Allahabad High Court
C/M Saraswati Inter College vs State Of U.P. And Others on 4 September, 2012
Author: A.P. Sahi
Bench: A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 38 Civil Misc. Writ Petition No. 40369 of 2012 C/M Saraswati Inter College Pipalheda, Muzaffar Nagar Vs. State of U.P. and others ***** Hon'ble A.P. Sahi,J.
The petitioner Committee of Management, Saraswati Inter College Pipalheda, Muzaffar Nagar through its Manager Rajendra Prasad has challenged the order dated 26th July, 2012 whereby the Joint Director of Education Saharnapur Region Saharanpur has appointed an Authorised Controller in the Institution in Public Interest with immediate effect.
The Joint Director of Education is Yogendra Nath Singh who has filed a Exemption Application alongwith an affidavit and in paragraph 4 thereof has tendered an unconditional apology reciting that he has realized his mistake and that the order under challenge was untenable in law. He has further stated in his affidavit that the order cannot be justified in any manner and it was only a bona-fide mistake for which he should be excused.
The impugned order was challenged on the ground that the petitioner Committee of Management was constituted on completion of the election process on 26.12.2011 and the documents were submitted for the attestation of signatures in terms of U.P. Act No. 24 of 1971 which impliedly requires a Manager to be recognised whose signatures have to be attested by the District Inspector of Schools for the purpose of executing the official work of the institution as the State exercised statutory control over such aided institution.
The District Inspector of Schools Bheem Singh issue a notice on 2nd January, 2012 calling upon the Manager of the Institution to submit his explanation with regard to the dispute of membership which was being heard by him. He also indicated in the notice that one Arvind Kumar an Associate District Inspector of Schools was to proceed to make the enquiry on his behalf as an Enquiry Officer. The District Inspector of Schools immediately thereafter issued an order on 6th January, 2012 stating therein that the elections were held inspite of there being procedural lapses and the same having been stayed by him. It was narrated in the order that since the elections have been held in violation of the aforesaid instructions and certain unapproved members have participated in the elections, therefore, the elections deserve to be annulled. He accordingly proceeded to impose single operation of accounts on the presumption that the tenure of the earlier committee had come to an end.
Simultaneously, he also issued a notice to the Manager that since there is a dispute about the constitution of the Committee of Management therefore he will now proceed with the enquiry of membership and the matter will now be decided by the Joint Director of Education who is the Chairman of the Regional Level Committee.
The order dated 6th January, 2012 was challenged and the operation of the said order was stayed by this Court in Writ Petition No. 15732 of 2012. It is to be noted that this petition was filed by eight members of the General Body.
The then Joint Director of Education, thereafter issued notice on 17.2.2012 for conducting an hearing in the said dispute relating to the elections to which reply was given by the petitioner copy whereof has been filed as Annexure 17.
It has been categorically stated in paragraph 23 that the said dispute has not been decided as yet till date. Not only this, there was no occasion for appointing an Authorised Controller so long as the elections are not held to be invalid. No procedure worth the name was thereafter undertaken to put the petitioner committee of Management to notice for superseding the Committee of Management and straight way the order dated 26th July, 2012 was passed. The only recital in the order is that the same has been passed in public interest.
Learned counsel for the petitioner has rightly pointed out that there is no such power vested in the Joint Director of Education to supersede a Committee of Management and appointed an Authorised Controller in public interest. An Authorised Controller can be appointed only if the Joint Director of Education finds that the tenure of the Committee of Management has come to an end. This power is not vested in the District Inspector of Schools. Apart from this, if there is any default on the part of the Manager in payment of salary of the employees then under Section 6 of the U.P. Act No. 24 of 1971 it is the Joint Director of Education who can appoint an Authorised Controller provided the ingredients therein are available. The third remedy under the U.P. Intermediate Education Act, 1921 is for superseding a Committee of Management on account of mal-administration and mis-management under Section 16-D of the 1921 Act.
Learned counsel has rightly submitted that apart from the aforesaid three provisions, there is no power vested in the Educational Authorities to appoint an Authorised Controller. Such an order can be passed only after giving a proper notice of the intention to supersede the Committee of Management and providing an opportunity of hearing. Sri Pandey also rightly submits that an order of single operation can be passed under U.P. Act No. 24 of 1971 only after providing an opportunity of hearing and not otherwise. The direction to impose an order of single operation can be in the contingency if there is any default on the part of the Committee of Management.
