Rajasthan High Court - Jaipur
Managing Committee Of Seth Moti Lal Pg ... vs State And Ors. on 22 July, 2004
Equivalent citations: RLW2005(1)RAJ117, 2004(4)WLC272
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT K.S. Rathore, J.
1. Brief facts giving rise to this writ petition are that the petitioner institution is a non- governmental educational institution imparting higher education to girls and boys at Jhunjhunu up to Post Graduate Level in the faculty of Science, Commerce and Arts. The following unaided faculties and courses having 1320 students are being run without any aid from the State Government :-
Arts -Graduation in Geography
-Post Graduation in English and Hindi Science -Graduation in Biology Post-graduation in Bombay
-Computer Vocational Education-Graduation
-PGDCA
2. The aided course having only 924 students are as under:-
A) Commerce - Graduation in the subject of ABST, EAFM and BADm
3. Post graduation in the subject of ABST, EAFM and BAD-
B) Arts- Graduation in History, Political Science, Economics, Sociology, Hindi and English Post-graduation-History, Political Science and Economics C) Science-Graduation in Maths, Physics and Chemistry.
4. The petitioner institution also started courses of MCA, B- Pharma, Environ mental Science, Bsc (Biotech), Diploma in Journalism, Msc. (Zollogy), BA (Physical Education), Bsc. (Microbiology) and they have started creating aforesaid vacancies.
5. In the present writ petition the petitioners are challenging the order dated 17.5.2004, issued by the Principal Secretary, Govt. of Rajasthan, Higher Education (Group-V), Jaipur.
6. The order dated 17.5.2004 has been assailed by the petitioner on several counts. In the order dated 17.5.2004 it has been stated that the interim reply filed by the petitioner has not been found satisfactory and the government has decided to conduct a detailed enquiry. The complaint which has been lodged against the petitioner is true and is prima facie found proved as the management of the institution is not discharging its function in accordance with the rules and the Collector has been asked to arrange for taking over charge on the same date i.e. on 17,5.2004 and the Collector, Jhunjhunu has issued orders on 18.5.2004 to appoint SDM, Jhunjhunu as an Administrator and on the same day, the SDM has assumed charge of the petitioner institution whereas this order dated 17.5.2004 is served upon the petitioner on 20.5.2004.
7. It is given out by Mr. N.K. Maloo, learned counsel appearing on behalf of the petitioner institution that with regard to the same charges, enquiry was conducted thrice and in the earlier enquiries, nothing was found against the petitioner institution and again on the same charges, this present enquiry is initiated.
8. Mr. Maloo submits that on 5.1.2004, the petitioner received a letter from the office of the Director, College Education whereby the managing committee of the college was required to give its consent for taking over/acquiring of the college by the government and this letter is placed by the petitioner as Annexure-4.
9. Since the petitioner institution did not give consent pursuant to the letter dated 5.1.2004 the respondents proceeded to appoint Administrator to fulfil the promise made by local politicians of ruling party at the time of assembly elections.
10. The government made up its mind to take over the college and to prepare ground for this purpose, Director of College Education sent a letter dated 2.1.2004 to the Principal of the college requiring certain information and same was furnished.
11. The Director, College Education again appointed a Committee of two officers vide order dated 5.2.2004 to enquire into some complaints allegedly received against the College and the committee visited the College on 6.2.2004 and gave a list of 17 queries and same were duly replied by the petitioner. The enquiry was conducted by the committee but the report has not been furnished to the petitioner. Again a committee was appointed vide order dated 9.2.04 to conduct enquiry but no report was furnished to the petitioner.
12. The petitioner has placed news clippings along with the report to show that on various occasions assurance was given to the public that either they will open new government College in Jhunjhunu or they well take over the management of the petitioner institution. To fulfil the commitment made in the election, the respondents have proceeded arbitrarily against the petitioner institution.
13. Mr. Maloo further submits that right to form an association guaranteed under Article 19(1)(g) of the Constitution of India includes right to establish, run and administer the association. Such type of compulsorily taking over management and/or the institution is not permissible and is violative of Article 19(1)(c) and 19(1)(g) of the Constitution of India. Article 19(4) provides that the state can impose reasonable restriction by law in the interest of sovereignty and integrity of India or to maintain public order or morality. In the present case, the impugned order dated 17.5.2004, has not been issued for any such purpose and under any authority of law.
14. Article 26 confers right on all citizens to establish and maintain educational institutions. By taking over the educational institution, the fundamental right to establish and run the educational institution is being snatched away and denied without showing a reasonable cause.
15. Mr. Maloo further submits that the petitioner institution is always fully co-operative with the non-petitioners in all enquiries and full information was furnished to the officers making enquiries, by immediately furnishing all the required information's as required by them and nothing was found against the petitioner institution in three successive enquiries.
