Patna High Court
Bhawesh Mishra vs The President Of Board Of Secondary ... on 20 May, 1970
Equivalent citations: AIR1971PAT267, AIR 1971 PATNA 267
ORDER B.D. Singh, J.
1. The petitioner in this case obtained a rule under Articles 226 and 227 of the Constitution of India calling upon the respondents to show cause why the order dated 1-9-1969 passed by the President, Board of Secondary Education (Respondent No. 1) setting aside the constitution of the Managing Committee of Kalawati High School at Ban-gaon in the District of Saharsa, be not quashed. It may be noticed that by order dated 26-9-69 when the aforesaid application was admitted by this Court, the operation of the order contained under Annexure 7, so far as it set aside the constitution of the Managing Committee of the school, was ordered to remain stayed till the pendency of the application. In the application the petitioner has impleaded the President, Board of Secondary Education, the Secretary of the Board, the Regional Deputy Director of Education and the Sub-Divisional Education Officer, as respondents 1, 2, 3 and 4 respectively, whereas Digambar Jha and Gulab Jha are respondents 5 and S respectively. On 33-10-69 an application was filed on behalf of respondents 5 and 6 for vacating the aforesaid stay order passed by this Court which was, however, rejected by this Court by order dated 13-11-69. Subsequently, they also filed counter-affidavit on 2-3-70 and in paragraph 3 of the said counter-affidavit, they mentioned that the statement made in the petition for vacating the stay order and the annexures thereto might be also taken as a part of the counter-affidavit, A separate counter-affidavit has also been filed on behalf of respondents 1 and 2.
2. In order to appreciate the points which arise for consideration in this application it will be necessary to state briefly the facts as made out by the petitioner in his application. The petitioner is the Secretary of the Managing Committee of the School which is a non-Government recognised institution, which is run and managed in accordance with the provisions of the Bihar High Schools (Control and Regulation of Administration) Act, 1960 (hereinafter referred to as 'the Act') and the Rules framed thereunder. The constitution of the entire Managing Committee of the School was completed on 28-12-68 according to the provisions contained under Rule 3 of the Bihar High Schools (Constitution, Powers and Functions of the Managing Committee) Rules, 1964 (as amended by Notification dated the 24th April, 1967) (hereinafter referred to as 'the Rules'), excepting the co-option of the members of Legislature, which was suspended under the order of the respondent No. 2 by letter No. 21691-2178, dated 8-8-68. The Sub-Inspector of Schools, Kahara Block was nominated by respondent No. 1 as the President's nominee in the Managing Committee of the School. Thereafter the teachers' representative Jai Narain Thakur was appointed on 20-12-68.
At the meeting convened by respondent No. 4, two persons, namely, Raghu-bans Khan and Bhageshwar Jha, were selected as guardians' representatives of the Managing Committee on 26-8-68. Thereafter the petitioner along with Pandit Chhedi Jha and Jageshwar Ram was co-opted as educationist member on 7-10-68. At the meeting on 28-12-68 convened by respondent No. 4, the petitioner was elected as the Secretary of the Managing Committee, whereas Pandit Chhedi Jha was elected as the President thereof. Since then the Managing Committee of the School was functioning, held as many as 10 meetings and transacted regular business in these meetings. Digambar Jha, respondent No. 5, and two others filed C.W.J.C. No. 91 of 1969 in this Court challenging the validity of the constitution of the aforesaid Managing Committee. In that case the petitioner was made as one of the respondents, who appeared in that case which was put up for hearing on 29-4-69, when Digambar Jha withdrew his application and the same was, therefore, dismissed as withdrawn. On the representation of Digambar Jha, respondent No. 5, and Gulab Jha, respondent No. 6, the President of the Board of Secondary Education (hereinafter referred to as "the President") respondent No. 1, by his letter No. 32603-4, dated 2-11-68 (Annexure 1) asked the Regional Deputy Director of Education, respondent No. 3, to enquire into certain irregularities in the matter of selection of guardians' representative, and stayed further proceedings in the matter of constitution of the Managing Committee.