In the instant case this Court is in vain to find out any notice being served on the petitioner intending to supersede the Committee of Management and appointment of Authorised Controller. The impugned order dated 26th July, 2012 was therefore passed in violation of principles of natural justice and for no valid reason. There is no provision under any of the aforesaid rules which may authorise the Joint Director to appointment a controller in public interest. Thus, the Court is convinced that the order dated 26th July, 2012 in so far as the petitioner is concerned was in excess of authority clearly leaning towards malice in law.
Apart from this, the said order passed by Mr. Yogendra Nath Singh reveals that nine committees were superseded in a wholesome manner. This complete package of appointment of Authorised Controllers in nine institutions in public interest therefore does not conform to law at all.
A perusal of the order further indicates that it is based on two letters of the District Inspector of Schools dated 22.6.2012 and 20.7.2012. These letters have been filed alongwith the affidavit of compliance of Mr. Bheem Singh, the then District Inspector of Schools. In paragraph 10 of his affidavit, it has been stated by the said DIOS that there was no Committee of Management functioning and one Shyamji Yadav selected teacher from the Board was to join which could not be ensured as a result whereof a situation arose for which the District Inspector of Schools requested the appointment of Authorised Controller (Prabandh Sanchalak) on temporary basis in seven institutions.
The District Inspector of Schools in his affidavit has been unable to point out as to how a Prabandh Sanchalak can be appointed on a temporary basis.
Apart from this the Joint Director of Education and the District Inspector of Schools both have been unable to point out as to from where they get the authority to supersede the Committee of Management in the manner in which it has been done and further as to what provision authorised them to proceed to take decisions with regard to appointment of an Authorised Controller.
In the aforesaid circumstances and being prima facie satisfied that the action was mala-fide, this Court passed the following order on 21st August, 2012 calling upon the Regional Joint Director of Education to file an affidavit explaining the same.
It is thereafter that the then Joint Director of Education Yogendra Nath Singh who had passed the impugned order has appeared and filed his affidavit tendering his unconditional apology and has further realized his mistake in the affidavit of compliance.
It is relevant to mention that prior to his appearance, the present Incharge joint Director of Education Smt. Manju Sharma filed an affidavit on 27th August, 2012 stating therein that as soon as she received the show cause from this Court she passed an order on 24th August, 2012 cancelling the impugned order dated 26.7.2012.
Thus the affidavit of Yogendra Nath singh, the then Joint Director of Education who had passed the impugned order does not proceed to justify his action and accepts it to be a mistake on his part.
However, the affidavit of Beem Singh proceeds to justify his recommendations in order to enable the Authorised Controller to discharge the duties pending in relation to the nine institutions.
It is in the aforesaid background that the matter was heard finally yesterday and Sri Pankaj Rai, learned Additional Chief Standing Counsel made a clear statement that he does not proceed to defend the impugned order and the same having been withdrawn the Officers may be exempted and their mistake should be treated to be a bona-fide act. The Court proceeded to propose to impose costs on the officers on which Sri Pankaj Rai submitted that the costs may not be imposed and the petition be consigned to records.
Having considered the aforesaid background and the submissions raised, the appointment of Authorised Controller in an institution for superseding a Committee of Management is a harsh measure which is akin to the appointment of a receiver as contemplated under Order 40 of the Civil Procedure Code. This power has to be exercised only as provided under the relevant provisions of the U.P. Intermediate Education Act, 1921 or under the Scheme of Administration approved by the Competent Authority under Section 16-A of the 1921 Act. An Authorised Controller can also be appointed under U.P. Act No. 24 of 1971. All these provisions also provide that they have to be invoked after complying with the principles of natural justice and putting the concerned Committee of Management to notice which is intended to be superseded. Thus the procedure prescribed by law has to be followed as the measure entails civil consequences and is in the nature of a penalty of superseding a Committee of Management. The procedure prescribed by law therefore has to be followed and an arbitrary action without following the said procedure or in the absence of any material cannot be sustained. It is on these grounds that the passing of the order had been challenged in this petition which order came to be withdrawn stating that it was in compliance of the order of this Court dated 21.8.2012. Needless to mention that the order dated 21.8.2012 passed by this Court was only an interim order.
Even if the order has been withdrawn this Court finds it to be an obligation to proceed to further consider the issue of the arrogation of powers and its implementation by the Joint Director of Education Yogendra Nath Singh on the recommendation of the then District Inspector of Schools Mr. Bheem Singh. This is necessary in view of the dictum of the Supreme Court in Registered Societies Vs. Union of India and others, (1996) 6 SCC 530 where the apex court said:-
"No public servant can say "you may set aside an order on the ground of mala fide but you can not hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary".
