Allahabad High Court
Kaushalya Kanya Inter College Through ... vs State Of U.P. And Ors. on 25 February, 2005
Equivalent citations: 2005(2)AWC1383, 2005(2)ESC1008, (2005)2UPLBEC1896, 2005 ALL. L. J. 1305, 2010 (5) SCC 318, (2005) 2 ESC 1008, (2005) 2 ALL WC 1383, (2010) 2 KER LJ 544, (2010) 2 SCALE 517
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Satish Mandhyan, for the petitioner, Sri K.A. Ansari, learned counsel, appearing for respondent No. 7, learned standing counsel and Sri Vivek Chaudhary appearing for respondent No. 4.
2. This writ petition has been filed by 23 petitioners challenging the order dated 30th December, 1983 passed by Deputy Director of Education, 12th Region, Moradabad by which certain amendments in the scheme of administration of the institutions have been approved.
3. Brief facts, necessary for deciding the controversy raised in the writ petition, are; the petitioners are educational institutions in district Moradabad recognised under U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act). The Act was amended by U.P. Act No. 35 of 1958 by which amendment Section 16-A to 16-I were added in the Act. Section 16-A of the Act provides that there shall be a scheme of administration for every recognised institution. Section 16-B provides for submission of scheme of administration to the Director of Education for his approval, Section 16-C provided that subject to regulations governing the principles for according approval of the scheme of administration, the Director of Education shall either approve the draft scheme or suggest any alteration or modification therein. Sub-section (1) further provided that whenever the Director shall so suggest any alternation or modification, copy of the same be sent to the institution to enable it to make a representation. Sub-section (2) provides that Director after considering the representation may approve the scheme in its original form or subject to alteration or modification as suggested under the said sub-section or with any other changes as may appear to him to be just and proper. Amendments were further made in the Act by U.P. Act No. 1 of 1981. By U.P. Act No. 1 of 1981 a third schedule was added to the Act and Section 16CC and Section 16-CCC were added. Section 16-C was also amended by the said U.P. Act No. 1 of 1981. Section 16-CC provided that the scheme of administration of any institution whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1980, shall not be inconsistent with the principles laid down in the third schedule. Deputy Director of Education after amendment made by above 1981 amendment issued notice dated 7th August, 1981 to institutions situate in district Moradabad informing that the approved scheme of institution is not in accordance with third schedule. A draft amendments in the scheme were also sent along with the notice asking the institutions to submit the same before the Deputy Director Education. Representation were also called for from the institutions. Subsequently by impugned order dated 30th December, 1983, the amendments as proposed earlier by Deputy Director of Education were approved and the scheme of administration of the institutions stand amended and the institutions were directed to submit the scheme as amendment in five copies to the office of Deputy Director of Education. This writ petition has been filed challenging the order of Deputy Director of Education dated 30th December, 1983.
4. Sri B.D. Mandhyan, learned Senior Advocate, appearing for the petitioners, challenging the order dated 30th December, 1983 has raised only one submission that the Deputy Director of Education had no jurisdiction to amend the scheme of administration on the date when order was passed, hence the order dated 30th December, 1983 is without jurisdiction and is liable to be set-aside. Sri Mandhyan contended that power under Section 16-CCC to amend the scheme vests in the Director of Education which power could not have been exercised by the Deputy Director of Education. Sri Mandhyan in support of his contentions, has relied on Division Bench judgment of this Court in (2002) 2 UPLBEC 1418; Mangla Prasad Inter College Society, Allahabad and Anr. v. Director of Education, Allahabad and Ors., judgment of this Court in 1999(1) E.S.C. 366 (All) Committee of Management, Barni Jain Uchchattar Madhyamic Vidyalaya, Dehradun v. State of U.P. and Ors. and 1996(3) E.S.C. 578; Committee of management, Janta Inter College v. Deputy Director of Education and Ors.