The Managing Committee of the School then approached respondent No. 1 to expedite the completion of the constitution of the Managing Committee soon. Respondent No. 1, therefore, by his telegram dated 17-12-1968 (Annexure 2) directed the respondent No. 4 to expedite the constitution of the Managing Committee without any delay. He also directed respondent No. 4 to send a report for information of the President. In pursuance of the said direction, as mentioned earlier, the election of the office-bearers of the Managing Committee of the School took place on 28-12-1968. Respondent No. 3, who was holding enquiry regarding the irregularities in constitution of the Managing Committee, as directed by respondent No. 1, by his letter dated 2-11-1968 (Annexure 1), also submitted a report. Acting on the said report the respondent No. 2 passed an order dated 23-5-69 (Annexure 3) restraining the Managing Committee of the School from functioning until the final decision in the matter. Aggrieved by the said order the petitioner on 2-6-69 filed C.W.J.C. No. 565 of 1969 in this Court, and on 4-6-1969 after it was admitted, their Lordships stayed the operation of the order dated 23-5-1969. Thereafter there was a reconciliation between petitioner and respondent No. 2, and it was agreed between them that the petitioner should withdraw his application in C.W.J.C. No. 565 of 1969, and the respondent No. 1. would hold the constitution of the Managing Committee as legal and valid.
Accordingly the petitioner withdrew his application in C.W.J.C. No. 565 of 1969 on 14-7-69, and on 28-7-69, letter No. 25869-70 was sent by respondent No. 2 to the District Education Officer, a copy of which (Annexure 4) was also sent to the petitioner communicating therein the order of respondent No. 1, holding that the constitution of the Managing Committee of the School was legal and valid, and directing the managing committee to function in normal manner and further recalling the order dated 23-5-1969 passed by respondent No. 2. Subsequently, respondent No. 2 by a letter dated 22-8-1969 (Annexure 5) intimated to the petitioner that respondent No. 1 wanted to hear the matter afresh in presence of Secretary to both the old managing committee, and the reconstituted managing committee, According to the petitioner, Parmeshwar Jha, the Secretary of the old Managing Committee was already dead more than a month before the said letter was issued by respondent No. 2. The petitioner by his letter dated 31-8-1969 (Annexure 6) objected to such a course being adopted as the matter had already been concluded in view of the order of the President contained under Annexure 4. The petitioner objected to the legality of the aforesaid notice given in Annexure 5. In spite of the petitioner's objection, respondent No. 1 passed the impugned order on 1-9-69 (Annexure 7) which was communicated to the petitioner through memo No. 30460-67 dated 17-9-69. By the said order respondent No. 1 set aside the election of the petitioner as Secretary of the managing committee and also that of the president of the managing committee as well as the co-option of educationist members, and directed that an ad hoc committee may take over the management of the school. Hence this application.
3. Mr. Sushil Kumar Jha, learned counsel for the petitioner, contended that on the facts and in the circumstances of the case, respondent No. 1 after having passed the order (Annexure 4) holding that the constitution of the managing committee was legal and valid and after having withdrawn the order dated 23-5-1969, had no power to review the order contained under Annexure 4 to the detriment of petitioner, particularly when on the basis of which the petitioner had withdrawn his C.W.J.C. No. 365 of 1969, as mentioned earlier. He urged that law does not permit an authority to review its own previous order, unless and until there is specific provision for review provided under an Act or Rules framed thereunder. He submitted that neither the Bihar High Schools Act. 1960 nor the Rules, 1964 which have been framed thereunder, have any provision for review. In order to substantiate his contention he referred to a Bench decision of this court in Rameshwar Sinha v. State of Bihar, AIR 1960 Pat 6 where Rama-swami, C. J. and Kanhaiya Singh, J. while dealing with the provisions contained under the Motor Vehicles Act, 1939, observed that no authority or, court can claim by implication a power to revise its own order. It is purely a question of statute, and in absence of any provision empowering any authority or court to review its own order, there cannot be a valid review of the order.
