Jharkhand High Court
Syed Azmat Hussain vs Regional Institute Of Technology, ... on 29 November, 2001
Equivalent citations: 2002 AIR - JHAR. H. C. R. 393, (2002) 1 JLJR 188, (2002) 1 JCR 155 (JHA), (2002) 1 BLJ 656
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadbaya, J.
1. The petitioner initially preferred the writ petition against the letter No. 00256 dated 5th March, 2001, whereby and whereunder the Respondent No. 2, Shri Samresh Singh, Minister Incharge Science and Technology Department, Government of Jharkhand, Ranchi in the capacity of Chairman, Board of Governors of Regional Institute of Technology, Jamshedpur (R.I.T. for short), directed the petitioner to proceed on extraordinary leave until further orders and asked the Respondent No. 6, Mr. Deepak Kumar, Assistant Engineer and Respondent No. 7. Mr. Sunil Kumar Bhagat. Stores Officer to function as Registrar and Deputy Registrar, Accounts.
2. Further prayer was made for declaration that the Respondent No. 2. Shri Samresh Singh, Minister, Science and Technology Department, Government of Jharkhand. Ranchi is not the Chairman of the Board of Governors of R.I.T.. Jamshedpur in view of specific provisions of the Memorandum of Association and Bye-laws/Rules of R.I.T., Jamshedpur, a society registered under the Societies Registration Act.
3. During the pendency of the writ petition, the petitioner who was functioning as Registrar, R.I.T., Jamshedpur, was suspended by the order of Respondent No. 2, as Chairman of the Board of Governors, vide order No. 117/2001 dated 7th April, 2001 for certain acts of omission and commission. The petitioner has challenged the order of suspension aforesaid dated 7th April, 2001 by filing a petition for amendment of prayer.
A second amendment application has also been filed by petitioner enclosing the Notification dated 9th January, 2001 issued by the State of Jharkhand appointing Respondent No. 2, Shri Samresh Singh, as the Chairman of R.I.T., Jamshedpur and has also challenged the said Notification.
4. The main issues require to be determined in the present case are :
(a) Whether the "State Government" as stipulated under Rule 2.1 and 6.1 of the R.I.T., Jamshedpur - Societies Rules (Rules for short) means and includes the "State Government of Jharkhand" since Reorganisation of State on and from the appointed day i.e. 15th November, 2000 or not: and,
(b) Whether the "State Government of Jharkhand" has Jurisdiction to appoint Chairman of the Board of Governors of R.I.T.. Jamshedpur or not.
5. For determination of issues, it is necessary to look into the relevant facts, as admitted by parties and mentioned hereunder.
The R.I.T., Jamshedpur was constituted as a Society under the Societies Registration Act (Act XXI of 1860) at Jamshedpur on 18th March, 1960 to carry on the administration and management of RI.T. (hereinafter called the 'Institute') mainly to conduct courses of studies and training in different branches of Engineering and Technology etc;
Under Article 3(ii) of Memorandum of Association of the Institute, it empowered the management of Institute to make rules and bye-laws for the conduct of the affairs of the society and to add to, amend, vary or rescind them from time to time with the approval of the 'Government of Bihar' and the Central Government.
Dr. Shrikrishna Sinha, the then Chief Minister of Bihar was appointed as the Chairman by the "Government of Bihar" with the approval of the Central Government and other members of the governing body were nominees of Government of Bihar; Representatives of Central Government; All India Council of Technical Education (A.I.C.T.E. for short); University of Bihar; Non-official representatives' of States of Assam. West Bengal, Orissa. Bihar and the Principal of the Institute.
For subsequent Board of Governors, the composition was stipulated under Rule 6 of R.I.T., Jamshedpur Society Rules.
6. The petitioner was appointed as Registrar. R.I.T., Jamshedpur to which post he joined on 23rd October. 1999 and was functioning accordingly. On Reorganisation of State in pursuance of Bihar Reorganisation Act. 2000 (Reorganisation Act, 2000 for short), the Institute at Jamshedpur fell within the territory of the State of Jharkhand.
After reorganisation and creation of State of Jharkhand, the State of Jharkhand issued Notification, vide Memo No. 49 dated 9th January. 2001 issued under Section 2(1) of R.I.T., Jamshedpur Rules and appointed Respondent No. 2, Shri Samresh Singh. Minister, Science and Technology, Govt. of Jharkhand, as Chairman of the Board of Governors of the Institute.
