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Aley Ahmad Abidi Vs. Dist. Inspector of Schools, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 9410 of 1975
Judge
Reported inAIR1977All539
ActsUttar Pradesh Intermediate Education Act, 1921 - Sections 16A; Constitution of India - Article 226
AppellantAley Ahmad Abidi
RespondentDist. Inspector of Schools, Allahabad and ors.
Excerpt:
.....cannot be said to be a subordinate legislation - management committee of such institution not a statutory body - writ may still be issued against it if it is performing a statutory duty. - - .there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. beyond providing that such committee should have as ex officio members, the head of the institution and two other teachers, and that such committee should be vested with the authority to manage and conduct the affairs of the college, section 16-a leaves it to the scheme of administration to provide for the constitution of the committee of management, and the powers, duties and functions of such..........following question of law: 'whether the committee of management of an intermediate college is a statutory body, and if so, whether a writ petition filed against it will be maintainable?' 2. the above question consists of two parts. the first part is whether the committee of management of an intermediate college is a statutory body? the second part of the question, as we understand, is that if such committee is not a statutory body, would a writ petition against it be maintainable. if such committee is a statutory body it does not admit of any doubt that a writ petition against it, is maintainable. 3. the long preamble to the u. p. intermediate education act, 1921 (hereinafter referred to as the act), states that it (the act) was enacted to establish a board for regulating and.....
Judgment:

D.M. Chandrashekhar, J.

1. K. C. Agarwal, J., has referred to the Full Bench the following question of law:

'Whether the Committee of Management of an Intermediate College is a statutory body, and if so, whether a writ petition filed against it will be maintainable?'

2. The above question consists of two parts. The first part is whether the committee of Management of an Intermediate College is a statutory body? The second part of the question, as we understand, is that if such committee is not a statutory body, would a writ petition against it be maintainable. If such committee is a statutory body it does not admit of any doubt that a writ petition against it, is maintainable.

3. The long Preamble to the U. P. Intermediate Education Act, 1921 (hereinafter referred to as the Act), states that it (the Act) was enacted to establish a Board for regulating and supervising the system of High School and Intermediate Education in Uttar Pradesh and to prescribe the courses therefor. The Act as it originally stood, provided for regulating grant of recognition to non-Governmental High Schools and Intermediate Colleges, for prescribing courses of instruction and text-books therein, for conducting examinations thereof, for publishing text books therefor and for grant of diplomas and certificates to successful candidates completing courses of High School and Intermediate education. The Act did not provide for regulating and controlling administration or management of such non-Governmental schools and Intermediate Colleges.

4. The Act was amended by the U. P. Intermediate Education (Amendment) Act, 1958, which came into force on 16-10-1958. By this amendment Sections 16-A to 16-I were inserted in the Act, The material portions of Section 16-A of the Act read:

'16-A. Scheme of Administration.--(1) Notwithstanding anything in any law, document, or decree or order of a Court or other instrument, there shall be a scheme of Administration (hereinafter referred to as the Scheme of Administration) for every institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1951. 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 right to vote.

.....

(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.

.....

(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 Scheme of Administration shall be made at any time without the prior approval of the Director:

.....'

5. Section 16-E of the Act prescribes the procedure of selection of teachers and the Head of an institution by its Committee of Management.

6. Section 16-F provides that there shall be a selection committee for selection of candidates for appointment as the Head of an Institution and a Selection Committee for selection of teachers in an institution. The President and one or two members of the Committee of Management will also be among the members of such selection Committee.

7. Section 16-G provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by regulations made under the Act and that any agreement between the management and such employee, in so far as it is inconsistent with the provisions of the Act or with the Regulations, shall be void, This section requires that the regulations framed under the Act shall provide for the period of probation, the conditions for confirmation, the procedure and conditions for promotion and punishment, the scales of pay, grant of leave, provident fund and other benefits, maintenance of record of work and service, and transfer of service from one recognised institution to another,

8. Sub-sections (3) to (9) of Section 16-G contain certain safeguards to the Heads of Institution and teachers in regard to dismissal, discharge, removal, suspen-sions and disciplinary action against them.

