Committee of Management,Uchattar Madhyamik Vidyalaya Samiti Sukhpura,Ballia and Another vs Director of Education (Secondary),U.P.Lucknow and Others

Sunil Ambwani, J.—Committee of Management, Uchattar Madhyamik Vidyalaya Samiti Sukhpura, District Ballia through its Secretary and another, have challenged order dated 3062001 issued by Director of Education (Secondary), U.P. Lucknow by which he has transferred Sri Lalendra Pratap Singh, respondent No. 7, Principal of Inter College Karanda, Ghazipur to be appointed as Principal of Sukhpura Inter College Sukhpura, Ballia (Serial No. 8 in the order), exercising powers under notification dated 991997.

Upon hearing Sri Ashok Khare, Senior Advocate, assisted by Sri V.K. Singh, learned Counsel for petitioners and Sri L.P. Singh, learned Counsel for respondent No. 7, as well as learned standing Counsel, I propose to refer following questions for consideration by a larger Bench :

�(1) Whether the consent of Prabandh Sanchalak appointed by Joint Director of Education under Clause 7 of the Scheme of Administration for holding election given by him under Regulation 58 of Chapter III of Regulations made under Intermediate Education Act, 1921 for transfer of a principal to the institution amounts to consent of the `Committee of Management'', as provided in proviso (1) to Regulation 61 (1) of the Regulations, as above? and

(2) Whether the interpretation given by learned Single Judge in favour of such consent given by Prabandh Sanchalak to be valid by interpreting proviso (1) to Regulation 61(1), in Narendra Kumar v. State of U.P. and others, 2002 (1) ESC (All) 214, is correct�?

The facts, giving rise to the aforesaid questions of law, are stated as below :

Uchattar Madhyamik Vidyalaya Samiti, Sukhpura, Ballia was registered on 21111955, with its last renewal for five years w.e.f. 10102000. The society runs and manages a recognised and aided educational institution under the name of Sukhpura Inter College Sukhpura, District Ballia which is governed by the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971. A management dispute is pending with regard to the election of the Committee of Management for which three writ petitions viz.; Writ Petition Nos. 36325 of 1995; 3775 of 1995 and 38072 of 1995, were filed before this Court and were finally disposed off on 2341996, holding that the elections dated 821992 and 521995 were invalid. Directions were issued to the Joint Director of Education to appoint a Prabandh Sanchalak within a period of one month to hold elections for constituting a Committee of Management within three months from the date of his appointment. Further authority was confirmed upon Prabandh Sanchalak to decide the list of members of the general body entitled to participate in the election. In Special Appeal No. 396 of 1996, decided by judgment and order dated 22101997, reported in 1998(1) UPLBEC 379, the Division Bench affirmed the judgment and modified the direction of learned Single Judge to hold fresh election under the supervision of the Managing Director appointed by the Joint Director of Education, Vth Region, Varanasi having found that the election is to be held in accordance with the provisions of Scheme of Administration and that the amended Scheme of Administration provides that in such circumstances, the Deputy Director of Education of concerned region will appoint a Prabandh Sanchalak for holding the election. The said provision is to be followed while holding election of Committee of Management. In this view of the matter, the Joint Director of Education, Vth Region, Varanasi was directed to issue necessary instructions to the Deputy Director of Education of concerned region to appoint a Prabandh Sanchalak to hold election of the Committee of Management in accordance with the direction given in the judgment of learned Single Judge, as well as in accordance with the provisions of Scheme of Administration within a period of three months from the date of receipt of the direction.

It is contended that the aforesaid orders have not been complied with so far and till date, no election has been held nor any Committee of Management of the institution constituted or recognised. In the meantime, the post of permanent Principal fell vacant on which Shri Surendra Nath Gupta, senior most lecturer, had been given officiating/ad hoc promotion on 171997. The requisition pertaining to the vacancies on the post of Principal had been submitted by the management to the District Inspector of Schools, Ballia on 1091997 for its onward transmission to U.P. Secondary Education Service Commission and Selection Board, Allahabad. The impugned order was passed by Additional Director of Education (Secondary) U.P., Allahabad transferring Sri Lalendra Pratap Singh, respondent No. 7, to the post of Principal of the institution. The transfer order has been challenged on the following grounds :

(1) 2nd proviso to Section 16 provides for appointment of a teacher (including Principal under Section 2(k) of the Act) by transfer from one institution to another according to the regulation made in Clause (c) of Section (2) of Section 16G of the Intermediate Education Act, 1921. Regulations 55 to 66 made under Chapter III under Section 16G(ii)(c) provide for method and condition for such transfer.

(2) An application for transfer under Regulation 58, after the application, receipt and registered under Regulation 67, shall be sent by the Inspector to the Institution to which the transfer has been sought, if it is within his jurisdiction, after consultation with the management and with their written consent along with his recommendation to the Regional Deputy Director of Education. In the present case, the management was not consulted before the impugned order was passed.

(3) A Prabandh Sanchalak, appointed under clause (7) (a) of the Scheme of Administration, is appointed for the purposes of holding election and not for management and that such a Prabandh Sanchalak is not a person or authority in whom the powers to manage the institution have been entrusted under Note 1 of the notes appended to Regulation 61, and as such the consent of Prabandh Sanchalak obtained in the present case, is not a consent.