He relied on another Bench decision of this Court in Bhola Prasad Singh v. Prof. U. A. Goswami, AIR 1963 Pat 437 where Ramaswami, C. J. and Untwalia, J. were considering the provisions under Section 8(4) (as amended in 1961) of the Bihar State Universities (Patna. University of Bihar, Bhagalpur and Ranchi) Act (14 of 1960) as also Section 24 of the Bihar and Orissa General Clauses Act. Their Lordships at page 443 in Para 12 observed that the Chancellor under Section 7 of the Act is an officer of the University and under Section 8, the Governor of Bihar is the Chancellor of the University of Bihar, and by virtue of his office, is the Head of the University, and the President of the Senate. It is, therefore, no doubt, true that he is the highest officer of the University, but he cannot exercise his power under the Act, in an arbitrary manner and review and alter his orders, unless such power is found conferred upon him under the Act or the Statute. The power of the Chancellor under Section 8(4) of the Act is a power of a quasi-judicial nature. Their Lordships further at p. 445 in para 16 observed that read-ins Section 24, by itself or in the context of the other sections under the said heading, it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature, and not of a judicial nature as the order passed under Section 8(4) of the Act is. The expression 'to make or issue orders' has got to be read ejusdem generis and, when so read, it is manifest that the 'Orders' spoken of in Section 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various control orders made under the Defence of India Act within the meaning of Section 21 of the Central Act. The power under Section 8(4) of the Act is exercisable 'by order in writing' but is not a power to make an order within the meaning of the said provision of the Bihar and Orissa General Clauses Act. If that were not so, all authorities and Courts will derive their power to add to, amend, vary or rescind any order--judicial, quasi-judicial or administrative--of the like nature at any time or any number of times they chose to exercise it.
4. On the other hand, Mr. J. N. P. Verma, appearing for respondents 5 and 6, placed before me the relevant statements made in their application dated 10-10-69 which was filed on 13-10-69 for vacating the stay order passed by this Court. Therein they stated that the constitution of the managing committee of the school was not made in accordance with the provisions of the Rules. The constitution was not completed till then. According to Rule 5(1) of the Rules, Jageshwar Jha, who was appointed on 26-8-68 should have continued upto 25-8-69 as teachers' representative, and as such the appointment of Jai Narain Thakur as teachers' representative on 20-12-68 was bad. According to own case of the petitioner. Jageshwar Jha was said to have sent the letter giving up his claim on 22-4-69. Thus, he validly continued to be a teachers' representative till then, As such Jageshwar Jha was the only person who could have taken part in the meeting held on 7-10-68 for the co-option of the local educationist and also in the meeting held on 28-12-68 for the election of the office-bearers. In case of election of guardians' representatives no notice was given to respondents 5 and 6.
Thus, the election of guardians' representative was not valid, and consequently participation by guardians' representative in subsequent meetings dated 7-10-1968 and 28-12-1968 vitiated the entire proceeding. It is further stated therein that respondent No. 5 had withdrawn his application in C.W.J.C, No. 91 of 1969, because respondents 5 and 6 and Jageshwar had filed an application on 11-9-1968 under Rule 40 of the said Rules before the President, and the same was pending. The respondents 5 and 6 were not party to the withdrawal of C.W.J.C. No. 565 of 1969. Mr. Verma contended that since the application of respondents 5 and 6 under Rule 40 was pending before the President, the ex parte order passed by him contained under Annexure 4, had no legal binding on respondents 5 and 6. The said ex parte order passed behind the back of respondents 5 and 6 was obviously, according to him, a wrong order, without any legal effect. In the application for vacating the stay it is further stated on behalf of the respondents that when the impugned order contained under Annexure 7 was passed by the president, the petitioner as well as the respondent? and, all parties concerned were heard. Therefore, sufficient opportunity was given to the petitioner, when the said order was passed by him recalling his previous order contained under Annexure 4. It is further stated that respondents 5 and 6 are benefactors of the school and respondent No. 5 is also an ex-student. In their counter-affidavit which they filed on 2-3-1970, they reiterated in substance what they stated in their application for vacating the stay.
