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Birla Higher Secondary School Vs. Lieutenant Governor, Delhi and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 562 of 1972
Reported inILR1973Delhi634
ActsDelhi Education Code, 1965 - Schedule - Articles 27 and 46; Constitution of India - Articles 31A(1) and 73
AppellantBirla Higher Secondary School
RespondentLieutenant Governor, Delhi and ors.
Advocates: L.M. Sanghvi,; Ravnder Narain,; J.N. Aggarwal,;
Cases ReferredR. Abdulla Rowther v. The State Transport Appellate Tribunal
(i) delhi education code article 27 -- director of education -- whether has inherent power to order reinstatement of a teacher of a school receiving grant-in-aid.; that the code is replete with provisions stating the powers of the director, and they arte listed exhaustively in article 27. many of his powers are expressed in general terms in words of considerable amplitude. but, there is no trace of a power to order the reinstatement of a teacher, or the existence of any inherent power which might enable him to do so. ; (ii) delhi education code - article 46 - powers of director to withdraw recognition when can be exercised - direction to reinstate a teacher - whether a breach of the conditions of recognition.; that article 46 enables the director to withdraw recognition if the school.....t.p.s. chawala, j.(1) the biria high school society, delhi was registered in 1934 under the societies registration act, 1860. it maintained and managed a school. by a letter dated 1st august, 1945 the chief commissioner, delhi, accorded permanent recognition to this school for the purpose of examinations of the board of higher secondary education for delhi. subsequently, in 1958, the society was registered again as the biria higher secondary school society. its primary object was to maintain, control and manage the already established school known as the 'biria higher secondary school'. according to its rules and regulations, the general conduct, management and superintendence of the affairs of the society is entrusted to an 'executive committee', and the particular conduct and management.....

T.P.S. Chawala, J.

(1) The Biria High School Society, Delhi was registered in 1934 under the Societies Registration Act, 1860. It maintained and managed a school. By a letter dated 1st August, 1945 the Chief Commissioner, Delhi, accorded permanent recognition to this school for the purpose of examinations of the Board of Higher Secondary Education for Delhi. Subsequently, in 1958, the Society was registered again as the Biria Higher Secondary School Society. its primary object was to maintain, control and manage the already established school known as the 'Biria Higher Secondary School'. According to its Rules and Regulations, the general conduct, management and superintendence of the affairs of the Society is entrusted to an 'Executive Committee', and the particular conduct and management of the affairs of the School to a 'Managing Committee'. The Managing Committee is subordinate to and required to conform to the directions of the Executive Committee.

(2) At present the School employs 80 teachers and has about 1800 students. Over the nearly 40 years of its existence it has acquired assets of very considerable value. It has a school building, said to be valued at more than Rs 20 lakhs, land and movable assets. For more than 2 years it has been receiving grants-in-aid from the Education Dspartment, Delhi Administration. Since 1965, such grants are controlled by the Delhi Education Code. This Code was prescribed by the Chief Commissioner, Delhi, by a notification deted 16th January 1965 published in the Delhi Administration Gazette, and came into force on 15th February 1965. It is divided into 11 Chapters comprising 392 Articles. The Code deals with recognition of schools, grants-in-aid to them, and many other matters concerning schools and those employed in them.

(3) Until the events to which we will now refer, all was well between the Society and the Education Department, Delhi Administration. They dealt with each other on the basis that the Code was binding between them. On 10th July 1971 at 5 p.m. there was a meeting of the Managing Committee of the school. Article 54(2) of the Cods prescribed certain requirements as to the composition of such a committee. The Principal of the School, the President or Chairman of the Parent-Teachers Association of the School, and one or two representativesofthe teachers of the school, depending on their number, are necessary members. Three members are nominated by the Director of Education. The total membership is not to exceed 16. Presumably, the remaining members may be nominated by the management of the School, although the Article does not expressly say so. It is not disputed that the Managing Committee of the School was constituted in accordance with that Article. The total membership was 13. On the occasion in question 10 members were present. One of them was N.C. Singhal, a nominate of the Director. M.D. Dalmia was in the Chair. Lachman Singh, the Principal, was absent. From the recorded minutes of this msfcting it appears, that after the business on the agenda was over. with the permission of the President, a letter of resignaton by Lachman Singh from the post of Principal was placed before the meeting. Eight members voted in favor of acceptance of the resignation; N. C. Singhal opposed the acceptance, and the member representative of the tea.chers abstained. Consequently, the resignation was accepted by majority, with immediate effect. The senior most teacher was appointed officiating Principal, and the Manager of the school was authorised to advertise the post and invite applications. It was also resolved that a copy of the letter to be addressed to Lachman Singh in reply, should be forwarded to the Director of Education as required by the rules (meaning probably in the Code).