16. Mr. Maloo tried to make out his case by making chain of events as the press statements dated 13.11.03 (Annexure-19) and 28.12.03 (Annexure-20) issued before the Assembly elections reveals that it was a commitment made by the candidate of the party that either they will start a new Government College at Jhunjhunu or alternatively they will take over the management of Moti Lal P.G. College and this issue was also included in the agenda of 100 days programme of the new government.
17. The petitioner without alleging any malafide allegation against any person submits that the government has not acted in bonafide manner. The action of the government has been taken wrongfully, illegally and irrationally and Mr. Maloo referred Section 10 of the Rajasthan Non-Government Educational Institution Act, 1989 (for short, the Act of 1989) which reads as under:-
10. Powers of the State Government to take over management-
"Notwithstanding anything contained in any law for the time being in force, whenever it appears to the state government that the managing committee of any recognized institution has neglected to perform any of the duties assigned it by or under this Act or the rules made there under or has failed to manage the institution properly and that is has become necessary in the public interest to take over the management of such institution, it may, after giving to such managing committee a reasonable opportunity of showing cause against the proposed action, take over such management and appoint an administrator to exercise control over the asets of the institution and to run the institution for such period as the state government may from time to time fix".
18. In support of his submissions Mr. Maloo placed reliance on the judgment 2003(4) SCC 739 (1) and more particularly para 12 and 13. He also placed reliance on the judgment rendered in AIR 1991 SCC 537 para 39 and 35 (2).
19. Mr. Maloo with a view to formula his argument that validity of action can be judged on the basis of reasons mentioned in the order and cannot be supplemented by fresh reasons and referred the case of Mohinder Singh Gill v. Union of India, (AIR 1978 SCC 851 and AIR 1952 SCC 16).
20. With regard to allegation against the management regarding charging high fees, the petitioner has placed a chart of 25 colleges which shows that there are large number of colleges in this region which are charging much more fees than the petitioner institution and to this effect, public interest litigation is pending before this court regarding fixing the appropriate fees but this cannot be solitary ground for appointment of administrator in view of Section 10 as the scope of Section 10 to take over the management is only when the institution has neglected to perform any of the duties assigned to it under the Act and Rules. Since there two ingredients are not proved against the petitioner by the respondents, therefore, the appointment of administrator Under Section 10 is contrary to the provisions of law.
21. Per contra, on behalf of the respondents, Mr. Mohd. Rafique, learned Additional Advocate General submits that the appointment of SDM as administrator was in public interest as number of complaints were received against the petitioner institution of illegally transferring the assets/properties in the name of Law College named "After Seth Moti Lal" and regarding misuse of the amount of grant-in-aid which is being given to the extent of 90% and they also received several complaints regarding charging 30-40 times fees from the students in comparison to Government College.
22. Mr. Rafiq further submits that the teachers working in Art, Science and computer subjects are not possessing the requisite qualification to impart education/instructions to the students and the students belonging to SC and ST are being exploited as they are charging heavy amount of fees.
23. The grants received from UGC are being used for purposes other than for which they are received and that Management Committee has been undertaking large scale purchases and construction of buildings etc. without the process of inviting tenders and obtaining competitive rates and that the management has been using fyrighted software.
24. A notice dated 13.4.2004 was served upon the petitioner institution and was asked to show cause as to why the government may not proceed to appoint Administrator and this show cause notice was responded by the petitioner by way of filing reply on 23.2.2004. After considering the reply submitted by the petitioner and material available on record, it was decided to appoint S.D.M. as administrator and on the same day the government has taken a decision to get a high level enquiry to be conducted by Commissioner of College Education and in the meantime it was decided to appoint Administrator for a period of six months so that the enquiry can be completed.
25. Mr. Rafiq further submits that the Administrator has been appointed for the time being so that the In-charge of the affairs of the present management may not influence the fair and impartial conduct of the enquiry and thus the order passed by the respondent is not contrary to the provisions of Article 19(1)(c) and 26.
26. Mr. Rafiq further referred a Rule 2(c) of the Rajasthan Non Government Educational Institutions Rules, 1993 to show that the petitioner institution is not aided institution and even otherwise also the petitioner institution is not receiving aid in regard to the education. In regard to changing of high fees, public interest litigation is submitted before the Division Bench of this Court.
27. Mr. Rafiq submits that since the petitioner did not implead the persons against whom malafide allegation has been alleged as party respondents and in such circumstances, and without impleading them party they cannot argue on this point and it is absolutely denied that any ground has been prepared to take over the management of the petitioner institution. It is only in the interest of the public at large to enquire into the complaints received against the petitioner institution.
28. Mr. Rafiq further submits that during the pendency of the writ petition and during the current session, the Government College has been sanctioned in Jhunjhunu town and it is stated at Bar that the Government College already started in the town and in such eventuality no question of taking over management of the petitioner institution arises.
