Gujarat High Court
Priyavadan Jivrajbhai Korat vs State Of Gujarat on 24 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18091/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18091 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PRIYAVADAN JIVRAJBHAI KORAT
Versus
STATE OF GUJARAT
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Appearance:
MR SANDEEPKUMAR R PANDYA(8055) for the PETITIONER(s) No. 1
MR HARDIK SONI, AGP (1) for the RESPONDENT(s) No. 1
MR AD OZA(515) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/12/2018
ORAL JUDGMENT
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :
"(A) Your Lordships may be pleased to admit and allow this petition.Page 1 of 34
C/SCA/18091/2018 JUDGMENT (B) Your Lordships may be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction holding and directing that the action on part of the respondent authorities in issuing the show cause notice dated 22.10.2018 is unjustified and illegal and in contravention and in disregard of the provisions of the Gujarat Secondary and Higher Secondary Education Act.
(BB) Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 22.11.2018 passed by the Respondent No.2 at Ann: F to the petition and all consequent actions and order arising from order dated 22.11.2018.
(C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the show cause notice dated 22.10.2018 issued by the respondent no.2.
(CC) Pending hearing and final disposal of the Special Civil Application, Your Lordships may be pleased to stay the further execution, operation and implementation of the order dated 22.11.2018 passed by the respondent no.2 and all consequent actions and orders arising therefrom.
(D) Pending hearing and final disposal of the present Special Civil Application, Your Lordships will be pleased to stay the execution, implementation and operation of the show-cause notice dated 22.10.2018 and all consequent action and orders arising therefrom.Page 2 of 34
C/SCA/18091/2018 JUDGMENT
(E) Any other and further reliefs deemed just and proper
may please be granted in the interest of justice."
2. The case of the writ-applicant, in his own words as pleaded in the writ-application is as under :
"3.1 It is respectfully submitted that the petitioner is the elected members of the board and is presently serving his fourth term (each term having tenure of three years). It is submitted that for the first term the petitioner has been elected as member representing parent association and for the other three terms the petitioner represents the management/trustees of registered secondary and higher secondary schools. It is also submitted that the petitioner number of votes and the representatives being management and trustees of the registered secondary and higher secondary schools instills immense faith in the petitioner due to his independence, unbiased opinions and the manner in which the petitioner fights for the cause of education and betterment of students.
3.2 It is respectfully submitted that the petitioner is an elected board member as per Class-B (vii) and represents the school management of Registered Secondary and Higher Secondary Schools.
3.3 It is respectfully submitted that pursuant to show cause notice dated 22.10.2018, petitioner also replied to the said show cause notice vide its reply dated 30.10.2018. It is also submitted that the petitioner vide its reply dated Page 3 of 34 C/SCA/18091/2018 JUDGMENT 30.10.2018 also requested for materials, documents, evidence and etc so that the petitioner can reply to the show cause notice in a comprehensive manner.
3.4 It is respectfully submitted that the respondent no.2 also addressed a letter dated 03.11.2018, rejecting the request for documents, evidence, complaints and materials upon which the show cause notice has been issued inter alia refusing to provide materials and complaints against the petitioner and a bare perusal of the said letter would also make it amply clear that the show cause notice is issued with a pre-determined mind to remove the petitioner and only a namesake inquiry is being undertaken against the petitioner.
3.5 It is submitted that a comprehensive reply was also submitted vide letter dated 12.11.2018.
3.5 It is also submitted that the petitioner has also preferred number of complaints for the illegalities and irregularities committed by the board. However, no action is being taken by the respondent board and on the contrary such illegalities and arbitrary activities are continued which ultimately affects the education and future of student.
3.6 It is pertinent to note that the events of disqualification and removal are itself specified in Section 8 of the Gujarat Secondary and higher secondary education act 1972. It is also submitted that the petitioner does not fall under any of the said categories mentioned in section 8 which can permit Page 4 of 34 C/SCA/18091/2018 JUDGMENT or warrants the respondent no.2 to remove the petitioner and therefore also the show cause notice is required to be quashed and set aside.
3.7 The petitioner says and submits that pursuant to the show cause notice no inquiry has been undertaken in accordance with law as provided under section 14 of the Gujarat Secondary and Higher Secondary Education Act and the respondent no.2 has passed order dated 22.11.2018 by way of which the respondent no.2 has recommended to the respondent State Government for removal of the petitioner.