(4) This incident sparked off the controversry which has led to the proceedings before us. The resignation of Lachman Singh was addressed to the Chairman of the Managing Committee of the School. It bears no date. He writes :

'SIR,Since I have failed to come up to your expectations and not been able to show the promised pass percentage this year i.e. 1971, I feel that I should not continue as Principal of the School and as such I tender my resignation from this post and won't resume my duties with effect from 7th July 1971, i.e. after the re-opening of the school. I am doing so due to health reasons and of my own accord. Yours faithfully, Lachman Singh Principal'

(5) A multi-sided correspondence followed the acceptance of this resignation. Ultimately, it resulted in a direct confrontation between the Management of the School and the Education Department. No purpose will be served by our relating this correspondence in detail.

(6) Instead, we will state what emerges from it and note the salient points. Lachman Singh, the Principal, says that in July 1970 he wanted leave as he fell ill due to the hard and long hours of work at the school. For this purpose he approached S.K. Jagnani, whom he describes as the 'Acting President', as this gentleman usually presided over the meetings of the Managing Committee and was looking after the affairs of the School. Jagnani complained about the unsatisfactory examination results of the School, and refused to sanction leave unless he (the Principal) gave an undated letter of resignation. In these circumstances, Luchman Singh says, the resignation was extracted from him by duress and coercion because he could not withstand the pressure. He was assured that the resignation would not be used against him. Nothing further happened till July 1971. On 6th July 1971, as Secretary of the Managing Committee, he circulated, with the approval of the President the agenda for the meeting to be held on 10th July 1971. His resignation did not figure on the agenda. Somehow, he says, he got wind of the evil intentions of the President, and so on 9th July 1971 he sent a registered letter to Jagnani, the Acting President', withdrawing his resignation of July 1970. This letter, he maintains, was delivered before the meeting of the Managing Committee. He sent copiss of this letter of withdrawal to the Education Officer, Zone 1KB) and also to the Deputy Director of Education. He alleges, that his letter of resignation was purposely taken up at the meeting, even though it was not on the agenda, and his letter of withdrawal was deliberately not produced, as there was a conspiracy to remove him. On 12th July 1971, he wrote to the Education Officer, Zone 11(B) mentioning these matters and asked for the layer's intervention to prevent the Managing Committee from implementing its decision. In answer to a letter of 10th July 1971 From the Manager, asking him to hand over charge on 12th July 1971, Lichman Singh wrote a letter on 13th July 1971. In it, he said, he had withdrawn his resignation by the letter of 9th July 1971 which was not placed before the Managing Committee and. thereforee, the proper procedure for acssptance of his resignation had not been followed. He further said. that he had sent a representation to the Education Department and the question of handing over charge before the Department had taken a decision did not arise. By a letter of 3rd August 1971. he made a representation to the Director of Education in which he narrated his grievance, and requested that the proceedings of the Managing Committee accepting his resignation be quashed and it be restrained from implementing its unjust decision.

(7) After the meeting, N.C. Singhal also wrote to the Deputy Director of Education on 12th July 1971. He said, that before attending the meeting, he had received a copy of Lachman Singh's letter of 9th July withdrawing his resigna.tion. He describes what happened at the meeting : The resignation was allowed to be taken up by the President after the business on the agenda was over. The President read the resignation; Singhal inquired whether the letter dated 9th July, 1971 written by the Principal had been placed on the file; the receipt of the letter was denied; Singhal produced his copy of the letter and requested that it be placed on record. Discussion ensued. Singhal says, he pointed out that the resignation was undated and its contents showed that it must have been written much earlier than the time when the results for the 1971 examinations were declared. He argued that the reopening date after the summer vacation was altered from 7th to 14th July 1971 by a circular letter dated 27th March 1971. Since the resignation referred to the 7th July 1971 as the reopening date, it must have been written before March 1971, when the date was altered by the circular letter. He says, his arguments did not carry any conviction with the Management. He requested that consideration of the resignation be postponed so as to enable the Principal to be heard, and also to await the decision of the Director of Education on the letter of withdrawal. The matter was put to vote and the resignation was accepted by a majority. He voted against the acceptance, as, ho says, it had been written in 'mysterious circumstances.'

(8) Article 184 of the; Cods requires that the Selection Committee, in the case of a Principal, shall consist of a representative of the Managernent, a representative of the Department and an educationist to be nominated by the Director as an adviser. The educationist has no right to vote. In case of a difference of opinion amongst the members, the matter is to be referred to the Director whose decision shall be final.

