Adwaitya kr. Maity and others vs president, W.B. Board of Secondary Education and Others

D. Basu, J.—These two cases have been heard together as common questions of law are involved. This Rule is directed against an order of supersession of the Managing Committee of the Bhupatinagar Trilochan High School, of which the petitioners constitute the Managing Committee.

The petitioner''s case is that one Trilochan established the School and made a gift of his properties by a deed of endowment in the year 1927 (Ann. A) for the maintenance of the School and that the Managing Committee of the School is in possession of those properties since then. The present Managing Committee, consisting of the petitioners, was constituted on 2.2.64. On 17.9.64, the Managing Committee passed a resolution for the termination of the services of the Headmaster, Sashibhusan (respondent No. 8), on payment of three months'' wages in lieu of notice on certain allegations of misconduct. The dismissed Headmaster approached the higher authorities and on 26.9.64, the Secretary of the Board of Secondary Education, West Bengal, issued a notice upon the petitioners to show cause why the Managing Committee should not be superseded and an Adminstrator appointed (Ann. B), enclosing therewith a copy of report of inquiry held by the Additional District Magistrate upon certain anonymous allegations made against the Secretary of the Managing Committee (petitioner No. 3). On the 9th October, 1964, the Secretary of the School prayed for two months'' time to answer the charges levelled against him since the School was closed for the Puja Vacation (p. 59 of the petition). On the 14th October (p. 65), the Secretary of the Board wrote that only 7 days'' time, further was allowed to show cause, in default of which the Board would take action ex parte. This was received by the Secretary of the Managing Committee only on 21.11.64. In the meantime, on the 20th November, the petitioners'' lawyer addressed the letter at pp. 60-64 of the petition to the Secretary of the Board, demanding that the notice to show cause dated 26.9.64 be withdrawn on the ground that it was illegal, and stating that the letter should be treated as a demand for justice.

In the meantime, on 24.1.64, the Managing Committee had appointed petitioner No. 10 (Saktipada) as the Headmaster of the School. On 26.11.64, the Sub-Divisional Officer, Tamluk asked the Secretary of the School to reinstate the dismissed Headmaster (respondent No. 8), (p. 66 of the petition). On 5.12. 64, the Secretary of the Board issued the letter at p. 67, saying that in view of the report of the Director of Public Instruction as to the mismanagement of the School, the President of the Board had ordered the supersession of the petitioners'' Managing Committee and appointed the Block Development Officer as the Administrator of the School and the Secretary of the Managing Committee was directed to hand over the papers of the School to the Administrator who was to assume charge forthwith. The Board''s letter to the Administrator to the same effect is at p. 69 of the Petition.

While the petitioners filed with their petition a copy of the letter received from the Secretary of the Board,- at Ann. X(5) to the affidavit-in-opposition filed on behalf of the Board, dated 10.12.66, the order of supersession passed by the President had been enclosed. Before proceeding further, it would be useful to reproduce the material portion of this order : -

I have carefully considered the report of the Additional District Inspector of Schools (Special). Midnapore forwarded with D. P. I.''s recommendation as also the recommendation of the D. P. I., West Bengal. The inquiry report discloses a most unsatisfactory state of affairs in the management of the school. It appears that there are serious charges of mis-appropriation of school funds, financial irregularities and mismanagement of the school against the existing Managing Committee. It also appears that the present Managing Committee, has not been reconstituted for a long time with the result that the managing committee has lost its representative character. I have also considered the other papers in the file which indicate that a chaotic condition prevails in the school at present. I have also taken note of the fact that though the Managing Committee was asked to show cause to the charges within a specified time, they have jailed to give any reply to the show cause notice.

As the inquiry report reveals a most unhappy state of affairs in the management of the school and also in consideration of the fact that delay in taking action against the Managing Committee will jeopardise the interest of the school, I, the President of the Board, agreeing with the recommendation of the D. P. I., West Bengal, hereby order supersession of the Managing Committee of Bhupatinagar Trilochan High School and appointment of Block Development Officer, Sutahata, Block-I, Midnapore as its Administrator

Sd. J. C. Sen Gupta, President.

On 15.12.64, petitioners brought this petition, challenging the validity of the order of supersession of the Managing Committee, on various grounds, which will be referred to hereafter.

Separate affidavits-in-opposition have been filed on behalf of - (a) the Board of Secondary Education and its officers (respondents 1-3); (b) the Director of Public Instruction, D.I. and Additional D. I. of Schools; (c) the Block Development Officer, appointed as Administrator (respondent 7); (d) the erstwhile Headmaster (respondent 8).

(I) The first point urged on behalf of the petitioners at the hearing is that the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as ''the Act of 1963''), under which the impugned order purports to have been made, confers no power upon the Board or its President to supersede a Managing Committee and to appoint an Administrator.