3.8 It is also submitted that a bare perusal of the definition of board would make it abundantly clear that the action taken by the respondent no.2 in removing the petitioner, the powers for the same lies with the board and as per the definition of the Board provided in the act the Chairman, Dy.Chairman and its members. Whereas the decision and order dated 22.11.2018 is a unilateral decision passed only upon wish and whims of the respondent No.2 Chairman which is impermissible as per the Education Act, 1972.
3.9 It is also submitted that a bare perusal of the definition of board would make it abundantly clear that the action taken by the respondent no.2 in removing the petitioner, the powers for the same lies with the board and as per the definition of the Board provided in the act the Chairman, Dy.Chairman and its members. Whereas the decision and order dated 22.11.2018 is a unilateral decision passed only upon wish and whims of the respondent No.2 Chairman which is impermissible as per the Education Act, 1972."
Page 5 of 34C/SCA/18091/2018 JUDGMENT
3. The grounds of challenge raised in the writ-application are as under :
"(a) It is respectfully submitted that the impugned show cause notice is passed with a pre-determined action to remove the petitioner from the board and therefore is required to be quashed and set aside.
(b) Because, the impugned show cause notice does not mention or state the procedure and inquiry to be followed for proving the charges against the petitioner and the sole objective of the impugned show cause notice is to show the name sake inquiry and procedure adopted by the respondent no.2 in removing the petitioner.
(c) Because, the decision to issue a show cause notice with the proposed penalty of removing the petitioner from the board is not backed by any report and the same is issued only with a pre-determined, illegal and arbitrary action of removing the petitioner which is against the Principles of Natural Justice and fair play.
(d) Because, a show cause notice for removal of the board member could only be issued after preparation of inquiry report upon a misconduct which would make the member undeserving to be a member of the board. Therefore, also the show cause notice being issued at a premature stage and with a pre-determined motive is required to be quashed and set aside.Page 6 of 34
C/SCA/18091/2018 JUDGMENT
(e) Because, appearing in a TV interview and raising voice
against illegalities being committed by the board is against the independence and powers of the board member and therefore also the said show cause notice is required to be quashed and set aside.
(f) Because, removal of the petitioner in an arbitrary and illegal manner would tantamount to suppressing the rights and voice of the management of the schools since the school management would lost their voice if the petitioner is removed in an arbitrary and illegal manner.
(g) Because the show cause notice issued is per se illegal and void ab initio in as much as the charges and misconduct alleged in the show cause notice is against the fundamental right of freedom of speech and tantamount to suppressing the independent voice of school management which the petitioner represents."
4. Thus, it appears that it all started with issue of a show- cause notice by the Chairman of the Board to the writ-applicant. The show-cause notice dated 22nd October 2018 reads thus :
"No.: GSHSEB/Shani/11427 Gujarat Secondary and Higher Secondary Education Board, Near Old Sachivalaya, Sector - 10/B, Gandhinagar.
Date : 22.10.2018 To, Mr.Priyavadan Korat, Old Rupvati Road, Amarnagar Highway, At Post - Jetpur, Dist : Rajkot, Gujarat Pin Code : 360370 Page 7 of 34 C/SCA/18091/2018 JUDGMENT Subject : Show Cause Notice under Section 14(1) of Gujarat Secondary and Higher Secondary Education Act, 1972 You are elected member of the Board duly constituted under the provisions of section 3 (Elected Member under class B) of the Gujarat Secondary and Higher Secondary Act, 1972 and you are supposed to maintain the standard code of conduct while performing duties as an elected member of the Board. As a member of the Board you have to maintain the dignity and decorum of the Statutory Board so that the prestige of the Board may not be lower down in the eyes of students, teachers, educationalists and public at large. The faith of the students, parents and persons who are directly or indirectly connected with the Board affairs has to be retained and for that the responsibilities lie upon the office bearers and members of the Board. The member cannot act in any manner, whatsoever, to defame the Board publicly.
That the office bearers and the members of the Board have come to know recently that you have given interview on TV which was telecast on 12.10.2018. 1n the said interview you have made certain incorrect, defamatory, irresponsible statements whereby you have tarnished the image of the Board in the eyes of the public at large. Certain statements are contrary to the provisions of the Act, Regulations and Rules pertaining to Board Examinations. Your such act amounts to guilty of misconduct which renders you unfit to be continued as member of the Board. A consolidated sheet with regard to your all such statements as above mentioned is enclosed herewith with a view to facilitate you to tender Page 8 of 34 C/SCA/18091/2018 JUDGMENT your explanation along with imputation of charges. It is also necessary to bring to your notice that your interview which was telecast is available on internet.