(9) Accordingly, the Manager of the School wrote a number of letters to the Deputy Director in August 1971 requesting for the appointment of a Departmental nominee as well as an educationist on the Selection Committee to be formed for choosing a new Principal. In reply, he was informed that action would be taken on receipt of the decision on the representation of Lachman Singh. Under cover of a letter dated 23rd September 1971, the Education Officer, Zone Ii (Boys) sent to the Manager a copy of the representation dated 3rd August 1971 addressed by Lachman Singh to the Director, and asked for comments thereon. The comments were furnished in a letter dated 19th October 1971. All the allegations made by Lachman Singh were denied. In brief, the Manager said, that in 1968-69 there was a decline of 17.5% in the examination results of the School as against the previous year. So, the President asked the Principal for an Explanationn. The Principal attributed the. decline to his ill-health and his consequent inability to put in his best efforts'. He said, he was getting better and was confident of producing very good results the next year. When the results for 1969-70 showed a further decline of 9/o the President was very worried. He sent for the Principal again. The Principal again attributed it to his continuing sickness, and made a last request that if the results for 1970-71 were not better he would resign. In view of this solemn assurance he was given another chance. As the results for 1970-71 were disappointing, the President called the Principal on or about 11th June 1971. This time, the Principal did not offer any Explanationn and merely stated that he was ashamed of his failure and was going to resign. After 2 or 3 days he sent his resignation. The Manager denied that there was any conspiracy to remove the Principal or that the resignation was obtained under duress. He also denied that any request for withdrawal of the resignation was received either by the President or by him. He asserted that Lachman Singh was physically and mentally unfit, and even walked with great difficulty. In conclusion, the Manager expressed a doubt whether the Director had any power under the Code to quash the proceedings of the Managing Committee, but did not wish to go into that question because the representation made by Lachman Singh did not deserve any consideration whatsoever.

(10) On 26th November 1971, the Deputy Director wrote to the Manager and said :

'THEaction of the management in accepting the resignation of Sh. Lachman Singh even after receipt of his letter of withdrawal of resignation was irregular. Consequently, Sh. Lachman Singh will have to continue as Principal with retrospective effect and the question of appointing a new Principal does not arise.'

(11) A compliance report was requested within three days. The Manager wrote and asked under which provision of the Code this direction had been issued. In answer, the Deputy Director in a letter dated 10th

'DECEMBER1971 explained : 'The decision given by the Director of Education in the matter of acceptance of the resignation of Shri Lachman Singh relates to a procedural detail and such details are not expected to be embodied in the Education Code. When a violation of approved administrative procedure and practices is brought to the notice of the Director of Education he is fully competent to take a decision in view of the facts of the situation and merit of the case.'

(12) Soon afterwards, in a letter dated 17th December 1971 the Deputy Director expatiated :

'Iwould further like to point out that the action taken by the Management in regard to the Principal, Shri Lachman Singh, amounts to termination of his services because the Management had no authority to accept the resignation after the Principal had already withdrawn it. The acceptance of resignation of Shri Lachman Singh in the manner in which it has been done is practically a case of removal from service and thereforee it is a contravention of Article 242 of Delhi Education Code. Shri Lachman Singh will thereforee be deemed to have continued in service of the school'.

Again, compliance was requested.

(13) Positions hardened in the correspondence which followed. The Management insisted that the resignation was voluntary and free from taint. They denied that the President or Chairman or the Manager had received the letter of withdrawal; and contended, assuming Jagnani had received it, that it was invalid and inoperative. They said, the decision of the Director to order reinstatement of Lachman Singh was arrived at without affording them a proper opportunity to present their case, and that the principles of natural justice had been violated. And, they also questioned the power of authority of the Director to give such a direction under the Code. Simultaneously, the demands by the Deputy Director for compliance with the direction became more stern. A threat was made at the end of February 1972 that if the decision of the Director was not implemented, steps would be taken to discontinue the grant-in-aid and recognition of the School. As answer, an emergent meeting of the Managing Committee was called on 3rd March 1972 at which resolutions were passed strongly vindicating the stand of the Management. Sometime later, it seems, some members of the Managing Committee met the Chief Secretary, Delhi Administration. Nothing resulted; neither side was willing to relent.

(14) By a letter dated 21st June 1972 the Deputy Director gave final notice tothe Managemint to C3mply with the direction to reinstate Lachman. Singh, failing which the grant-in-aid would be stopped and recognition of the School withdrawn. A compliance report was required to be sent by 24th June 1972, at the latest. On 24th June 1972, the Deputy Director sent another letter calling upon the Manager to show cause why action should not be taken to suspend the Management of the School under Article 90(A) of the Code, since the instructions contained in the previous letter had not been complied with. At this stage a petition was moved by the Society, and others, under Article 226 of the Constitution, and, a Vacation Judge of this Court stayed further proceedings pursuant to those two letters on 29th June, 1972. We admitted the petition on 3rd August, 1972 and confirmed the stay except in so far as proceedings were sought to be taken for stopping the grant-in-aid. Thereafter, in a letter dated 11th August, 1972, the Deputy Director informed the Manager that the grant-in-aid to the School had been stopped with immediate effect as the Management had failed to comply with the direction to reinstate Lachman Singh. The petitioners, thereforee, obtained leave to amend the petition so as to pray for relief in respect of the order contained in this letter. Lachman Singh also obtained leave to intervene in these proceedings. To meet an objection by the Respondents, the Union of India was joined as a party. The necessary amendments in the petition were made.

