Patna High Court
The Managing Committee, Adars Unchh ... vs The President, Board Of Secondary ... on 22 February, 1973
Equivalent citations: AIR1973PAT335, AIR 1973 PATNA 335
JUDGMENT Madan Mohan Pasad, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for the purpose of quashing an order made by the President of the Board of Secondary Education Bihar by which he has stayed the coming into effect of a newly constituted Managing Committee of a school and directed the functions of the Managing Committee to be carried on by the previous committee.
2. It appears that there is a school called the Adars Unchh Vidyalaya in village Samhuta Police Station Kargahar, District Rohtas. The petitioner claims to be the Secretary of the Managing Committee of the aforesaid school. It is said that the elections of different members of the Managing Committee were held on different dates and ultimately on the 5th September, 1972, the President and the Secretary of the Managing Committee were elected and the committee, therefore, became properly constituted on that date. This Committee started functioning and held several meetings thereafter. To the surprise of the Managing Committee, however, the petitioner received a communication from the Secretary of the Board, dated the 12th October. 1972, by which the President had stayed the functioning of the newly constituted Managing Committee and allowed the committee in existence previous to that, to function. This order contained in Annexure 1 is sought to be assailed in the present case.
3. On behalf of the petitioner it has been urged that after the constitution of the Managing Committee, the President of the Board had no right under Rule 40 of the Bihar High School (Constitution. Powers and Functions of Managing Committee) Rules. 1964, hereinafter to be referred to as the Rules, to pass any order of stay like the present one. Reliance has been placed in support of this argument on a Single Judge decision of this Court in the case of Bipin Behari Sinha v. President, Board of Secondary Education. Bihar (1971 BLJR 794) and an unreported decision of another Single Judge in the case of Gajendra Choudhary v. President, Board of Secondary Education Bihar, (C, W. J. C. No. 1335 of 1971) disposed of on 29-8-1972 (Pat).
4. The fact that elections in respect of various members of the Managing Committee of this school were held is not disputed. It appears from a letter sent by the Sub-Divisional Education Officer which is Anex. 3 to the supplementary affidavit filed on behalf of the petitioner dated the 5th Sept. 1972, that the election of the office bearers of the Managing Committee had taken place and the committee had thus become duly constituted. The respondents, however, have contended that these elections were illegal for different reasons and, therefore, the committee had not been properly constituted. In other words the elections to the various posts and membership of the committee are in dispute. It appears next that certain petitions were filed before the President of the Board purporting to be under Rules 10 and 40 of the Rules in respect of these elections. The Board was thus seized of this matter at the time the impugned order was passed. It is in this background that the impugned order has to be judged.
5. Learned counsel for the Petitioner has urged that the only provision relevant to the matter is contained in Rule 40 of the Rules which is as follows :
"If any dispute arises whether any person has been duly declared, elected, selected or co-opted as or is entitled to be a donor, life-member, hereditary member. President. Secretary or a member of the Managing Committee, as the case may be the matter shall be referred to the President of the Board of Secondary Education whose decision thereon shall be final".
Learned counsel has contended that in view of this rule, the President of the Board could pass only one final order in respect of the matter as to whether the particular persons against Whom there was grievance had been duly declared elected. There is however, no power in the President, in view of this rule, it is urged to pass an ad interim order of stay. In answer to this contention learned counsel for the respondents has urged that the order aforesaid should be deemed to be one under Rule 10-A of the Rules. Rule 10-A is as follows:
"Suspension or removal of the President. Secretary or members of the committee-- (1) The President of the Board of Secondary Education, on being satisfied that circumstances exist which render it necessary to take immediate action in the interest of the school may at any time suspend the President, the Secretary or any member of the committee other than life member, or hereditary member and after giving such reasonable opportunity as he may deem proper, to the person concerned to explain his con-duct, remove him from his office and in such a case the order of suspension or removal will take effect from the date of the issue of the order by the president to that effect and the person so removed shall not be eligible to be nominated, elected selected or co-opted, as the case may be, to fill the casual vacancy".
