IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 365 OF 2009(MS) Committee of Management Devta Bhure Sah Trust Mata Shakumbari Devi Junior High School, Manglore, District Haridwar, through its Manager Ajay Kishore Singhal …………..Petitioner. Versus State of Uttarakhand and another. ……Respondents. Mr. Sharad Sharma, Senior Advocate, assisted by Mr. D.S. Patni, Advocate for petitioner. Mr. S.N. Babulkar, Senior Advocate, assisted by Mr. Subhash Tyagi Bhardwaj, Advocate for intervener. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand. 10.08.2009 Hon’ble Sudhanshu Dhulia, J. The committee of management “Devta Bhure Sah Trust Mata Shakumbari Devi Junior High School, Manglore, District Haridwar” has filed this writ petition through its Manager challenging the order of the State Government passed under Section 34 of the Uttaranchal School Education Act, 2006 (Act No. 08 of 2006) (from hereinafter referred to as the Education Act), by which an Authorised Controller has been appointed in the Institute. Earlier, the State Government vide its order dated 3rd September, 2008 had appointed an authorised Controller in the Institute. This order was challenged by the present petitioner in Writ Petition No. 1617 of 2008 Committee of Management Vs. State of Uttarakhand and others. The said writ petition was disposed of by the learned Single Judge on 26th September, 2008, whereby the order dated 3rd September, 2008 was quashed as the same was passed by the State Government without 2 following the provisions as laid down under Section 34 (5) of the Act i.e. without issuing notice to the concerned party. However, vide the order of the learned Single Judge the Authorities were directed to pass fresh orders after complying with the provisions of the law. The Secretary Education has now passed an order on 27th February, 2009 appointing an authorised controller in the Institute. This order is a well considered order, wherein the entire factual as well as legal aspect pertaining to the matter has been examined and discussed and cogent reasons have been assigned as to why an authorised controller needs to be appointed in such a given contingency. However, at this stage, the broad facts of the case need to be stated, which are as under: According to the petitioner, Mata Shakumbari Devi Junior High School exists since 1988 and it is imparting education since then. Prior to it, a trust was created in the year, 1922 for public purposes and was registered under Societies Registration Act, which was running this School known as “Mata Shakumbari Devi Junior High School, Manglore”. According to the petitioner, after some time the said registration was surrendered and fresh bye- laws / scheme of administration were framed. In a meeting held on 27th June, 1990 by the Management Trustees a new society was formed, which was known as “Devta Bhure Sah Trust Mata Shakumbari Devi Junior High School Manglore”. It is this society, which is running the School since, 1990. Although the School is a Junior High School from Class VI to VIII, but it was brought under grant-in-aid list since 1st April, 1996 and therefore, the provisions of the U.P. Junior High Schools (Payment of Salary of Teachers and Other Employees) 3 Act, 1978 (hereinafter referred to as the Act, 1978) and the Education Act are applicable in the School. The petitioner has made elaborate averment in the writ petition regarding the controversy of recruitment of one Ms. Suman Baliyan as Head Mistress in the Institution and her termination of service and the subsequent litigation, which may not be very relevant for our present purposes. However, the fact of the matter is that since there was a complaint against the management of the Institution and the State Government passed an order under Section 34 of Education Act. Section 34 of the Education Act needs to be referred, which is as follows: “34. Inspection of the recognized Institution and removal of defect:- (1) The Director may inspect a recognized institution or cause it to be inspected by the departmental officers from time to time. (2) The Director may direct a management to remove any defect or deficiency found on inspection or otherwise. (3) If on the receipt of information or otherwise, the Director is satisfied that – (i) the Committee of Management of an institution has failed to comply with the judgment of any Court or any direction made under this Act or any other law for the time being in force; or (ii) the Committee has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring to maintenance of academic standard in the institution or has appointed or retained in 4 service any teaching or non-teaching staff in contravention of the provision of this Act or the Regulations; or (iii) any dispute with respect to the right claimed by different persons to be lawful office- bearers of the Committee of Management has affected the smooth and orderly administration of the institution concerned; or (iv) the Committee has persistently failed for three years to provide the institution with such adequate and proper accommodation, library, furniture, stationery, laboratory equipment or other facilities as are necessary for the efficient administration of such institution; or (v) the Committee has substantially diverted, misplaced or misappropriated the property of the institution to its detriment or has transferred any property in contravention of the provisions of the Uttar Pradesh Educational Institutions (Prevention of Dissipation of Assets) Act, 1974; or (vi) the