(15) For convenience, we will state how the matter now stands. There are four petitioners-the Society; the President of the Executive Committee of the Society, who is also President of the Managing Committee of the School; the Manager of the School; and, a member of the Managing Committee., There are six respondents- the Lieutenant Governor, Delhi; the Delhi Administration; the Director of Education; the Deputy Director of Education; the Union of India; and Lachman Singh. Broadly, the relief which the petitioners seek is that appropriate writs or orders be issued to quash the letters dated 26th November, 1971 (directing reinstatement of Lchman Singh), 21st Jims, 1972 (threatening to stop grant-in-aid and withdraw recognition), 24th June, 1972 (requiring cause to be shown why the Management of the school should not be suspended under Article 90(A) of the Code), and 11th August, 1972 (stopping the grant-inaid) sent by the Deputy Director.

(16) It is obvious that the present impasse is the sequel to the direction to reinstate Lachman Singh. The prime question we have to consider is whether tbat direction was valid. There were elaborate arguments before us on he questions whether Lachman Singh's resignation was submitted in June 1971 or earlier, and whether it was voluntary or otherwise; and also on the questions whether his letter of withdrawal was received before the meeting of the Managing Committee on 10th July 1971, and,if so, by whom. Although, many legal points were raised with regard to the validity and effect of these two documents, the basic questions involved are of fact and are greatly disputed. We should want to know much more than is available on this record before venturing a conclusion. These proceedings are inappropriate for such an inquiry. Besides, on the conclusion we have reached a determination of these questions is unnecessary,

(17) No attempt was made to support the direction to reinstate Lachman Singh on the ground that it related to a 'procedural detail........ not expected to be embodied in the Education Code, which was the initial Explanationn given by the Deputy Director. Nonetheless, it contains a clean confession that no Article in the Code could be found to justify the action. It is pleaded in paragraph 12 of the affidavit filed on behalf of the respondents that the Director had inherent power under the Education Code to give such directions. We were referred to no provision in the Code which might suggest that such a power had been reserved. The Code is replete with provisions staling the powers of the Director, and they are listed exhaustively in Article 27. Many of his powers are expressed in general terms in words of considerable amplitude. But, there is no trace of a power to order the reinstatement of a teacher, or the existence of any inherent power which might enable him to do so.

(18) Considering that the powers of the Director have been enumerated with such care, a power as important as the power to reinstate would surely have been expressly conferred. Even if it had been shown that the Director had some inherent power, we would yet want to be satisfied that an order to reinstate could be made in the exercise thereof. Analogies drawn from the powers. of a court are unavailing when the question pertains to the powers of an officer of the executive. In Chief Settlement Commissioner Punjab and others v. Om Parkash and others Air 1969 S.C. 330, it was said:

'THEnotion of inherent or autonomous law making power in the executive administration is a notion that must be emphatically rejected.'

(19) Likewise, in T. K. Gopala Chetty and another v. Director of Public Instruction in Mysore and another Air 1955 Mys 81 the argument that the Director of Public Instruction had power to prescribe text books because 'such power is inherent to the office and implied by the position held by him' failed.

(20) Some reliance was sought to be placed on Articles 38(9) and (24), and 54(3) of the Code. Those articles require the Management to comply with such directions as the Director may issue:

'IFhe finds that the managing committee has failed to observe the rules of recognition and/or departmental instructions, or is not functioning smoothly and efficiently in the best interest of the school. .................... .Art-. 38(9)'.

(21) Or which the Department may issue:

'TOsecure the continued fulfillment of the conditions of recognition or the removal of deficiencies in the working of the school...... Art. 38(24)'.


'FORimproving educational standards and efficiency of the school Neither in the letters written by the Respondents nor in their affidavit is any of these reasons put forth as the reason for directing the reinstatement of Lachman Singh. The reason which is given is that the manner in which his resignation was accepted is tentamount to removal from service in contravention of Article 242. That Article specifies the punishment (including termination of service) which may be imposed on an employee of an aided school, and the procedure to be followed in respect of the same. What the respondents probably mean is that, in their view, the resignatio n was improperly obtained and accepted, and the letter of withdrawal deliberately withheld, so as to remove Lachman Singh from service without having to resort to the procedure provided in Article 242, and also to deprive him of the right of appeal which it gives. Again, we express no opinion on the cprrectness of this view formed by the respondents. Nor do we say the they were bound to accept the outward form of things and barred frlun probing into the substance. On any view that they may have former, or been entitled to form, there was no power to order reinstatement for Article 242 makes no provision for such a case.'