The Court has to definitely give its opinion where an illegal action which was a clear infraction of law as it tends to destroy public faith. The petitioner has been compelled to file this petition on account of the action of the Joint Director of Education and the District Inspector of Schools who was behind the scene making recommendations.
It is well said in a TALMUD, AVODA ZARA "FISH DIE WHEN THEY ARE OUT OF WATER, AND PEOPLE DIE WITHOUT LAW AND ORDER."
It has been said "what is law, if those who have to implement it, become the forwardest to break it." - James Beattie (The Wolf and the Shepherd).
If those, who have to uphold law and implement it according to the rule of law, break the same, then a citizen of this Court or ordinary litigant like the petitioner will be heard crying in the words of Faiz Ahmad Faiz which has been quoted in the opening lines of the decision of the apex court in the case of Mahboob Batcha and others Vs. State, (2011) 7 SCC 45.
This oppression of a litigant by harassment and compelling him to fight a litigation on account of a mala-fide action has therefore to be rectified by an appropriate action and in my opinion the Joint Director of Education and the District Inspector of Schools cannot get away by justifying their actions by levelling them as a mistake or by justifying them before this Court in the aforesaid background. The Court has therefore an obligation to not leave the dispute with a mere decision or a judgment but also to impose an exemplary penalty, which may not only act as a deterrent to prevent any further such mistakes that tend to destroy the faith of the public, but shall also help in discouraging any such mala-fide action to be undertaken by administrative authorities. I am supported in my view by the decision of a learned Single Judge in the case of Jai singh Vs. State of U.P., writ petition (Misc. Single) No. 4192 of 2009 decided on 18th July, 2012.
In the opinion of the Court, there would be a failure of justice if this is not rectified by the Court. The action is necessary because this might lead to further chaos and mayhem and people not abiding to law. The Court has the same feeling as expressed by a Chinese Physician and Writer Han Suyin in his work (Destination Chungki, 1942) which is as follows:-
"Your laws are in effective. Why? Because no system of control will work as long as most of those administering the law against an evil have more than a finger dipped into it themselves."
The action of the authorities, namely, the Joint Director of Education and the District Inspector of Schools in proceeding to supersede the Committee of management and appointing an Authorised Controller was nothing short of malice in law which has been described succinctly and defined in various decisions of the apex court and as expressed in paragraph 46 of the judgment in the case of Jay Singh (supra) quoted herein under:-
"Though petitioner has levelled serious allegations against Branch Manager about demand of money etc., which I find, have not been sustained but that by itself would not leave the matter hereat for the reason that an act, which is in the teeth of procedure prescribed in law and can be said to be unauthorised and illegal, itself would justify an inference that it is actuated for something other than bona fide, if not in fact, then in law, on the part of authorities concerned. In other words, it is a malicious exercise of power, a "malice in law", if not "malice in fact".
To substantiate the same reference may be had to the following cases of the Supreme Court:-
1. Smt. S.R. Venkatraman Vs. Union of India and another, AIR 1979, SC 49.
2. Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643.
3. Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592.
4. HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112.
5. Govt. Branch Press and another Vs. D.B. Belliappa AIR 1979 SC 429;
6. Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182;
7. K.K. Balla Vs. State of U.P. and others AIR 2006 SC 898;
8. P. Mohana Pillai Vs. State of Kerala and others (2007) 9 SCC 497;
9. M.P. State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17;
10. Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622;
11. Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198.
Tested on the aforesaid principles as explained by the apex court, it is clear that the action of appointing the Authorised Controller without any valid reason and without putting the petitioner to notice was a malicious act. It cannot be described as a proper exercise of discretion as the order is clearly without authority in law. It would be apt to refer to the decision of the U.S. Supreme Court in United States Vs. Wunderlich - 342 U.S. 98 (1951).
The Supreme Court of the United States observed that absolute discretion is a ruthless master and it is more destructive of freedom than any of man's other inventions. Such exercise of power has a devastating effect and it was held therein that the exercise of power cannot be described as a mere mistake but a gross mistake which implies bad faith. It further went on to widen the horizon of understanding by observing that is not necessary that the malice may be actuated by any monetary considerations as:
"Men are more than bribed by their loyalties and ambitions than by money."
