B.S. Chauhan, J.
1. The instant writ petition has been filed challenging the order dated 18-2-1998 (Annexure 4), by which the State Government has taken over the school and appointed an Administrator in exercise of its powers under Section 10(1) of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter called 'the Act').
2. The main challenge by the petitioner Management Committee is that the Administrator contemplated by Section 10(1) of the Act is an Administrator to be appointed by the State Government and, therefore, should necessarily be an official of the State Government. The Administrator cannot be a private person and even if a private person/society is appointed as such, the same must be in consonance with rules 19.23 and 24 of the Rajasthan Non-Government Educational Institution (Recognition. Grand-in-aid and Service Conditions etc.) Rules, 1993 (hereinafter referred to as 'the Rules, 1993').
3. The facts and circumstances giving rise to the case are that petitioner a registered society --was responsible for managing a non governmental aided institution, namely, Umed Senior Secondary School, Jodhpur, (hereinafter called 'the School'), Respondent No. 1 issued a Show Cause Notice dated 17-4-1997 (Annexure 1) to the President of the petitioner society under Section10( 1) of the Act and before any final order could be passed in pursuance of the said show cause notice, the election of the Management Committee took place and the present committee stood elected in July, 1997. In pursuance to the said notice, petitioner filed the reply and also held a meeting with respondent No. 4, Special Secretary in the Education Department, on 26-8-1997. Petitioner received the impugned order dated 18-2-1998 (Annexure 4) passed by respondent No. 1, by which the respondent No. 3 was appointed as Administrator of the school.
4. Being aggrieved and dissatisfied, petitioner made a representation to the respondent No. 1 and operation of the impugned order dated 18-2-1998 was put in abeyance by passing the order dated 16-3-1998 (Annexure 5). Respondent No. 4 asked for certain information from the District Education Officer, Jodhpur respondent No. 2 and in response of the same, the latter wrote a letter dated 18-3-1998 (Annexure 8) to the Principal of the school, but before receiving any reply of the said letter respondent No. 2 submitted a report dated 20-3-1998 (Annexure Rule 10). On a the basis of the said report, the order dated 23-3-1998 (Annexure Rule 11) was passed by the respondent No. 4, by which it revived the order dated 18-2-1998. Hence this petition.
5. Heard learned counsel for the parties, perused the record and written submissions filed by the respondents.
6. Mr. Bhoot, learned counsel for the petitioner has urged that the impugned order dated 18-2-1998, passed by the respondent No. 1, is without jurisdiction as no such order can be passed within the purview of the provisions of Section 10 of the Act and Rules 19, 23 and 24 of the Rules', 1993. The said provisions read as under:--
'Section 10. -- Powers of the State Government to take over management::--
(1) Notwithstanding anything contained in any law for the time being in force, whenever it appears to the State Government that the managing committee of any recognised institution has neglected to perform any of the duties assigned to it by or under this Act or the rules made thereunder or has failed to manage the institution properly and that it has become necessary in the public interest to take over the management ofsuch institution, it may, after giving to such managing committee a reasonable opportunity of showing cause against the proposed action, take over such management and appoint an administrator to exercise control over the assets of the institution and to run the institution for such period as the State Government may from time to time fix.'
7. Rule 23 of the Rules 1993 provides for constitution of Management Committee consisting of not less than 15 and not more than 21 members including the Head or Heads of the institution or institutions run by the society, out of which not more than two-thirds of the members of the managing committee shall not belong to any one community, caste or sect. It further provides that one elected member from amongst the permanent staff shall be included in the managing committee and the Director of Education shall nominate and officer of the department now below the rank of the Head of the concerned institution or an eminent educationist, to be member of the managing committee.
8. Rule 24 provides for functions and powers of the Managing Committee. Accordingly, the Managing Committee shall be responsible for the proper management of the institution and shall perform such functions and have such powers as specified in the bye-laws of the institution.