Two month's after such appointment, the Respondent No. 2 issued impugned order on 5th March, 2001 and asked the petitioner to proceed on extraordinary leave and subsequently suspended him by impugned order dated 7th April, 2001.
The petitioner has challenged the orders on the ground that the Respondent No. 2, the Minister, Science and Technology Department, Government of Jharkhand cannot be appointed as the Chairman of the Board of Governors of R.I.T.. Jamshedpur. The State of Jharkhand has no jurisdiction to appoint the Chairman of Board of Governors of R.I.T.. Jamshedpur and the order of suspension has been issued by Respondent No. 2. because of mala fide and for ulterior purposes.
7. The counsel for the petitioner mainly placed reliance on "Memorandum of Association" and the "Rules" of R.I.T.. Jamshedpur to suggest that the "State Government". as mentioned under Rule 2.1 and 6.1 of the Rules means "State Government of Bihar" and not the "State Government of Jharkhand", no amendment having made in the Rules since after Reorganisation of the State.
Reliance was also placed on one or other Annexures to suggest mala fide against Respondent No. 2 in suspending the petitioner.
8. The State of Jharkhand while supported the action against the petitioner and appointment of Respondent No. 2 as the Chairman, Board of Governors. R.I.T., Jamshedpur, the State of Bihar have supported the stand taken by the petitioner.
9. According to the State of Bihar, it is the "State Government of Bihar". which is empowered to make appointment of Chairman, Board of Governors, R.I.T., Janishedpur, the rules having not amended.
10. Mr. S.B. Gadodia, learned senior counsel appeared on behalf of Respondent No. 2, Shri Samresh Singh, Minister, Science and Technology, Government of Jharkhand. Ranchi. He laid argument against the petitioner in support of the Notification of appointment of respondent No. 2, as the Chairman. Board of Governors, R.I.T., Jamshedpur and in support of order of suspension of petitioner.
Reliance was placed by him on various provisions of the Reorganisation Act. 2000, Annexures and/or documents etc. in support of the stand, including the "Memorandum of Association" and "Rules" of R.I.T.. Jamshedpur; letter of Government of India, Minister of Human Resources Development dated 29th May, 1990; Resolution of Board of Governors of R.I.T., Jamshedpur as taken on 28th August, 1962; the letter issued by the Joint Secretary (T). Government of India dated 20th March. 2001.
11. Mr. Gadodia made the following submissions, as also shown in the written argument filed on behalf of Respondent No. 2.
(1) Various provisions of the Bihar Reorganisation Act. 2000 have to be examined along with the scheme of the said Act for harmonious and effective interpretation of the Memorandum of Association and/or Bye-laws of the R.I.T. Section 70 of the said Act read with the Tenth Schedule, in which R.I.T., Janishedpur has been included, indicates that the Parliament has taken into consideration the matter relating to the functioning of R.I.T., Jamshedpur. according to which the State of Jharkhand. in which R.I.T. is located, is under legal obligation to provide facilities to the people of the State of Bihar.
(2) For discharging this legal obligation, the State of Jharkhand must have the jurisdiction/authority to issue direction/notifications for providing such facilities. On the other hand, the composite State of Bihar does not have any jurisdiction/competence to issue any notification because such composite State of Bihar even does not exist after the re- organisation and for all purposes, such composite State of Bihar becomes nonexistent and dead after the re-organisation.
(3) In view of the scheme and effect of the Re-organisation Act, the State of Bihar, mentioned in the Memorandum of Associa-tion/Bye-laws of R.I.T, cannot be deemed to refer to truncated State of Bihar after re-or-ganisatioii and if the said expression of "State of Bihar" is considered as "Composite State of Bihar" it will lead to absurd interpretation because the composite State of Bihar does not even exist. In such a situation, the only reasonable and harmonious interpretation can be that the said expression "the State of Bihar" should be interpreted as that portion or territory of the composite State of Bihar which forms the State of Jharkhand after the re-organisation, which is now known as the State of Jharkhand. Any other interpretation will create absurd and chaotic situation which will lead to chaos and confusion and it will be impossible to run the R.I.T. smoothly which can never be the intention of the Parliament while enacting the Bihar Re-organisation Act, particularly Section 70 read with the Tenth Schedule of the said Act.