draft of the Scheme of Administration had not been submitted within the time allowed therefore under Section 31, or that the Management of the institution is being conducted otherwise than in accordance with the Scheme of Administration or the affairs of the institution are being otherwise mismanaged; (vii) the Scheme of Administration in relation to an institution, approved before the commencement of this Act, is inconsistent with the provisions of this Act and the management of the Institution has failed to alter or modify it 5 within a reasonable time despite notice under Section 32, he may refer the case to Board for withdrawal of recognition of such institution, or issue notice to the Committee of Management to show cause within thirty days from the date of receipt of notice why an order under sub- section(4) should not be made. (4) Where the Committee of Management of an institution fails to show cause within the time allowed under sub-section (3) or within such extended time as the Director may, from time to time allow, or where the Director is, after considering the cause shown by the Committee of Management satisfied that any of the grounds mentioned in sub-section (3) exists, he may recommend to the State Government to appoint an authorised Controller for that institution and thereupon, the State Government may, by order, for reasons to be recorded, authorise any person (hereinafter referred to as the authorized Controller) to take over, for such period not exceeding two years, as may be specified, the Management of such Institution and its properties: Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper management of the institution and its properties, it may from time to time, extend the operation of the order, for such period specified in the initial order, but excluding the period specified in sub-section (8), does not exceed five years: 6 Provided further that if at the expiration of the said period of five years, there is no lawfully constituted committee of Management of the institution, the authorized Controller shall continue to function as such, until the State Government is satisfied that a Committee of Management has been lawfully constituted. (5) If on the receipt of information or otherwise, the State Government is of opinion that in relation to an institution the ground mentioned in Clause (iii) or Clause (v) of sub- section (3) exists, and that the interest of the institution calls for immediate action, it may, notwithstanding anything contained in the said sub-section, issue notice to the Management of such institution to show cause within fifteen days from the date of receipt of such notice why an authorised Controller be not appointed in respect of such institution. (6) Where the Committee of Management of the concerned institution fails to show cause within the time allowed under sub-section (5), or within such extended time as the State Government may, from time to time, allow or where the State Government is, after considering the cause shown by the Committee of Management, satisfied that any of the grounds mentioned is Clause (iii) or Clause (v) of sub-section (3) exists, it may by order and for reasons to be recorded, appoint an authorised Controller in respect of such institution and thereupon, the provisions of sub-section (4) shall mutatis mutandis apply. 7 (7) Every notice issued by the Director under sub-section (3) on or before the service of the notice referred to in sub-section (5) and not finally disposed of on the date of such service shall, with effect from the said date, be deemed to have been in abeyance: Provided that nothing contained in this sub- section shall be deemed to prevent the Director to take action upon ground other than those mentioned in Clauses (iii) and (v) of sub-section (3) in case the notice issued by the State Government under sub-section (5) is discharged. (8) ……….. (9) ……….. (10) ……….. (11) ……….. (12) ……….. (13) ……….. (14) ………..” It is clear that before passing the order under Section 34 of the Education Act, a notice has to be issued to the Committee of Management. However, since it was not done, the earlier order dated 3.9.2009 was set aside, in the previous writ petition, as has already been referred. All the same, since the State Government was given liberty to pass fresh order in accordance with law, fresh proceedings were initiated, which have culminated in the present order dated 27th February, 2009, which is now impugned in the present writ petition. In these fresh proceedings, notices were issued to the Management on 1st December, 2008 on which a reply was also given by the Management. After considering the reply of the 8 Management on certain issues, the State Government has recorded findings against the Management Committee as to the manner in which the school was being run by the Management Committee. Although the narration of the entire findings may not be relevant, but what is relevant for our purposes is that there is a clear finding that there is no “Scheme of Administration” and the school is not being run under a Scheme of Administration as provided under the law. In short, this is an admitted case – that under the present Scheme of Administration the Management Committee is not a democratically elected management committee but it consists of members of a trust, which are nominated members. There are no periodical election to this Committee of Management and therefore admittedly there is no Management Committee under the Scheme of Administration as authorised