5. Sri K.A. Ansari counsel appearing for respondent No. 7 submitted that the power of amendment of scheme of administration which vests in the Director of Education has already been delegated by Director of Education with the approval of the State Government vide notification dated 23rd September, 1959 which has been issued in exercise of power under Section 16-I of the Act, hence the Deputy Director of Education had every jurisdiction to amend the scheme on 30th December, 1983. Sri Ansari submitted that after the amendment made in the Act by U.P. Act No. 1 of 1981, the State Government had issued Government order dated 30th February, 1981 that the existing scheme of administration of the institutions be revised and amended on democratic principles and necessary directions be issued by the Director to the officers. The Additional Director of Education in compliance of the Government order dated 13th February, 1981 issued letter dated 30/31st March, 1981 directing the Regional Deputy Director of Education to ensure compliance of Government order dated 13th February, 1981 and schemes of administration of institutions be amended within the stipulated period. The Deputy Director of Education in pursuance of the said directions proceeded to issue notices to the institutions for amending the scheme of administration in accordance with third schedule of the Act and thereafter impugned order has been passed. Sri Ansari further submitted that Additional Director of Education had subsequently again issued a notification on 25th January, 1984 delegating the powers to the Deputy Director of Education in pursuance of the letter of the Directorate of Education dated 9th June, 1983. Sri Ansari has placed reliance on a judgment of this Court reported in 2001 (1) E.S.C. 482; Committee of Management, Baheri Education Society, Baheri, Bareilly and Ors. v. Director of Education (Secondary), U.P. Lucknow and Ors. Sri Ansari further submitted that petitioner have not even raised the ground which is sought to be pressed in this writ petition that Deputy Director of Education had no jurisdiction to pass order on 30th December, 1983 and petitioners having not taken any such ground in the writ petition, they cannot be allowed to raise this submission.
6. The issue which has been raised by counsel for the petitioner is that as to whether Deputy Director of Education was competent to approve amendment in the scheme of administration on 30th December, 1983 when the impugned order was passed by Deputy Director of Education. Before proceeding to consider the said issue, the objection of Sri Ansari has to be first considered that petitioners having not taken any ground challenging the jurisdiction of Deputy Director of Education, they cannot be allowed to raise above submission.
7. It is true that in the writ petition petitioners have not specifically challenged the jurisdiction of Deputy Director of Education to approve the amendment in the scheme. An amendment application, however, has been filed by the petitioners on 25th January, 2005 after arguments had begun in the writ petition. The submission raised by counsel for the petitioner being one of jurisdiction, the petitioner' counsel has been permitted to raise the submission. Both the parties have been heard in the above submission.
8. I have considered the submissions and perused the record.
9. Before proceeding to consider the above submission, it is necessary to look into the relevant provisions of the Act pertaining to scheme of administration and its amendment. Sections 16-A to 16-I of the Act were added in the Act by U.P. Act No. 35 of 1958. Section 16-A provides that there shall be an scheme of administration for every institution. The scheme of administration shall amongst other matters provide for the constitution of a committee of management vested with authority to manage and conduct the affairs of the institution. Sections 16-B and 16-C provide for amendment of the scheme and its approval. Sections 16-B and Section 16-C of the Act are quoted below:-
"16-B.(1) In the case of an institution already recognized at the date of the commencement of the Intermediate Education (Amendment) Act, 1958, a draft of the Scheme of Administration shall be prepared and submitted to the Director for his approval in accordance with Section 16-C within six months from the said commencement and in all other cases along with the application for recognition.
(2) If an institution which is already recognized at the commencement of the Intermediate Education (Amendment) Act, 1958, fails to comply with the provision of sub-section (1) within the period provided therefor, the Director shall send a notice to such institution requiring it to submit the Scheme of Administration, with a further period of three months:
Provided that on a representation by the institution prior to the expiry of the extended period, the Director may, in his discretion, allow a further extension for a period of three month.