6. Reading Rule 10-A it is quite clear that it is a sort of emergency power given to the President of the Board to be exercised in cases where certain circumstances exist. It is apparent from the wordings of the rule that the President has to be satisfied that there are such circumstances as render it necessary for him to take immediate action In the interest of the school. It follows, therefore, that the action necessary in the case must be immediate and the circumstances must be such that they render it absolutely necessary for the President to take immediate action and further that such immediate action must be necessary in the interest of the school. It is only in such a case that the President may after he is satisfied; suspend the President, the Secretary or any member of the Committee other than the life member or the hereditary member. In the instant case. I have been taken through the various applications filed by the respondents and others. The only grounds which have been raised in these applications are grounds, pertaining to the validity of the election of the present Secretary of the Committee and some others. Grievances have been made in respect of the election of the guardian's representative educationist member and the teacher member. Some of them are said to have been disqualified on account of having convictions to their credit and the teacher is said to be disqualified because he was not the senior-most teacher at the moment. There are allegations that the meetings convened for the election of the guardians' representative was not after due notice etc. What is to be rioted, however, is that all the allegations made in the petition before the President of the Board relate to the manner of the election or the disqualification of some of the candidates. By no stretch of imagination, these petitions can be said to have contained allegations which would show that a situation had arisen when it was in the interest of the school that either the President or the Secretary or the members of the Managing Committee ought to be suspended. I find no merit in the argument that the applications before the President of the Board were made under Rule 10-A. In fact, these applications were styled as ones under Rules 10 and 40 both. Obviously, Rule 10 has no application to the facts of the case end it is quite likely that it was an error for Rule 10-A. It is, however, not the provision of law stated at the top of the petition, which determines the nature of applications. It is the recitals in the petition and the prayer asked for which are the criteria for determining the nature of the application. I must, therefore, rule out the argument that these petitions were really under or intended to be under Rule 10-A.
7. There is another aspect of the matter which may be mentioned. The impugned order passed by the President of the Board does not purport to suspend the President or the Secretary or the members of the Managing Committee individually. What the President purports to do is to stay the functioning of the Managing Committee. The exact words are "Nava Gathit Prabandh Samity karyanwit nahi hogi", which obviously mean that the constitution of the Managing Committee shall not come into effect. Rule 10-A talks of suspension and removal of the President. Secretary or the members of the Managing Committee. It envisages a case, in my view, where such persons have been elected and are carrying on their functions and there is a case when in the interest of the school it is necessary to suspend any or all of them. Rule 10-A is not intended, in my view, to apply to a case when there is a dispute in respect of the election of such persons. In taking this view, I am influenced by the fact that there is specifically another provision in order to provide en opportunity for ventilating a grievance and raising an objection or a dispute in respect of elections and that is Rule 40. It would not be a proper reading of the rules, in my view, if it were said that Rules 10-A and 40 are over-lapping. In other words, what is covered by Rule 40 cannot be deemed to be a matter covered by Rule 10-A also. Rule 40 obviously provides for cases of dispute in respect of the election of the office-bearers as well as the members of the Managing Committee of the school. In this view of the matter, the applications before the Board, in the circumstances of the present case, could not have been under Rule 10-A nor could the order passed by the President, therefore, be taken to be one under Rule 10-A.
8. Learned counsel for the respondents has placed reliance on Sub-rule (2) of Rule 10-A which enables the President to nominate a person to act as such till the order of suspension of the President, Secretary or member of the Managing Committee is effective and in case of their removal, till another member is elected to fill the vacancy. Sub-rule (2) is consequential to Sub-rule (1) of Rule 10-A. Where the President of the Board, either suspends or removes any of the persons mentioned therein, he is to resort to Sub-rule (2). In view of my finding that it is not a case which attracts Rule 10-A, at all, the argument that the order of the President of the Board to suspend the Managing Committee nominating the Ad-hoc Committee to function in its place under Rule 10-A (2) was passed under Rule 10-A (1) and the order cannot be accepted.
