Patna High Court
Jadunandan Puri vs The President, Board Of Secondary ... on 25 April, 1975
Equivalent citations: AIR1976PAT58, AIR 1976 PATNA 58
ORDER
1. This application by Jadu-nandan. Puri under Articles 226 and 227 of the Constitution of India is directed against the order dated the 23rd February, 1974, as contained in Annexure 5, passed by the District Education Officer (respondent No. 2) approving the appointment of Surendra Deo Singh (respondent No. 7) as the Head Master of Ashok Ucha Vidyalaya at Daudnagar in the district of Aurangabad, as recommended by the ad hoc managing committee of the said school (respondents Nos. 4 to 6) by its resolution dated the 29th January, 1971 as contained in Annexure F to the counter-affidavit filed by respondents Nos. 4 to 7- In the application the petitioner has prayed for quashing of the appointment of respondent No. 7, for direction to the authorities to take steps for appointment of a permanent Head Master afresh, in accordance with law, and for a further direction to respondent No. 3 (the Sub-divisional Education Officer) to take steps for expeditious re constitution of the Managing Committee of the said school.
2. In order to appreciate the point involved in this application, it will be necessary to state briefly the facts, as stated by the petitioner in his writ application:--
His application relates to a non-Government recognised High School known as "Ashok Ucha Vidyalaya" at Daudnagar in the district of Aurangabad, The managing committee of the aforesaid school was constituted on the 11th of May, 1973, An appeal was filed against the constitution of the above committee under Rule 40 of the Bihar High Schools (Constitution, Powers and Functions of Managing Committee) Rules 1964 (hereinafter referred to as the Rules), before the President of the Board of Secondary Education (respondent No. 1) who set aside the constitution of the above managing committee, and directed reconstitution thereof within the maximum period of two months by his order dated the 7th November, 1973, as contained in Annexure 1 to the writ petition. By the said order the President of the Board had also directed that during the above period the Head Master of the School, the departmental representative as well as life members would continue to function as members of the Managing Committee. The petitioner further stated in his application that there was no life member in the said school. Respondent No. 3 unauthorisedly nominated respondents Nos. 5 and 8, in place of life members, who were merely donor members. Although, the President had directed the election of the new Managing Committee to be completed within two months, no election was held till the filing of the writ application by the petitioner in this Court. The ad hoc managing committee took steps for appointment of a permanent Head Master for the said school by issuing advertisement for the same, which was published in the Searchlight dated the 15th January, 1974. A copy of the said publication is Annexure 2. According to the petitioner, the advertisement ought to have been published at least in two daily newspapers of Bihar, as per regulations and the rules framed under Section 8 (1) of the Bihar High Schools (Control and Regulation of Administration) Act, 1950. The petitioner has further stated in his application that he along with others made applications for appointment to the post of the Head Master. He also stated that he had been officiating as Head Master of the School continuously from the year 1971. He had also functioned in the said capacity in the year 1968 till October, 1969. He was in service in the said school from 1945 and had been Assistant Head Master since 1955. The petitioner is an M.A. trained and he has till now put in over 28 years of service as teacher in various capacities in the said school. He has further asserted in paragraph 9 of the application that respondents Nos. 5 and 5 held a farcical interview on the 29th January. 1974 and recommended the names of the following three persons in order of preference for appointment to the post of the Head Master of the said school to respondent No. 2 the District Education Officer:--
(i) Sri Sunder Deo Singh (respondent No. 7),
(ii) Sri Rakiv Saheb and
(iii) Sri Agam Prakash Verma, In other part of his application the petitioner stated that respondent No. 7 had been in service of the said school from, the year 1958 and he was censured by the Managing Committee under resolution No. 4 dated the 29th April. 1973, for his lapses in evaluation of school examination answer books. His conduct in accounts matter was also under examination by the Managing Committee in 1973. He was also debarred from examinationship of the Board for five years from the year 1973. Respondent No. 7, he stated, is the father-in-law of the younger brother of respondent No. 5 and happened to be the Samdi of respondent no. 6. Respondent No. 5 is the Secretary of the said school whereas respondent No. 6 is the President of the ad hoc managing committee. Respondent No. 5 is nephew of respondent No. 6. When the petitioner learnt about the fact of the recommendation of respondent No. 7 to the post of the Head Master of the said school, he cent ,a written protest to respondent No. 2, as disclosed in Annexure 3. He further stated in paragraph 14 of the petition that respondent No. 2 assured the petitioner that justice would be done in the matter and in his letter dated the 21st February, 1974 (Annexure 4) he directed respondent No. 4 to hold an interview afresh for which an expert was to be deputed to help the selection. However, respondent No. 2 only after two days passed the impugned order approving the appointment of respondent No. 7.
