Tag Archives: Educational Society

Management Shall Not Dismiss Any Teacher – Without Approval By The Board

Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 provides that the management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period whether temporarily or permanently and any such thing done without such prior approval shall be void.

Section 21 of the U.P. Secondary Education Service Selection Board Act, 1982, has also been similarly interpreted by the Court in Hem Lata Agrawal v. District Inspector of Schools, 2003 (2) AWC 939. It was held as under: “The question whether the reversion of a teacher, who was appointed on temporary adhoc basis as Principal under Section 18 of the Act would amount to reduction in rank so as to require approval of the Board need not be considered here as whether or not it is a reduction in rank, it is clear that it amounts to reduction of emoluments. The petitioner is entitled to the salary for the post of Principal and reverting her, as a Lecturer would undoubtedly affect the emoluments to which she is entitled. The language of Section 21 of the Act is wide enough to cover within its scope the order impugned in this writ petition.”…. Kapil Deo Prasad V. Joint Director of Education 7th Region Gorakhpur, Writ – A No. – 442 of 2020, decided on 05.03.2020

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Approved – Scheme of Administration

Since salary to teaching and non-teaching staff has to be disbursed pursuant to bills presented under the signatures of the manager and he also signs on the cheque, it is imperative that the Inspector authorises only such representative of the management which is constituted in accordance with the scheme of management. In addition to the functions assigned to a management in the U.P. High Schools And Intermediate Colleges (Payment of Salaries of Teachers And Other Employees) Act,  of 1971, there are other responsibilities entrusted upon the management by virtue of provisions contained in the U.P. Intermediate Education Act, 1921. The U.P. Intermediate Education Act of 1921, therefore, contemplates that a scheme of administration shall exist for every institution recognized under the Act of 1921. The scheme of administration shall, amongst other matters provide for the constitution of a committee of management which is vested with the authority to manage and conduct the affairs of the Institution. The requirement of having such scheme of administration and also the particulars which it must contain are specified in Section 16-A of the Act of 1921. Sub-section (6) of Section 16-A mandates that every recognized institution shall be managed in accordance with the scheme of administration provided for in Sub-sections (1) to (6) thereof. Amendment has been made in the Act of 1921 to incorporate Section 16-CC and Section 16-CCC vide U.P. Act No. 1 of 1981. Third Schedule has also been added vide the same amending Act laying down principles on which approval to a scheme of administration shall be accorded. One of the factors specified in the Schedule is to provide for periodical elections. The scheme of administration is also required to be approved by the Deputy Director of Education.

    The object of enumerating need to have a scheme of administration and for a committee of management to be constituted as per it is to ensure that the body entrusted with the task of management functions in a democratic manner and the officials of the State interact only with a body duly elected in accordance with the approved scheme of administration. It is in this context that the term recognition needs to be understood for the committee of management of the Institution concerned. There is otherwise no specific provision in the Act of 1921 for grant of recognition.  Committee of Management Thakur Biri Singh Inter College v. State of U.P. , Writ – C No. – 28560 of 2019, decided on 25.02. 2020

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Selection – Deemed to Have Been Approved

On perusal of Section 16-FF of the U.P. Intermediate Education Act, 1921, it is evident on the face of it that without approval of the District Inspector of Schools, no appointment on the post of Lecturer or Assistant Teacher in L.T. Grade can be made in the institution recognized under the Act of 1921. It is further clarified that on submission of papers in case the District Inspector of Schools do not pass any order within a period of 1 month, then the selection is deemed to have been approved. Dr.Hemant Chaudhary V. State of U.P., Writ – A No. – 1821 of 2020, Decided on March 3, 2020

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Election Dispute of a Registered Society – Assistant Registrar Does Not Have the Power to Decide the Same

Under Section 25(1) of the Societies Registration Act, it is the Prescribed Authority which is invested with the power to decide a dispute in respect of an election or continuance in office of an office bearer of a registers society. The Assistant Registrar does not have power to decide a dispute of such nature, albeit he could prima facie adjudge whether the dispute is bona fide or sham, to find out whether it needs to be referred to the prescribed authority or not. Kumar Gaurav Singh v. State of U.P., 2018 (4) AWC 4020.

