Schools has passed an 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 28.05.2008 passed in Writ Petition
No.26346 of 2008, Authorized Controller
issued notices to the persons named in the
order dated 02.05.2008 passed by the
District Inspector of School, Mirzapur to
be present before him on 06.06.2008 so
that their identity from the affidavits and
the receipts filed by them may be verified.
On 06.06.2008. 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
1 All] Gulab Dhar Pandey V. State of U.P. and others
249
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 a 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
14.06.2008 could not be held. The newly
appointed Authorized Controller took the
charge
on
26.07.2008.
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.

4. 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 02.05.2008. In
the
said
Writ
Petition,
following
impugned order has been passed on
08.12.2008:

"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:"

5. Challenging the aforesaid order,
present appeal has been preferred.
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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.

6. Learned counsel for the appellant
submitted that once the election process
has been started, this court should not
interfere. He submitted that after the
election being held it is always open to
challenge the election on various grounds
including the issue relating to the
finalisation of the voter list at the time of
approval
by
the
Regional
Level
Committed and thus, the impugned order
passed by the learned Single Judge is
liable to be set aside. He further submitted
that the election process has been started
in pursuance of the direction given by this
Court; the voter list has been prepared
after due consideration; after verification
of their identity through their affidavits
and other documents. Whether voter list
finalized by the Authorized Controller
was correct or not is a disputed question
of fact which cannot be looked into by
this court in writ jurisdiction under Article
226 of the Constitution of India and can
only be looked into by the Court of fact;
after the election being held, respondents
will have every right to challenge the
entire election before the Regional Level
Committee on the ground of alleged
irregularities in the preparation of the
voter list.

7. In support of his contention, he
relied upon the decisions of this Court the
case of Basant Prasad Srivastava and
others Versus State of U.P. and other
reported in (1993) 2 UPLBEC, 1333,
Committee of Management, Sri Radha
Krishna Sanskrit Mahavidyalaya and
others Versus Deputy Director of
Education reported in (1950-91) 4
AlEC, 155, R.P. Singh Baghel Versus
City
Magistrate/Election
Officer
reported in 1998 (32) ALR 453,
Committee of Management of Sri
Prachar
Vidhyapeeth
Vchattar
Madhyamik Vidyalayalaya, Samathar
Etawah and another Versus District
Inspector of School, Etawah reported
in (1995) 1 UPLBEC, 51, Committee of
Management, Pt. Jawahar Lal (2)
Krishak Inter College Mahuabari, Lar
Road, Deoria and others Versus Deputy
Director of Education and others
reported in (1996) 2 UPLBEC 1245,
Tribhuwan Prasad at Present Manager
Committee of Management, Keshav
Ram Arya Adarsh Balika Higher
Secondary School, Azamgarh Versus
Deputy Director of Education 1st, VIIth
Region,
Gorakhpur
and
others
reported in (1996) 1 ESC (All), 449 and
Committee
of
Management
Brahmarshri Sri Ram Krishna Inter
College, District Mau and another
Versus Inspector of Schools, Mau and
others reported in (1999) 1 UPLBEC,
461.