In view of the above facts, I call upon you to tender your explanation as to why recommendation should not be made for your removal as a member of the Board to the State Government as provided under section 14 (1) of the Act. You are called upon to tender your explanation within 10 days from the receipt of this show cause notice. If your explanation is not received within time prescribed herein or found unsatisfactory then further actions contemplated under the act shall be taken, which may please be noted.
Translation in vernacular of this show cause notice is also enclosed herewith.
Sd/-
Chairman."
5. The imputation of charges with regard to the misconduct are as under :
"1. As stated in the show-cause notice, you have made reckless and baseless allegations of corruption in the interview and stated that there are agents in Saurashtra, North Gujarat and South Gujarat, who are approaching trustees of management, who have made online application for registration of school and also such agents giving services to the school management for applying online for registration. In the online application, false information with Page 9 of 34 C/SCA/18091/2018 JUDGMENT regard to size of classroom and playground are often mentioned and those who are indulged in corruption are getting registration and Board is not making any physical inspection with regard to facts stated in the online application. You have also stated that you are able to give the names of such agents. You have also made allegation that the persons who have refused to give bribe have not been granted registration of school. By such allegations, you have tarnished image of the Board publicly.
2. You have made another reckless allegation by stating that the Board consists of 61 members including IAS officers, MLA, members from the Statutory Universities, representatives of teacher, management and principal but they don't do anything in the interest of students and education, but they want only to do the things by which they can pocket the money. You have also stated that up to 2009, the rate was prevalent for taking appointment. There are such other statements you have made in the interview whereby you have publicly made allegation against office bearers and board and thereby you have committed misconduct.
3. You are aware about the Rules and Regulations of the Board and inspite of that you have mentioned for reassessment of the answer-sheets in your interview. Such conduct on your part is against the Rules and Regulations. With regard to observation of the answer-sheets, you have made reckless allegations against Board. As a member of the Board, you can discuss issues in the Board meeting but Page 10 of 34 C/SCA/18091/2018 JUDGMENT certainly cannot defame and tarnish the image of the Board publicly by making allegation in this manner. You are aware about the fact that our Board have acquired the prestige throughout the country by adopting certain policy, procedure, method and also taken actions against the persons indulging in the malpractices. Recently, Board has filed complaint against the employee/persons who have leaked the question papers and viral the same publicity and because of that many-persons have been arrested and they are in jail since many months. You are also aware about the fact that cases of malpractice in examination are reduced considerably since last ten years and court cases filed the students are also very few than the prior to that period. Inspite of such facts for oblige motives you have made reckless allegations publicly against the Board and thereby committed misconduct. "
6. It also appears from the materials on record that the writ- applicant, by his letter dated 30th October 2018 addressed to the Chairman of the Board, made a request to provide him with the following documents to enable him to file an effective reply to the show-cause notice :
"(i) The documents/evidences, electronics, digital, physical or communications if any on which you and board rely and based on which show cause notice issued to me.
(ii) Copies of provision of Act, Rules and Regulations of elected or selected or nominated members, its functions, its power, its limitation to functions of the Board, penal provision against such Elected or Selected or Nominated Page 11 of 34 C/SCA/18091/2018 JUDGMENT members applicable under the provision of the Act, Rules and Regulations.
(iii) Copies of the documents stating definition of disobedience, tarnish language, misconduct etc. defined in the Act, Rules, Regulations which are applicable to elected or selected or nominated members of the Board and on that you and Board relied.
(iv) Copies of statement of witnesses, complainant if any obtained by the Board and against me for prior to issue of the show-cause notice dated 22-10-2018.
(v) Copies of the documents of disciplinary authority, its power and function under the provisions of relevant Act, Rules and Regulations in this regards.
(vi) Copies of the documents specifying the disciplinary procedure and under which disciplinary procedure initiated against the Elected or Selected or Nominated members of the Board."