9. The criteria for ascertaining whether an institution is a statutory body, have been laid down by the Supreme Court in Vaish Degree College v. Lak-shmi Narain, (AIR 1976 SC 888). Both the learned counsel for the petitioner and the learned counsel for the respondents sought to apply these criteria in support of their respective stands as to the legal status of the committee of Management of a recognised Intermediate college. M. Fazal Ali, J., who delivered the majority judgment said thus at page 892:

'It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe 5ts existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute, but is governed by certain statutory provisions for the proper maintenance and administration of the institution, There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character. .....there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence If the answer is in the negative, then undoubtedly it is statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.'

10. Bhagwati, J., in his separate judgment observed thus at page 905:

'..... Obviously, a body or authority created by statute would be a statutory body, but even a body or authority which is created under a statute, as for example, the State Road Transport Corpora-tion which is created by the State under the Road Transport Corporation Act, 1950, would also be a statutory body, what other kinds of statutory bodies would be included is a matter not free from difficulty.'

11. Shri S. P. Gupta, learned counsel for the petitioner, did not claim, rightly in our opinion, that the Committee of Management of an Intermediate College is created by the Act. But he contended that such Committee of Management is created under the Act inasmuch as Section 16-A of the Act provides that there shall be a Scheme of Administration for every Intermediate College and that such Scheme shall, among other matters, provide for the constitution of such committee vested with the authority to manage and conduct the affairs of the institution. According to him even if an Intermediate college had a Committee of Management prior to coming into force of Section 16-A, such committee will be altogether a different body from the Committee of Management constituted under the Scheme of Administration required to be framed by Section 16-A.

He submitted that before the U. P. Intermediate Education (Amendment) Act, 1958, came into force, there was no statutory requirement that a recognised Intermediate College should have a Committee of Management and that a College owned by individuals might have been managed by such respective individuals without any Committee of Management and that in such cases the Committee of Management would come into existence for the first time under the Scheme of. Administration required to be framed under Section 16-A of the Act. It was also submitted by him that the governing body of a society registered under the U. P, Co-operative Societies Act or the Societies Registration Act, which owns and runs an Intermediate College, would be entirely different from the committee of Management envisaged by Section 16-A of the Act. Invoking the test laid down by M. Fazal Ali, J., in Vaish Degree College case (AIR 1976 SC 888), (supra) namely, whether the body concerned owes its very existence to a statute which would be the fountain-head of its powers, Sri Gupta maintained that the Committee of Management of a recognised Intermediate college, as contemplated by Section 16-A of the Act, owes its very existence to the Act, Which constitutes the fountain-head of its powers. Invoking the second test laid down by his Lordship, namely, would the body have any legal existence if, there is no statute, Sri Gupta maintained that but for Section 16-A of the Act, such a Committee of Management would have no legal existence and that if Section 16-A should be repealed, such Committee would also cease to have existence in the eye of law.

12. On the other hand, Sri S. J. Hyder, learned counsel for the respondents, contended that the Committee of Management of an Intermediate College cannot be said to be created under the Act, but should be regarded as being constituted in accordance with the provisions of the Act. He maintained that such Committees of Management would have existed in Intermediate Colleges which had been recognised prior to Section 16-A coming into force and that after that section came into force, such committees would be merely regulated and controlled by the scheme of Administration which Section 16-A requires every Intermediate College to frame. It was also submitted by him that even where the Committee of Management of an Intermediate College came into existence after Section 16-A came into force, such Committee would be merely a body, created or constituted in accordance with the provision of a scheme required to ba framed under Section 16-A of the Act and that hence the Committee of Management of an Intermediate College cannot be regarded as one created under the Act. He added that even if Section 16-A of the Act should be repealed, such Committee of Management would continue to exist, but without being regulated and controlled by the provisions of that section.