(4) Under Article 245 of the Constitution of India, no State can make any law for extra territorial jurisdiction. In this view of the matter also, under Article 245 of the Constitution of India, a State can make law only in respect of its own territorial jurisdiction. Since admittedly, R.I.T. is situated in the State of Jharkhand and outside the territory of truncated State of Bihar, the State of Bihar cannot enact any law in relation to R.I.T. Absence of such jurisdiction/authority of the truncated State of Bihar under Article 245 of the Constitution also indicates that the expression "State of Bihar", mentioned in the Memorandum of Association/By-laws of the Institute, shall mean only that part of the composite State of Bihar which falls within the territory of the State of Jharkhand, which now constitutes a separate State of Jharkhand. In this view of the fact also, only the State of Jharkhand, in whose territory R.I.T. Is situated, can enact law for the functioning of R.I.T. (5) Admittedly, fund is being provided to R.I.T. by the State of Jharkhand and no fund is being provided by the State of Bihar for running and/or managing the R.I.T., Jamshedpur. This factual position will also clearly indicate that only the State of Jharkhand is interested in running the said institution. Moreover, it is also the legal obligation of the State of Jharkhand to keep the institution running/functioning so that it can comply with the legal requirement of Section 70 of the Re- organisation Act.
(6) Rule 2(1) and Rule 6(1) (Annexure3) relate to appointment of the Chairman of the Society, which reads as under :
"6(1) Chairman--To be appointed by the State Government with the approval of the Central Government."
Rule 18 relates to powers/duties of the Chairman which reads as under : "18. Chairman
(i) It shall be the duty of the Chairman to see that the decisions taken by the Board are implemented.
(ii) The Chairman shall exercise such other powers as may be delegated to him by the Board."
From the above quoted rules, it is apparent that the Chairman has to be appointed by the State Government with the approval of the Central Government and, as mentioned above, the State Government, under the facts and circumstances of the case, can only mean the State Government of the State of Jharkhand. According to Rule 18, the Chairman can also exercise such powers as may be delegated to him by the Board. In this case, the Board of Governors, vide its resolution dated 28.4.1962 (Annexure C), had authorised the Chairman to exercise all powers vested in the Board subject to the condition that the decisions taken by him are reported to the Board in the next meetings. In view of such delegation of powers, actions taken and/or orders passed by the Chairman are within his jurisdiction/competence. Letter of the Government of India dated 29th May, 1990 (Annexure A) relates to the grant of approval by the Central Government in respect of the appointment of Chairman of the Board of Governors. According to this letter, directions were given to the State Governments about the appointment of the Chairman of Board of Governors in the Regional Engineering Colleges. From the bare perusal of the aforesaid letter, it is apparent/obvious that general policy decision was taken by the Central Government intimating the State Government that Minister Incharge for Technical Education of the State Government may be appointed as the Chairman of Board of Governors in Regional Engineering Colleges and after such appointment only, information has to be sent to the Central Government. This procedure was adopted in order to avoid delay in the appointment of the Chairman of Board of Governors which usually hampered the working of technical education given through Regional Engineering Institutes. In view of the contents of the aforesaid letter dated 29th May, 2001, the appointment of the Chairman of R.I.T. by the State of Jharkhand was legal and valid and said appointment had an approval of the Central Government.
12. Admittedly, the R.I.T., Jamshedpur is a Society registered under the Societies Registration Act, which is an autonomous body, not a body created by any State Government nor a creature of the Central Government. The Institute is guided by its own Memorandum of Association and the Rules framed thereunder.
13. The counsel for the petitioner, as also the Respondents accepted that the Rule 2.1 and 6. 1 relate to appointment of Chainnan, Board of Governors of R.I.T., Jamshedpur which reads as follows :
Rule 2.1 : Rule 6.1 :
"Chairman :--To be appointed by the State Government with the approval of the Central Government."
14. The only question arises whether the "State Government" as stipulated under Rule 2.1 : Rule 6.1 denotes "Government of Bihar" or the "State Government of Jhar-khand" since Reorganisation dated 15th November, 2000, the town--Jamshedpur where the Institute is situated having fallen within the territory of the State of Jharkhand.
15. According to the counsel for the State of Jharkhand and the Respondent No. 2, the town Jamshedpur where the Institute is situated having fallen within the territory of Jharkhand, wherever the word "State Government" mentioned in the Rules, should be read as "State Government of Jharkhand" and not the "State Government of Bihar", The submission of the counsel for the Respondent No. 2 has already been referred to above.