9. It has been submitted by Mr. Bhoot that the mandatory requirement, as provided under Section 10 of the Act has not been complied with. Respondent No. 1 did not record reasons for taking over of the institution nor it has been explained as how the taking over was necessary in public interest. Recording the reasons is a mandatory requirement of law. It has been further urged that respondent No. 3 had been appointed as Administrator without taking over such management and respondent No. 5, being a private society, could not have been appointed as Administrator and only a Government official could have been so appointed. The further submission made by Mr. Bhoot are based on allegations of mala fide against respondent No. 4. It has been brought on record that after hearing the petitioner on 26-8-1997, no order was communicated to the petitioner and certain informations were sought secretly about the respondent No. 3which is evident from letter of respondent No. 2 dated 30-12-1997 (Annexure Rule 19), according to which a meeting appears to have been held on 10-12-1997 of the representatives of the employees of the school and respondent No. 4 and the latter asked the employees of the school to form a society and getit registered under the Rajasthan Societies Act, 1965 and also issued various other instructions. Subsequent order dated 23-3-1998 appears to have been passed on the report of respondent No. 2 dated 20-3-1998, though respondent No. 2, had never recommended to appoint the respondent No. 3 as Administrator. Respondent No. 3 Society is nothing but an association of the suspended/terminated employees of the same institution and they have managed to grab the institution with the collusion of respondent No. 4 through the help of one Shri Jaswant Singh Solakhi, Shri Raj Jain, the President of the Society as well as Shri Jaswant Kailash Singh, Joint Secretary, had been the suspended teachers, at the relevant time. Other Office bearers like Smt Bhagwati Gehlot Vice-President and Shri Sathya Narain Singh Parihar, Secretary had been removed from service. Respondent No. 3 got the impugned order passed with the collusion of respondent No. 4 through one Shri Jaswant Singh Solakni. Petitioner has filed a copy of the Caveat dated 28-2-1998 (Annexure 12) filed by Shri Jaswant Singh Solanki before the Jaipur Bench of this Court apprehending that petitioner would file a writ petition challenging the impugned order before the said Bench (Annexure 12). Moreover, cuttings of the newspapers (Anneuxre 13) have been filed to show that respondent No. 3 society passed a resolution expressing its gratitude and thankfulness to Shri Jaswant Singh Solanki for the assistance rendered by him to get respondent No. 3 appointed as Administrator of the institution. After taking over the management, the suspended/terminated employees revoked their suspension/termination orders and also paid themselves arrears of their salaries etc. for the earlier period. Regarding the same, the Principal of the school lodged a complaint to respondent No. 1 but their conduct has been approved by the State Government as well as the Competent Authorities .
10. Respondent No. 3 -- the present Managing Committee-has defended the impugned order contending that it has been passed in publicinterest and the Court should not interfere with it even it is wrong and not in consonance with law. Much has been emphasised on the fact that the earlier Management Committee was headed by one Mr. Doongar Singh, who was having a criminal background and facing a large number of criminal cases, he treated the property of the institute as his personal property. The institution was badly managed and the number of students had fallen steeply and there had been no proper accounts and a large sum had been misappropriated by the earlier Management Committee, the present Management Committee has improved the institution, paid the arrears of salary etc. to the employees by collecting the money in donation and the number of students has gone up substantially, the election of the earlier Management Committee was very doubtful and it was not in accordance with the Rules and law and thus the constitution of earlier Management Committee had been illegal, there was no mala fide intention on the part of respondent No. 4 and there was no extraneous consideration in handing over the institute to the present Management Committee; the Government had rightly exercised its power under Section 10 of the Act and there is no bar to hand over the institution to another society, the institution had not been properly managed and, thus, the Government was fully justified in taking over the management, termination/suspension orders in respect of four teaching members of the institution/office-bearers of respondent society, which had later on been revoked, had been passed illegally and without jurisdiction and thus, there was nothing wrong in revoking those orders by the present Management Committee. Regarding the complaint sent by the Principal of the institution on various grounds, respondent No. 3 has mentioned in reply that the said complaint had no basis and the allegations made therein were totally wrong.
11. Respondents Nos. 1 and 2 have filed the reply and written submissions as well and defended their action by submitting as under :--
(i) the Government had considered the entire record of the case, including its earlier orders, and realising that there had not been proper fixation in the new pay scales of the employees for the long time, who were pressing hard for revision of their salary and fixation of pay etc.,the Collector had made a recommendation for appointing an Administrator vide letter dated 2-2-1996, and the Government gave sufficient opportunity to the petitioner Committee to improve itself, which is evident from the letters of the Government dated 12-6-1997 and 6-8-1997
(ii) The petitioner Committee was given sufficient opportunity to explain its cause. The decision of taking over the Management and to hand it over to the respondent No. 3 was taken by the Government in accordance with law and that decision was also based on the report of the Inspector of School dated 16-3-1998 that there was no chance of improvement in the institution. In view of the aforesaid reasons when the Government received the information about the newly constituted Committee, it was convinced that the said newly constituted committee can run the school smoothly and, thus, the decision was taken in an objective manner :
(iii) the allegations made against respondent No. 4 Mr. Subhash Garg were vague, false and unfounded;
(iv) since the school was to be allowed to run, therefore, a society had to be there and hence the task of the institute was entrusted to a duly constituted registered society for a period of two years;
(v) the allegations against respondent No. 4 that he passed the order in collusion with one Mr. Jaswant Singh Solanki, are absolutely false, misconceived and against the facts on record;
(vi) as per the order of this Court dated 21 -7-1998, the matter was placed before the Hon'ble Minister for reconsideration and the Hon'ble Minister affirming its earlier order by passing an order dated 9-9-1998; and
(vii) regarding revocation of termination and suspension orders of office-bearers of respondent No.3 society by themselves, the Government had taken a positive stand that the earlier orders were not legal and have rightly been revoked. Even after receiving the complaint from the Principal, enquiry was held through the Director of Education and after going through his report, the State Government found that none of the said allegations had any substance.