7. On behalf of the Board, an affidavit-in-reply has been filed, inter alia, stating that "3. At the outset I say that the petition is premature as the same is filed against the show-cause notice of 22.10.2018. The Government has to take decision as per the provisions contemplated in the section 14 of the Gujarat Secondary and Higher Secondary Education Act, 1972 which reads as under :
Page 12 of 34C/SCA/18091/2018 JUDGMENT "14. Removal of member :- (1) The State Government may, on the recommendation of the Board and after making such inquiry, if any, as it may think fit to make, remove any elected or nominated member of the board from office, if such member has been guilty of any such misconduct as in the opinion of the State Government, renders him unfit to be continued as a member;
Provided that, no such recommendation shall be made by the Board and no removal of the member shall be made by the State Government unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made, or as the case may be, why he should not be removed.
(2) The name of any member who has been removed from office under sub-section (1) shall be published by the Board in Official Gazette."
As per the above provision the Government may on the recommendation of the Board and after making such inquiry, if any as it may think fit to make, remove the member elected or nominated from the office. Before making recommendation, a reasonable opportunity was given to the petitioner by way of show-cause notice and after considering reply the recommendation was forwarded to the state Government.
I further say that the contents of the show-cause notice are based upon the documentary evidence as the petitioner gave interview on TV which was telecasted on 12.10.2018 and in Page 13 of 34 C/SCA/18091/2018 JUDGMENT the said interview the petitioner has made certain incorrect, defamatory and irresponsible statements whereby the petitioner has tarnished the image of the Board in the eyes of the public at large. The live interview of the petitioner was telecasted on TV which is also available on internet sources. Along with the show-cause notice consolidated seat consisting the utterances of petitioner has been provided along with the show-cause notice which is produced at page 14 & 15 of the paper book. Though the petitioner is member of the Board since many years, asked for the Act, regulations and rules. The petitioner has tried to delay the further procedure by asking more thirty days to tender his explanation by letter dated 30.10.2018. I further say that by letter dated 03.11.2018 the time was extended for further 10 days because the facts stated in the notice are based upon the documentary evidence and it has to be presumed that when the petitioner in the TV interview made allegation then he must be having some information but on the contrary he has asked the details/information from the board to substantiate his frivolous allegations made by him in the interview.
4. I further say and submit that, the petitioner has miserably failed to give explanation with regard to his utterances, allegations made during live TV interview. I say that because of such irresponsible act on the part of the petitioner, misunderstanding may be created in the mind of students and parents for Board. When the petitioner is the member of the Board, he can discuss and raise any query during personal discussion with the officer of the Board or Page 14 of 34 C/SCA/18091/2018 JUDGMENT during course of meeting of the committees, subcommittee or General Body meeting but the petitioner cannot be permitted to act whereby he can try to tarnish the goodwill of the Board without any base. The Board is taking examination of 18 Lakh+ students of standard 10th and 12th every year with utmost care, efficiency, secrecy and accuracy. The entire Hercules task is carried out with many innovative measures which are in favour of students and many other Boards in India has followed the same. Under the circumstances, irresponsible act on the part of the Petitioner cannot be tolerated in the best interest of students and education at large.
5. I further say that I have exercised the power vested in me by virtue of section 19 of the act with a view to prevent such occurrences immediate steps were required. Furthermore in view of the Section 14 of the Act the petitioner is going to get all the reasonable opportunity to defend himself and therefore the present petition is premature. It is further submitted that at this stage para wise reply is not offered because certain facts/grounds would be disclosed and same would affect adversely the inquiry which would be initiated by State Government.
In view of the above the petition at this stage is not maintainable being premature and the Hon'ble Court would appreciate that no decision can be rendered on the facts and grounds stated in the petition at such premature stage and therefore the petition is required to be dismissed in limine."
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ANALYSIS :
8. I have heard Mr.T.R.Mishra, the learned counsel appearing for the writ-applicant and Mr.A.D.Oza, the learned counsel appearing for the respondent no.2 - Chairman, Gujarat Secondary and Higher Secondary Education Board. I have also heard Mr.Hardik Soni, the learned AGP appearing for the State of Gujarat.
9. The short point for my consideration is, whether the action taken by the respondent no.2 against the writ-applicant is in accordance with law.
10. The principal argument of Mr.Mishra, the learned counsel appearing for the writ-applicant is that the entire action has been at the instance of the Chairman of the Board and not by the Board itself. Mr.Mishra would submit that the recommendation to the State Government for removal of the writ-applicant as a Member of the Board could have been only made by the Board and not by the Chairman himself. In such circumstances, Mr.Mishra would submit that if the recommendation itself is not tenable in law, then there is no further scope for the State Government to look into the recommendation made by the Chairman.