(3) If the Scheme of Administration is not submitted within the time allowed, the Director shall take action in accordance with [sub-section (3) of Section 16-D.] 16-C (1) [Subject to the provisions of this Act] the Director shall, within such period of time as may be prescribed, either approve the Draft Scheme of Administration submitted under Section 16-B or suggest any alteration or modification therein. Whenever the Director shall so suggest any alteration or modification in the Scheme of Administration, he shall send a copy of the same to the institution giving his reasons therefore, and affording an opportunity to the institution to make a representation, within such period of time as may be prescribed:
Provided that if the Director does not suggest any alteration or modification in the Draft Scheme of Administration within the period of time prescribed by regulations the Draft Scheme of Administration shall be deemed to have been approved.
(2) The Director shall consider any representation made in accordance with the provisions of sub-section (1) and may approve the Scheme of Administration in its original form or subject to the alteration and modification suggested under the said sub-section or with any other changes as may appear to him to be just and proper.
Provided that where the Director proposes to make a new alteration or modification in the Scheme of Administration, he shall given an opportunity to the institution to make representation to him within such period of time as may be prescribed."
10. By U.P. Act No. 1 of 1981 third schedule was added to the Act. Third schedule contained the principles on which approval of an scheme of administration shall be accorded. Sections 16-CC and 16-CCC were added in the Act by U.P. Act No. 1 of 1981 which are extracted below:-
"[16-CC. The Scheme of Administration in relation to any institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1980, shall not be inconsistent with the principles laid down in the Third Schedule.] [16-CCC. (1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 16-A or Section 16-B or Section 16-C, at any time before the commencement of the Intermediate Education (Amendment) Act, 1980, and such Scheme of Administration is inconsistent with the provisions of this Act, the Director shall send, within a period of (three years) from such commencement, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh Scheme of Administration or to amend or alter the existing Scheme.
(2) While making any suggestion in the Scheme of Administration under sub-section (1), the Director shall give his reasons therefor and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice.
(3) The Director shall consider any representation made in accordance with sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or modification suggested under sub-section (1) or with any other changes as may appear to him to be just and proper:
Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him.]"
11. From perusal of Sections 16-A, 16-B and 16-C, it is clear that power to amend the scheme of administration vests with the Director of Education. Section 16-I of the Act provides for delegation of all or any of the powers conferred upon the Director by the Director subject to approval of the State Government. Section 16-I of the Act is extracted below:-
"16-I. Subject to the approval of the State Government, the Director may, by a notification in the official Gazette, delegate all or any of the powers conferred upon him by or under this Act, except the powers which he exercise as Chairman of the Board to an officer or officers of the Education Department not lower in rank than a Deputy Director of Education."
12. In exercise of power under Section 16-I, the Director of Education has already issued notification dated 23rd September, 1959 being Notification No. C-D-2439/40-Ma-66-59-60 delegating the power of Director as contained in Sections 16-A(5), 16-B and 16-C to the Deputy Director of Education of concerned region. In view of the delegation dated 23rd September, 1959, the Deputy Director of Education was fully empowered to approve the scheme of administration under Section 16-C. The question for consideration is as to whether after insertion of Sections 16-CC and 16-CCC, the power to approve the scheme of administration to make it to conform the third schedule can be exercised only by the Director of Education or by Deputy Director of Education. A copy of the notification dated 25th January, 1984 has been brought on the record issued by Additional Director of Education delegating all the powers of the Director under Sections 16(4)(5), 16(B), 16-C and 16-CCC to the Deputy Director of Education of the concerned region. In the present case, the impugned order dated 30th December, 1983 was passed by the Deputy Director of Education prior to the notification dated 25th January, 1984, hence the said notification is not to be looked into, the notification being subsequent to exercise of power by Deputy Director of Education.
