1. The present special has been filed against the judgment and order dated 23rd September 2010 passed by the learned single Judge whereby the writ petition preferred by the present appellants has been dismissed.
2. Briefly stated the facts giving rise to the present appeal are as follows:
3. Shri Ram Janki Inter College, situate in Sarokhanpur, Badlapur in district Jaunpur, is a recognised and aided institution, which is governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Education Act) and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (24 of 1971) (hereinafter referred to as the 1971 Act). It has a Scheme of Administration duly approved by the Deputy Director of Education on 08.12.1962. After the U.P. Intermediate Education (Amendment) Act, 1980 (U.P. Act No. 1 of 1981) was enforced, the Deputy Director of Education, Varanasi Region, Varanasi vide letter dated 25.01.1985 effected the amendments in conformity with the aforesaid enactment. The amended scheme provided the term of 3 years for the elected Committee of Management and in case a newly elected Committee of Management did not assume charge within a period of one month from the date of expiry of 3 years' term, the Deputy Director of Education was authorised to appoint a Prabandh Sanchalak for getting fresh elections conducted. However, in the year 2002, the Committee of Management decided to amend the term from 3 years to 5 years. The proposed amendment was submitted in the office of the District Inspector of Schools, Jaunpur, who in-turn forwarded the same to the Joint Director of Education, Varanasi Region, Varanasi for approval. The Joint Director of Education, Varanasi Region, Varanasi vide order dated 30.07.2002 accorded approval to the amendment proposed by the Committee of Management. The consequence of the amendment of the Scheme of Administration in sofar as it related to the term of the elected members of Committee of Management became 5 years from the existing 3 years. Elections to the Committee of Management was held on 02.10.2004 in which Sri Surendra Mani Dubey was elected as President and Sri Gyananand Shukla was elected as Manager. The election was approved by the Regional Level Committee vide order dated 10.11.2004. There is no dispute regarding the election held on 02.12.2004 and approved by the Regional Level Committee vide order dated 10.11.2004. The Committee of Management which was elected on 10.12.2004, continued to function smoothly for a period of 5 years. As fresh elections were due to be held before the expiry of 5 years ie. on or before 02.10.2009, the Committee of Management in its meeting held on 02.08.2009 decided to hold fresh elections and also decided the election schedule. The District Inspector of Schools was informed accordingly. The District Inspector of Schools vide order dated 01.10.2009 accorded permission for publication of the election schedule in local Newspaper, which was published in the Newspaper Dainik Manayavar dated 08.10.2009. According to the petitioner appellant, inspite of request having been made to the District Inspector of Schools, Jaunpur, to appoint an Observer for holding the elections, when no Observer was appointed, request was made to the District Administration to appoint a Supervisor and the Sub-Divisional Magistrate appointed the Naib Tehsildar, Maharajganj, Jaunpur, as an Observer. Election was held on the scheduled date ie. 15.10.2009 in which one Sri Surendra Mani Dubey was elected as President and Sri Gyananand Shukla was elected as Manager. The election proceedings was approved by the General Body in its meeting held on 25.10.2009 and the papers pertaining to the election was submitted in the office of the District Inspector of Schools, Jaunpur on 26.10.2009. Another person namely Sri Girja Shankar Pathak, set up a rival election on 25.10.2009 in which he claimed that Sri Shashidhar Tripathi has been elected President and he has been elected as the Manager. As a dispute had arisen regarding as to which is the validly elected Committee of Management, the District Inspector of Schools, Jaunpur, vide letter dated 27.10.2009 had forwarded all the papers to the Regional Level Committee for its decision. Both the rival Committee of Managements were afforded opportunity of hearing and the Regional Level Committee vide order dated 30.08.2010 discarded both the elections and appointed a Prbandh Sanchalak for getting fresh elections conducted.
4. The order dated 30.08.2010 passed by the Regional Level Committee was challenged by the present appellants in the writ petition giving rise to the present appeal.
5. The Regional Level Committee has held that the election held on 25.10.2009 by the erstwhile Committee of Management elected on 02.10.2004 can not be held to be valid as the term had expired in the year 2007. While holding so, the Regional Level Committee has held that the approval dated 30.07.2002 for extending the term from 3 years to 5 years in the Scheme of Administration had not been incorporated in the records and, further after the approval was given on 30.07.2002 no action has been taken for amending the Scheme of Administration. The Regional Level Committee has also given some other grounds for discarding the election held on 25.10.2009 by the erstwhile Committee of Management.