(22) thereforee, in our opinion, the direction to reinstate Lachman Singh contained in the letter of 26th November 1971 was issued without any power or authority. It was also urged by the petitioners that this direction was made in violation of the principles of natural justice, in that, they were not afforded an opportunity to cross-examine Lachman Singh or lead evidence and in various other ways. we recognise that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice; but in each case it is necessary to decide whether the observance of a particular rule was necessary for a just decision on the facts of that case: see State of Orissa v. Dr. (Miss) Binapani Dei and others, : (1967)IILLJ266SC . K. Kraipakand others v. Union of India and others, : [1970]1SCR457 . In view of the conclusion we have already reached, it is futile to inquire into these questions.

(23) The letter of 21st June 1972 sent by the Deputy Director threatens to stop the grant-in-aid and withdraw recognition of the School only for one reason: the non-compliance with the direction to reinstate Lachman Singh. In the Code the subjects of recognition and grant sin-aid are dealt with separately in Chapters Iv and V respectively, though the provisions are somewhat interrelated. To get a complete picture it is necsssary also to look into the rules in the Handbook for Recognition of Institutions published by the Central Board of Secondary Education. There are three kinds of Schools-Primary Middle and Secondary. Recongnition of Secondary Schools is granted by the Board of Secondary Education but it is a precondition to the grant or its continuance that the Middle and Primary sections, if any, of the school are recognised by the Education Department of the State (see rules 1, 3 and 5(b) in the Handbook). Such recognition may bs withdrawn by the Board in certain eventualities (rule 4 in the Handbook). Chapter Iv in the Code applies to grant of recJiaitioa to schools other than secondary schools recognised by the Board (Article 36). The competent authority to grant recognition to such other schools (Primary or Middle) is the Director (Article 37). Hs is also the authority empowered to withdraw recognition of such schools in csrtain circumitancss (Article 46). Thus there is a bifurcation in the matter of recognition between secondary schools and others. As regards grants-in-aid. Chapter V in the Code applies to all schools whether recognised by the Board or by the Departme nt (Article 50).

(24) The school managed by the Society is a Secondary School. As we have stated already, it was accorded perminent recognition by the Chief Commissioner in a letter dated 1st August 1945 addressed to the Sscretary, Board of H'gher Sscondiry Education, Delhi. Consequently, as appears from rule 4 in the Handbook, recognition can only be withdrawn by the Board and not by the Director. The letter of 21st June 1972 is addressed to the Manager, Birla Higher Secondary School, and its contents do not indicate of which section of the School recognition is sought to be withdrawn. If, and so far as, recognition of the Secondary section of the School was sought to be withdrawn, the letter is without jurisdiction.

(25) Assuming the letter intended to withdraw recognition of some other section of the School, or that for some reason Chapter Iv in the Code does apply, then the question is whether any circumstances existed justifying withdrawal under that chapter. The relevant provision is Article 46, which enables the Director to withdraw recognition if the school 'ceases to fulfill any of the conditions of its recognition' after giving the school a 'reasonable opportunity to show cause' against such withdrawal. No breach of any condition of recognition is alleged in that letter. The failure to comply with the direction to reinstate Lachman Singh cannot amount to such breach becuase there was no power or authority in the Director to issue such a direction. Furthermore, the letter gives no opportunity to show cause aginst the proposed withdrawal of recognition and is, thereforee, in breach of the Article. On any view, the threat to withdraw recognition is unsustainable.

(26) Withdrawal of grants-in-aid is dealt with in two Articles. By Article 79 'Government reserve to itself the right to refuse or withdraw any grant at any time at its discretion.' This power is reserved to the Government; not the Director. Whatever the position may otherwise be, there is discernible in the Code a definite and purposeful distinction between the Government and the Director, which cannot be ignored. The letter of 21st June does not purport to emanate frome the Government or under its instructions, but only under those of theDirector. In the circumstances, that Article cannot help the respondents. Under Article 74, a grant may be withdrawn for a variety of widely expressed reasons, but the only relevant one is 'if any of the.conditions of recognition and grant-in-aid in this Code are not fulfillled.' It was not suggested that the case fell within any of the other situations mentioned in that Article. Here again, the argument that Inhere was non-fulfilment of the conditions of recognition and grant-in-aid was founded on the premise that the Management was bound to comply with the direction to reinstate Lachman Singh. That premise, for the reasons we have stated, was unsound.

(27) We, thereforee, conclude that both as regards withdrawal of recognition as well as grant-in-aid, the letter of 21st June 1972 issued by the Deputy Director was without jurisdiction and/or justification. Consequentially, it must follow that the stoppage of the grant-in-aid by the letter of 11th August 1972 was likewise without jurisdiction and/or justification, since the only ground on which it proceeds is the failure to comply with the direction to reinstate Lachman Singh.