12. The Special Secretary , Education , who has been impleaded by name as respondent No. 4, has filed the reply denying the allegations ofmala fide. He has stated that Mr. Jaswant Singh Solanki had no concern whatsoever with the case and he acted with full responsibility as a Government Servant and passed the order in public interest. He has also denied the fact that the institute had been handed over to the suspended teachers of the same school and the Headmaster has to work under them. He has submitted that he passed the order after examining the entire record of the case and the order does not suffer from any illegality and he has acted fully in consonance with the report submitted by the District Education Officer.
13. I have considered the rival submissions made by the learned counsel for the parties, perused the record and the written submissions filed by them.
14. The issue of 'malus animus' was considered in Tara Chand Khari v. Municipal Corporation of Delhi, AIR 1977 SC 567, wherein the Hon'ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.
15. Similarly, in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, the Hon'ble Supreme Court observed as under :--
'Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it.......... The Courtwould, therefore, be slow to draw dubious inference from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and others not because of any special status......... but because otherwise, functioning effectively would become difficult in a democracy.'
16. The Hon'ble Supreme Court in M/s. Sukhwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65: and Shivajirao Nilangekar Patilv. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294; has made similar observations.17. In M. Sankaranarayana v. State of Karnataka, AIR 1993 SC 763, the Hon'ble Supreme Court observed that the Court may 'drew a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture.'
18. In N.K. Singh v. Union of India, (1994) 6 SCC 98 : (AIR 1995 SC 423), the Hon'ble Supreme Court has held that 'The inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances,'
19. There has to be very strong and convincing evidence to establish the allegations of mala fides. The presumption is in favour of the bona fides of the order unless contradicted by acceptable materials. (Vide Sate of U.P. v. Dr. V.N. Prasad, 1995 Suppl (2) SCC 151; Arvind Dattatraya Dhande v. State of Maharashtra (1997) 6 SCC 169 : (AIR 1997 SC 3067), and Utkal University v. Dr. Nrusingha Charan Sarangi, (1999) 2 SCC 193 : (AIR 1999 SC 943).
20. It is apparent from the material on record, particularly letter dated 30-12-1997 (Annexure R9) that the respondent No. 4 had asked the employees of the school to form a society and to get it registered so that it could be handed over the administration of the school. It is, also, evident that respondent No. 2, vide his report dated 20-3-1998 (Annexure Rule 10) made recommendations to respondent No. 4 to put the institution under the supervision of a Government Official and to ask that officer to submit the Progress Report after every three months. Respondent No. 2 did not make recommendation to appoint the Administrator and that too a private society. Respondent No. 2 filed its report dated 20-3-1998 without waiting the reply from the Principal of the school and without seeking information which the latter wanted vide letter dated 18-3-1998. Moreover, the submission made on behalf of respondent No. 4 that Shri Jaswant Singh Solanki had no role in this episode does not seem to be true as there is some material on record toshow that he was involved in obtaining the impugned order, nothing further can be said against him for the reason that he has not been impleaded in the petition as respondent. Had it not been so, there was no occasion for respondent No. 3 to pass the resolution expressing its gratitude towards him for obtaining the impugned order and if Shri Solanki was in no way interested in the matter, what was the need for him to lodge the caveat in this matter. Moreover, the contention raised by the learned counsel for respondents that the final order was passed by the Hon'ble Minister and not by respondent No. 4 is preposterous as it cannot be denied that the order was passed on the recommendation reports of respondent No. 4.
21. It is wrong to suggest that the Government received the information that respondent No. 3 could properly manage the school, hence it was handed over to it. Record suggests contrary to it. Respondent No. 3 had purposely been created by the Authorities to take over the administration. Respondent No. 2, who was asked to furnish information, has recommended to keep the school under the supervision of the Government official. Thus, averments made by the respondents on this count are not factually correct as the same are not supported by the evidence on record.