13. A learned single Judge of this Court in the case of Committee of Management, Janta Inter College v. Deputy Director of Education (supra) and a Division Bench of this Court in Mangla Prasad Inter College case (supra) has laid down that prior approval of the Director is necessary for amendment or change in the scheme of administration. The Division Bench referring to the definition of Director as contained in Section 2(aaa) of the Act held that Director does not include Regional Deputy Director of Education. There cannot be any dispute with the proposition laid down in the above case that definition of Director does not include the Regional Deputy Director, however, in the above judgement the provisions of Section 16-I of the Act which empowers the Director to delegate its power and the notification issued by Directorate of Education dated 23rd September, 1959 was not placed. As noted above vide notification dated 23rd September, 1959 power of Director to amend the scheme was specifically delegated to the Regional Deputy Director of Education by Director himself in exercise of power under Section 16-I of the Act. A learned single Judge of this Court in the case of Committee of Management, Baheri Education Society, Baheri, Bareilly and Ors. v. Director of Education (supra) after noticing the delegation made by Director of Education has held that the Division Bench judgment in Mangla Prasad Inter College case (supra) does not held the petitioners of that case. In paragraph 6 of the judgment in the case of Committee of Management, Baheri Education Society, Baheri, Bareilly and Ors. v. Director of Education (supra), following was held:
"6. Section 16-I of the Act lays down that the Director with the approval of the State Government could delegate all or any of the powers under the Act to an officer of officers who are not below the rank of Deputy Director of Education. The Director in exercise of this power delegated the powers conferred on him, with the approval of the State Government, under Section 16-A(5), 16-B and 16-C by notification dated 23.9.1959 on Deputy Directors of Education of seven regions. By notification dated 1.10.1964, 28.8.1970 and 30.9.1961 three more regions and posts of Regional Deputy Director of Education were created at Nainital Faizabad and Jhansi. Subsequently, more new regions were created. The Act was amended by U.P. (Amendment) Act No. 1 of 1981 and Section 16-CC, 16-CCC and Third Schedule were added in the Act. The Schedule laid down the principles on which the authorities could grant approval to a Schemes of Administration. In the light of these principles the State Government issued a Government order. Dated 13.2.1981 that the existing Scheme of Administration of the institution be revised and amendment on democratic principles and necessary directions be issued by the Director to the officers for implementing the directions mentioned in the Government order. In compliance of Government order. Dated 13.2.1981 the Additional Director of Education (Secondary), U.P., Allahabad issued a letter on 30/31.3.1981 directing the Regional Deputy Director of Education to ensure compliance of Government order. Dated 13.2.1981 and Schemes of Administration of Institutions be amended within the stipulated period..."
14. In view of the specific delegation made by the Director under Section 16-I of the Act the Division Bench judgment in Mangla Prasad Inter College case (supra) does not help the petitioner in the present case.
15. Much emphasis has been laid by Sri B.B. Mandhyan on the judgment of this Court in Committee of Management, Barni Jain Uchchattar Madhyamic Vidyalaya, Dehradun v. State of U.P. and Ors. (supra), specifically paragraph 15. This Court in the above judgment considered the notification dated 23rd August 1970 and Section 16-CCC. In the above judgment, the orders passed by Regional Deputy Director of Education dated 13th December, 1985 and 15th March, 1985 were challenged in which it was stated that committee of management had not been constituted in accordance with the amended scheme of administration and a direction was issued to ensure compliance of the amended scheme and for not complying the direction, direction was issued for appointment of authorised controller. The submission raised in the said petition was that no positive order was passed by Deputy Director of Education approving the amendment, hence the amendment cannot be deemed. It was further contended that Deputy Director of Education had no jurisdiction to approve the amendment which power vests in Director of Education only. Following was laid down in paragraph 15 of the said judgment:-
"15. With regard to exercise to power by the Deputy Director of Education. I find that the said notification dated 23.8.1970, was issued in respect of specified existing section before introduction of 16 CCC. Therefore, there cannot be any presumption that the said notification applied to Section 16-CCC. The respondents have not been able to produce any further notification of similar nature empowering the Deputy Director of Education to act on behalf of the Director in exercise of power under Section 16-CCC."