9. On the question regarding the power of the President to pass an order of stay, learned counsel for the respondents has contended that although there is no express provision in Rule 40 enabling the President to pass such an order of stay, it may be treated to be an order passed under the inherent powers of the Board to take such action as may be consequential to entertaining a dispute between the parties. In other words, it is said that the dispute regarding the elections in the present case had been entertained by the President and until the dispute was resolved, the President of the Board had an inherent power similar to those under Section 151 of the Civil Procedure Code to issue an order staying the functions of the Managing Committee. I am unable to accept this contention. It is Well settled that every authority or quasi judicial authority does not have inherent powers and Section 151 of the Civil Procedure Code does not grant any inherent powers to the Court but merely saves the powers which are already inherent in Courts and which do exist apart from Section 151 of the Code. It is also well settled that bodies or authorities which are creatures of statutes do not have any inherent powers et all. All their powers have to be found within the four corners of the Statute which creates them.
10. In the case of Ramnath Prasad v. State Transport Appellate Authority, Bihar, Patna, (AIR 1957 Pat 117) a Division Bench of this Court held that a Regional Transport Authority had no inherent powers, apart from the statute or Rules creating such authority. In another Bench decision of this Court in the case of Patna Electric Supply Workers' Union v. A. Hasan, (1957 BLJR 705) it was held that an appellate authority under the Industrial Employment (Standing Orders) Act. 1946, had no inherent powers or like powers envisaged by Sections 151, 152 or 153 of the Code of Civil Procedure. In the case of J.K. Iron and Steel Co. Ltd., Kanpur v. Iron and Steel Mazdoor Union, Kanpur, (AIR 1956 SC 231) their Lordships were considering the scope of the authority of an adjudicator under the Industrial Disputes Act and observed that their powers are derived from the Statute that creates them. In the case of Zakeria Suleman v. Collector Yeotmal, (AIR 1963 Bom 233) the learned Judges were called upon to pronounce on the question whether the Rent Controller under the C. P. and Berar Letting of House and Rent Control Order could exercise the inherent powers and they held that inherent powers can only be implied in the Civil Courts having general jurisdiction but where special authorities are created under a special statute for a special object, it is not possible to imply inherent powers in them. In the case of Martin Burns Ltd. v. R.N. Banerjee, (AIR 1958 SC 79) their Lordships held that the Labour Appellate Tribunal is the creature of the Statute and all its powers must be found within the four corners of the Statute. In the case of Inamati Malappa Basappa v. Desai Basavaraj Ayappa, (AIR 1958 SC 698) their Lordships held that in the absence of any provision in Representation of the People Act, which is a sell contained Code, the provisions of Order 23. Rule 1 of the Code of Civil Procedure does not apply to election petition.
The question whether the provisions of Sections 94, 141, 151 and Order 39, Rule 2 of the Civil Procedure Code applied to the trial of an election petition under the Madras District Municipalities Act was discussed in the case of Venkata Subbiah Chettiar v. Sespa Aiyar, (AIR 1924 Mad 797). In that case an order had been passed by the Tribunal restraining the petitioner of that case, who was the elected candidate from taking his seat in the Municipal Council, until the disposal of the petition. It was held that in the absence of any provision, the order was without jurisdiction. Somewhat similar point was raised in the case of Rameshwar Dayal v. Sub-Divisional Officer, Ghetampur, (AIR 1963 All 518). In this case a direction had been given to stay the transfer of the charge of the office of Pradhan, under the U. P. Panchayat Raj Act, to the person declared elected Pradhan and further staying the removal of the existing Pradhan, during the pendency of the election petition. The point raised was Whether the authority passing the order had got all the powers conferred upon Courts under Sections 94 and 151 and Order 39. Rule 4 and Order 41, Rule 5 of the Civil Procedure Code. It was held that Election Tribunals are creatures of statutes and have jurisdiction to do only what they are expressly empowered to do.
It is thus obvious that the President of the Board, in the instant case, is a creature of Statute and unless the power to stay has been granted to him either in express terms or by implication from any provision of law he had no inherent powers to pass any order considered proper or necessary in the circumstance of a case. It is also clear that powers such as those contained in Order 41, Rule 5 or Order 39. Rules 1 and 2 of the Civil Procedure Code or Section 151 cannot be deemed to be inherent in such authorities as are creatures of statutes. The argument of learned counsel in this behalf must therefore be rejected.