Mr. Verma contended that in that view of the matter the President has rightly passed the order contained under Annexure 7. He urged that in such circumstance the prayer made by the petitioner for quashing Annexure 7 should not be granted. Even assuming that the President has no power to review his own previous order, on the facts and in the circumstances of the case, if the order contained, under Annexure 7 is quashed, It will amount to directing the president to adopt his order contained under Annexure 4, which was passed behind the back of respondents 5 and 8, whose application was pending before the President under Rule 40 of the Rules. The said order passed by the President contained under Annexure 4 was against the well established principles of natural justice. Respondents 5 and 6 being the petitioners, no order ought to have been passed behind their back and before any date fixed for its hearing. Learned counsel further submitted that in such circumstance this Court should not quash the impugned order (Annexure 7) as it would thereby revive the order of the President contained under Annexure 4 which is bad in law being against the principle of naturaj justice.
He urged that it is well established that no writ application is allowed in those cases which give effect to perpetuation of any illegality. In order to find support to his contention he relied on a decision by Ramaswami, C. J. and Kan-haiya Singh, J. in Abdul Majid v. State Transport Appellate Authority, Bihar, AIR 1960 Pat 333, where their Lordships at p. 338 in para 9 observed;
"If the decision of the tribunal of 26th September is wholly void, and I have no doubt about that, it is not necessary to pronounce any concluded opinion, on the contentions raised by the learned counsel for the petitioners. I would assume that the order of the Appellate Authority, is contended for by them was illegal. What is the consequence of the order of the Appellate Authority? It is manifest that the order of the Appellate Authority, although illegal, set aside another illegal decision. If we give effect to the contention of learned counsel and set aside the order of the Appellate Authority dated 12-12-1959, it will amount to countenancing and perpetuating an illegal act. This, in my opinion, is not permissible for a Court exercising extraordinary jurisdiction vested in it under Article 226 of the Constitution. The writ of certiorari is not a writ of course. It is a discretionary remedy. The very object of this writ is to foster justice and right a wrong arising from the subordinate tribunals or bodies or officers acting wholly without jurisdiction or in excess or denial of it, or in violation of the principles of natural justice, and, therefore, where such wrong occurs, and Court intervenes and issues such prerogative writs, orders or directions where the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record any such act or omission or error, or excess, has resulted in manifest injustice. Vide Veerappa v. Raman and Raman Ltd., AIR 1952 SC 192. Therefore, before a person, can be entitled to invoke the prerogative power of the Court under Article 226 of the Constitution, it must be shown, that the order to be set aside must have occasioned injustice to the parties. What is the position in the instant case? The order dated 26-9-1959, has no validity for want of jurisdiction and the order dated 12-12-1959, which the petitioners impugn operates to set It aside, with the result that even if the order of 12-12-1959 be erroneous and illegal, it does not work injustice to any party; rather it cures manifest illegality and, therefore, the extraordinary jurisdiction of the Court cannot be invoked to annul it."
5. Mr. Tara Kant Jha, appearing for respondents 1 and 2 placed before me paragraph 13 of the counter-affidavit filed on their behalf, wherein it is stated that respondent No. 5 Digambar Jha and others approached the president and requested that since no opportunity was given to respondent No. 5 for personal hearing before passing the order (Annexure 4) in favour of the newly constituted managing committee, the matter should be reheard in their presence. The President in the circumstances decided to hear both the parties and intimation for the hearing was given to District Education Officer, Sub-Divisional Education Officer, the petitioner and the old Secretary of the managing committee of the school (all parties concerned) to be present on the appointed date, i.e., 1-9-69. The respondents as well as the petitioner and other parties, were present at the time of rehearing, and after hearing them the impugned order was passed. Therefore, he contended that the said order was legal. In the alternative, he also adopted the argument advanced on behalf of respondents 5 and 6.
6. However, Mr. Jha, appearing for the petitioner, referred to Rule 40 of the Rules which reads;
"If any dispute arises whether any person has been duly declared, elected, selected or co-opted as, or is entitled to be donor, life-member, hereditary member, president, secretary, or a member of the Managing Committee, as the case may be, the matter shall be referred to the President of the Board of Secondary Education whose decision thereon shall be final."