(28) That leaves for consideration the letter of 24th June 1972. It projects a threat to suspend the Management of the school under Article 90(A) of the Code, for failure to reinstate Lachman Singh. A notification was published in the Delhi Gazette on 31st July 1972, which shows that the Lieutenant Governor, Delhi, had approved certain amendments of and additions to the various articles of Delhi Education Code. Article 90(A) was added by this notification, and reads:

(I)Whenever the Director is satisfied that without prejudice the provisions contained in Article 90, the Managing Committee of an aided school is not functioning smoothly and in the best interest of the school: or (ii) The Manager/Managing Committee has failed to observe the conditions of the recognition/grant-in d or the instructtions issued by the Department: (iii) The school is not financially viable inasmuch as its income (including fees) when supplemented by grant-in-aid is not adequate to enable it to carry on its day to day work efficiently and to pay salaries to the staff regularly and in time and that in the public interest it is expedient to suspend the management of the school, he, may, after giving the Manager/Manning Committee thereof, a reasonable opportunity of showing cause against the proposeaction, suspend the Management of that school for such period as may be considered fit by him. In the event 'of such suspension :- 1. The Director shall appoint an Officer of his Department to be an administrator to discharge all the duties and responsibilities of the Manager/Managing Committee; and 2. The Managing Committee of the school may appeal to the Lt. Governor who may after considering the representation made by the Managing Committee pass such orders as he may deem fit. During such period as any Management remains under suspension, the liability to run the school will rest with the Department.'

The notification ends with the words:

'THESEamendments will take immediate effect.'

(29) We have, so far, proceeded as if the Code were legally binding between the parties, and applied it accordingly. Now, the general question arises as to its nature and effect, bescause on that depends the legal validity of the action proposed to be taken under Article 90(A).

(30) It is accepted that the Code has not been formulated in the exercise of a power given by any provision in a statute. So, plainly, it cannot have statutory effect, and is not law in the usual legal sense. That, has been held in respect of similar Codes existing elsewhere: See Sri Dwarka Nath Tewari and others v. State of Bihar and others, A.I.R. 1959 S.C. 249, Kumari Regina v. St. Aloysius Higher Elsm entary School and another : AIR1971SC1920 The State of Assam and another v. Ajit Kumar Sarma and others : (1966)ILLJ451SC Bhim Chandra Mahto and others v. Deputy Director of Education (Secondary) Bihar and others : AIR1956Pat81 M. Uma Shenoy v. State of Mysore and others Air 1967 Mys 93 and Rev. Fr. Joseph Valamangalam and others v. State of Kerala : AIR1958Ker290 . There is no reason, nor was any suggested, why the same should not hold here. But, it was contended, that the Code was nevertheless, binding and enforceable because it had been made in the exercise of 'executive power' mentioned in Articles 73 and 162 of the Constitution. Those Articles state, respectively, that the executive pwer of the Union extends to the matters with respect to which Parliantent has power to make laws; and, collaterally, the executive power of a State extends to the matters with respect to which the Legislature of the State has power to make laws. As regards Delhi, all these powers vest in the President of India who exercise? them through an Administrator (Chief Comm'ssioner or Lt. Governor): per. Articles 53 a,nd 239 of the Constitution. The Code, it was said, was brought in fonc by the Administrator in virtue of these executive powers, which made t binding and enforceable.

(31) An opening for this argument was found in the passage in Sri Dwarka Nath Tewari and others v. State of Bihar and others, A.I.R. 1959 S.C. 249 where, in reference to the Bihar Education Code, the court said that it was 'not based on any statutory authority or other authority which could give it the force of law.' The 'other authority', it was urged, which the Supreme Court had in mind was the 'executive power'; and, as that passage showed, this could give to the Code 'the force of law'. We were referred to many cases for the meaning of executive power and examples of its exercise: See B. N. Nagarajan and others etc. v. State of Mysore and others, etc., 0043/1966 : (1967)ILLJ698SC {.H- MaharajadhirajaMadluiv Rao Jivaji Rao Scindia Bahadur and others etc., v. Union of India, : [1971]3SCR9 H.L. Rodhey and others v. Delhi Administration and others : AIR1969Delhi246 , Jayantilal Arnratlal Shodhan v. F. N. Rana and others : [1964]5SCR294 Prerndhar Baruah and others v. State of Assam and others Air 1970 A N 1 and Sant Ram Sharma v. State of Rajasthan and others, : (1968)IILLJ830SC . In sum, the proposition on which the respondents relied, was, that although the executive was bound to act in accordance with law, if it existed on a particular matter, Articles 73 and 162 of the Constitution enabled it to act over areas not yet occupied by the law, and there the executive fiat had the same force as the law. This proposition was sought to be derived mainly, if not wholly, from one sentence in Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, : [1955]2SCR225 Whilst repelling the argument that the Government had no power to enter the testbook trade without legislation enabling it to do so, the court said:

'THEY(i.e. Articles 73 and 162 of the Constitution) do not mean, as Mr. Pathak seems to suggest, that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union orpine State executive, as the case may be, can proceed to function in respect of them'.