3. No counter-affidavit has been filed on behalf of respondents Nos. 1 to 3. However, a counter-affidavit has been filed on behalf of respondents Nos. 4 to 7 on the 26th November, 1974, inter alia, submitting therein that the petitioner had no locus standi to challenge the order as contained in Annexure 5; the petitioner having acquiesced and participated in the interview, was estopped from challenging the same. On the point of estoppel in paragraph 8 it was further mentioned that in pursuance of the direction of the President (respondent No. 1) a meeting was held in the school on the 9th December, 1973, by respondent No. 3 for the purpose of electing the President and the Secretary of the School. It was attended by the petitioner in the capacity of the Head Master in charge along with respondents 5 and 6. Respondent No. 5 proposed the name of respondent No. 6 for the post of the President, which was seconded by the petitioner and accordingly, respondent No. 6 was unanimously declared elected as the President of the School. Respondent No. 6 proposed the name of respondent No. 5 for the post of the Secretary which was seconded by the petitioner and, accordingly, respondent No. 5 was elected as the Secretary of the School.
4. A reply to the counter-affidavit was filed by the petitioner on the 1st of April, J 975, controverting certain facts alleged in the counter-affidavit by the petitioner Thereafter a supplementary counter-affidavit was filed on behalf of respondents Nos. 4 to 7 as a rejoinder to the reply to their counter-affidavit, on the 10th of April, 1975.
5. By order dated the 9th March, 1974. Anwar Ahmad J. had referred this case to a Division Bench. This is how it has come before us.
6. Mr. Radha Roman learned counsel appearing on behalf of the petitioner has placed before us the relevant facts as well as other materials on the record. In our opinion, the foremost point to be decided in this application is as to whether, in the circumstances mentioned in the application as well as in the counter-affidavit filed on behalf of respondents Nos. 4 to 7, the petitioner had a locus standi to file an application under Articles 226 and 227 of the Constitution, particularly when he along with others had appeared before the ad hoc managing committee as a candidate tor the post of the Head Master of the said School and when he had seconded the election of respondents Nos. 5 and 6 as Secretary and President respectively. Now according to us, it is not open to him to say that the said managing committee was not duly constituted. It is clear that he is estopped from making such assertion. It will be relevant to reproduce the provisions contained under Section 115 of the Evidence Act :
"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
The principle of estoppel follows from the said provision. Reference may be made to Halsbury's Laws of England, Third Edition, (Volume 15) at pages 235-236 which deal with the Law regarding Estoppel by conduct, wherein the relevant passage reads:--
"..... Thus a man who, acting as director of a company takes part in confirming the allotment of shares to himself, cannot, in an action for calls, be heard to say that his appointment as director, or the allotment of shares, was irregular and ultra vires."
An appropriate case is to be found in an unreported judgment dated 19-7-1961, in Dr. Rai Shivendra Bahadur v. The Governing Body of Nalanda College (Misc. Judicial Case No. 404 of 1961 (Pat)). Untwalia, J., (now the Judge of the Supreme Court) while delivering the judgment for the Court, has mentioned at page 11 of the judgment that the points which were raised on behalf of the petitioner were combated by learned counsel for the respondents (of the case). On behalf of the respondents it was strenuously argued there that the appointment of the petitioner was not valid in law because (i) the previous governing body at its meeting held on the 23rd February, 1958 hurriedly passed the resolution appointing the petitioner ,as Principal without considering the cases of other teachers, specially of Mr. A. Hasan of the college for promotion and (ii) the appointment of the petitioner was never approved by the Syndicate of the University as required by Article 5 of Statute XVI. According to the respondents, the petitioner was not only a party to the various resolutions of the new governing body, but also acted upon them having applied for the post of this Principal and (having also appeared at the interview before the Governing Body on the 18th December, 1960. The petitioner was, therefore, not entitled to any writ or order in his favour in that case. Unt-walia, J. at page 18 of the judgment observed:--
"He having acquiesced in that and having applied and taken his chance for being appointed as Principal of the College must be deemed to have accepted the action of the Governing Body as valid and legal. It is not open to him now after having failed to secure the appointment by the new Governing Body to come to this Court for a writ in the nature of mandamus or any order or direction of the like nature."