6. Before the learned single Judge, it appears that the arguments proceeded on the question as to whether if the Scheme of Administration is to be amended, the approval is required at two stages or not. Firstly, at the stage when the Committee of Management proposes to amend the Scheme of Administration and, secondly when after the proposal has been approved by the Joint Director of Education, the Committee of Management actually decides to amend the Scheme of Administration.
7. The stand taken by the learned counsel for the appellant petitioner before the learned single Judge was that prior approval for making any amendment in the approved Scheme of Administration is required only once ie. at the time when the proposal for amendment is sent and if the Joint Director of Education approves the proposal, then no further approval is required for incorporating the same in the Scheme of Administration.
8. On the contrary, the case of rival Committee of Management before the learned single Judge was that approval for amendment in the approved Scheme of Administration is required at two stages. Firstly, a proposal to that effect has to be sent to the Competent Authority for getting approval for amendment and, if it is approved then proper amendment be made in the Scheme of Administration and thereafter approval from the Competent Authority is once again required to be obtained and, unless and until that is done, the requirement of section 16A(5) of the Education Act, is not complete and, if any amendment is made under the Scheme of Administration without following the aforesaid procedure, the same can not be said to be in consonance of the Act and can not be given any effect.
9. On the aforesaid submission, the learned single Judge came to the conclusion that no document seeking amendment to the Scheme of Administration was submitted by the petitioner appellant subsequent to the approval of proposal dated 25.07.2002. According to the learned single Judge, after approval of the proposal dated 25.07.2002, requirement is that a proposal has to be prepared and it has to be placed before the House and by voting it has to be passed. Thereafter, once again the amended Scheme of Administration with all relevant records has to be forwarded to the Joint Director of Education for the purpose of approval. The learned single Judge, therefore, held that the order dated 20.07.2002 can not be treated as an order extending the terms of Committee of Management from 3 years to 5 years and consequently upheld the order passed by the Regional Level Committee.
10. We have heard Sri Ashok Khare, learned senior counsel assisted by Sri Siddharth Khare on behalf of the appellants and the learned standing counsel representing opposite parties No. 1 to 6 and S/Sri G.K. Singh and Shailendra, Advocates, appearing for the opposite party No. 7.
11. Sri Khare, learned senior counsel submitted that the learned single Judge had erred in law in holding that approval under section 16A(5) of the Education Act for amending the approved Scheme of Administration is required at two stages. Firstly, when the proposal for amending the Scheme of Administration is sent by the Committee of Management and, secondly after the proposal has been approved by the Joint Director of Education the Committee of Management actually incorporates the amendments in the Scheme of Administration. He submitted that under section 16A(5) of the Education Act, the Scheme of Administration is required to be approved by the Joint Director of Education and, if any amendment is made, it can only be done with the prior approval of the Joint Director of Education. Once the Committee of Management has proposed any amendment in the Scheme of Administration and has sent the proposal for approval before the Joint Director of Education and the Joint Director of Education accords the approval, there is no requirement for getting the approval again after incorporating the same in the Scheme of Administration. He further submitted that incorporating the amendment so approved by the Joint Director of Education in the Scheme of Administration is only a ministerial job and even if the relevant clause in which the amendment has been approved has not been substituted but, the order approving the amendment which is explicit has been annexed with the Scheme of Administration, the Scheme of Administration for all practical purposes should be treated as having been amended and no adverse inference can be drawn. According to him, the opposite party No. 7 did not raise any objection to the continuance of the erstwhile Committee of Management for a period of 5 years uptil 01.10.2009 even when Sri Girja Shankar Pathak, who claims himself to be the Manager in the alleged elections set up by him was a member of the General Body. He, thus, submitted that the order passed by the learned single Judge should be set-aside and the matter be remanded back for deciding the other points on which the Regional Level Committee has held against the appellants.
12. S/Sri Shailendra and G.K. Singh, learned counsels on the other hand submitted that the requirement of section 16A(5) of the Education Act is that if the Committee of Management decides to amend the approved Scheme of Administration, approval is required firstly, at the stage when the proposal is sent and, secondly at the stage when after the proposal has been approved and actual amendments are to be carried out by the Committee of Management. They submitted that unless amendments are incorporated and approved again, it will be no amendment in the eyes of law as it is always open to the Committee of Management to resile from the proposed amendment and to stick to the unamended Scheme of Administration.