by the law. In such a situation where admittedly a school is being run under a Scheme of Administration which has no authority of law, there is an absolute justification for the State Government to appoint an Administrator on the Institute and in fact there are justifiable grounds for the State Government to derecognize the institute or to remove the institute from grant in aid list or also to take any other appropriate measure under law in such a given situation. The State Government in its counter affidavit has stated that earlier the school was being run by the name of “Mata Shakumbari Devi Junior High School, Manglore”. Subsequently the name of the Institute was changed to “Devta Bhure Sah Trust Mata Shakumbari Devi Junior High School, Manglore” and the school was brought under the grand in aid w.e.f. 1st April, 1996. It has been categorically stated in the counter affidavit that although 9 the Management Committee of the School claims that they have the Management Committee in view of the election held on 4th July, 2007, the State Government has no information regarding this election or as to whether any such election took place. It is also stated in the counter affidavit that no Scheme of Administration has been submitted by the petitioner before the State Government or an authority appointed by the State Government under the law nor is any such scheme approved and therefore, there is a clear violation of provisions of Section 34 (3) by the petitioner. The writ petition is also very “cleverly” drafted and there is no averment in the writ petition, which suggests that there is an approved scheme of administration regarding the Institute or the Committee of Management, which is running the affairs of the Institute is an elected Committee of Management. In short, the School is in fact being run by a trust and not by a committee of management, which is in violation of the provisions of Education Act. Section 29 of the Education Act provides for scheme of administration for every recognized Institution. It is clearly provided that the management of such recognized Institute shall submit a scheme of administration, which along with other matters shall provide for constitution of a management committee. Section 29 of the Education Act, which needs to be referred here, is as follows: “29. Scheme of Administration.—(1) Notwisthanding anything in any law, document, or decrees or order of a Court of other instrument there shall be Scheme of administration (hereinafter referred to as the 10 Scheme of Administration) for every recognized institution, which shall be submitted along with the application for recognition for the sanction of the Director. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. The Head of the institution and two teachers, thereof, who shall be selected by rotation according to seniority in the manner to be prescribed by Regulations, shall be ex-officio members of the Committee of Management with a right to vote. (2) No member of the Committee of Management shall either attend a meeting of the committee or exercise his right to vote whenever a charge concerning his personal conduct is under discussion. (3) The Scheme of Administration shall also describe subject to any Regulations, the respective powers, duties and functions of the Head of the Institution and Committee of Management in relation to the Institution. (4) Where more than one recognized institution is maintained by a body or authority, there shall be separate Committee of Management for each institution unless otherwise provided in the Regulations for any class of institution. (5) The Scheme of Administration of every institution shall be subject to the approval of the Director and no amendment to or change in the 11 Scheme of Administration shall be made at any time without the prior approval of the Director. Provided that where the Management of an institution is aggrieved by an order of the Director refusing to approve an amendment or change in the Scheme of Administration, the State Government, on the representation of the Management, may, if it is satisfied that the proposed amendment or change in the Scheme of Administration is in the interest of the institution, order the Director to approve of the same, and thereupon the Director shall act accordingly. (6) Every recognized institution shall be managed in accordance with the Scheme of Administration framed under and in accordance with sub-section (1) to sub-section (5) and Sections 30 and 31. (7) …….” Section 30 of the Education Act again provides that the Scheme of Administration shall not be inconsistent with the principles laid down in the First Schedule. Section 30 of the Education Act reads as follows: “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.” 