Whatever be the motive in the present case, it is absolutely malice. The District Inspector of Schools has justified himself by saying that this had become necessary in order to ensure the joining of certain teachers or on account of a dispute of Committee of Management. The District Inspector of Schools forgets that there is a direct power available to enable a teacher to be made to join under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 readwith 1998 Rules framed thereunder. The Joint Director of Education has been given the power to execute the appointment through the District Inspector of Schools. If the Management fails to allow a teacher to join or is otherwise resisting the valid appointment, the said provisions do not indicate that an Authorised Controller in public interest can be appointed superseding the Committee of Management in the manner in which it has been done in the present case. It is further to be noted that so far as the petitioner institution is concerned there is no reason in the impugned order that the Committee had defaulted to carry out any directions issued by the Educational Authorities. To the contrary it is the District Inspector of Schools who on account of an inference that there was no valid Committee that he had issued the letter for taking action to allow the candidate to join. This by itself could not be a reason to justify his action for appointment of an Authorised Controller.
The Joint Director of Education could have proceeded to decide the dispute of the elections of the petitioner Committee and thereafter could have proceeded to pass an order in accordance with law or making recommendations for appointment of an Authorised Controller. The Cart therefore could not have been put before the Horse.
The Court, therefore, finds that this litigation was generated on account of the Joint Director of Education and the District Inspector of Schools proceeding to take action mala-fidely without following the due process of law. The procedure of law has to be followed and cannot be overlooked. If the law provides for a particular procedure the authority has to follow the same otherwise this action will be arbitrary. Without multiplying what has been said by the apex court and other High Courts as well as the Privy Council and other English decisions suffice is to quote the following commentary from Law Referencer:-
"DO AS THE ACT PROVIDES When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to 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 and not contrary to that at all. Other methods or mode of performance are impliedly and necessary forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius', meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. (Vide Taylor Vs. Taylor, (1876) 1 Ch. D. 426; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Patna Improvement Trust Vs. Smt. Lakshmi Devi, AIR 1963 SC 1077; State of Uttar Pradesh Vs. Singhara Singh & Ors., AIR 1964 SC 358; Chettian Vettil Ammad Vs. Taluk Land Board & Ors., AIR 1979 SC 1573; State of Bihar Vs. J.A.C. Saldanna, AIR 1980 SC 327; State of Misoram Vs. Biakchhawna, (1995) 1 SCC 156; J.N. Garatra Vs. Morvi Municipality Morvi, AIR 1996 SC 2550; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka ect. Etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633; Prabha Shanker Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486; Ram Phal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657; and Indian Bank's Association Vs. Devkala Consultancy Service, AIR 2004 SC2615; K.S. Saini Vs. H.C. Delhi, 2012 (4) SCC 307.
It is also necessary to remind the respondents that there is something like rule of law that has to be observed. What is rule of law has been explained in several decisions but it has been clearly indicated by the Supreme Court in the Constitution Bench judgment in the case of S.G. Jay Singh Vs. Union of India AIR 1967 Supreme Court 1427 that absence of arbitrary power is the first essence of the rule of law. Public Authorities and the Administration is therefore required to act in consonance with law so as to implement the rule of law. It has been held in Bachchan Singh Vs. State of Punjab, AIR 1982 Supreme Court that a decision taken by the authority under the statute has to be made by the application of principles and rules, and in general such decision should be predictable, and the citizen should know where he stands. If a decision is taken without any principle or without any rule it is unpredictable and is against the rule of law.
The question is who is to guard the guards themselves. "Quis Custodiet ipsos custodes?"
The Court being custodian of the fundamental rights guaranteed under the constitution, therefore, is under an obligation to rectify the error and to call upon the authorities to remind themselves of the aforesaid principles as said by Shakespeare in Act II Scene 4 in King Lear quoted herein under:
"O, Sir, to wilful men The injuries that they themselves procure must be their school masters."
For the reasons given hereinabove and the conclusions drawn and in view of the unqualified apology tendered by the Joint Director of Education, Mr.Yogendra Nath Singh and the prayer made by Sri Pankaj Rai, learned Additional Chief Standing Counsel who has very faily and candidly with promptness assisted the court, I find that the interest of justice would be served, and the harassment to the petitioner be rectified, by imposing a cost of Rs. 10,000/- to be equally borne by Sri Yogendra Nath Singh, the Joint Director of Education and Mr. Bheem Singh, The District Inspector of Schools whose actions have resulted in substantial injury to the petitioner and infringement of his legal and fundamental rights guaranteed under law. The cost shall be paid to the petitioner within one month. A copy of this order shall be placed on their service records and the same shall be circulated by the Director of Secondary Education to all the Joint Directors and DIOS's throughout the State for information and compliance.
Dated: 4.9.2012 Sahu