11. Mr.Oza, the learned counsel appearing for the Board vehemently submitted that the action against the writ-applicant is in accordance with law and all that has been done as on date is the forwarding of the recommendation to the State Government to remove the writ-applicant as a Member for his alleged acts of misconduct. Mr.Oza placed strong reliance on Page 16 of 34 C/SCA/18091/2018 JUDGMENT Section 19 of the Gujarat Secondary and Higher Secondary Education Act, 1972 (for short, 'the Act of 1972'). By placing reliance on Section 19, Mr.Oza submitted that if the Chairman is of the opinion that immediate action is required to be taken having regard to the emergency, then he, on his own, can take the action and thereafter report his action to the Board at its next meeting. In such circumstances, according to Mr.Oza, the action taken by the Chairman having regard to the emergency is absolutely in accordance with law and no interference is warranted at the end of this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India.
12. Before adverting to the rival submissions canvassed on either side, I must look into few provisions of the Act, 1972.
13. Section 2(d) of the Act, 1972, defines the term 'Chairman'. It reads as under :
"2(d) "Chairman" means the Chairman of the Board"
14. Section 3 of the Act, 1972, falls in Chapter-II. Chapter-II of the Act, 1972, is with regard to the constitution, incorporation and powers of the Board. Sections 3(1) and (2) read as under :
"3. Constitution and incorporation of Board. - (1) With effect on and from such date as the State Government may by notification in the Official Gazette notify in this behalf, there shall be established for the purposes of this Act a Board to be called the Gujarat Secondary and Higher Secondary Education Board. The Board shall be a body corporate and have a perpetual succession and a common seal and may by Page 17 of 34 C/SCA/18091/2018 JUDGMENT the said name sue and be sued and shall be competent to acquire, hold and dispose of property, both movable and immovable, and to contract and to do all things necessary for the purposes of this Act.
(2) The Board shall consist of a Chairman and a Deputy Chairman, both of whom shall be appointed by the State Government and of the following members that is to say--
Class A-Ex Officio Member
(i) The Commissioner of Higher Education.
(ii) The Commissioner of School and Mid-day meal.
(iii) The Director of Technical Education.
(iv) The Joint Director (10+2) (v) The Director of Primary Education. (vi) The Director, Gujarat State Board of School Text Books.
(vii) The Director, Gujarat State Council of Education Research and Training.
(viii) The Director of Employment and Training.
(ix) Two officers of Education Department not below the rank of Deputy Secretary as designated by the State Government.
(x) The Chairman, State Board of Examination.
Page 18 of 34C/SCA/18091/2018 JUDGMENT (xi) The Chairman, Technical Education Board. (xii) The Secretary, Post Basic Education Board.
(xiii) The Director of Examination, Gujarat Secondary and Higher Secondary Education Board.
(xiv) The Director, Gujarat State Institute of Educational Technology.
(xv) The Officer on Special Duty, Gujarat Secondary and Higher Secondary Education Board:
Provided that if there is no post having any of the designations mentioned above, the State Government may designate any officer holding a corresponding post, who deals, with the matters that would be normally connected with such post.
Class B-Elected Members
(i) One member elected from amongst themselves by the members of the Academic Council of each University and of the institutions recognised by the University Grants Commission or declared by the Central Government as Universities in accordance with the provisions of clause (f) of section 2 or of section 3, as the case may be of the University Grants Commission Act, 1956:
Provided that where there is no Academic Council in any University or such institution recognised or declared as university, such authority of the University, or, as the case Page 19 of 34 C/SCA/18091/2018 JUDGMENT may be, such institution as may be approved by the State Government in this behalf shall be deemed to be the Academic Council of such University, or as the case may be, institution, for the purpose of this clause.
(ii) Five members elected by the headmasters of registered schools other than Post Basic Schools from amongst themselves.
(iii) One member elected by the headmasters of the post basic schools registered under this Act, from amongst themselves.
(iv) Five members elected by the teachers of registered schools other than Post Basic Schools from amongst themselves.
(v) One member elected by the teachers of Post Basic Schools registered under this Act, from amongst themselves.
(vi) One member elected by the Principals of the Secondary Teachers Training Colleges and Graduate Basic Training Colleges from amongst themselves in such manner as may be prescribed.