(32) This, must be read along with another sentence which later in the judgment:

'THUSwhen it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.. That case shows only that executive action is permissible without legislative authority provided it does not encroach on private rights. The rider is that if it touches private rights, executive action must be supported by a law. In the particular case before it, the Supreme Court found that no private rights were affected by the executive action involved. This is how that case was understood by the court itself in State of Madhya Pradesh and another v. Thakvr Bharat Singh. A.I.R. 1967 S.C. 1170, and it was explained that Articles 73 and 162 of the Constitution: are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise....'

(33) Which establishes that those Articles only describe the legitimate spheres of executive activity, but do not provide for it any legal sanction. So long as private rights are not infringed that does not matter. When they are, the action must be justified by warrant of law. The court warned against the 'grave fallacy' of the other view and emphasised that

'ALLexecutive action which operates to the prejudice of any person must have the authority of law to support it.'

and repeated:

'EVERYAct done by the Government or by its. officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.'

(34) Other cases contain similar statements of the law: See Bishan Dass and others v. State of Punjab and others : [1962]2SCR69 , Satwant Singh Sawhney v. D. Ramarathnam Assistant Passport Officer, New Delhi and others : [1967]3SCR525 , and S.G. Jaisinghani v. Union of India and others : [1967]65ITR34(SC) , All these cases prove that whatever else the Supreme Court may have meant by the words 'other authority' in Dwarka Nath Tewari's case, it did not mean executive power'. Perhaps, by those words the court was intending, to refer to other species of law such as Ordinances, common law, customary law etc. in contrast to statutory law. Howsoever that may be, we dissent entirely and unreservedly from the theory that the executive mlay encroach upon private rights in some sphere, without the authority of law. That doctrine is totally opposed to the axioms of our law.

(35) It was then said, that even so, suspension of the management of the School under Article 90(A) of the Code would not in fringe the private rights ofthe pititionirs, bscause they had none. Reliance for this suggiStiaa was placid on Bhim Chandra Mahto and others v. Deputy Director of Education (secondary) Bihar and others, : AIR1956Pat81 . In that case, the members of a superseded Managing Committee of a recognised school complained that their right of property had bsen infringsd without authority of law. The supersession was under the Bihar Education Code. It was found that in fact the property vested inthe public, and, consequently, the members of the Managing Committes had no right of property which could be infringed. This case was distinguished in Sri Dwarka Nath Tewari and others v. State of Bihar and others Air 1959 S.C. 249, where an ad hoc committee was appointed, again under the Bihar Education Code. to take over the managinnnt from thi Managing Committee of a recognised and aidsd school. The point of distinction was. that, in the case before the Supreme Court it was admitted in the pleadings and at the bar thatthe mimbers of thi Managing Committee were the proprietors ofthe land and building ofthe school as trustees. It was held, that the msmbers ofthe Managing Committee could not bs deprived of their rights in the properties without authority of law. The case of the petitioners before us is on par with that which was beforethe Suprem' Court. In paragraph 3 ofthe affidavit filed on behalf of respondents it is admitted that the land, school building and movable assets are the property of the petitioners. This stultifies the argument for the respondents at its very start.

(36) Nor do we accept the idea that taking over of the right to manage property is not an interference with the right to hold it. The right to manage originates in and springs from the right to hold. Deprivation of the right to manage must, thereforee, necessarily restrict that, other right. If that were not so, there would be no need for article 31A(1)(b) of the Constitution. That Article saves a law' providing forthe taking over ofthe management of any property by the State for a limited psriod and for spscifisd reasons, from becoming void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Article 31 ofthe Constitution. Had such a law not voilated Article 31, it would not require to be saved. The Constitution, thereforee, corroborates our view. As also, the cases: Municipal Committee, Amitsar and others v. The State of Punjab and another : [1970]2SCR375 State of Kerala, etc. v. Very Rev. Mother Provincial, etc. 0065/1970 : [1971]1SCR734 and Bishan Das and others v. State of Punjab and others : [1962]2SCR69 But, Article 90A of the Code cannot be saved, because it is not a law. In. Katra Education Society, Allahabad v. State of Uttar Pradesh and others : [1966]3SCR328 a provision of the U.P. Intermediate Education Act 1921 enabling temporary deprivation of management of instigtutions was held to be valid because it was a law', although Art. 31A (1)(b) of the Constitution was not expressly referred to. The headnote of Rev. Sidhrajbhai Sabbai and others, v. State of Gujarat and another Air 1963 S.C. 540 is quite misleading. It was urged in that case that the threat to withdraw recognition of the college and stop the grant-in-aid violate the right to hold property under Article 19(l)(f) of the Constitution. No question relating to the taking over of management arose in that case, nor was any such threat posed. The argument seems to have been that the mere withdrawal of recognition or grant-in-aid was an interference with the right to manags. In that context the court described the withdrawal as 'interference with the right of bare management' which did not infringe the right to property under Article 19(1)(f). Indeed, the judgment does not at all mention Articles 131 and 31A(1)(b), which shows that no point concerning them was raised. Furthermore, Sri Dwarka Nath Tewari and others v. State of Bihar and others, Air 1959 S.C. 249 was referred to and distinguished on the ground that the order in that case did amount to a deprivation of property. There, the order resulted in the taking over of management of the school, and this was held to violate Article 31(1) of the Constitution.