12 What therefore goes to the root of the matter is the provision given in the First Schedule of the Act and the Scheme of Administration which has to be submitted according to the mandatory provisions contained therein which, inter alia, provide for the constitution of a Committee of Management by periodical election. It is this provision, that is missing in the affairs of the Institute, which is presently being run under the present Committee of management. Under Schedule I to the Act, which goes by the heading “principles on which approval to a Scheme of Administration shall be accorded”, it is provided that every Scheme of Administration shall, inter alia, “provide for a procedure for constituting the Committee of Management by periodical elections”. These are mandatory conditions prescribed under the Act and there is no escape from it. Evidently this mandatory provision has not been complied by the Committee of Management or those who were in control of the affairs of the Institute. The Committee of Management is not a committee of management which has been elected by means of periodical elections. In fact it is constituted without any elections, by simple nominations and therefore it has rightly been stated in the impugned order that “there is absence of democratically elected committee of management”. Only a committee of management, which is democratically elected through periodical elections can get recognition by the State Government and since this essential ingredient is absent from the present Committee of Management, which is presently controlling the affairs of the Institute, this Court finds no anomaly in the impugned order dated 27.2.2009, whereby under Section 34 of the Education 13 Act, an authorised controller has been appointed in the Institute. The learned Counsel for the petitioner Sri Sharad Sharma has then argued that the orders passed by the State Government have been passed on the report of the Director of Education and he further submits that the charges against the petitioner, even in the report of the Director do not come under the category of Section 34 (3) (iii) & (v) and therefore, the orders passed by the State Government are bad as the Authorised Controller can only be appointed where a finding of the Director exists regarding the Institute pertaining to Section 34 (3) (iii) and (v). Section 34 (3) (iii) & (v) broadly pertain to a dispute with respect to right claimed by different persons on the Committee of Management which has affected the smooth functioning of the Institute or misappropriation of property or funds of the Institute by the Committee of Management (the said provision of law is quoted in the preceding paragraph of the order). It is indeed true that in the report of the Director there is no finding of an allegation of the precise nature as contemplated under Section 34 (3) (iii) or (v) of the Education Act and it is also true that Section 34 (5) and (6) call for an action by the State Government, in the shape of appointment of an authorised Controller only when a contingency as referred to above i.e. Section 34 (3) (iii) and (v) exists. All the same, Section 34 (3) of the Education Act requires the satisfaction of the Director of Education not just on financial misappropriation or diversion of the funds of the Institute or rival management committees claiming their rights over the control of the Institute, but also a contingency under Section 34 (3) (vi) and (vii) where there is no Scheme of Administration governing the Institute or 14 Management Committee or the Institute being run by a Scheme of Administration, which is inconsistent with the provisions of the Act. For more precise evaluation of these aspects Section 34 (3) (vi) and (vii) are reiterated as follows: “(vi) the draft of the Scheme of Administration had not been submitted within the time allowed therefore under Section 31, or that the Management of the institution is being conducted otherwise than in accordance with the Scheme of Administration or the affairs of the institution are being otherwise mismanaged; (vii) the Scheme of Administration in relation to an institution, approved before the commencement of this Act, is inconsistent with the provisions of this Act and the management of the Institution has failed to alter or modify it within a reasonable time despite notice under Section 32, he may refer the case to Board for withdrawal of recognition of such institution, or issue notice to the Committee of Management to show cause within thirty days from the date of receipt of notice why an order under sub- section(4) should not be made.” In other words, if the Director of Education is satisfied on the aforesaid aspects, after giving a reasonable opportunity to the concerned party, he may either refer the case to the Board for withdrawal of recognition of such Institution or issue notices to the Committee of Management to show cause within thirty days from the date of receipt of notice why an order 15 under sub-section (4) should not be made. Under these provisions of law, it is the Director who came to the conclusion mainly on the grounds referred to under sub clause (vi) and (vii) of sub-section 3 of Section 34 of the Act exists and he in turn recommends to the State Government for appointment of an authorised Controller for that Institute and it is the State Government, who subsequently proceeded as already referred and such orders are passed – there is no anomaly in the same. In other words, the order presently impugned in the writ petition i.e. order dated 27.2.2009, has been passed by the State Govt. under Section 34(4) of the Act (provisions of law as referred here have been quoted above, which may be perused) and not under Section 34 (6) of the Act, as alleged. In short the State Government can pass an order appointing an authorised controller if the Institute is not running under a valid Scheme of Administration or the Scheme of Administration is such which is inconsistent with the provisions of the Act that orders for appointment of an authorised Controller can be passed and it is precisely what have been done under this Act and there is no anomaly in the same. The writ petition is, therefore, liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 10.8.2009 Rathour