(vi-a) One member elected by the non-teaching staff of registered private secondary schools from amongst themselves.
[vi-ab) One member elected by non-teaching staff of Page 20 of 34 C/SCA/18091/2018 JUDGMENT registered secondary and higher secondary schools from amongst themselves.
Explanation.-The member elected under clauses (vi-a) and (vi-ab) shall not be eligible to be nominated as the member of the school staff selection committee for teachers and principles.
(vi-aa) three members elected by the teaching staff of registered higher secondary schools from amongst themselves.
(vi-aaa) One member elected from amongst teachers of Government secondary and higher secondary schools.
[vii) four members elected by the representatives of the management of registered Secondary and Higher Secondary Schools registered under the Societies Registration Act, 1860 and the Bombay Public Trusts Act, 1950 from amongst themselves in such manner as may be prescribed.
(ix) Three members elected by the Presidents of the Parents' Associations of registered private secondary schools '[and registered private higher secondary schools] from amongst themselves.
Explanation.- In this clause,-
(1) "Parents' Association" in relation to any registered private secondary schools shall mean an association of parents and guardians of students of that schools, formed and Page 21 of 34 C/SCA/18091/2018 JUDGMENT recognised by the headmaster of that school, whether before or after the appointed day.
(2)(a) in relation to Parents' Association whose President is a head master, a teacher, a manager or a member of a governing body or other body in charge of the management of the school, "President" shall mean such member of that Association other than such headmaster, teacher, manager or, as the case may be, member, as may be authorised in writing by the Association; and
(b) in a case where the President of a Parent's Association is himself absent or incapable of acting, the President shall, for the purpose of electing a member under this clause, mean such other member of that Association as may be authorised in writing by the Association for that purpose.
(c) A member of the Parents' Association shall cease to be such member on completion of his child's Secondary or, as the case may be, higher secondary education.
(x) Five members elected by the Gujarat Legislative Assembly from amongst its members in accordance with the system of proportional representation by means of the single transferable vote:
Provided that for the purposes of clauses (ii) and (iv) of this Class the registered schools other than post basic schools in the State shall from time to time be so arranged by the State Government in five groups that the number of such schools Page 22 of 34 C/SCA/18091/2018 JUDGMENT in any one group shall be as near as possible to twenty percent. of the total number of such schools in the State, and the head-masters or, as the case may be teachers of such schools in each such group shall elect one member:
Provided further that for the purpose of clause (vi-aa), the State Government shall, by an order published in the Official Gazette, divide the State into three regions each having, as far as possible, an equal number of registered higher secondary schools within the areas comprised therein and the teaching staff of registered higher secondary schools in each such regions shall elect one member:
Provided further that for the purpose of clause (ix), the State Government shall, by an order published in the Official Gazette, divide the State into three regions each having, as far as possible, an equal number of registered higher secondary schools [and registered private higher secondary schools] within the areas comprised therein and the Presidents of Parents' Associations in each such regions shall elect one member:
Provided further that a person shall cease to hold office as a member of the Board if he ceases to be a member of the Academic Council or of the institution which elected him, or ceases to be a head-master or teacher of a registered school or the Principal of a Secondary Teachers Training College or a [Graduate Basic Training College or a member of non- teaching staff of registered private secondary schools [registered private higher secondary schools] or of teaching Page 23 of 34 C/SCA/18091/2018 JUDGMENT staff of registered higher secondary schools] or a representative of the management of the [registered schools] or a President of a Parents' Association or as the case may be, a member of the Gujarat Legislative Assembly:
Provided also that where the Board is constituted for the first time the members of this Class shall be nominated by the State Government from amongst persons qualified to be elected as members of this Class.
Class C - Nominated Members Three members nominated by the State Government from amongst persons who have to special knowledge or practical experience in the held of Science, Industry or Commerce.
(3) The names of persons (not being ex-officio members) who have been elected or nominated from time to time, as members of the Board shall be published by the Board in the Official Gazette."
15. Section 14 of the Act, 1972, reads as under :
"14. Removal of member :- (1) The State Government may, on the recommendation of the Board and after making such inquiry, if any, as it may think fit to make, remove any elected or nominated member of the board from office, if such member has been guilty of any such misconduct as in the opinion of the State Government, renders him unfit to be continued as a member;Page 24 of 34
C/SCA/18091/2018 JUDGMENT Provided that, no such recommendation shall be made by the Board and no removal of the member shall be made by the State Government unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made, or as the case may be, why he should not be removed.