This question arose under the corresponding provisions of the West Bengal Secondary Education Act, 1950 (hereinafter referred to as ''the Act of 1950''), which has been repealed and replaced by s. 46 of the Act of 1963; and it was decided that-

(a) The power was to be implied from the general powers conferred by sub-section (1) of section 36 of the old Act, (1) Makhan v. S. K. Chatterjee, (1953) 58 CWN 617 (Sinha, J. as he then was); (2) Panchanan v. Board of Secondary Education. (1967) 71 CWN 189 (Bose, C.J. and B. C. Mitra, J.).

(b) The power could also be derived from clause (c) of section 36(1), which gave the Board the power "to supervise the administration of High Schools by means of inspection and the issue of directions" (ibid).

(c) Section 62(1) of the Act of 1950 empowered the State Government to make rules "for carrying out the purposes of this Act". In exercise of this power, the State Government made rule 6, to provide-

The constitution of the Committee of all schools shall be subject to the approval of the Board of Secondary Education which retains the power to approve of special constitution of Committees in special cases or classes of cases, and also to supersede a Managing Committee that has in its opinion not been functioning properly and to set up an ad hoc committee or to appoint an Administrator to exercise the powers of the Committee.

The power was thus expressly conferred by rule 6, apart from the implication from the statute (Panchanan''s case, (ibid).

It is clear that, so far as the Act of 1950 is concerned, the question is concluded by the decision of a Division Bench which is binding on this Court. It is, however, contended on behalf of the petitioners that the decision is inapplicable to the provisions of the Act of 1963, which are different. In order to dispose of this contention, it is necessary to refer to the corresponding provisions of the two Acts, which, it may be mentioned, relate to the same subject, namely, the regulation of Secondary Education in this State. The first enactment for this purpose was the Act of 1950. the long title and preamble of which were as follows : "an Act to provide for the regulation, control and development of Secondary Education in West Bengal.

"Whereas it is expedient to provide for the regulation, control and development of Secondary Education in West Bengal". For this purpose, the Act set up a Board of Secondary Education (s. 3), to exercise the powers and functions enumerated in section 27 of the Act.

The Act of 1950 was amended twice in the year 1951, to introduce changes, with which we are not concerned. In the year 1954, the Legislature made the West Bengal Secondary Education (Temporary Provisions) Act, 1954, to provide for the supersession of the Board of Secondary Education set up by the Act of 1950, itself and for the appointment of an Administrator to exercise the power conferred on the Board by the Act of 1950. With this Act also we are not concerned in the instant proceeding.

The Act of 1963, repeals the Act of 1950. Though it changes the drafting arrangements and introduces some substantial changes as well, a perusal of the text will make it clear that it is a re-enacting statute and its object is the same as that of the Act of.1950. Thus, instead of starting with the object of regulation and then to establish a Board, the Act of 1963 starts with its object being the establishment of a Board (Preamble). with powers to supervise and control Secondary Education (section 27(2)). The object and scope of the two Acts are thus substantially the same.

We may now proceed to compare the provisions of section 36 of the old Act and those of section 27 of the new Act, to see whether the decisions under the old Act (just referred to) are applicable under the new Act to derive the power of the Board to supersede a Managing Committee and to appoint an Administrator.

ACT OF 1950 Section 36 (1): Subject to the provisions of this Act, the Board shall have the power to direct, supervise, develop and control Secondary Education and to do all such acts as it may consider necessary for the purposes of such direction, development and control. (2) In particular and without prejudice to the generality of the foregoing power, the Board may- (c) supervise the administration of High Schools by means of inspection and the issue of directions ACT OF 1963 Section 27 (2) Subject to any general and special orders of the State Government, the provisions of this Act and any rules made thereunder, the Board shall have generally the power to direct, supervise and control Secondary Education, and m particular the power-

It has been contended on behalf of the petitioners that there being no clause in the new Act corresponding to clause (c) of sub-section (2) of the old section 36, the power to supersede the existing administration of a High School has not been expressly provided for in the new Act. Though this is true, that power is still deducible from the general power conferred by the opening words of sub-section (2) of the new section 27. As has been pointed out by Sinha, J. (as he then was) in the cited case, the power of ''supervision, direction and control'' are of the widest amplitude, and would include the supersession of the administration of a Managing Committee, if that is necessary for such purpose. It is. of course, true that the words ''to do all such acts as it may deem necessary'' are not there in the new section, but. according to the canons of interpretation, it is not necessary to stipulate expressly for incidental and ancillary powers. Whenever a power is conferred by statute upon a public body for public purposes, with such power comes all that is necessary to render the exercise of the power effective (3) A. G. v. Great Eastern Ry., (1880) 9 HLC 246(256); (4) Re. Dudley Corporation, (1882) 8 QBD 86(93); (5) A. G. v. Mersey Ry.. (1907) AC 415; (6) Mysore University v. Gopala. A (1965) SC 1933 (1935).

If that be so, the power to "supervise the administration" of a High School need not be specifically enumerated, as was done in sec. 36(2) (c) of the old Act. Though the draftsman of the new Act has dispensed with the technical expression ''in particular and without prejudice to the generality of the foregoing power'', which had received interpretation at the hands of the Privy Council in (7) Emperor v. Sibnath 72 IA 24. for no apparent reason save that of a vain assumption that the change in the language would embellish the statute he was drafting, - from the words ''generally'' and ''in particular'' in section 27(2) of the new Act it is evident that the statute intended to confer a general power as well and then to make a specific enumeration of certain powers by way of illustration of that general power. The situation, from the legal standpoint, is not therefore different in any sense under the new Act.