He urged that the President under the said rule has power even suo motu to make decisions on the facts and in the circumstances of the case. Therefore, it was not incumbent upon the president to have heard respondents 5 and 6 before he could have passed order contained under Annexure 4. Therefore, according to him, there was no question of violating the principle of law embodied in the maxim audi alteram partem in the instant case. In order to find support to his contention he relied on a decision in Gobar-dhan Joshi v. State of Bihar, AIR 1957 Pat 340 by Das, C. J. and Ahmad, J. There their Lordships were considering the provisions contained under Section 64-A of the Motor Vehicles Act, 1939 as inserted by Bihar Amendment Act (27 of 1950), In that case the vires of the said section was being challenged, as contravening Article 19 (1) (e) and (6) of the Constitution of India. Ahmad, J. who delivered the judgment for the Court, in paragraph 11 at page 345 observed:--
"In support of the contention that a judicial or quasi-judicial body while exercising power must act according to the rules of natural justice, our attention was drawn to a number of English decisions and the decisions of our own Court and other Courts in India. This principle of law is by now so well established that it needs no authority for its acceptance. It has to be accepted more or less as an axiom and therefore, I think, I need not discuss those cases here. Maxwell on the Interpretation of Statutes in its 9th Edition at page 368 says:
'In giving judicial powers to affect prejudicially the rights of person or property, a Statute is understood as silently implying, when it does not expressly, provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person sought to be prejudicially affected shall have an opportunity of defending himself.' For the reasons stated above, I think that even from the procedural point of view Section 64-A of the Motor Vehicles Act is not constitutionally void or ultra vires. The learned Government Advocate, appearing for the State, in the course of discussion on this point argued that though the duty to hear the parties concerned in a case is a usual step to be followed by a quasi-judicial authority in the exercise of its power but that is not in any case necessarily a necessary step and, therefore, the question of giving notice and of giving opportunity to the parties concerned in the matter will depend on the facts of each case and as such this part of the procedure need not be as a rule incorporated as an essential part of the section creating a quasi-judicial power.
In support of this contention our attention was drawn to the provisions of law laid down in Clauses (1) and (2) of Section 439 of the Code of Criminal Procedure and Section 440 of the Criminal Procedure Code. It is a matter of general principle that a person should not be condemned at his back or on ex parte statements and no order adversely affecting a person should be passed against him unless he has been given a real and effective opportunity of refuting the statements upon which the order is passed. This follows from the principle of lew embodied in the maxim audi alteram partem.
It is, therefore, obvious that the notice and opportunity of hearing is to be given only in those cases where an order adverse to a person is to be passed but not in those cases where he is not to be affected by the order......".
In my view, the contention of learned counsel for the petitioner cannot be accepted. It is true that according to the provisions contained under Rule 40 quoted above, the president of the Board has power to act suo motu also, but in the instant case the admitted case of the parties is that respondents 5 and 6 and Jageshwar Jha had filed an application under Rule 40 before the President. Therefore, in my judgment, the president should not have passed the order contained under An-nexure 4 behind the back of respondents 5 and 6 and Jageshwar Jha. Therefore, the order contained under Annexure 4 was not a valid order and was obviously contrary to the principles of natural justice. Besides, the order contained under Annexure 4 was preiudicial to respondents 5, 6 and Jageshwar Jha, who were contending that the managing committee of the said school was not properly constituted, and in order to obtain iustice they had filed application under Rule 40 before the president. Therefore, the order passed by the president in Annexure 4 holding that the managing committee was validly constituted without giving opportunity to respondents 5 and 6 and Jageshwar Jha to support their case that it was not properly constituted, clearly offends the principles of natural iustice. In the Subdivisional Officer (Compenastion Officer), Mirzapur v. Raja Srinivasa Prasad Singh. AIR 1966 SC 1164 their Lordships at page 1169 in paragraph 12 observed that a decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the court may in such a case reopen the proceeding to give the party a chance to state its case. In the instant case, in the application which was filed before the president under Rule 40 of the Rules, respondents 5 and 6 were not only necessary parties but they were applicants themselves along with Jageshwar Jha. In that view of the matter the order passed by the president under Annexure 4 behind the back cannot be sustained and has got to be quashed. Therefore, acting under Article 227 of the Constitution, in the circumstances, this Court has ample power to quash Annexure 4 suo motu (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104 = (AIR 1955 SC 233). Hence, I quash Annexure 4.