16. Learned single Judge of this Court in the said judgment observed that there cannot be any presumption that notification dated 23rd August, 1970 applied to Section 16-CCC and also no further notification of similar nature empowering the Deputy Director of Education was brought on the record. It is true that there cannot be any presumption that notification dated 23rd August, 1970 applied to Section 16-CCC. The power to amend the scheme of administration has been conferred to Director of Education under Section 16-C which stand delegated to Regional Deputy Director of Education vide notification dated 23rd September, 1959. The said notification dated 23rd September, 1959 was further modified on 23rd August, 1970, 1st October, 1964 and 30th September, 1961 reorganising various regions and authorising Regional Deputy Director of Education to exercise power under Section 16-C. Sri K.A. Ansari contended that power to amend the scheme having been delegated to the Deputy director of Education under Section 16-C, the said power is not affected by amendments brought by U.P. Act No. 1 of 1981 and the power of Director of Education to amend the scheme in accordance with Section 16-CCC can still be exercised by the Deputy Director of Education. It is not necessary to consider or express any opinion on the above submission since this writ petition can be decided on another aspect of the matter as stated below.
17. Section 16-C of the Act was also amendment by U.P. Act No. 1 of 1981. The opening words of the section, i.e., "subject to the regulations governing the principles for granting approval to the scheme of administration" have been substituted by words "subject to the provisions of this Act." In view of the amendment in Section 16-C by adding the words "subject to the provisions of this Act the principles of third schedule has also to be looked into while approving the amendment in the scheme of administration under Section 16-C. Sub-section (1) of Section 16-C provides for approval of the draft scheme of administration submitted under Section 16-B or to suggest any alteration or modification therein, whenever Director suggest any alteration or modification copy of the same is required to be sent to the institutions and an opportunity is also to be afforded to the institution to make representation. Sub-section (2) of Section 16-C provides that Director shall consider any representation made in accordance with sub-section (1) and may approve the scheme of administration in its original form or subject to alteration or modification suggested or with any other changes.
18. The proviso to sub-section (2) of Section 16-C, as quoted above, makes it clear that this proviso does not confine to approval of the draft scheme of administration or any amendment proposed in the draft scheme of administration by the Director but the said proviso is with regard to proposal for making a new alteration or modification in the scheme. After amendment in Section 16-C by U.P. Act No. 1 of 1981 in the event an existing scheme for which draft has already been approved under Section 16-B is found inconsistent to the principle of third schedule, the Director is not powerless to exercise his power under proviso to sub-section (2) of Section 16-C. The power under proviso to Section 16-C(2) can be exercised from time to time and the Director even in exercise of power under Section 16-C(2) can suggest an amendment or modification in the scheme to make the scheme conform to third schedule. As noted above, the power under Section 16-C has already been delegated to the Regional Deputy Director of Education vide notification dated 23rd September, 1959, thus, the power under Section 16-C(2) could have very well been exercised by Regional Deputy Director of Education. In the present case, thus, the scheme of administration of the petitioners' institutions could have very well been amended or modified by Regional Deputy Director of Education in exercise of power under proviso to sub-section (2) of Section 16-C to conform the principles of third schedule after giving an opportunity to the institutions to make representation. Admittedly, notice was given to the institutions to make representation as against the proposed amendment. The Regional Deputy Director of Education had, thus, jurisdiction to amend the scheme of administration of the institutions to conform it to third schedule. Hence the mere fact that while exercising the power to amend the scheme of administration the Deputy Director of Education has mentioned Section 16-CCC, it can not be said that action of the Deputy Director of Education is without jurisdiction Section 16-CCC, in fact, lays down procedure for amendment of the scheme to conform it to the third schedule which has been added by U.P. Act No. 1 of 1981. The substance of the provision is power to amend to conform it to the third schedule. It is well settled that if an authority has jurisdiction to take particular action, mere mention of incorrect provision or non mention of correct provision does not make the action without jurisdiction unless the authority has no jurisdiction in the matter.
19. From above analysis of the provisions of the Act, as above, it is abundantly clear that Regional Deputy Director of Education had jurisdiction to amend scheme to conform it to the third schedule, hence the action of the Deputy Director of Education cannot be held to be without jurisdiction.
20. In view of foregoing discussions, I do not find it a fit case for quashing the order of Deputy Director of Education dated 30th December, 1983 amending the scheme of administration of the institutions. No other arguments have been raised challenging the order of Deputy Director of Education.
21. The argument raised by counsel for the petitioner cannot be accepted. The writ petition lacks merit and is dismissed.
22. Parties shall bear their own costs.