29. Mr. Rafiq in support of his submissions placed reliance in the judgment of Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003(4) SCC 549) and Syed T.A. Naqshabandi and Ors. v. State of Jammu & Kashmir And Ors., (2003 (9) SCC 592).
30. Heard rival submissions of the respective parties and after carefully perusal of the material available on the record as well as the relevant provisions of the Act of 1989 and Rules of 1993 and the judgment referred before me by both the parties.
31. First I would like to deal with the provisions of law which have been referred by the respective parties.
32. In Section 2(b) the definition of "aided institution'' is given which means a recognized institution which is receiving aid in the form of maintenance grant from the state government.
33. As it is not disputed by both the parties that the petitioner institution is an aided institution and as such it is covered by Clause (b) of Section 2 of the Act of 1989.
34. In Clause (b) of Rule 2 of the Rules of 1993, definition of 'Affiliated institutions' is provided which means a non- government educational institution affiliated to any University established by law in the State of Rajasthan.
35. Since the College in question is also affiliated to the University of Rajasthan, therefore, it is recognized institution also. It is no doubt that the petitioner institution . comes under the purview of the provisions of the Act of 1989, therefore, Section 10 is applicable to the instant case but it is to be examined that whether the respondents have rightly applied the provisions of Section 10 or not. Bare perusal of Section 10 it reveals that it gives power to the government to take over management and in the instant case the Administrator is appointed for a period of six months and the enquiry is initiated against the petitioner as several complaints are received by the government.
36. Sub-section 2 of Section 10 provides that before the expiry of the period fixed under Sub-Section (1), if the state government is of opinion that it is not necessary to continue the management of the institution by an administrator, such management shall be restored to the managing committee.
37. To test the ingredients of the aforesaid Section 10 it is to be seen that one charge in the complaint against the petitioner institution is with regard to charging exorbitant fees from the students and another is with regard to misuse of grant- in-aid to the petitioner institution that without inviting tender, the contract of construction was given but the respondents have failed to establish there case whereas the petitioner institution has submitted detailed chart of the fee charged by various Colleges and the respondents have not responded to it. It is not the case of the respondents that any instructions are issued and the petitioner institution is neglected to perform the same and the duty assigned under the Act.
38. No finding is required on the mala fides as the petitioner institution do not want to press the mala fides allegation against some political persons as the petitioner institution has failed to implead them as a necessary party and without impleading them as a necessary party, the petitioner cannot be given liberty to raise any mala fides against such persons who are not party to the writ petition.
39. Looking to the chain of events it reveals that the controversy crop up during the time of Assembly Election as it revealed by bare perusal of news clippings which have been placed by the petitioner and since the political parties given commitment to open a Government College in Jhunjhunu town or to take over the management of the petitioner institution and in the sequence of that they acted hastily and passed the order dated 17.5.2004 appointing the Administrator for a period of six months and within two days the charge has been taken over by the Administrator which shows that in a hasty manner the respondents have acted and this is not the spirit of Section 10 of the Act of 1989 as the Supreme Court in 2003(4) SCC 579 (6), held that "a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case".
40. Here, in the instant case also, the discretion is used at the instance of political commitments, therefore, the discretion used by the government cannot be said to be proper with regard to appointment of Administrator.
41. In AIR 1991 SCC 537 (supra), Hon'ble the Supreme Court has held that "every state action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine quo non to its validity.
42. Similarly, in the case of Mohinder Singh Gill v. Union of India (supra), Hon'ble the Supreme Court has held that "when a statutory functionary makes an order passed on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order passed by a statutory authority must be judged on the fact thereof as the reasons contained therein cannot be supplemented by an affidavit".
43. Upon careful perusal of the judgment referred by the learned Additional Advocate General Mr. Mohd. Rafique in the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar wherein requirement of pleading specifies and nature of proof required to establish bad faith, ill will or mala fides, stated, burden of proof is heavy on one who alleges mala fides and must be discharged and aspect of practically in the situation and circumstances also cannot be ignored". As the petitioner do not want to press the mala fides allegations against the persons who have not been impleaded as a party and as such question of application of this judgment does not arise.
44. Similarly, I have also perused the judgment of Syed T.A. Naqshabandi and Ors. (supra), wherein Hon'ble the Supreme Court has held that "unless the exercise of power is shown to violate any other provisions of the Constitution of India or any of the existing statutory rules, the same cannot be challenged by making it a justiciable issue before courts. The ratio decided by Hon'ble the Supreme Court also not applicable to the instant case.
45. Therefore, in view of the discussions made herein above, I am of the firm opinion that the action of the respondent is contrary to the law as well as it is malice in law.
46. Accordingly, the writ petition is allowed and the order dated 17.5.2004 by which the Administrator is appointed is herewith quashed and set aside and the respondents are directed to hand over the affairs of the petitioner's college to the management committee forthwith. No orders as to cost