13. Having given our anxious consideration to the various pleas raised by the learned counsel for the parties, we find that it is not in dispute that after the order dated 25.01.1985 passed by the Deputy Director of Education, Varanasi Region, Varanasi, by which he had approved the amendment in the approved Scheme of Administration in sofar as it related to prescribing the term of the Committee of Management to 3 years continued and was acted upon by all concerned till the year 2004. It is also not in dispute that in the year 2002, the Committee of Management proposed amendment in the Scheme of Administration by substituting the term of the Committee of Management from 3 years to 5 years which proposal was approved by the Joint Director of Education, Varanasi Region, Varanasi vide order dated 30.07.2002. It is also not in dispute that the order dated 30.07.2002 had been made part of the approved Scheme of Administration though actual clause containing the term of Committee of Management had not been substituted.
14. The controversy raised in the present appeal revolves around the interpretation of section 16A(5) of the Education Act, which for ready reference is reproduced below:
"16A (5) The Scheme of Administration of very institution shall be subject to the approval of the Director and no amendment to or change in the 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 the same, and thereupon the Director shall act accordingly)."
15. From a reading of the aforesaid provisions, we find that section 16A(5) of the Education Act provides as follows:
(I) the Scheme of Administration of every institution shall be subject to the approval of the Director;
(ii) no amendment or change in the Scheme of Administration can be made at any time without the prior approval of the Director;
(iii) where the Director refuses to approve an amendment or change in the Scheme of Administration, the Committee of Management can make a representation to the State Government;
(iv) the State Government if it is satisfied that the amendment or change in the Scheme of Administration is in the interest of the institution order the Director to approve the same; and
(v) the Director shall act in accordance with such decision taken by the State Government.
16. It is therefore clear that section 16A(5) of the Education Act does not speak of taking prior approval twice on a proposal seeking amendment or change in the approved Scheme of Administration. If the proposal sent by the Committee of Management seeking amendment or change in the Scheme of Administration has been approved by the Director, (in the present case Joint Director of Education), then while incorporating the same no further approval is required. It is a consequential act.
17. The question still remains what would be the effect of not substituting the relevant clause of the approved Scheme of Administration by the amendment approved by the Joint Director of Education. Section 16A(5) of the Education Act does not provide for such a contingency. The Education Act is also silent in this behalf.
18. Halsbury's Laws of England, Volume 36, paragraph 63 deals with mode of amendment and also deals with various methods by which an amendment can be made. One of the mode mentioned therein is to the following effect.
"63. Mode of Amendment. A pleading may be amended by written alternations in a copy of the document which has been served, and by additions on paper to be interleaved with it if necessary."
19. In the Code of Civil Procedure 1882, unlike Order 6 Rule 18 contained in the Civil Procedure Code 1908, there was no time limit fixed for incorporating the amendment in the pleadings. A Division Bench of this Court in the case of Khayali Ram Versus Bhoop Singh and others, 1893 Allahabad Weekly Notes 225, has held that though, ordinarily speaking, when a plaintiff is permitted to amend his plaint such amendment should be made upon the face of the plaint already before the Court, yet an amendment, if not otherwise defective, will not be a bad amendment merely by reason of its being written on a separate sheet of paper.
20. Similarly, the Mysore High Court in the case of Allisaheb Masumsaheb Alas & others Versus Babu Laxman Chambar, (1972) 1 Mys LJ 200 has held that an amendment must be carried out in the pleading. Where it was not so carried out but the parties proceeded on the footing that it was carried out, the decree passed by the Court can not be said to be bad and can not be interfered with.
21. From the aforesaid, it is well established that if there is no specific provision for incorporating the amendment in the pleadings and, if the amendments have been annexed along with the original document to be read as part and parcel of the same and all concerned have acted on the basis of the amendment so made, then it is too late in the day to come forward and say that as the actual amendment has not been carried out in the Scheme of Administration it is of no consequence. Admittedly, in the present case we find that the term of the Committee of Management which was elected on 02.10.2004 was allowed to be continued for a period of 5 years by all members of the General Body including Sri Girja Shankar Pathak, who claims himself to be the Manager of the Committee of Management in the alleged elections held on 25.10.2009 and, therefore, it can not be said that the amendment which permitted the Committee of Management to have a term of 5 years in place of 3 years is no amendment in the eyes of law. That being the position, we are of the considered opinion that the order passed by the learned single Judge can not be sustained and the learned single judge has committed an error of law in holding that the Committee of Management elected on 02.10.2004 ceases to be a validly elected Committee of Management on expiry of 3 years and the amendment relied upon was not an approved amendment.
22. As the Regional Level Committee had non-suited the appellant on other grounds also which has not been gone into by the learned single Judge, we deem it fit and proper to set-aside the impugned order passed by the learned single Judge and remand the matter back for decision on other points.
23. In view of the foregoing discussions, the appeal succeeds and is allowed. However, the parties shall bear their own costs.