11. Obviously, therefore, the impugned order is one passed under Rule 40, the Board having been asked to consider the dispute in respect of the elections, as stated earlier, to the Managing Committee of the school. The President of the Board could pass orders only under Rule 40. It is obvious that Rule 40 enables the President of the Board to pass one final order in respect of the dispute relating to the elections. No provision has been made by the rule-making authority to provide the President with any power to pass an interim order of stay. The reason is not far to seek. Whether a person, assuming that he is not duly elected, functions as such, during the pendency of an application under Rule 40 or not may not have been considered to be a matter of great importance by the rule-making authority and that it may be for that reason that no provision has been made to allow the President to stay such persons from functioning as office-bearers or members. There may be another reason for it. It has been observed by the Supreme Court in the case of Jagan Nath v. Jas-want Singh, (AIR 1954 SC 210) that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be taken lightly or interfered with. It may be that on this account the rule-making authority has not considered It necessary to provide the President with the power of staying the functions of the newly elected office-bearers or the members of the Managing Committee. It is not for the Courts to enter into the realm of conjecture to find out the intention of the Legislature when the provision of law itself is clear. And that is a well accepted canon of interpretation of statutes. In the present case suffice it to say that there is no provision giving the Board or its President a power to stay and such a power cannot be deemed to exist in the absence of any express provision of law or any provision necessitating such a conclusion by implication.
12. For the reasons aforesaid it cannot but be held that the impugned order was passed by the President in excess of his jurisdiction under Rule 40 of the Rules.
13. The next point raised by learned counsel for the respondents is that the impugned order may be treated as one under Rule 39 of the Rules. The provision of this rule runs as follows:--
"Where a Managing Committee is not constituted, in accordance with these rules, within the period specified in Rule 37, the powers and duties of the Managing Committee President and Secretary shall, until its constitution in accordance therewith, be exercised and performed by such person as may be appointed by the President of the Board of Secondary Education for the purpose."
Under Rule 37, the Managing Committee has to be constituted in accordance with these rules within a period of two years from the date of publication of the results in the official gazette. Rule 39 provides for a case where there is a failure to constitute the Managing Committee within the aforesaid period end it is only in such a circumstance that the President of the Board may appoint persons to exercise such functions. It does not appear that this rule applies to a case where a Managing Committee has been constituted but election of some members of the Managing Committee or some office-bearers thereof has been challenged, as in the instant case. In that view of the matter. Rule 39 also cannot come to the rescue of the impugned order of the President of the Board.
14. Learned counsel for the respondents has urged two more points which deserve consideration. Firstly, he has said that the present application is not maintainable in view of the fact that the petitioner has not produced anything to show that he had been authorised by the Managing Committee to file this application. This point has been met by a counter-affidavit filed by the petitioner wherein he has stated that the aforesaid authorisation (?) was made at a meeting by the Managing Committee and a true copy of the resolution has been produced as Annexure 2 to his supplementary affidavit. The objection has, therefore no substance.
15. Next, it has been urged by him that the writ application is not maintainable unless the petitioner proves beyond doubt that the Managing Committee had been constituted in accordance with law. The question whether some of the elections to the Managing Committee were legal or not is yet pending the decision of the President of the Board in view of the application under Rule 40. It is within the province of the President, to decide the matter whether the persons concerned had been duly elected or not. If this Court were to decide that question, it would be usurping the function of the President of the Board and deciding the matter which is still sub judice before him. All that the petitioner has, in my view, to show is a prima facie case in this connection. I have already referred to the letter of the sub-divisional education officer, the relevant authority in this behalf, notifying the constitution of the Managing Committee. The dispute now centres round some of the election of the different members, which is a matter pending decision of the President of the Board: In the circumstances, therefore, the petition cannot be held to be non-maintainable on the ground alleged. In this connection learned counsel has put great emphasis on the fact that the petitioner as well as another member of the Managing Committee were convicted in certain criminal cases. He has gone to the extent of saying that not having come to this Court with clean hands, the petitioner does not deserve any relief. I refrain from expressing any opinion on the question for the simple reason that it would be for the President to decide, in the first instance, if these persons were disqualified in view of Rule 15 of the Rules.
16. In the result. I find that the order passed by the President of the Board must be quashed. Let a writ of certiorari issue. The President of the Board will, however, try to expedite the disposal of the application under Rule 40. This application is accordingly allowed. A cost of Rs. 51/- shall be paid by respendents Nos. 2 and 3 alone to the petitioner.