8. Sri P.S. Baghel, learned counsel
appearing on behalf of the respondent
submitted that the preparation of the voter
list was patently illegal. He submitted that
in
compliance
of
the
order
dated
02.05.2008 and order dated 22.05.2008
passed by the District Inspector of
Schools the election programme was
declared on 24.05.2008 by the Prabandh
Sanchalak on the basis of electoral college
of 46 life members and one founder
member and the date of election was fixed
on 14.06.2008. He submitted that the said
electoral programme was challenged by
two persons, namely, Sri Gulab Dhar
1 All] Gulab Dhar Pandey V. State of U.P. and others
251
Pandey (present appellant) and Sri Lallan
Dubey by means of Civil Misc. Writ
Petition No. 26346 of 2008 and this Court
has not granted interim order and it was
directed that the result of the election
shall abide by the decision in writ
petition. The said writ petition is still
pending before this Court. He submitted
that prior to the election a notice was
published on 29.05.2008 in the daily
newspaper "Amar Ujala". In the said
notice the members were directed to
deposit their photographs, certificate of
date of birth, duly attested by second class
Gazetted Officer before the Principal
piror to 05.06.2008. In pursuance of the
said notice, the petitioners have deposited
all the required documents and affidavits
etc on 05.06.2008. On 04.06.2008 a
notice was published in the newspaper
that all the life members of the college
should reach the office of the Authorized
Controller on 06.06.2008 at 11.00 A.M.
i.e. within two days of the publication of
the notice. When the petitioners reached
the office of the Authorized Controller
without looking into the paper of the
petitioners, the election dated 14.06.2008
was
postponed
by
the
Authorized
Controller for which a notice was
published in the daily newspaper "Amar
Ujala" on 08.06.2008 regarding the
postponement of the election. Thereafter,
on 25.10.2008 the Authorized Controller
written a letter to one Sri Rajeshwar
Prasad Singh, which was received by Sri
Rajeshwar Prasad Singh on 29.10.2008
directing him to inform all the 35
members at his own level that they should
reach the office of the Authorized
Controller on 31.10.2008 along with their
domicile certificate, age certificate and
identity certificate issued by the Election
Commission or India. He submitted that
in such short notice, it was not possible
for the members who were residing
outside Mirzapur to appear. Further, on
29.10.2008 a public notice was issued to
all the members of the General Body
which was published in local newspaper
of Mirzapur "Hindustan" where the
members of General Body were informed
to appear before him on 31.10.2008. He
further submitted that in response to the
aforesaid notice, Rajeshwar Prasad Singh
could inform only 17 members who were
local members and they filed affidavits
regarding their membership along with
their domicile certificate, identity card,
certificate of date of birth etc on
31.10.2008
before
the
Authorized
Controller. The Authorized Controller
without issuing any notice to the other
members on wholly non-existent ground
has accepted only 10 members and
rejected the claim of all the 35 members
who have been found to be genuine
members by District Inspector of Schools
by her order dated 02.05.2008 and
25.05.2008. The Authorized Controller
has also rejected the membership of 17
persons who were present on 31.10.2008.
The Prabandh Sanchalak passed the order
dated
15.11.2008
wherein
only
10
members have been found genuine
members. The order dated 05.11.2008
passed by the Prabandh Sanchalak is
without jurisdiction inasmuch he has
traveled beyond his jurisdiction. The
order of the Authorized Controller has
been passed in flagrant violation of
principle of natural justice and he has not
given notice to all 35 members.

9. Having heard the learned counsel
for the parties, we have gone through the
impugned order passed by the learned
Single Judge, other documents annexed
along with the writ petition and have
252 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
given due consideration to the rival
submissions.

10. Admittedly, the Authorized
Controller was appointed in the year,
1981 and since then the ejection was not
held. It was desirable that Committee of
Management be formed to run the
institution in accordance with the Scheme
of Administration and therefore, having
regard to this fact, this court vide order
dated 1st October, 2007 has directed the
District Inspector of Schools, Mirzapur to
hold the election of Committee of
Management of the institution as per
approved
Scheme
of
Administration
within a period of two months from the
date of presentation of certified copy of
the order. It appears that for one reason or
the other, the election could not be held as
directed by this Court.

11. Finally, the final list of the
members was approved and published by
the Authorized Controller and with the
proper
permission
of
the
District
Inspector of Schools, Mirzapur 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 to be made on 10.12.2008 and
in the case of contest, the date of voting
was fixed on 12.12.2008.

12. In the case of Basant Prasad
Srivastava and another Versus State of
U.P. and another (supra), the Full
Bench of this Court held as follows:

"When once the election process
starts, it must come to its logical
conclusion. Once it comes to its logical
conclusion by declaration of result of
the election the aggrieved person may
challenge the election by filing election
petition or civil suit in accordance with
law. In such a proceeding the election
may not be set aside if the alleged
illegality
or
irregularity
has
not
materially affected the result of the
election.
Approach
to
Court
at
intermediate stages in the election is
bound to result in an office either
remaining vacant or being occupied by
a person whose entitlement to hold the
office has ceased. Neither is a happy
situation. It is, therefore, desirable that
the election process should end as early
as possible and the declaration of result
should
not
be
deferred
through
repeated interim orders passed from
time to time."

13. In the case of Committee of
Management,
Sri
Radha
Krishna
Sanskrit Mahavidyalaya and others
Versus Deputy Director of Education,
Gorakhpur and others (supra), the
Division Bench of this Court held as
follows:

"There
are
large
number
of
educational institution as and the
functioning of such institutions are
controlled
and
managed
by
a
Committee
of
Management.
Such
Committee is constituted under the
rules,
regulations
or
certain
Administrative schemes. The term of
such Committee of Management is
limited by time. The election process
inter alia involves the determination of
the members who can vote and
participate in the election, nomination,
preparation
and
publication
of
programme, scrutiny and declaration
1 All] Gulab Dhar Pandey V. State of U.P. and others
253
of result. In case, at the intermediate
stage of the election process the High
Court entertains petitions under Article
226 of the Constitution it will further
delay the election process. Secondly, the
disputed question of fact as to who are
the members and other related matters
cannot
be
decided
in
the
writ
jurisdiction. A person who has any
grievance can take recourse to the
remedy provided under the Statute,
Rules or Regulations or by filing suit in
the competent Court of law."