13. Now, we shall briefly advert to the decisions of this Court on the question whether the Committee of Management of an Intermediate College is or is not a statutory body.

14. In S. P. Tewari v. Managing Committee of Rashtriya Inter College, Karamber (1970 All LJ 404), after referring to Sections 16-A, 16-B and 16-C of the Act and Chapter I of the Regulation. M. H. Beg, J., held thus at p. 408:

'The mere fact, however, that the institution is regulated by statutory provisions and Regulations would not, in my opinion, convert it into a public or statutory authority amenable to the jurisdiction of this Court under Article 226 of the Constitution.'

15. However, his Lordship held that the Inspector and the Deputy Director of Education exercising powers under the Act, were public servants and, therefore,, amenable to the jurisdiction under- Article 226 of the Constitution.

16. In an unreported decision, Special Appeal No. 563 of 1972 (All) (Om Pra-kash v. U. P. Shiksha Nidarshak), Satish Chandra, J., held that the Committee of Management of ,an Intermediate college cannot be held to be a statutory .body. There, a teacher who was dismissed from service of an Intermediate College by its Committee of Management, had filed a Writ Petition challenging his dismissal.

17. In Writ Petn. No. 3693 of 1974 (All) (Deen Dayal Gautam v. Kisan Intermediate College Ral) and Writ Petn, No. 919 of 1975 (All), K. N. Singh, J., held that the Committee of Management of a recognised Intermediate College is a statutory body. However, the aforesaid two earlier decisions of this Court) do not appear to have been brought to the notice of his Lordship. The reasoning of his Lordship was that in the absence of the Scheme of Administration and in the absence of Sections 16-A, 16-B and 16-C of the Act and the Regulations framed thereunder, the Committee of Management of an Intermediate College would have no legal entity and that hence on the application of the test laid down by the Supreme Court in Vaish Degree College case (AIR 1976 SC 888) (supra) the Committee of Management of a recognised Intermediate College is a statutory body.

18. What Section 16-A of the Act provides is that every recognised Intermediate College should have a Scheme of Administration, that such Scheme should provide, inter alia, for constitution of a Committee of Management vested with the authority to manage and conduct the affairs of such college and that such committee should have as ex officio members, the Principal or the Head of the Institution and two teachers. The Act itself ,doeg not provide how such Committee should be constituted, what should be its strength, who should be its members, what should be the term of office of such members, what should be its powers, functions and duties and how it should function. Beyond providing that such Committee should have as Ex Officio Members, the Head of the Institution and two other teachers, and that such Committee should be vested with the authority to manage and conduct the affairs of the College, Section 16-A leaves it to the Scheme of Administration to provide for the constitution of the Committee of Management, and the powers, duties and functions of such Committee, subject to the provisions of the Regulations made under the Act,

19. The Scheme framed by a recognised Intermediate College cannot, in our opinion, be regarded as a piece of subordinate legislation like the Rules, Regulations, Statutes and Ordinances, which an Act empowers the Government or the statutory bodies under the Act to make or frame. A recognised Intermediate College which is required by Section 16-A to have a Scheme of Adminis-tration, cannot, by any stretch of imagi-ination, be regarded as statutory body. Once we hold that a Scheme of Administration required to be framed by each recognised Intermediate College under Section 16-A of the Act, is not a piece of a subordinate Legislation, it follows that the Committee of Management constituted under such a scheme, is not a body constituted under a statute, but is merely governed by the provisions of the Act and Regulations framed thereunder.