7. The order passed by the president under Annexure 7 reviewing his own previous order contained under Annexure 4 also cannot be maintained. That also has got to be set aside, because neither the Act nor the Rules referred to above confer power upon the president to review his own previous order, Mr. Verma. however, on behalf of respondents 5 and 6, contended that every court has inherent power to recall its own order to do right and undo wrong in the interest of justice He referred to various cases, namely, B. V. Patankar v. C. G. Sastry, AIR 1961 SC 272; Konathala Sriramulu v. Board oi Revenue, AIR 1965 Andh Pra 395 and Muthialpet Benefit Fund Ltd. v. Deva-rajulu Chetty, AIR 1955 Mad 455. In my view, these decisions relate to cases where the provisions of the Civil Procedure Code are applicable or where a statute or a rule made thereunder confers power on the authority to review its own previous order. Hence those decisions are not pertinent to the instant case where the moot question involved is as to whether the president could review his own previous order passed under Annexure 4 in the absence of any such power conferred on him by the Act and the Rules.
Learned counsel also referred to the decision in R P. C. Connnr v. P. G. Sam-path Kumar AIR 1953 Mad 897 where their Lordships werp considering the provisions contained under Order 7, Rule 10, Order 49, Rule 3(1) and Section 151 of the Civil Procedure Code, Letters Patent (Madras) Clause (1) and Article 215 of the Constitution of India. Their Lordships in that case hold that though there is no express provision in the Code or in the Rules framed by the Madras High Court for the return of a plaint filed on the original side of the High Court, when it is found that the Court has no jurisdiction to entertain the suit, the Court has inherent power to make an order directing the return of the plaint if it is necessary for the ends of iustice or to prevent abuse of the process of the court. For the purpose, however, of preserving the proceedings taken in the High Court a verified copy of the plaint should be made and filed in place of the original which is returned.
In my opinion, the above observation does not indicate that a court can review its own order even in the absence of any such power conferred by a statute or the rules. Besides, in that case, their Lordships were considering the question of returning a plaint when the court had jurisdiction to entertain the suit.
8. Mr. Verma also drew my attention to a decision in S. Partap Singh v. State of Punjab, AIR 1964 SC 72 where at p. 81 in Para 5 their Lordships quoted with approval Lord Dening's observation in Lazarus Estates Ltd. v. Beasley, 1956-1 All ER 341 at p. 345:--
"No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud."
Learned counsel laid stress on the above observation and contended that since the order of the President contained under Annexure 4 was obtained by the petitioner by fraud, the President, even in the absence of power to review, had ample jurisdiction to set aside the order contained under Annexure 4. Therefore, according to him, the order passed by the President under Annexure 7 was a valid order. In my view, this contention also of learned counsel cannot be accepted, as the observation is not applicable to the instant case. No case has been made out on behalf of the President that the petitioner had obtained his order contained under Annexure 4 by practising fraud on him. After considering from different aspects, I am convinced that the President had no power to review his order contained under Annexure 4, In that view of the matter, his order dated 1-9-69 (Annexure 7) revising his previous order contained under Annexure 4 also cannot be upheld. Hence, I Quash the order passed by the President under Annexure 7 also. It may be recalled that in the instant case the petitioner had prayed for quashing the order dated 1-9-69 (Annexure 7), and, therefore, impliedly he had prayed also for restoring the order passed bv the President contained under Annexure 4. But for the reasons stated above, I have quashed both the orders of the President contained under Annexures 4 and 7.
9. In the result, the application is allowed in part as both the orders of the president contained under Annexures 4 and 7 are quashed. However, it shall be open to the President, if required, to pass fresh order in accordance with law and in the light of the observations made above. In the circumstances of the case, there Will be no order as to costs.