14. In the case of Committee of
Management, Pt. Jawahar Lal Krishak
Inter College Mahuabari, Lar Road,
Deoria and others Versus Deputy
Director of Education and others
(supra), learned Single Judge of this
Court held as follows:

"The question of validity of the
election is dependant upon several
factors including the validity and
genuineness of the members inasmuch
the election held with the help of
invalid and take members cannot be
said to be valid election. Therefore, in
any case, when the question arises as to
whether the members who participated
in the election were or were not the
members of the general body, the
Deputy Director of Education is under
obligation to decide the said question
before recording any finding on the
question of validity of the election. The
validity of election is to be determined
in accordance with the provisions of
Scheme of Administration."

15. In the case of Tribhuwan
Prasad at Present Manager Committee
of Management, Keshav Ram Arya
Adarsh
Balika
Higher
Secondary
School,
Azamgarh
Versus
Deputy
Director of Education 1st, VIIth Region,
Gorakhpur and others (supra), learned
Single Judge of this Court held as follow:

"List of members given by D.I.O.S.
was
made
basis
by
authorized
controller, concluded election of office
bearer of Committee of Management
Representation of contesting opposite
parties about in correctness of list of
members regarding exclusion of certain
persons from becoming members not to
be entertained once election process
had already started- Held, D.I.O.S. Not
justified in passing orders during
process of election. D.I.O.S. directed to
pass appropriate orders about approval
or
disapproval
of
Committee
of
Management elected in the election
conducted by authorised controller.
The O.P. Pramod Gandhi or any
other person, if aggrieved by the
election
held
by
the
authorised
controller, may seek such other legal
remedy before the appropriate civil
court for adjudication, about the
validity of members of the Committee
of Management, if so advised. Neither
the D.I.O.S. nor the High Court under
Article 226 of the Constitution is
supposed to enter into the controversy
about the genuineness, correctness and
validity of list of members."

16. This Court has consistently held
that once the election process has been
started this court should not interfere. If
any party has any grievance about the
finalization of the voter list or about the
voter list, it is always open to such person
to challenge the same in the appropriate
proceeding, namely, under the statute,
Rules or Regulations or by filing suit in
the Competent Court of law. Therefore,
254 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
we are of the view that after the
declaration of the election programme,
interference by this Court is wholly
unjustified.
After
the
order
dated
02.05.2008 passed by the Ex. District
Inspector of Schools the issue relating to
voter list had not become final. The order
of the District Inspector of Schools was
subject to further scrutiny and verification
and in pursuance thereof, the process of
verification was started by the Authorized
Controller. Such further proceeding has
not been challenged by the petitionersrespondents rather petitioners-respondents
submitted
before
the
Authorized
Controller for the purpose of verification.
Therefore, it cannot be said that process
started for the finalization of the voter list
after
02.05.2008
was
not
justified.
However, it is always open to the
petitioners-respondents to challenge the
voter list after the election in an
appropriate proceeding, referred herein
above.

17. In the result, Special Appeal is
allowed. The impugned order dated 08th
December, 2008 passed by the learned
Single Judge is set aside and Writ Petition
No.63078 of 2008. Rajeshwar Prasad
Singh and others Versus State of U.P. and
others stand dismissed. The Authorized
Controller is directed to issue election
programme from the date from where the
election process has been stayed within a
period of two weeks by all means and
hold the election on the basis of impugned
voter list within a period of two months
by all means. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2009

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (Defective) No. 115 of
2006

State of U.P and another

...Appellants/Respondents

Versus
Shailendra Kumar Singh ...Respondents

Counsel for the Appellants:
Sri Dr. Y.K. Srivastava
Sri C.B. Yadav
S.C.

Counsel for the Respondent:
Sri Rahul Sripat

Dying
in
Harness
Rules
1974compossionate appointment-part time
Tube well operator-working for 2 1⁄2
every day-can not be treated as regular
employee-direction for compassionate
appointment given by learned Single
Judge ignoring Division Bench decisionnot sustainable.

Held: Para 8

The
burden
of
proof
that
the
respondent's father was in a regular
employment was on the respondent. In
the facts as stated, we are of the view
that he has not discharged that burden.
This apart the learned Single Judge has
not considered the above Division Bench
judgment which clearly discusses the
law on this point. It is perhaps due to the
fact that since the earlier judgment is
not reported, the same has not been
referred to by the learned Single Judge.
Now the same has been pointed out to
us and we have noted the facts. In our
view, the learned Single Judge has erred
in
granting
the
benefits
to
the