Vinod Rawat vs State Of Uttarakhand & Others

Ramesh Ranganathan, C.J.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 124 of 2017 dated 06.10.2018.

The fifth respondent herein filed the writ petition seeking a writ of certiorari to quash the order dated 31.12.2016 passed by the Additional Director of Secondary Education, Garhwal Mandal, and the order passed by the Chief Education Officer dated 19.12.2016 cancelling the approval of the list of members of the General Body of the Committee of Management which was approved vide letter dated 06.08.2016. He also sought a writ of mandamus to direct respondent Nos. 3 & 4 to conduct elections to the Committee of Management of the Intermediate College forthwith, on the basis of the earlier list of members approved on 06.08.2016 by the third respondent.

In the order under appeal, the learned Single Judge noted the petitioner's grievance that, while the erstwhile Committee of Management was granted approval on 18.11.2013, it took charge only on 30.11.2013; consequently, the three-year period (which is the term of office of the Committee) expired only on 29.11.2016; the six-month period, prior to the expiry of the term, should be computed not from 17.11.2016 but from 29.11.2016; and, consequently, all those who were admitted as members prior to 29.05.2016 would be entitled to vote in the elections scheduled to be held for appointment of the fresh Committee of Management. Reliance was placed by the respondent-writ petitioner on the judgment of the Allahabad High Court in Committee of Management, Jangali Baba Intermediate College and another vs. Deputy Director of Education and others, reported in (1991) 2 UPLBEC 1183.

The learned Single Judge thereafter observed that it was the admitted position in law that, though the existing Committee of Management could induct new members during the period of its term, such members, who had been inducted as members during the last six months of the term of the Committee of Management, shall not have the right to vote; for a member to become a valid member, as well as a voter in the next election of the Committee of Management, he should have become a member of the Society six months prior to the date on which the term of office of the Committee of Management was to come to an end or, at least, had prepared and submitted a bank draft, for the fee, on a date prior to six months when the term of the Committee of Management was going to expire; the Committee of Management, in the present case, had prepared a list of certain persons who had sought membership of the Society; many of them were granted membership, but, in many cases, the candidature was rejected by the Committee of Management and, subsequently, by the General Body; a final list of members was prepared who had voting rights, but, before the elections could be held, a complaint was moved by the respondent (appellant); and, thereafter, the Chief Education Officer, by order dated 19.12.2016, had cancelled the approval of the list holding that, regarding the same matter, Writ Petition (M/S) No. 3140 of 2016 is pending before this Court. The learned Single Judge, thereafter, observed that Writ Petition (M/S) No. 3140 of 2016 was dismissed as withdrawn on 05.01.2017; presently an Administrator was running the affairs of the institution; this could not be done indefinitely, and the affairs of the society had to be run by an elected Committee of Management.

The learned Single Judge disposed of the writ petition directing the Chief Education Officer as well as the Administrator, who was running the affairs of the institution, to forward the list of such members who were the existing members of the society, and whose membership was granted six months prior to the date on which the term of the Committee of Management was supposed to come to an end i.e. 29.11.2016 i.e. the members who were admitted on or before 29.05.2016; this would mean that only such members, who had moved their applications and had deposited the bank drafts prepared on or before 29.05.2016, would have voting rights; and such members, who had moved their applications after 29.05.2016, should not be considered by the Chief Education Officer. The learned Single Judge directed that elections be conducted as expeditiously as possible, however, within three months from the date on which the certified copy of the order was placed before the authorised officer. Aggrieved thereby, the fifth respondent in the writ petition has preferred this appeal.

Mr. Navnish Negi, learned counsel for the appellant-fifth respondent, would submit that the learned Single Judge had erred in permitting all those members, who were admitted as members of the society prior to 29.05.2016, to exercise their vote in the ensuing elections; the erstwhile Committee of Management was approved by the competent authority on 18.11.2013; their three-year term therefore ended on 17.11.2016; it is only those members, who were admitted on or before 17.05.2016, who are entitled to exercise their franchise in the ensuing elections; the mere fact that the Committee of Management took charge on 30.11.2013 would not justify the six-month period being reckoned backwards from 29.11.2016; and the said six-month period should be reckoned backwards from 17.11.2016, and not from 29.11.2016. Learned counsel would place reliance on the judgment of the Division Bench of the Allahabad High Court in Ratan Kumar Solanki vs. State of U.P. and others, reported in 2009 SCC Online All. 1426.

On the other hand, Mr. Pankaj Chaturvedi, learned counsel for the respondent-writ petitioner, would submit that the Committee of Management took charge only on 30.11.2013 and, consequently, their three-year term expired only on 29.11.2016; the six-month period, for the admitted members to exercise their franchise in the ensuing elections, was therefore rightly reckoned by the learned Single Judge from that date, and not from the earlier date of approval by the competent authority (date of approval of the Committee is 18.11.2013 and, consequently, the three-year term reckoned from that date would have expired on 17.11.2016); and, in any event, pursuant to the order passed by the learned Single Judge, elections have already been notified on 31.10.2018, and the elections are due to be held tomorrow i.e. on 17.11.2018.

