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Adarsh Kanya Uchchattar Madhyamik Vidyalaya, Kanpur Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2815 of 1970
Judge
Reported inAIR1972All133
ActsConstitution of India - Article 226; Uttar Pradesh Intermediate Education Act, 1921 - Sections 16A, 16A(6), 16D and 16D(4)
AppellantAdarsh Kanya Uchchattar Madhyamik Vidyalaya, Kanpur
RespondentThe State of Uttar Pradesh and ors.
Appellant AdvocateA. Kumar and ;S.C. Khare, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....16 of u. p. intermediate education act, 1921 - as per state government circumstances call for appointment of administrator - recommendation of committee or objections by president of educational institution asked for - notice issued to president as to why administrator should not be appointed - asked for time to file reply - not filed - after seven months administrator was appointed - sufficient opportunity given - not against principles of natural justice. - - it is the petitioner's case that the writ petition as well as the civil suits involved questions which had relevance to the charges mentioned in the notice. in the two annexures to the representation, a table was attached containing a comparison of the allegations the charges as well as the averments made in the pending..........and training girls for the high school examination of the intermediate education board. the scheme of administration made under section 16-a of the intermediate education act relating to the petitioner institution as approved by the director, provided in paragraph 20 what is described as 'emergency provision' as follows:-- (1) when the state government is of the opinion that circumstances have arisen which have rendered it impossible to carry on properly the administration of the school/college in the normal manner it may appoint an administrator. provided that no such administrator shall be appointed except: (a) on the recommendation of the committee, or (b) on the recommendation of the director of education and after allowing the president an opportunity to submit a written.....
Judgment:
ORDER

B.N. Lokur, J.

1. The petitioner is an educational institution for teaching and training girls for the High School Examination of the Intermediate Education Board. The scheme of Administration made under Section 16-A of the Intermediate Education Act relating to the petitioner institution as approved by the Director, provided in paragraph 20 what is described as 'Emergency Provision' as follows:--

(1) When the State Government is of the opinion that circumstances have arisen which have rendered it impossible to carry on properly the administration of the school/college in the normal manner it may appoint an administrator.

Provided that no such Administrator shall be appointed except:

(a) on the recommendation of the Committee, or

(b) on the recommendation of the Director of Education and after allowing the President an opportunity to submit a written explanation against the said recommendation.

(2) Upon such appointment being made the Committee and all the officebearers shall stand suspended and all their powers and functions shall vest in the Administrator except that he will not have the authority to take loan for or on behalf of the Society or School/ College or to transfer any immoveable property thereof.'

The remaining sub-paragraphs of paragraph 20 are not material.

2. Purporting to act under the said paragraph 20 the State Government issued a notice to the President of the petitioner institution on the 29th April, 1969, calling upon him to show cause why an administrator should not be appointed. The notice set out fifteen charges of mismanagement of the institution which led to the issue of the notice. At this time a writ petition filed by the petitioner institution challenging the order withholding the grant-in-aid to the institution was pending in the High Court, suits instituted by some teachers of the institution were also pending in a subordinate Civil Court. It is the petitioner's case that the writ petition as well as the Civil suits involved questions which had relevance to the charges mentioned in the notice. The petitioner institution wrote to the State Government on the 14th May, 1969, that as many common questions arose in the aforesaid pending litigations and in the charges set out in the notice, he apprehended that he would be committing contempt of court if he offered comments and explanations of the charges and hence he should not compelled to reply to the notice. In the two Annexures to the representation, a table was attached containing a comparison of the allegations the charges as well as the averments made in the pending writ petition and the pending civil suits. The State Government informed the petitioner on the 14th November. 1969, that the pending litigation did not in any way preclude the President from giving explanation to the charges in the notice. The Civil suit filed by the teachers was withdrawn on the 14th November, 1969, but a fresh suit was filed by another teacher on the 18th November, 1969. On the 24th November, 1969, the President again wrote to the State Government pointing out the aforesaid facts and asking for fifteen days' time to file a reply which he was not prepared to do due to fear of contempt of Court. No reply was sent by the State Government to this representation but on the 8th June, 1970. the State Government made an order appointing an Administrator.

3. The petition impugns the appointment of the Administrator on two grounds, namely, that the petitioner was not given adequate opportunity to show cause against the appointment as provided under proviso (b) to paragraph 20 (1) of the Scheme of Administration and that the said paragraph 20 is ultra vires if it is construed as providing for appointment of an administrator in the event of mismanagement of the institution.

4. The first ground does not impress me. By his representation dated the 14th November. 1969. the President of the institution asked for fifteen days' time to file a reply to the notice if the reply did not amount to contempt of court. A grievance was made that the State Government did not inform the President whether time was or was not granted to file the reply as prayed. It will be observed that the final order of the State Government appointing the Administrator was made on the 8th June, 1970 i. e., nearly seven months after the representation of the President. Even if the President did not receive intimation that time was or was not granted, it was open to the President to send his explanation as stated by him. He had ample time to make his submissions and it cannot be said that he did not have adequate opportunity to show cause against the notice.

5. As regards the second ground, the learned counsel for the petitioner argued that paragraph 20 of the Scheme of Administration has in fact to be read with paragraph 19 and the appointment of Administrator under paragraph 20 is contemplated if an emergency arises in situations relatable to paragraph 19. Paragraph 19 reads thus:--

'(1) Any dispute as to whether a person has been duly chosen to be a member or office-bearer shall be referred to the President whose decision thereon shall be final.

Provided that when the dispute related to the President the same shall be referred to the Regional Inspectress of Girls Schools, whose decision thereon shall be final.