22. It has been hitherto uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. (Vide Taylor v. Taylor, (1875) 1 Ch D 426; Nazir Ahmad v. King-Emperor, AIR 1936 PC 253 (2); Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; Patna Improvement Trust v. Lakshmi Devi, AIR 1963 SC 1077; State of U.P v. Singhara Singh , AIR 1964 SC 358, Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915; Cuhettiam Veettil Ammad v. Taluk Land Board, AIR 1979 SC 1573; State of Bihar v. J.A.C. Saldanna, AIR 1980 SC 326; A.K. Roy v. State of Punjab, (1986) 4 SCC 326: (AIR 1986 SC 2160); State of Mizoram v. Biakchhawna, (1995) 1 SCC 156: (1995 AIR SCW 1497); and J.N. Ganatra v. Morvi Municipality, Morvi, (1996) 9 SCC 495 : (AIR 1996 SC 2520). The impugned order couldhave been passed without complying with provisions of Section 10 of the Act as it provides for taking over the management and then to appoint an Administrator. In the instant case the respondent No. 3 was brought in existence in order to be appointed as administrator prior to passing an order to take over the school. The conduct of respondents Nos. 1 and 4 has been reprehensible. The impugned order is arbitrary and has been passed in colourable exercise of power,
23. It is settled proposition of law that even if an Authority has discretion to pass an order, the discretion cannot be exercised in an arbitrary manner. In Brosen v. Amalgamated Engineering Unit, (1971) 2 QB 175, at p 190, Lord Denning has observed as under :--
'The discretion of a statutory body is never underrated. It is the discretion which is to be exercised according to law, that means, at least this :-- the statutory body must be guided by relevant consideration and not by irrelevant. If the decision is influenced by extraneous consideration, which is ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith ;-- nevertheless the decision will be set aside..'
24. Thus, the issue remains to be examined as to whether the Government has exercised the power fairly, reasonably and bona fide as there is no scarcity of judicial pronouncement to support the proposition that official arbitrariness may be worst than the statutory arbitrariness. In the State of Andhra Pradesh v. Nalla Raja Reddy , AIR 1967 SC 1458, the Constitution Bench of the Apex Court has observed as under :--
'Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the wand of the official arbitrariness can be waved in all directions indiscriminately.'
25. Similarly, in S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427, the Constitution Bench of the Apex Court has observed as under (para 14):--
'In this context it is important to emphasise that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general, such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.'
26. In the said judgment, the Apex Court has referred to the judgment in United States v. Winderlich, (1951) 342 US 98, wherein it has been observed as under :--
'Law has reached its finest moment, when it has freed men from the unlimited discretion of some ruler.............where discretion is absolute,man has always suffered.'
27. Therefore, rule of Law may be said to be the sworn enemy of caprice. The Apex Court has, also, referred and quoted with approval Lord Mansfild in case of John Wilkes, (1770) 4 Burr 2528, wherein it has been observed as under :--
'Discretion means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague and fanciful.'
28. In a case where a result of a decision taken by the Government, the other party is likely to be adversely affected, the Government has to exercise its powers bona fide and not arbitrarily. The discretion of the Government cannot be absolute and injusticiable. (Vide Amarnath Ashram Trust Society v. Governor of U. P., (1998) 1 SCC 591 : (AIR 1998 SC 477). Legal maxim 'discretio est discrenere per legem guid sit justum', explains that discretion means discerning what is just in law.
29. There is no manner of doubt that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness and whenever action taken is found to be lacking in bona fide and made in colourableexercise of the power, the Court should not hesitate to strike down unfair and unjust proceedings. (Vide Hansraj Jain v. State of Maharashtra, (1993) 3 SCC 634 : (1993 AIR SCW 2923).
30. In fact the order of the State or State Instrumentality would stand vitiated if it lacks bona fides as it would only be a case of colourable exercise of power. In State of Punjab v. Gurdial Singh, AIR 1980 SC 319, the Hon'ble Apex Court has dealt with the issue of legal malice which is just different from the concept of personal vice. The Court observed as under :--
'When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the Court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: 'Irepeat...........that all poweris a trust that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist.' Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent to the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impels the action mala fides or fraud on power vitiates the..............official act.'
31. It is, thus, settled that the minimum and bare requirement of Rule of Law is that every action of the State should be free from arbitrariness as denial of the administrative fairness is constitutional anathema. Article 14 of the Constitution of India strikes in arbitrariness in such action and ensures reasonableness and fairness. (Vide E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Sanjay Gandhi v. Union of India, AIR 1978 SC 597; Shrilekha Vidyarthi v. State of U. P., AIR 1991 SC 537 and Rammana D. Shetty v. International Airport Authority of India, AIR 1979 SC 1628).
