Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2033 of 2008 Managing Committee Faiz-e-Aam Inter College, Jaspur and another. … Petitioners. Versus State of Uttarakhand and others. … Respondents. Mr. B.C.Pande, Senior Advocate with Mr. H.C.Pathak, Advocate, learned counsel for the petitioners. Mr. B.D.Upadhyay, Addl. Advocate General with Mr. N.P.Sah, Standing Counsel, learned counsel for the respondents. Date January 14, 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought the following relief:- a. Issue a writ order or direction in the nature of certiorari quashing the order dated 22-1-2008 (Annexure No. 6) and 18-8-2008 (Annexure No. 7) passed by the respondent No. 3. b. Issue a writ order or direction in the nature of mandamus directing the respondent not to interfere in the management of society and of institution and to restore in full the management of society and of institution to the petitioner. c. Grant a declaration that scheme submitted by the petitioner’s institution stands deemed approved and alternatively be pleased to issue a writ order or direction in the nature of mandamus directing the respondent to approve the new scheme of administration submitted by the petitioner. d. Issue any other order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. e. Award cost of the petition to the petitioner. 2. Brief facts giving rise to the present writ petition according to the petitioners are that the petitioner no. 2-society is a registered society under Societies Registration Act, 1860 since 1-5- 2 1969 and it runs an educational institute known as Faij-A-Aam Intermediate College Jaspur, District Udham Singh Nagar. The petitioner no.1 institute is a minority institution of Mohammedans. The petitioner no. 1 was given a minority status as Faiz-A-Aam Higher Secondary School Jaspur (Udham Singh Nagar) on 24-1- 1996 after a long exercise by the State of Uttar Pradesh. Now the said school has been upgraded to Intermediate College. 3. According to the petitioners, under the provisions of U.P. Intermediate Education Act (now Section 29 of the Uttarakhand School Education Act, 2006), formation of an administrative scheme for each educational institution run by society is obligatory. The earlier administrative scheme was approved in the year 1982 when the petitioner institution was a higher secondary school. As per practice of society, the education department is invited to send an observer for the election of the committee of management of the society. 4. It appears that the petitioner institution sent a letter to the respondent authority to get conducted the elections of the executive committee of the society, but the department through respondent no. 2 by letter dated 1-1-2008 (Annexure 5 to the petition) refused to send an observer on the ground that unless and until the administrative scheme is not amended by the society as per provisions of Uttarakhand School Education Act, 2006, no observer shall be appointed to conduct the elections of committee of management. It also appears that the management of the school was taken over by the respondents by letter dated 22-1-2008 alleging that the term of committee of management has expired on 4-1-2008 and Block Education Officer-respondent no. 4 was appointed as controller/administrator for a period of six months and by order dated 18-8-2008, the term of administrator has been extended for a further period of six months by Additional Director of Education, Kumaun Region, Nainital and it has been directed that the committee of management be formed during this period. 3 5. According to the petitioners, they have approached the respondents and even submitted the amended scheme of administration by letter dated 8-1-2008 (Annexure NO. 9 to the petition). The Principal of the petitioners’ institution also forwarded the scheme of administration to the Director of Education Uttaranchal through District Education Officer and under Section 32 (1) of the Uttaranchal School Education Act, 2006, the Director is empowered to issue a notice suggesting the modification or alteration in the scheme but no such notice was ever issued to the petitioners. Since no notice was sent to the petitioners, therefore, the scheme of administration shall be deemed to have been approved as per Proviso appended to Section 32(4) of the said Act. 6. The grievance of the petitioners is that the impugned orders dated 22-1-2008 and 18-8-2008 have been passed without any authority of law and are in violation of sub-section (14) of Section 34 of the Uttaranchal School Education Act, 2006 and that the scheme of administration ought to have been approved by the Director as the same has not been returned for resubmission. 7. Counter affidavit has been filed on behalf of the respondent no. 5-Director of Education Uttarakhand, Dehradun. Along with the counter affidavit, the respondent no. 5 has annexed the copy of letter of District Education Officer addressed to Additional Director of Education, Kumaun Region whereby the amended scheme of administration of the petitioner’s society as per Uttaranchal School Education Act 2006 was forwarded for necessary action. The Additional Director of Education in turn has forwarded the same to the Director-respondent no. 5 by his letter dated 14-1-2008 (Annexure-3 to the counter affidavit). The Director of School Education appears to have returned the scheme of administration to the Additional Director concerned on the pretext that the scheme of administration is not in conformity with the model scheme of administration and the Additional Director of Education, Kumaun Region was directed to issue necessary 4 directions to the District Education Officers along with model scheme of administration by letter dated 15-4-2008 (Annexure-4 to the counter affidavit). 8. Rejoinder affidavit has been filed by the petitioners, wherein the averments made in the writ petitions have been reiterated. 9. I have heard learned counsel for the parties and perused the material placed before the Court including the counter affidavit, rejoinder affidavit and supplementary counter affidavit as well as additional supplementary counter affidavit. 10. It has been vehemently argued by the learned counsel for the petitioners that the provisions of sub-section (3) to (13) of Section 34 of the Uttaranchal School Education Act, 2006 are not applicable to the minority institution. Learned counsel for the petitioners has further contended that the order to appoint authorized controller is vested with the State government under sub-section (4) of Section 34 of the Uttaranchal School Education Act, 2006 only inspect of the institutions other than minority institutions as provided under sub-section (14) of Section 34 of the said Act, which reads as under:- “(14) Nothing contained in sub-section (3) to (13) shall apply to institutions established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution of India.” 