(4) Shri Indrajeet Prasad, Accounts Officer in the office of District Inspector of Schools, Ballia was appointed as a Prabandh Sanchalak who was transferred from district Ballia to Deoria. The order dated 1232001 transferring Indrajeet Prasad was received in the office of District Inspector of Schools on 2132001 and that on very next day, he stood relieved from Ballia. Thus, the consent given on 2232001 was not valid and in any case, even if it is assumed that he took charge on 2232001, the consent given on the eve of transfer suffers from legal mala fides.

(5) The transfer of respondent No. 7 Lalendra Pratap Singh is not in the interest of institution inasmuch he is son of one Raj Kishore Singh who was a member of one of the rival claimant of committee of management.

From the aforesaid submissions, I find that the main contention of petitioners is that no consultation was made with the management as provided under Regulation 58 of Chapter III of the regulations made under Section 16G (2)(c) of the Act, and as such the transfer order was illegal. Shri Ashok Khare, Senior Advocate, submits that a Prabandh Sanchalak, appointed under U.P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971, or under the Scheme of Administration for holding election, is appointed for a limited purpose and that essential powers of management are not vested in him and, therefore, he can be entrusted with policy matters of the institution which include the choice and selection of Principal. According to Shri Ashok Khare, the society has right to manage an institution through the committee of management elected by the member of society. Such a right may be subject to reasonable restrictions. Rules for selection of principal to be made on merit as well as selection through U.P. Secondary Education Services Commission but that a Principal, who is head of administration, cannot be transferred without consultation of the management. Prabandh Sanchalak, appointed for a temporary period has not concern with the object for which the institution was established, the ethos of the society and aspirations of its members and the management of the institution not only includes imparting education but also to protect and preserve cultural value of the society and as such a Principal, who may not stand to the test of such values, cannot be thurst upon educational institution, in consultation with a Prabandh Sanchalak, who may have no concern for such causes and aspirations. Shri Ashok Khare, has relied on K. Shantharaj and another v. M.L. Nagaraja and others, JT 1997 (5) SC 680, in which while interpreting the provisions of Karanatak Cooperative Societies Act, 1959, Supreme Court held that a administrator appointed under Section 30 of the Act, after superseding the committee, is to conduct election with the members as on the rolls and by necessary implication and he is not vested with power to enroll new members of the society.

In Darshan Singh v. State of U.P. and others, 1996 AWC 1153, learned Single Judge of this Court, although not directly, held that grievance, in case of transfer, can be raised by committee of management and not by senior most teacher.

Sri V.K. Shukla, learned Counsel appearing for respondent No. 7, on the other hand, has relied upon the provision of note (1) to Regulation 61 (1) in submitting that for the purpose of consent, the committee of management of concerned institution means such person or authority in whom the management of institution and conduct of its activities is vested. According to him, Prabandh Sanchalak is a person in whom powers of management are vested by the committee of management and that these powers under the Scheme of Administration include all the powers of management. There is no objection in excluding the powers of transfer of a teacher or teachers. He has relied upon a judgment of Narendra Kumar v. State of U.P. and others, 2002(1) LBESR 420 (SC) : 2002 (1) ESC 214. In para 7 of the said decision, it has been held as follows :

�In Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921, it is provided that the post of Principal in a Institution can also be filled by transfer from another College, where the person sought to be transferred was appointed after selection by the Board. This transfer is permissible only with the consent of the management at both the institutions. It may be mentioned here that according to the note at the end of Regulation 61 (2) of Chapter III of the aforesaid Regulations �management� has been defined to include� the managing committee� or the officer or authority in whom the management is vested which means that management for the purpose of giving consent for transfer would include the �Prabandh Sanchalak.�

In the aforesaid judgment in Narendra Kumar (supra) one of the grounds taken in the order of transfer was that Prabandh Sanchalak cannot give no objection certificate for transfer of Principal. It was found that Regulation 61(2) Chapter III defines managing committee or the officer or authority in whom the management is vested for the purpose of giving consent for transfer being erroneous including Prabandh Sanchalak. The learned Single Judge has given plain and simple interpretation of provisions contained in note (1) of Regulation 61 (1).

I am in respectful disagreement with the interpretation offered by learned Single Judge to the provision of note (1) of Regulation 61 (1) Chapter III. The reasons of disagreement are as follows :

(a) A ''Prabandh Sanchalak'' under the Scheme of Administration is appointed for specific purpose, after expiry of terms of committee of management for holding elections. He holds a temporary position to carry out the object for which he has been appointed by the Deputy Director of Education. He, therefore, cannot perform the essential functions of management which includes the appointment of Principal by transfer.

(b) The word ''such person'' or ''authority'' in whom the powers of management and conducting of function have been vested means a manager or in his absence, a person nominated by the committee of management. In Regulations 55 to 61, the word ''committee of management'' has been used and that note (1) has been provided in Regulation 61 (1) to clarify that word ''committee of management'' means a person or authority authorised by the management. A Prabandh Sanchalak, is no doubt, appointed under the Scheme of Administration, but he is a nominee of the Deputy Director of Education. He cannot, therefore, be a person in whom the committee of management have vested the powers to manage and control the institution.

(c) A person appointed for specific purpose, namely, to hold election, cannot be entrusted with all the functions, particularly, the essential function of management which includes the appointment of Principal.

(d) A Principal is not only head of institution but is also responsible for ethos and aspirations of educational institution established by a society. Such a person cannot be imposed upon the institution, and that his appointment, without consent of committee of management, will amount to violating the right of the committee of management to establish and manage the institution.

Let the papers be laid before Hon''ble the Chief Justice to nominate a larger Bench for considering the questions formulated in the opening part of the order.

Reference to larger Bench.