16. The objects for which the Society--R.I.T., Jamshedpur established has been shown under Article 3 of Memorandum of Association. Therein, the power to make Rules and Bye-laws for conduct of the affairs of the Society, including power to add, amend, vary or rescind, though delegated to the Society, it can be done only with the prior approval of the Government of Bihar and the Central Government.
Similarly, acquiring and holding property can be made with the prior approval of the Government of Bihar and the Central Government, all moneys can be deposited and credited to a Bank or can be invested by the Society with the prior approval of the Government of Bihar, the accounts of the Society required to be forwarded to the Central Government and the Government of Bihar and all other things as may be necessary, incidental or conducive to the attainment to the object of the Society cannot be in conflict with the administrative regulations issued by the Central Government and Government of Bihar. (Refer Article 3(ii); (iii); (vi); (ix); (x)).
17. So far as Rules are concerned, though under Rule 2.1 : 6.1, the power to appoint Chairman is delegated to the "State Government" with the approval of the Central Government and the rest part of the Rules like 14, 15, 16, 25 and 26, specific State Government mentioned, namely, the Government of Bihar.
Thus from the plain reading of the "Memorandum of Association" and the "Rules", it is clear that the "State Government" mentioned in the Rules means the "Government of Bihar".
18. The counsel for the respondents State of Jharkhand and respondent No. 2, placed much reliance on certain provisions of the Reorganisation Act. 2000. including Sections 2 (e), (f), (g), (j), (k); 3; 4; 5(a); 42; 47: 60; 65: 66; 75; 76: 85; 86: 87; 91: 92 and Tenth Schedule attached with the Reorganisation Act. 2000.
However, no specific inference can be drawn for determining the issue from the provisions of the Reorganisation Act. 2000. The definition of "Existing State of Bihar" stipulated under Section 2(e) or the definition of successor 'State' in relation to existing "State of Bihar", as stipulated under Section 2(j) cannot have any bearing on the "Memorandum of Association" or the "Rules" of R.I.T.. Jamshedpur, as framed under the Societies Registration Act, 1860. It has already been mentioned that the "Institute" is an autonomous body and cannot be termed as an undertaking of the "State of Bihar". Merely, some of the nominees of the "State Government" are members of the Board of Governors of the Institute, apart from other nominees of Central Government; R.I.T.; University Grants Commission etc. Thus the provisions of Sections 47, 60, 65, 66, 75 or 76 of the Reorganisation Act, 2000 are not applicable in the case of the Institute i.e. R.I.T., Jamshedpur.
Section 70 of the Reorganisation Act. 2000 relates to facilities to be provided by the Institution named in the Tenth Schedule. Item 12 of the Tenth Schedule includes the 'Institute', R.I.T., Jamshedpur. However, such Tenth Schedule also includes other Government and non-Government Institutes, including private Institutes. For example, Item 10 of the Tenth Schedule includes all private industrial Institutes - affiliated with N.C.V.T. - unaffiliated. This does not mean that all the Institutes/Centres mentioned in the Tenth Schedule become a State proper-ty/State Organisation to bring it in the ambit of the provisions of the Reorganisation Act, 2000 for determination of its liability, assets or control of one or other successor State. The Respondents cannot derive any advantage of Section 70 of the Reorganisation Act, 2000.
Though the successor State has been delegated with power to modify any law under Section 85 of the Reorganisation Act. 2000, but such modification can only be done, in accordance with law, and not otherwise. Article 3(ii) of Memorandum of Association stipulates the manner in which the "Rules/Bye-laws" of the registered society, in question, can be made; such power having vested with the Board of Governors with the prior approval of the Government of Bihar and Central Government, cannot be presumed that the Rule/ Bye-laws of R.I.T., Jamshedpur stood amended for the purpose of reading "Government of Jharkhand" in place of "Government of Bihar".
19. Admittedly, no such amendment of Bye-laws/Rules has been made, as per the provisions of the Societies Registration Act, 1860. nor for any such amendment any prior approval of the Government of Bihar and the Central Government taken, as per Article 3(ii), of the Memorandum of Association.
20. Thereby, the Respondents State of Jharkhand or the Respondent No. 2 cannot derive any advantage of Sections 85. 86 or 87 of the Reorganisation Act, 2000.