(2) The name of any member who has been removed from office under sub-section (1) shall be published by the Board in Official Gazette."
16. Section 19 of the Act, 1972, reads as under :
"19. Powers of Chairman and Deputy Chairman. - (1) The Chairman shall, when present, preside at the meetings of the Board and in his absence the Deputy Chairman shall preside at such meeting: end Deputy Chairman.
Provided that if at any meeting of the Board the Chairman and the Deputy Chairman are both absent, the members present shall elect a member from amongst themselves to preside at that meeting.
(2) It shall be the duty of the Chairman to ensure that the provisions of this Act and the regulations and by-laws made there under are faithfully observed and he shall have all powers necessary for this purpose.
(3) In an emergency which, in the opinion of the Chairman, requires that immediate action should be taken, the Chairman shall take action as he deems necessary and shall Page 25 of 34 C/SCA/18091/2018 JUDGMENT thereafter, report his action to the Board at its next meeting.
4) The Chairman shall have power to convene meetings of the Board as provided for in section 15 and stating the business to be brought before the meeting.
(5) The Chairman shall exercise such other powers and perform such other duties as may be prescribed.
(6) The Deputy Chairman shall perform such duties and functions as may be prescribed or as may be assigned to him by the Chairman from time to time.
(7) Subject to the provisions of section 7, the Deputy Chairman shall in the absence of the Chairman act as Chairman and shall, while so acting, exercise all powers and perform all duties and functions of the Chairman.
(8) The Chairman and the Deputy Chairman shall be entitled to take part in all proceedings of the Board and of any committee thereof of which they may be named as members, including the exercise of right to vote, but, save as otherwise provided, they shall not be deemed to be the members of the Board."
17. On 10th December 2018, this Court passed the following order :
"Mr.Oza, the learned counsel appearing for the respondent no.2 - Board would like to file a detailed reply to show how the decision was taken for the purpose of forwarding the Page 26 of 34 C/SCA/18091/2018 JUDGMENT proposal to the State Government for removal of the writ- applicant as a Member of the Board.
As this Court is looking into the matter, the State Government shall not take any final decision on the proposal forwarded by the Chairman of the Board.
Post this matter on 17th December 2018 on top of the board. On that day, Mr.Oza, the learned counsel is requested to keep the files ready for the perusal of this Court."
18. Mr.Oza, the learned counsel appearing for the Board was requested to call for the original file from the Board as regards the subject matter for my perusal. The file was called for with a view to understand as to how the decision was taken by the Chairman. It is not in dispute that the Members of the Board are not party to the recommendation made by the Chairman to the State Government for the removal of the writ-applicant.
19. Having gone through the entire file, more particularly, the notings, I do not find any subjective satisfaction being recorded in so many words by the Chairman as regards the emergency. I could not find anything from the notings, on the basis of which, it could be said that the Chairman was subjectively convinced that the case was one of emergency and required immediate action. I have been given to understand that the Board meeting takes place only four times in a year. The next meeting of the Board would be some time in the month of February or March, and in the said meeting, the Chairman will report his action to the Board.
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20. I am not convinced with the stance of the respondent no.2. Section 14 of the Act, 1972, makes it abundantly clear that the recommendation has to be of the Board. The Board consists of the Chairman, Deputy Chairman and Members from Class A, Class-B and Class-C as enumerated in Section 3.
21. The action proposed against the writ-applicant is quite serious. He is sought to be removed as a Member of the Board on the allegation that he gave an interview to a local T.V. channel and few of his statements made in the said interview tarnished the image of the Board.
22. Mr.Oza, the learned counsel appearing for the Board vehemently submitted that sub-section (3) of Section 19 of the Act leaves the formation of opinion to the Chairman of the Board. He would submit that it is the subjective opinion that is involved. It is plainly intended, however, that action is to be taken in cases of emergency. Mr.Oza would submit that the judgment of the facts that there are circumstances and materials to form the opinion that the case is urgent, is left to the subjective decision of the Chairman and not to the Court of law. He would submit that the provision of sub-section (3) is so expressed that what it requires is not an objective state of fact, but a mere state of mind on the part of the Chairman of the Board. Mr.Oza, in his own way, is right in his submissions. However, this form of power, although is regarded as an abnormally wide power, yet is certainly not a case of restriction of remedies. It is submitted that the formation of opinion is subjective and its correctness or otherwise cannot be determined by an objective test. It is not normally permissible to examine the authority to which the subjective power is entrusted to find out Page 28 of 34 C/SCA/18091/2018 JUDGMENT as to by what mental process it has arrived at the conclusion. This does not, however, mean that this Court, in no case, has the jurisdiction to consider whether the order passed on such subjective formula is valid or not. No doubt, the functions that can be performed by judicial review in such cases are fairly limited. Broadly speaking, the role of the courts in this field is to serve as a check against the excess of power and abuse of the exercise of power in derogation of private right. The judicial function is, thus, one of control.