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Dispute – Pertaining to Valid Members of Governing Body

In A.P. Aboobaker Musaliar v. District. Registrar, (2004) 11 SCC 247 the Hon’ble Supreme Court has accepted the Division Bench judgment of the High Court, in which it was held as under:

“Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted. In this case, we find that the list given by the appellant was accepted, because it had the support of court orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body.” It was observed by the Hon’ble Supreme Court that the Division Bench had rightly decided the issue as to whether the Registrar had power under Section 4 of the Societies Registration Act to take a decision with regard to the annual list submitted by the Committee of Management of the Society. Moreover, the enquiry made by the Registrar and the decision taken did not become final and the party could take up the matter before the competent court as to who were the valid members of the Governing Body. Madarsa Arabiya Ahle Sunnat Nurul Ullom v. State of U.P., 2020 (138) ALR 44.

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Dispute with Regard to – Enrollment of Fresh Members

The requirement of Section 4-B of the Societies Registration Act is for all the societies at the time of registration/renewal of a society, therefore, requirement under Section 4-B of the U.P. Act No. 23 of 2013 (vide which Section 4-B was added) can be applied in pending cases also. If there is a dispute with regard to the enrollment of the fresh members, the Registrar can direct the parties concerned to produce the minutes book, cash book, membership fee receipts etc. to establish that the enrollment was in terms of the bye-laws. If the Registrar examines the validity of the enrollment of the members on the basis of the aforesaid documents, it would ensure that rank outsider could not be able to control the affairs of the society on the basis of fake documents.         Under Section 4-B, scope of inquiry by Registrar is to see validity of enrollment of members on the basis of documents referred in Section 4-B and to ensure that outsiders may not be able to control the affairs of society on the basis of fake documents. Anjuman Forogh-E-Islam v. State of U.P., 2014 (5) ADJ 673.

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Election of Committee of Management – Interference by Courts in the Process of Election

        In Shyamdeo Prasad Singh v. Naval Kishore Yadav, (2000) 8 SCC 46 as well as various other Judgments of the Hon’ble Apex Court the principle of law restraining the courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the courts should keep their hand off in electoral matters and that all election disputes must be tries by the Election Tribunal, is also incorporated in the Constitution of India under Article 329 (b) of the elections of the Parliament or to the house or either house of the legislature, under Article 243 O for the elections of Panchayats and Article 243 ZG in the matter of elections of the municipalities. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions.

        In West Bengal State Election Commission v. Communist Party of India (Marxist), AIR 2018 SC 3964, it was held as under:

        “Thirdly, once the election process has commenced, it is trite law that it should not be interdicted mid stage. The electoral process is afforded sanctity in a democracy. That is the reason why in a consistent line of precedent, this court has insisted upon the discipline of the law being followed so that any challenge to the validity of an election has to be addressed by adopting the remedy of an election petition under the governing statute.” Kamlapati Singh v. State of U.P., (2019) 3 UPLBEC 1759.

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Minority Institution – Can Possess a Secular Character

To be classified as a minority, the unit to be taken into consideration is the State concerned. Once it is established that within a particular State a community is a religious/linguistic minority, it has the right to establish and administer an educational institution of its choice. Imparting of secular education and admission of students belonging to other communities, does not denude it of its minority character. Further, an institution established by a minority can possess a secular character to start with and it can opt for a minority status subsequently. Director School Education v. Commission for Minority Education Institution, 2020 SCC Online P & H 430.

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NGO

NGO is not defined under the Right to Information Act or any other Statute. In fact, the term NGO appears to have been used for the first time describing an international body which is legally constituted but non-governmental in nature. It is created by natural or legal entities with no participation or representation by the Government. Even NGO’s which are funded totally or partially by the Governments essentially maintain the NGO status by excluding Government representations in all their organisations. In some jurisprudence, they are also referred to as civil society organisations.         Whether an NGO or body is substantially financed by the Government is a question of fact which has to be determined on the facts of each case. There may be cases where the finance is more than 50% but still may not be called substantially financed. Supposing a small NGO which has a total capital of Rs. 10,000 gets a grant of Rs. 5,000 from the Government, though this grant may be 50%, it cannot be termed to be substantial contribution. On the other hand, if a body or an NGO gets hundreds of crores of rupees as grant but that amount is less than 50%, the same can still be termed to be substantially financed. D.A.V. College Trust and Management Society v. Director of Public Instructions, (2019) 9 SCC 185.

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