32. Passing any order for collateral purpose amounts to colourable exercise of power andsuch an order would definitely be arbitrary and cannot be termed as bona fide. (Vide of Gujarat v. Suryakant Chunnilal Shah, (1999) 1 SCC 529; Amarnath Ashram Trust Society v. Governor of U.P., (1998) 1 SCC 591, Rule C. Sood v. High Court of Judicature for Rajasthan, (1998) 5 SCC 493: (1999 AIR SCW 168) and Rajendra Kumar Gupta v. State of U. P., (1997) 4 SCC 511.
33. The aspect that impugned order has been passed by very high official/statutory authorities, is also required to be considered. In Accountant General v. Section Doraiswamy, (1981) 4 SCC 93:(AIR 1981 SC 783), the Apex Court had taken a view that there was a presumption against abuse of power when it is vested in high ranking official. The said observation stood diluted with the lapse of time and in present era when entire society suffers from moral bankruptcy, the said observation does not stand good.
34. In Rule Section Dass v. Union of India, AIR 1987 SC 593, in an identical situation, the Supreme Court has observed that 'it cannot be said now-a-days if one is aware of the facts and currents of life that simply because categorisation and judgment of the service record of officers are in the hands of senior officers is a sufficient safeguard.' Similarly, in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, Hon'ble Sawant, J. has observed as under :--
'There is need to minimise the scope of arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of individual, however, high place they may be. It is all the more improper and undesirable to expose precious right, like the right of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that the individuals are not and do not become wise because they occupy high seat of power and good sense, circumspection and fairness does not go with the post, however, high they may be. There is only a complacent presumption that those who occupy high post have high sense of responsibility. The presumption is neither legal nor rational. History does not support and reality does not warrant it. In particular, in a society pledged to uphold the rule of law it would be both unwise and impolitic to leave any aspect of its life to be governed bydiscretion when it can conveniently and easily be covered by the rule of law.'
35. The law does not acknowledge and recognise such a proposition. No doubt, under Section 114 Illustration (e) of the Evidence Act, there is apresumption in favour of the validity of official act's, but presumption is rebuttable and when there is an allegation of illegality, the authority must give the material justifying its action. The law presumes and Courts must also presume until the contrary is established that official acts will be done fairly and objectively as the authorities under the Statute are presumed to, and expected to, act consistent with public interest and the interest of law. (Vide State v. K.K. Jagtiani, AIR 1996 SC 1910, Shiv Sagar Tiwari v. Union of India, (1997) 1 SCC 444 and State of Bihar v. Subhash Singh, (1997) 2 (SC) 463 : (AIR 1997 SC 1390)).
36. Pro visions of Section 10 clearly lay down that the institution may be taken over and an administrator may be appointed to manage the same in public interest. 'Public Interest' is a very wide concept and while passing the order under the said provisions, the statutory authority must apply its mind to the fact that handing over the school to the administrator would be in public interest. Natural corollary of it comes that the 'administrator' should be such a person who can serve the public interest. In the instant case, the management of the school has been handed over to a private society which was formed at the instance of respondent No. 4 and registered under the provisions of the Rajasthan Co-operative Societies Act and the Members of the society included those teachers who had been put under suspension or removed from service. There is no explanation by the respondents as how the public interest could be served by handing-over the management of an institution to such society. Mr. Mridul has submitted that the suspension orders were illegal and had been revoked subsequently. That will not make any difference as respondents No. I and 4 had not taken into account this aspect at all at the relevant time of passing the impugned order. It will not be out of place to mention here that Mr. Jaswant Raj Jain and Mr. Kailash Singh Chawla, the Members of the Society, had been the teachers in the school who had been put undersuspension two years ago. After taking over the management of the institution, they themselves revoked their suspension/termination orders and got themselves reinstated. Mr. Satya Narain Singh Parihar, Member-Secretary and Ms. Bhagwati Gehlot, Vice President, who had been the employees of the institution and had been put under suspension, also got themselves reinstated after taxing over the institution and they had withdrawn the salary from the back date i.e. from April, 1998 to July, 1998, also. Mr. Satya Narain Singh Parihar, Senior Teacher/Secretary of the society retired with effect from 31-7-1998 but he himself extended his services though there was no order of extension of his services by the competent Authority after attaining the age of superannuation, i.e. 58 years. There are also various other irregularities committed by the present society. The Principal of the said school had brought all these facts to the notice of the Hon'ble Education Minister vide his letter contained in Annexure-C to the application filed by the petitioner on 31-10-98. This Court vide order dated 12-1-99 directed the respondent to file affidavit on this aspect. Respondent No. 3, in its reply to the said application, rather made scandalous allegations against the Principal of the school that he was having hand and gloves with the petitioner and they have explained that several civil and criminal litigations between the parties had taken place and further explained that the Hon'ble Education Minister had sent the complaint to the Deputy Director of Education, Jodhpur to enquire into the allegations made by the Principal and the matter was under an enquiry before the Director. It has further been explained that as the suspension orders had been illegal, the present Management Committee had revoked those orders and reinstated the office-bearer, of the management committee and paid their arrears etc. Respondent Nos. 1, 2 and 4 have also taken the same plea. They pointed out that an inquiry was held by the Deputy Director of Education and the Government was satisfied that there was nothing wrong in revoking such suspension/termination orders, or in extending the age of superannuation from 58 to 60 years in case of Mr. Narain Singh Parihar. Undoubtedly, the report of the Deputy Director made it crystalclear that office-bearers of respondent society themselves had revoked their suspension and termination orders and paid themselves the arrears of salaries etc. but it has been tried therein to justify that the orders of termination and suspension were illegal and, therefore, their revocation was for good reasons. Even if the order is void or illegal, there may be good grounds to challenge the same in the Court of Law or before the Appropriate Forum, but the said respondents failed to appreciate that law does not permit a man to become a judge in his own cause and this aspect has completely been overlooked by the State Government.
37. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Constitution Bench of the Hon'ble Supreme Court has considered this aspect and held that the proceedings should be so held or an order should be passed in such a manner that there may be no room for doubt of a party being biased. Legal maxims, e.g. 'Aliquis non debet esse judex in propria causa, quia non potest esse judex et pars'; nemo sibi esse judex vel suis jus dicere debet'; and 'nemo debet esse judex in propria sua causa' mean that no man can be at once judge and suitor; a person cannot be a judge in a cause wherein he is interested; and no one can be a judge in his own cause, respectively. The said maxims have been applied by the Courts from time and again as is evident from the judgments in Gurdeep Singh v. State of Punjab, (1997) 10 SCC 641, U.D. Lama v. State of Sikkim, (1997) 1 SCC 111; Dr. B. P. Yadav v. Dr. Rule P. Singh, (1996) 8 SCC 494 : (AIR 1996 SC 3202) and State of West Bengal v. Shivananda Pathak, (1998)5 SCC 513: (AIR 1998 SC 2050).
38. In Rule Viswanalhan v. Abdul Wajid, AIR 1963 SC 1, the Hon'ble Supreme Court observed that the authority/Court rendering the judgment 'must observe the minimum requirements of natural justice it must be composed of impartial persons, acting fairly, without bias, and in good faith.' A judgment will not be conclusive, however, if the proceedings in which it was obtained is opposed to natural justice. A judgment which is the result of bias or want of impartiality on the part of a Judge will be regarded as a nullity and the 'trial coram nonjudice.'
(Vide Vassiliades v. Vassiliades, AIR 1945 PC 38 and Manak Lal v.Dr. Prem Chand Singhvi, AIR 1957 SC 425).
39. Even the Government is not permitted to act as a judge in its own cause. (Vide General Manager, North-East Frontier Railway v. Deenbandhu Chakrawarti, (1971) 3 SCC 883 and the Constitution Bench judgment in Arjun Chaubey v. Union of India, AIR 1984 SC 1356),
40. Hon'ble Supreme Court in State of U. P, v. Mohammad Nooh, AIR 1958 SC 86, that 'it is futile to expect when those rolls are combined that the Judge can hold the scale of justice even' and the action is 'so patently and loudly obstructive that it leaves an indelible stamp of infirmity' on such decision.
41. Undoubtedly, those suspended and terminated teachers, who are now running the institute after recalling the orders of their suspension/ termination, have drawn the salary for the said period and the Deputy Director as well as the Government had accorded the seal of approval of their conduct but as the orders had been in violation of the principles of natural justice, I have no hesitation in wholly disapproving the conduct of the respondents and it shows that the Government had an intention to close its eyes to the irregularities of the striking magnitude. Such cause of action definitely raises reasonable suspicion of bias/undue favour. (Vide Ratan Lal Sharma v. Managing Committee, AIR 1993 SC 2155, Bhajan Lal v. M/s. Jindal Strips Ltd., (1994) 6 SCC 19 : (1994 AIR SCW 3905) and Tata Cellular v. Union of India, (1994) 6 SCC 651 : (AIR 1996 SC 11)). These were certainly not the cases which could not have been decided by some other Authority/Court/Tribunal and doctrine of necessicity had to be invoked in such unavoidable circumstances as its non-application would have impeded the course of Justice itself. (Vide Kihota Hollohan v. Zachillhu, 1992 Suppl (2) SCC 651 : (AIR 1993 SC 412) and Election Commission of India v. Dr. Subramaniam Swamy, AIR 1996 SC 1810). The conduct of the Government to ask the employees to form a society and get it registered so that the management of the institute may be handed over to them, prior to passing any order of taking over, shows that it was a clear case of colourable exercise of power. The Government could havepassed an order for taking over the management of the institute and search could have been made for an appropriate authority to take it over and in such a case even if the Government wanted to hand over the management of the institute to a committee or a society, it could have searched for a society which was already in existence and had shown excellent performance. If the present management committee has improved the condition of the institute and the number of students had also gone-up, those cannot be the valid reasons to uphold the impugned order for the reason explained by the legal maxim 'Debile fundamentum fallit opus', meaning thereby that when the foundation fails, everything falls. It demolishes the further argument of respondent No. 3 that the order had been passed to do substantial justice and does not warrant any interference. Undoubtedly, there can be no quarrel with legal proposition that even if the order is bad, if the Court comes to the conclusion that it has been passed to do substantial justice, it may not interfere. (Vide Dal Singh v. King Emperor, AIR 1917 PC 25, Mohd. Swalleh v. Third Additional District Judge, Meerut, AIR 1988 SC 94 and Jagan Singh v. Section T. A. T., AIR 1980 Raj 1). But in this case, as there was no occasion to handover the management to respondent No. 3, the question of substantial justice did not arise.