23. What then is the limited field in which this Court can examine the legality of such recommendation made by the Chairman in spite of the subjective formulae ?
24. Where an Act left an action dependent upon the opinion of the Chairman of the Board, by some such expression as 'is satisfied' or 'is of the opinion' or 'if it has reason to believe' or 'if it considered necessary', the opinion of the Chairman is conclusive, (a) if the procedure prescribed by the Act for formation of the opinion was duly followed, (b) if the authority acted bonafide, (c) if the authority itself formed the opinion and did not borrow the opinion of somebody else and (d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed.
25. The action based on the subjective opinion or satisfaction, in my opinion, can judicially be reviewed first to find out the existence of facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that Page 29 of 34 C/SCA/18091/2018 JUDGMENT ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority's opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated.
26. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority's opinion, judicial review in such a case is permissible. See Director of Public Prosecutions v. Head, 1959 AC 83. (Lord Denning).
27. When I say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, I mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. See Reg. v. Governor of Brixton Prison, Armah, Ex Parte , (1966) 3 WLR 828 at p. 841.
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28. It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. See Rasbihari v. State of Orissa, AIR 1969 SC 1081.
29. In the case of Rohtas Industries Ltd. v. S.D.Agarwal and another, AIR 1969 SC 707 it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in the case of Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295.
30. Secondly, the court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284] Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. See Farmer v. Cotton's Trustees, 1915 AC 922. Their Lordships observed:
"......... in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly Page 31 of 34 C/SCA/18091/2018 JUDGMENT construed of some statutory enactment, the question is one of law only."
[See also Muthu Gounder v. Government of Madras, (1969) 82 Mad LW 1].
31. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated jurisdictional review with review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. See Iveagh (Earl of) v. Minister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395.
32. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481]
33. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked Page 32 of 34 C/SCA/18091/2018 JUDGMENT as invalid and illegal. In this connection reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509. On the same principle the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: See (1967) 1 AC 13.
34. I am of the view that in the facts of this case, the Chairman could have convened a special meeting for this purpose and should have discussed the matter with all the Members of the Board. The Chairman, on his own, in the name of emergency, could not have taken such a decision and straightway recommended to the State Government to remove the writ- applicant as a Member of the Board. I am also of the view that it should have been a collective decision of the Board, i.e. all the Members of the Board. The words in clause (3) of Section 19 are "in the opinion of the Chairman". This opinion should be reflected from the records. As noted above, I do not find any such satisfaction being noted in the file with regard to the urgent action.
35. The matter can be examined from another angle too. Sub- section (3) of Section 19 provides that the Chairman shall take action and thereafter shall report his action to the Board at its next meeting. In the case on hand, the chairman, in the name of emergency, has forwarded his recommendation to the State Government for the purpose of removal of the writ-applicant as a Member of the Board. Let me envisage a situation by which the State Government takes the decision at the earliest acting upon the recommendation of the Chairman and passes an order of Page 33 of 34 C/SCA/18091/2018 JUDGMENT removal of the writ-applicant as a Member of the Board, then whether any good purpose would be served thereafter to report the action taken by the Chairman to the Board at its next meeting. I am saying so, because by that time, everything would be over. Keeping this also in mind, I am of the view that having regard to the proposed action, meaningful discussion by the Board would be in the fitness of things and also in the interest of justice. The Chairman might have made his recommendations on his own personal perceptions of the matter, to which, many of the Members of the Board may not be agreeable.
36. In such circumstance referred to above, the order dated 22nd November 2018 passed by the Chairman (Annexure-F to this petition, at page-91) is quashed and set-aside. It shall be open for the Board to take a fresh decision in accordance with law.
37. With the above, this writ-application stands disposed of.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 34 of 34