Further, none of the provisions of the Reorganisation Act. 2000 being contrary to the Memorandum of Association/Bye-laws/ Rules of the Institute, the question as to whether the Reorganisation Act will prevail over the other provisions or enactment of law does not arise and thus Section 91 of the Reorganisation Act, 2000 has no role to play for the present. The President of India having not issued order under Section 92 of the Reorganisation Act, 2000. it is not necessary to discuss the said provision.
21. From the aforesaid discussion, it will be evident that the power to appoint the Chairman of the Board of Governors of R.I.T., Jamshedpur is still vested with the State Government of Bihar with the approval of the Central Government. The State Government of Jharkhand has no jurisdiction to appoint the Chairman of the Board of Governors of R.I.T., Jamshedpur, till the Memorandum of Association/Bye-laws/Rules are amended by the competent authority/Board of Governors, in accordance with law.
22. At this stage, it is pertinent to mention that the Society, in question. R.I.T, Jamshedpur was registered with the registering authority of the State of Bihar. There is a provision made under Section 23 of the Societies Registration Act. 1860, as amended vide Bihar Amendment Act, 195e stipulating action as may be taken by the registering authority if the office of the registered Society falls within the territory of another State on reorganisation of the State of Bihar. Therein, it is open for the registering authority of the State of Bihar to cancel the registration or may allow the society to function in the territory of other State.
Thus, no presumption of automatic registration with the registering authority of the State of Jharkhand or automatic cancellation of registration with the registering authority of the State of Bihar can be made merely on the ground that the Society. R.I.T., Jamshedpur now fall within the territory of the State of Jharkhand. The Respondents State of Jharkhand or Respondent No. 2 cannot derive any such automatic advantage, the Society. R.I.T, Jamshedpur having fallen in their territory.
23. For the reasons aforesaid, the appointment of Respondent No. 2. Shri Samresh Singh, Minister. Department of Science and Technology. Government of Jharkhand, Ranchi as the Chairman. Board of Governors, R.I.T, Jamshedpur, as made vide Notification dated 9th January, 2001 having passed/issued by the Government of Jharkhand without jurisdiction, is set aside.
However, liberty is given to the Board of Governors to make amendment of the Memorandum of Association/Bye-laws or the Rules in accordance with law.
24. So far as the order dated 5th March. 2001 issued by the Respondent No. 2 asking the petitioner to proceed on extraordinary leave is concerned, it having merged with the order of suspension dated 7th April. 2001, it is not necessary to deal with the order (5th March, 2001).
25. Now the question arises as to whether the order of suspension dated 7th April, 2001 can be held to be illegal, the appointment of Respondent No. 2 as Chairman. R.I.T., Jamshedpur having declared illegal.
In this context, one may refer the decision of the Supreme Court in Goka Raju Ranga Raju v. State of Andhra Pradesh, reported in AIR 1981 SC 1473. In the said case, judgments were pronounced by a Sessions Judge, whose appointment was subsequently declared as invalid having made in violation of Article 233 of the Constitution of India. The Supreme Court in the said case held that the de facto doctrine which is well established and for that the acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of public or third person and not for their own benefit, are as valid and binding, as if they were the acts of officers de jure. A Judge, de facto is one who is not a mere intruder or usurper but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective, whatever be the defect of his title to the office, judgments pronounced by him and acts done by him - when he. was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure.
26. In the present case, the order dated 5th March, 2001 and the order of suspension dated 7th April. 2001 were issued by the Respondent No. 2 in the capacity of Chairman. Board of Governors. R.I.T.. Jam-shedpur. His appointment having now been declared illegal, all actions taken by him in the capacity of Chairman cannot be held to he illegal, till specific other illegality is pointed out.
27. The petitioner merely alleged mala fide on the part of the Respondent No. 2 in passing orders dated 5th March. 2001 and the order dated 7th April, 2001. Though such allegations have been made, the petitioner failed to bring on record specific materials in support of allegation of mala fide against the Respondent No. 2.
28. For the reasons aforesaid, this Court is not inclined to interfere with the order of suspension dated 7th April, 2001 having issued in contemplation of a departmental proceeding for alleged acts of omission and commission, as mentioned in the order of suspension.
29. In the result, the writ petition is allowed in part, the appointment of Respondent No. 2. as Chairman of the Board of Governors. R.I.T.. Jamshedpur having set aside, the prayer against the order of suspension dated 7th April. 2001 is rejected. No costs.
30. Petition partly allowed.