42. Even if the Act envisages the handing over the management of any institution to some society, the paramount consideration must be the interest of the institution and that of the students and the staff and in such a situation, the management may be harided-over to a reputed society which has shown its excellent performance in the past and has sufficient experience in running the institution so that all sections of the society may be benefited from their experience. It does not envisage creation and registration of a society to manage the affairs of a school at the whims of the Statutory Authorities.
43. There is another aspect of the matter. It is also settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Shrilekha Vidyarthi (AIR 1991 SC 537) (supra), the Apex Court has observed as under :--
'Every such action may be informed by reason and if follows that an act uninformed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you.' This is what a man in power must remember always.'
44. In Life Insurance Corporation of India v. Consumer Education and Research Centre, (1995) 2 SCC 482: (AIR 1995 SC 1811), the Apex Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. 'Duty to act fairly' is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest.
45. The same view has been taken by the Supreme Court in Mahesh Chandra v. Regional Manager, U. P. Financial Corporation, (1992) 2 JT (SC) 326 :(AIR 1993 SC 935) and Union of India v. M.L. Capoor, AIR 1974 SC 87.
46. In State of West Bengal v. Atul Krishna Shaw, 1991 Suppl (1) SCC 414: (AIR 1990 SC 2205), the Supreme Court observed that 'giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.'
47. In Section N. Mukherji v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
48. In Krishna Swami v. Union of India, AIR 1993 SC 1407, the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be foundedon the reason stated in the order or borne-out from the record. The Court further observed that 'reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21.'
49. Similar view has been taken by the Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 : (AIR 1987 SC 71), Board of Trustees of the Port of Bombay v. Dilip Kumar Raghvendranath Nadkarni, AIR 1983 SC 109. Similar view has been taken by this Court in Rameshwari Devi v. State of Rajasthan, AIR 1999 Raj 47. In Vasant D. Bhavsar v. Bar Council of India, (1999) 1 SCC 45, the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based. Thus, the impugned order, being non-reasoned, is also liable to be quashed.
50. It may be pertinent to mention that this Court, vide order dated 21-7-98, requested the Hon'ble Minister for Education to consider the representation of the petitioner for reviewing the impugned order on the grounds taken by the petitioner in the writ petition for the reason that the statutory provisions provide for making such a representation. It is most unfortunate that the Hon'ble Minister dismissed the said representation. The order merely says that management was handedover to the respondent society after examining all the facts and it was in the interest of the students and teachers. The Hon'ble Minister acted in contravention of the settled legal position that every administrative action should be informed by a reasoned order. I am at complete loss to understand as how the handing over an institute to respondent No. 3 society was in the interest of the students and teachers. It may merely be in the interest of the suspended/terminated teachers and it has been proved to be so, as has been explained above. In a similar technical manner, the complaint of the Principal has been dealt with. These instances also reveal that the Authorities had notapplied their mind to the fact-situation of the case. Respondents Nos. 1, 2 and 4 had no material/information in possession, on the basis of which inference could have been drawn that handing over the management of the school to respondent No. 3 would serve die 'public interest' as envisaged by the Statutory provisions. Thus, it is a clear-cut case of non-application of mind. Discretionary power conferred on the Authority is never unfettered. Moreover, it is coupled with a duty to apply mind to the relevant factors involved therein. (Vide Income-tax Officer, Jodhpur v. Purushottam Das Bangur, (1997) 3 SCC 253 : (AIR 1997 SC 1372) C. N. Reddy v, Govt. of Andhra Pradesh, (1998) 3 SCC 240 : (AIR 1998 SC 939), A. P. S.R.T.C. v. Section T. A. T., (1998) 7 SCC 353 : (AIR 1998 SC 2621) and Commissioner of Police v. Dhaval Singh, (1999) 1 SCC 246 : (AIR 1999 SC 2326).