20. We find it difficult to accept the contention of Sri Gupta that a Committee of Management of a recognised Intermediate College constituted under a Scheme of Administration, is entirely a new body different from the Committee of Management which such College might have had before Section 16-A of the Act came into force. What the Scheme of Administration framed under Section 16-A does, is to modify the constitution of such Committee and to regulate and control it, rather than to supplant it or to substitute it by altogether a new Committee of Management, Even if such Committee is constituted for the first time after Section 16-A came into force, the constitution and functions of such a Committee are merely required to be in conformity with the provisions of the Act and the Regulations thereunder. There is no reason why such Committee should not continue to exist even if Section 16-A should be repealed, such Committee will merely cease to be governed by the provisions of that section and the Regulations made thereunder.

21. Thus, we are unable to accept the contention of Sri Gupta that the Committee of Management of a recognised Intermediate College is a statutory body.

22. We shall now consider the second part of the question referred to us. Though a writ is generally issued to the Government or a public authority, or a statutory body, there may be circumstances in which a writ may have to be issued to a person or body which is not statutory. In Praga Tools Corporation v. C. V. Imanual (AIR 1969 SC 1306, at pp. 1309-10), the Supreme Court observed thus :

'An order of mandamus is, In form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society, to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertaking.'

23. In Halsbury's Laws of England (IIIrd Edition) Volume 30, at page 682, it is stated that a natural or individual person might, when acting in execution oi; a public duty, be a public authority.

24. In Miss Kumkum Khanha v. The Principal, Jesus and Mary College (AIR 1976 Delhi 35), a Division Bench of the Delhi High Court, after referring to the passage in S. A. De Smith's 'Judicial Review of Administrative Action' (3rd Edition) at page 341, observed thus at page 38:

'On the other hand, the use of the word 'person' in the above statements of law in relation to mandamus and certio-rari would show that the person or authority against whom these remedies are given need not be invariably created, by a statute. Only a legal person can be created by a statute. But these writs can be issued against a natural person provided that he is exercising a public or a statutory power or doing a public or a statutory duty.'

25. In the above case, (AIR 1976 Delhi 35) the Delhi High Court issued a Writ to the Principal of a private college on the ground that the Principal was conferred with powers under Ordinances of the University of Delhi regarding attendance of the students and that hence the exercise of such powers was subject to the jurisdiction under Article 226 of the Constitution.

26. In Ramswarup v. Madhya Pradesh State Co-operative Marketing Federation Ltd. (AIR 1976 Madh Pra 152) (FB), one of the questions before a Full Bench of the Madhya Pradesh High Court was whether a writ in the nature of mandamus can be issued to a Co-operative Society registered under the Madhya Pradesh Co-operative Societies Act, 1960. After holding that such a co-operative society is not a statutory body, the Full Bench observed thus at pages 154-55:

'..... normally such societies (Cooperative Societies registered under the provisions of the M. P. Co-operative Societies Act, 1960), will not be amenable to Writ Jurisdiction of the High Court except in cases where according to the provisions of the statute or rules or regulations framed under the Act by which the Society is governed, there is a statutory or public duty imposed on it, and the enforcement of which is being sought.

.....

Whenever, it is pointed out that any statutory provisions requiring the Society to act in a particular manner creates a right or interest in favour of the person concerned, it will be permissible for such person to approach the High Court for seeking the writ of mandamus to direct the statute and not commit breach of the same. Thug, we would like to make it clear that the Co-operative Society will be amenable to writ jurisdiction only in cases relating to performance of legal obligations and duties imposed by a statute creating a corresponding legal right in one.'

27. We are in respectful agreement with the aforesaid enunciation of law by the High Courts of Delhi and Madhya Pradesh.

28. Sri Hyder also fairly conceded that in the light of the pronouncement of the Supreme Court in Praga Tools Corporation's case (AIR 1969 SC 1306) (supra) even if the Committee of Management of a recognised Intermediate college is held to be a non-statutory body, such committee will still be amenable to the Writ jurisdiction of the High Court, where such Committee is entrusted with performance of statutory duties or conferred with statutory powers.

29. As a result of the foregoing discussion, our answer to the question referred by learned single Judge, is as follows :

'The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a Writ Petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute.'


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