(37) In our opinion, the case of the petitioners before us is on all fours with Dwarka Nath Tewari's case, and Article 90A of the Code cannot in law justify interference with the right of the petitioners to manage and hold their property.

(38) Waiver by the petitioners of breach of their fundamental rights was also pleaded by the respondents. It has been held that a breach of the rignts conferred by Article 14 of the Constitution cannot be waived See: Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and another, : [1959]35ITR190(SC) . From that case, and those referred to ir it, the question whether breaches of other fundamental rights can bevaived still seems open for decision by the Supreme Court. Divergent views have been expressed by judges who have sat in that Court' at various times. We think, it is not necessary for us to examine this question, because on the facts we are clear that the plea of waiver is devoid of foundation. In the case to which we have just referred, Mr. Justice S. K. Das said that waiver is the 'intentional relinquishment of a known right.' After Article 90A was published on 31st July 1972, the petitioners have not received any grant-in-aid or done anything from which an intention to relinquish their rights may be inferred.

(39) Other possible ways of giving legal efficacy to the Code were also explored. The contractual theory fails because the requirements of Article 299 of the Constitution are not fulfillled. Many legal concepts were sought to be applied to such a code in Rev. Fr. Joseph Valamangalam and others, v. State ofKerala, : AIR1958Ker290 , but none was found to fit. We agree with the reasoning in that case. The inevitable conclusion is that the Code, as between the parties, has no legal force. Its sanctions are internal: the fear of withdrawal of recognition or grant-in-aid on the one side and the possibility of an aggrieved management breaking away on the other. At heart the system is voluntary.

(40) Article 90A of the Code and the letter of 24th June 1972 were attacked from many other directions. In particular, it was argued that this Article could not have effect before it was published and, alternatively, did not have retrospective effect. We were also addressed on the question whether the acts of the respondents considered cumulatively indicated mala fides. It would be pointless to go into all those questions in view of the conclusions we have otherwise reached.

(41) As to the relief, we were urged by counsel for the petitioners to order the restoration of the grant-in-aid, and were referred to The Union of India and others v. M/s. Angle Afghan Agencies etc. A.I.R. 1968 S.C. 718 and other similar cases. Such cases show that the court has power in appropriate cases to compel performance of the obligations imposed by administrative schemes upon departmental authorities. But, under the Code there is no obligation whatsoever to pay a grant-in-aid. On the contrary. Article 50 of the Code cautions:

'RECOGNITIONof a school, however, does not automati cally entitle it to grant-in-aid nor can the award of grant-in-ai-d or its continuance be claimed as a matter of right.'

(42) An order to pay grant-in-aid would not only be against the provisions of the Code, but would impose an obligation on. the departmental authorities which it expressly repudiates. None. of the cases cited would justify such an order.

(43) Those cases do, however, support the contention of the petitioner that the respondents were bound to act in accordance with the Cod by which, on their own showing, they were bound. We have held that the letters impugned by the petitioners were not justified unde the Code, and that Article 90A. does not bind the petitioners. The are, thereforee, entitled to appropriate orders in that respect. For the respondents we were referred to R. Abdulla Rowther v. The State Transport Appellate Tribunal, Madras and others Air 1959 S.C 896 as establishing that a misapplication of administrative directions does not call for interference by the Court. There, as the couremphasised, the character of the directions was purely administrative in the sense that they were issued by the Government for the guidance of its subordinate authorities, and not meant for the public The Education Code is of an entirely different character, the has been published in the Delhi Administration Gazette and made known to the public, presumably, so that it may be acted upon. And, in The Union of India and others v. Mfs. Anglo Afghan Agencies, etc. A.I.R. 1968 S.C. 718 an administrative scheme of a character similar to the Code was enforced.

(44) We, thereforee, allow the petition. The respondents are directed to withdraw and cancel their letters dated 26th November 1971, 21st June 1972, 24th June 1972 and 11th August 1972 and to forbear from taking any action in pursuance of the same. The respondents ar& also prohibited from interfering with the management by the petitioners of their school except by authority of law. To avoid doubt we make it clear that nothing in this judgment requires the respondents to restore or continue the grant-in-aid. In the circumstances, we will leave the narties to bear their own

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