(2) The President or the Regional Inspectress of Girls Schools as the case may be may order as to who shall during the pendency of the dispute exercise and discharge the powers and functions appertaining to the office to which the dispute relates.' I find it difficult to accept the argument that paragraphs 19 and 20 deal with the same situation. Paragraph 20 envisages the appointment of an Administrator where 'circumstances have arisen which have rendered it impossible to carry on properly the administration of the School/College in the normal manner.' The word 'properly' indicates that a resort to paragraph 20 is not restricted to the period in which the dispute under paragraph 19 is under consideration. Paragraph 20 stands by itself and applies to all situations where proper administration of the institution in the normal manner has become impossible.

6. The learned counsel for the petitioner argued that if that be the view, paragraph 20 is ultra vires being inconsistent with the Scheme of the Intermediate Education Act (hereinafter referred to as 'Act'). It was pointed out that Section 16-D of the Act provides for the appointment of an Authorised Controller where the affairs of the institution are being mismanaged or where the management of the institution has persistently failed in the performance of its duties. The scheme of the section is that the Director of Education can direct the management to remove any defect or deficiency found on inspection of the affairs of the institution or otherwise and if the management fails to comply with any of his directions, the Director can after considering the explanation or representation of the Management recommend to the State Government the appointment of an Authorised Controller if the affairs of the institution are mismanaged or the management has failed persistently in the performance of its duties. The authorised Controller is competent to give directions to the Management to carry on its affairs in accordance with his directions and if the management has not complied or refused to carry out the directions of the Authorised Controller, the Authorised Controller, with the previous approval of the State Government can take over the management of the institution to the exclusion of the Management.

It is contended that the Act thus makes adequate provision to deal with a situation of mismanagement of the affairs of the institution and it would not be the function of the Scheme of Administration to substitute for or add to these provisions of the Act. In my opinion the argument is sound. Since the Act itself provides for the remedy against the mismanagement of the institution, the scheme of Administration cannot create another alternative remedy inconsistent with the express remedy provided by the Act, moreover, the remedy provided by paragraph 20 of the Scheme of Administration is more stringent than that provided by the Act itself. Section 16-D (4) of the Act confers upon the Authorised Controller merely the power to issue directions to the Management which continues to function but the Administrator under paragraph 20 of the Scheme of administration virtually replaces the Management. The Management becomes functus officio under the Act only if it fails to abide by the directions of the Authorised Controller. Under paragraph 20 of the Scheme of Administration, the Management is deprived of its powers from the moment the Administrator is appointed. Furthermore, the appointment of the Authorised Controller is possible under the provisions of the Act only if the Management fails to comply with the directions of the Director; no such condition precedent is laid down for the appointment of Administrator under paragraph 20.

The learned Standing Counsel contended, on the other hand, that the function of paragraph 20 is different from that of Section 16-D (4) of the Act inasmuch as paragraph 20 deals with emergent situations while Section 16-D (4) deals with situations arising in the ordinary course. The fact that the Act has not provided for emergent situations necessarily implies the insistence upon the procedure in Section 16-G of the Act in every case; after all, the appointment of the Authorised Controller under Section 16-D is not time consuming. On the other hand, the present case demonstrates that paragraph 20 cannot be used effectively to meet an emergency. It may be recalled that the notice was issued by the State Government on the 29th April, 1969, and the order of appointment of the Administrator was passed on the 8th June, 1970, more than a year after the issue of notice. Surely, during this interval the procedure for appointment of Authorised Controller under Section 16-D could have been followed without any difficulty.

7. The learned Standing counsel also contended that Section 16-A which contemplates the formulation of a Scheme of Administration does not limit the nature of the provisions and the Scheme can therefore provide against an emergency. Under Section 16-A. the Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management vested with authority to manage and conduct the affairs. The learned Standing counsel laid stress on the underlined words and argued that the scheme of Administration could deal with any matter which is conducive to the smooth administration of the institution; Section 16-A (6) states that every institution shall be managed In accordance with the Scheme of Administration and this statement places limits on the scope of the Scheme which is to provide a procedure and norms for managing the affairs of the administration by the Management. In my opinion the Scheme of Administration is not intended to make provision against the mis-management by the Committee of Management.

8. In the view I take, paragraph 20 being inconsistent and repugnant to the Act, it has to be treated as nonexistent and outside the scope of Section 16-A.

9. The learned Standing Counsel contended that in that event the appointment of the Administrator should be construed as appointment of Authorised Controller under Section 16-D (4). It was urged that if the State Government has power of making appointment under some provision of law and if the appointment has been made under a different provision which is not applicable the appointment should be attributed to the appropriate provision. This proposition of law cannot be disputed but it cannot be invoked in the present case. Section 16-D (4) provides for appointment of an Authorised Controller with limited powers and paragraph 20 envisages the appointment of an Administrator with very wide powers; Section 16-D (4) enables appointment of the Authorised Controller after some preliminaries have been gone through. None of the preliminaries appear in paragraph 20. The conditions precedent and the nature of power are so different in the case of an Authorised Controller appointed under Section 16-D (4) and in the case of an Administrator appointed under paragraph 20 that I find it inequitable and unreasonable to construe the appointment of Administrator under paragraph 20 as an appointment of an Authorised Controller under Section 16-D (4).

10. For all these reasons I cannot maintain the order of appointment of the Administrator impugned by the petitioner and accordingly the order of the State Government dated 8th June, 1970, a copy of which is at Annexure F to the petition, is hereby quashed. No order as to costs.


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