51. In view of the above discussion, the irresistible inferences, which can be drawn, are as under:--
(I) management of the institute under the control of the present petitioner had been far from satisfaction and there were circumstances which warranted the State Government to invoke its power under Section 10 of the Act to take over the management;
(II) whether constitution/election of petitioner committee had been invalid and whether its manager Shri Dungar Singh was a history-sheetor, are irrelevant issues to determine the controversy involved herein;
(III) before passing any order to take over the management, respondent No. 4 had a meeting with the employees of the institution and that included the suspended employees and respondent No. 4 assured them that if they form a society and get it registered, management and control of the institution would be handed over to it;
(IV) before passing the order for taking over, respondent No. 3 society was created purposely to take over the management and, thus, the impugned order, to the extent that the management of the institute has been handed over to respondent No. 3, is an out come of colourable exercise of power, even if taking over of the institute was justified;
(V) there was no material or information in possession of respondent No. 4, on the basis of which inference may be drawn that it would be in the interest of the institute or in 'public interest' that the management of the school be handed-over to the respondent No. 3. Thus, latter part of the order appointing respondent No. 3 as Administrator, is without any application of mind;
(VI) respondent No. 2 had suggested to keep the school under supervision of some Government official and no Educational Authority ever recommended even to take over the school, what to speak of handing it over to respondent No. 3 society. The statement made by respondent No. 4 that it had acted on the advice of authorities, is totally false;
(VII) Undoubtedly, impugned order had been passed by the Hon'ble Minister but en the recommendation of respondent No. 4, who had already decided to hand over the institute to respondent No. 3.
(VIII) in passing the impugned order, one Mr. Jaswant Singh Solanki had played some role, otherwise there was no occasion for the respondent No. 3 to pass a resolution appreciating his assistance and expressing its gratitutes towards him and if he was not interested by any means in the case, there was no reason for him to file caveat before the Jaipur Bench in this matter. Reply filed by respondent No. 4, denying the involvement of Shri Solanki, is contrary to the record of the case. Conduct of respondent No. 4 has not been befitting the post he held;
(IX) the Hon'ble Minister was requested by this Court to consider petitioner's application to review the impugned order and the Hon'ble Minister did not consider it proper to give reasons while rejecting the said application except saying that the impugned order had been passed in the interest of students and the institute itself, and the Hon'ble Minister did not comply with legal requirement to pass a reasoned and speaking order;
(X) after taking over the institute, the officebearers of respondent No. 3 society revoked suspension orders in respect of Mr. Jaswant Raj Jain and Mr. Kailash Singh and termination orders in respect of Ms. Bhagwati Gehlot and Mr. Satya Narain Singh and reinstated themselvesand, also, paid themselves the arrears of their salaries. Their conduct had fully been approved and held to be justified by the State Government completely overlooking the fact that even if the said orders were void, illegal or had the officebearers of respondent No. 3 could not have been permitted to become the judges in their own cause and as such the said orders of revocation violate the principles of natural justice and no order passed in violation of principles of natural justice can be held to be good and valid in law;
(XI) the suspension orders had been passed two years prior to taking over of the institute, which had been revoked by the office-bearers of the management committee. The government cannot be justified in saying that the suspension/ termination orders had been passed at the time when petitioner had no competence to do so as the record does not support this contention;
(XII) the contention of respondent No. 3 that it had improved the institute, paid the arrears of salary etc. to some extent and the number of students had also increased during its tenure, is not worth consideration as the handing over of the institution to it was invalid; and
(XIII) it is a clear-cut case of non-applicationof mind by the Government at the time of handing over the institute as well as while reviewing the order and while considering the complaint filed by the Principal.
52, In view of the view, the following orders are passed:--
(A) writ petition partly succeeds and, thus, partly allowed. Impugned order dated 18-2-98 (Annexure-4), to the extent of handing over the school to respondent No. 3 society, is quashed;
(B) respondent No. 1 shall pass appropriate order of appointing the Administrator after hearing all concerned;
(C) till the order of appointing Administrator is passed, the Educational Authorities, i.e. Deputy Director/District Education Officer, may be asked to manage day to day affairs of the school;
(D) respondent No. 1 is further directed to review the orders passed by respondent No. 3 from time to time after affording the opportunity of hearing to its office-bearers and concerned employees and take appropriate action accordingly; and
(E) there shall be no order as to costs.