11. Admittedly, in the instant case, the petitioner institute is a minority institution. It is also not disputed that the power to appoint authorized controller is vested with the State Government as per provision of sub-section (4) of Section 34 of the Uttaranchal School Education Act 2006. 5 12. It may be noted that this Court by an interim order dated 2-12-2008 has already stayed the operation of the orders impugned in this writ petition, after passing a detailed order. 13. Learned counsel for the petitioners further argued that the amended scheme of administration has already been submitted to the Director of School Education, Uttarakhand and that the same is in conformity with provision of Rule 8 of the Rules of Scheme of Administration, framed under Section 24 of the Uttarakhand School Education Act 2006. 14. A perusal of the record shows that the Principal of the petitioners’ institution had already sent the scheme of administration to the respondent no. 5 for approval by letter dated 24/25-4-2008 but neither the scheme has been rejected nor any information was communicated to the petitioners’ institution. 15. I have perused Section 30 of the Uttaranchal Education Act, 2006, which reads as under:- “30. Scheme of Administration not to be inconsistent with the Schedule- The Scheme of Administration in relation to any institution, whether recognized before or after the commencement of this Act shall not be inconsistent with the principles laid down in the First Schedule.” 16. Learned counsel for the petitioners has contended that the scheme of administration which has been sent for approval to the respondent no. 5 is fully consistent with the principles laid down in the First Schedule of Section 30 of the said Act. Learned counsel for the petitioners also submitted that the operation of the model scheme of administration formulated by the State Government has been stayed by interim order dated 17-12-2008 passed by this Court in WPMS No. 1664 of 2008 Committee of Management and others Vs. State of Uttarakahnd and others as well 6 as interim order dated 9-1-2009 passed in WPMS No. 43 of 2009, Committee of Management Vs. State of Uttarakhand and others. 17. Learned counsel for the petitioners vehemently argued that the respondent no. 5 has never pointed out that any defect in the scheme of administration submitted by the petitioner-institution as mentioned in Schedule-One of Section 30 of the Uttaranchal School Education Act, 2006. Learned counsel further argued that no such stand has been taken by the respondents in their counter affidavit or the supplementary counter affidavit that the scheme of administration submitted by the petitioners is against the principles set forth in Schedule-One aforesaid. 18. In the supplementary counter affidavit filed on behalf of the respondent nos. 2 to 5, it is stated in paragraph no. 11 that the Manager of the Committee of Management is only authorized to entertain any correspondence with the department and not the Principal. The scheme of Administration sent to the answering respondent on 25-4-2008 was not duly amended, hence it was directed to send it with some relevant amendment to be made in the scheme of administration. It is further stated that the same was sent to the Additional Director of Education, Kumaun Region, Nainital without being countersigned by the District Education Officer. It was sent back to the District Education Officer, Udham Singh Nagar. It is however stated that the instructions given to the institution has not been followed so far by the committee of management. 19. In reply, learned counsel for the petitioners has submitted that the respondents have failed to bring on record any such document to indicate that the District Education Officer had ever asked the petitioners to get the scheme of administration countersigned by the District Education Officer or to follow any particular instructions in that regard, therefore, the contentions 7 raised by the respondents in their counter affidavit or in the supplementary counter affidavit filed on behalf of the respondents. 20. I have perused the documents, which has been annexed by the respondent no. 5 along with its counter affidavit. Annexure No.CA-4 to the counter affidavit is a letter dated 15-4- 2008 sent by the respondent no.5 to respondent no.3 thereby the scheme of administration of the private schools were returned with certain objections. The letter is accompanied by a list of schools, whose schemes of administration were returned to the respondent no.3. At serial no.8 of the list, there is mention of the petitioners’ institution and two objections appear to have been raised in the matter of petitioners’ institution. In the rejoinder affidavit filed by the petitioners in reply to the counter affidavit of respondent no.5, it is specifically in paragraph 13 of the rejoinder affidavit as under:- “13. That the contents of para no. 14 of the counter affidavit being inter departmental communication matter of record needs no comments. However, it is submitted that the letter dated 15-04-2008 is a communication between respondent no. 5 and respondent no. 3 it is apparent from the letter contained in annexure no. CA-4 is not communicated to the petitioners institution nor till date any order rejecting the scheme of administration submitted by the petitioner is communicated to the petitioners institution.” 21. Thus from a careful perusal of the pleadings of the parties, it is obvious that no objection in respect of the scheme of administration as contained in annexure CA-4 to the counter affidavit filed by respondent no. 5 was ever communicated to the petitioners to get the alleged objections removed at any time. In this view of the matter, the petitioners cannot be held to be defaulter on this score. It was obligatory on the respondent no.5 to have approved the scheme of administration submitted to it by the petitioners’ minority institution as the same is in conformity with 8 the principles set forth in the Schedule-One of Section 30 of the Uttaranchal School Education Act, 2006. 22. Since the petitioners’ institution is a minority institution, I am of the opinion that the provisions of sub-section (4) of Section 34 of the Uttaranchal School Education Act 2006 are not applicable to the petitioners’ institution, therefore, the impugned orders dated 22-1-2008 and 18-8-2008 (Annexure Nos. 6 and 7 to the petition) passed by the respondent no. 3 are liable to be set aside. 23. So far as the relief c made by the petitioners is concerned, in my view a writ of mandamus may be issued directing the respondent no. 5 to approve the new scheme of administration submitted by the petitioners within a stipulated period. Consequently, the writ petition deserves to be allowed. 24. The writ petition is allowed. The impugned orders dated 22-1-2008 and 18-8-2008 passed by the respondent no. 3 are set aside. The respondent no. 5 is directed by a writ of mandamus to approve the proposed scheme of administration submitted by the petitioners, within a period of four weeks from the date of production of a certified copy of this order. No order as to costs. (B.S.Verma, J.) RCP