The undisputed facts are that the approval, for the Committee of Management, was granted by the competent authority on 18.11.2013. The said Committee, however, took charge only on 30.11.2013. While the three-year term of the Committee of Management, if reckoned from the date of approval, would have expired on 17.11.2016, the three-year term, reckoned from the date it took charge, would have expired only on 29.11.2016. The rules, applicable to the said Committee, permit only such of those persons, who are admitted as members of the society at least six months prior to the date of expiry of the term of the Committee, to exercise their franchise in the ensuing elections.

The dispute before us is whether those members, who were admitted before 29.05.2016, are entitled to exercise their franchise in the elections scheduled to be held tomorrow i.e. 17.11.2018, or whether only those members, who were admitted on or before 17.05.2016, are entitled to exercise their franchise.

In Committee of Management, Jangali Baba Intermediate College (supra), election to the Committee of Management was held on 07.07.1985; but, because of the stay granted by the Allahabad High Court on 17.07.1985, the newly elected Committee of Management could not work; and, in such circumstances, the three-year period was computed from the date on which the Committee of Management took charge. Subsequently, in Ratan Kumar Solanki (supra), the Division Bench of the Allahabad High Court observed thus:

"............ The above discussion makes it clear that the term of Committee of Management would commence when the Committee of Management starts functioning as a result of the election. If a Committee of Management which is already existing and the same Officer Bearers have come to be elected in the new election, if the election has been held after expiry of the term of the earlier Committee of Management, the newly elected Committee of Management can start function from the date its result is declared but where Office Bearers are different, for newly elected Committee of Management the same can be said to have taken over charge after the term of the earlier Committee is over and newly elected Committee is allowed to function. However where the newly elected Committee of Management is not able to function not on account of any lapse on its part, but for the reasons beyond its control, namely, some order issued by the educational authorities restraining it from functioning or an order by the Court or similar other circumstances, the term of the Committee of Management would commence after it takes over charge and starts function. We make it clear that there may be a case where despite of a new election having taken place, the term of the earlier Committee of Management is over, and, in the absence of any prohibitive order by any competent authority, Committee of Management newly elected does not take any step on its own to take over charge of the management of the College, in that case we are clearly of the view that the lapse on the part of the newly elected Committee of Management would not give it any advantage to differ or postpone the commencement of the period inasmuch it cannot be allowed to take advantage of its own wrong but where despite of efforts etc., the rival Committee or the Authorised Controller, as the case may be, has not permitted the newly elected Committee of Management to function, in that case the dictum as laid down above that the term would commence from the date of taking over the charge would apply........" (emphasis supplied)

The distinction, drawn in Ratan Kumar Solanki (supra) between situations where the Committee of Management is disabled from taking charge because of factors beyond its control and cases where the Committee of Management chooses not to take charge, is significant. While, in Committee of Management, Jangali Baba Intermediate College (supra), the Committee of Management was prevented by an order of the Allahabad High Court from taking charge, in the present case there is no averment in the writ petition, nor has any material been placed on record, to show that the Committee of Management was disabled from taking charge immediately after the competent authority had granted approval on 18.11.2013. As held by the Allahabad High Court in Ratan Kumar Solanki (supra), the Committee of Management cannot take advantage of its own lapse, in taking charge, to contend that the six-month period should be reckoned not from the date on which the competent authority had accorded approval, but from the date on which it actually took charge.

We are satisfied, therefore, that the learned Single Judge was in error in holding that the members, who were admitted to the society before 29.05.2016, are entitled to exercise their franchise in the ensuing elections. Since the competent authority accorded approval to the Committee of Management on 18.11.2013, it is only such of those members, who were admitted to the society on or before 17.05.2016, who are eligible to exercise their franchise in the elections scheduled to be held tomorrow i.e. 17.11.2018. Consequently, the election notification issued on 31.10.2018, pursuant to the order passed by the learned Single Judge, must also be and is, accordingly, set-aside.

Mr. Pankaj Chaturvedi, learned counsel for the respondent-writ petitioner, would submit that several other contentions, which were urged on behalf of the writ petitioner, have not been considered by the learned Single Judge. Any grievance which the respondent-writ petitioner may have in this regard cannot be examined in an appeal preferred not by him, but by the fifth respondent in the writ petition. Suffice it to make it clear that the order now passed by us shall not disable the respondent-writ petitioner from preferring an appeal against the order of the learned Single Judge, if he is so aggrieved. The order under appeal is set-aside, and the appeal is disposed of accordingly.

Mr. C.S. Rawat, learned Additional Chief Standing Counsel, appearing for the State, is present in Court and undertakes to forthwith inform the competent authority of the order passed by this Court and that, in terms thereof, the election notification has been set-aside.

Let a certified copy of this judgment be issued by 19.11.2018.