Therefore, in our opinion, the petitioner's application is not maintainable mainly on the ground that the petitioner is estopped from challenging the validity of the Constitution of the ad hoc committee. Mr. Radha Raman, however, urged that the petitioner is not estopped from challenging its constitutionality. He has relied on a decision of this Court in the case of Bengal Coal Co. Ltd. v. Chairman. Central Govt. Industrial Tribunal (AIR 1963 Pat 118). He drew our attention to paragraph 8 of the judgment at pages 120-121. In our opinion, the observations made by their Lordships in that case are not applicable to the facts of the instant case. It is true that in that case their Lordships have observed that the petitioner was not estopped from raising objection in writ petition. It may be noticed that in that case the question was regarding the constitutionality of the Central Government Industrial Tribunal. The petitioner in that case had submitted to its jurisdiction and had not challenged its constitutionality at all in his writ application. Therefore, their Lordships have held in that case that mere acquiescence of the petitioner would not confer jurisdiction on the Tribunal, if it was not validly constituted. In the instant case, as mentioned earlier, the petitioner himself had seconded the election of respondents Nos. 5 and 6, and thereafter when it was so constituted, he himself appeared for interview along with others. Therefore, according to us, the present case is governed by the observation made by Untwalia, J. in the unreported decision referred to above which was affirmed by the Supreme Court (vide AIR 1962 SC 1210).
7. Mr. Radha Barman, then contended that in the instant case, the counter-affidavit which has been filed on be-half of respondents Nos. 4 to 7 has been sworn by respondent No. 7 himself who was appointed by the said members of the ad hoc managing committee. Besides, according to him, respondent No. 7 had no authority to swear affidavit on behalf of the ad hoc managing committee. In order to find support to his contention, he relied upon a decision of this Court in the case of Nirmalendu Bhattacharya v. President Board of Secondary Education (1974 BBCJ 1001), where Anwar Ahmad, J.: observed that the right to sue or defend a legal proceeding vested in the Managing Committee. In fact, Rule 31, Sub-rules (1) and (2) of the Bihar High Schools Rules deal with all the powers the managing committee was made to possess. There was no mention anywhere that any right of the managing committee would vest in the President. Clause (2) of Rule 33 provided for delegation of powers of the managing committee to the President with regard to the conduct of business alone. The Lordship further observed that in the application it was not mentioned anywhere that the managing committee by its resolution had delegated its powers to the President as contemplated in the aforesaid Clause (2) of Rule 33. The President, therefore, had no locus standi to file an application under Articles 226 and 227 of the Constitution for enforcement of any right whatsoever. The right if any, rested in the Managing Committee and not in the President. In our opinion, the above observation of his Lordship is also not applicable to the facts of the instant case; nor does it support the contention of Mr. Radha Raman. It may be seen that in that case the President alone was the petitioner. Therefore, whether he had any locus standi or not, his Lordship was considering, but in the instant case the counter-affidavit has not been filed solely by respondent No. 7. It has also been filed on behalf of respondents Nos. 4 to 6. It is true that respondent No. 7 has sworn the counter-affidavit, in first two paragraphs of the counter-affidavit he has stated as follows:--
"1. That I am respondent No. 7 and as such fully aware of the facts and circumstances leading to this case."
"2. That I have gone through the coatents of the writ petition under reply (hereinafter to be called 'the petition') which I have understood."
Lastly in paragraph 27 of the counter-affidavit it is stated as follows :
"That the contents of paragraphs Nos. 1, 2, 7, 8, 10 to 16, 18 to 21 and 20 are true to my knowledge and information derived from the records of the case and the rests are my submissions to this Hon'ble Court."
Therefore, we do not find any flaw in the affidavit sworn by respondent No. 7. Besides in the instant case, as mentioned earlier, the petitioner has himself in paragraph 7 of his application stated that he along with others made application for appointment to the post of the Head Master. Obviously, therefore, he had also appeared before the ad hoc managing committee for being appointed as the Head Master of the School. After due consideration, therefore, from different aspects of the matter, we are of the view that the application of the petitioner is not maintainable.
8. In the result, the application is dismissed and the order as contained in Annexure 5 to the writ application is con-finned. In the circumstances of the case, however, there will be no order as to costs.