Once we come to the conclusion that section 27(2) of the new Act contains both a general and a particular enumeration of powers, the rule in (7) Sibnath''s case, 72 IA, as applied by numerous Supreme Court decisions will be attracted, namely, that the statutory authority will be entitled to exercise any power that follows from the general power and the purposes of the statute (8) State of Kerala v. Appakutty. AIR 1963 SC 796(798); (9) Afzal v. State of U. P., AIR 1964 SC 264(268); (10) Santosh Kumar Jain Vs. The State Union Of India (Intervener), ; (11) Chandrakant v. Jasjit. AIR 1962 SC 204(207), unless it is contra-indicated by any of the express provisions of the enactment (12) Dr. Indramani Pyarelal Gupta Vs. W.R. Nathu and Others, . In such a case, as already stated, the enumeration of particular powers is nothing but illustrative of the general power conferred by the statute, which is independent of the enumeration. The contrary rule of ejusdem generis, referred to on behalf of the petitioners cannot be invoked in such a situation.

It is, however, contended on behalf of the petitioners that even if the power in question can be claimed by the Board from the general power conferred by sub-section (2) of section 27 of the new Act, it cannot be exercised unless the Board makes regulations for the proper exercise of the power, as provided in sub-section (3) of section 27, which reads:

Subject to the provisions of sub-section (2), the Board shall have the power to make regulations in respect of any matter for the proper exercise of its powers under this Act.

This provision, it is to be noted, is not new but existed also in sub-section (3) (a) of section 36 of the old Act, which was :

Subject to any rules made by the State Government u/s 62, the Board may-

(a) make regulations for the proper exercise of the powers conferred on it by this section

No regulations relating to the power in question appear, however, to have been made under the old Act and no question appears to have been raised in any decided case under that Act that the power to supersede and appoint Administrator was not exercisable unless regulations were framed u/s 36(3) of that Act. Be that as it may, it has been held by the Supreme Court that, except where a statutory power is made by the Legislature dependent or conditional upon the making of rules or regulations, the exercise of the statutory power cannot be held to be in abeyance or suspense unless such subordinate legislation is framed by the administrative authorities (13) Cajee v. Siem, AIR 1961 SC 276 (281). A glance at section 27 of the new Act will show that the power conferred by sub-section (2), is not conditional upon the making of regulations under sub-section (3), which is, patently, an enabling provision, empowering the Board to make regulations. Learned Advocate for the petitioners sought to draw support from the decision of the Supreme Court in (14) Narendra v. Union of India, AIR 1960 SC 430 (437), but the provisions of the statute in question there were different. Further, the decision therein has been whittled down by the observations of the Supreme Court in the later cases of (15) Banwarilal Agarwalla Vs. The State of Bihar and Others, ; (16) Kalipada Chowdhury Vs. Union of India (UOI), . As observed in these later cases, the result depends upon the construction of the provision in question, namely, whether it is directory or mandatory. The provision in section 12 (1) of the Mines Act was construed as directory in these later cases and so it was concluded that the constitution of Boards was not obligatory before the consultative power of regulation-making could be exercised; but once a Board came into existence, the regulations could not be framed without consulting it. In (14) Narendra''''s case, (ibid), the power to issue a ''permit'' could be exercised only ''in accordance with'' such principles as the Central Government might specify. There is no such expression as ''in accordance with'' vide (17) Surajmal v. I. T. Commissioner, AIR 1961 Cal 578(583), in section 27 (2)of the 1963 Act before us; on the other hand, while there is reference to rules in this sub-section, there is no reference to regulations at all. and regulations are mentioned only in the separate enabling provision in sub-section (3). The contention that the power conferred by sub-section (2) cannot be exercised until regulations are made under sub-section (3) must, therefore, be rejected.

Nor is the power conferred by sub-section (2) conditional upon the making of rules by the State Government, - an authority other than the Board, - under the power conferred in that behalf by section 45. But, if and when such rules have been made, the power conferred by sub-section (2) can be exercised only "subject to" "any rules made", as sub-section (2) of section 27 expressly provides.

This brings us to the question of rules made under the Act. As has been pointed out by me in some other cases, it is striking that the rule-making power conferred by the new Act still remains unused after three years of the working of the new Act. But, as I have said already, the power u/s 27(2) is not made dependent upon the making of rules under the new Act and there is nothing in the Act to indicate that the powers conferred by section 27 cannot be exercised until the State Government elects to make rules. The rule-making power conferred by section 45 is also enabling or permissive, and the State Government cannot be compelled to make rules; though, of course, when such rules are made, the Board, in the matter of exercise of the powers u/s 27, cannot override the provisions of such rules.

I am also of the opinion, that apart from the implication arising out of section 27 (2) of the new Act, - the express power of supersession and appointment of Administrator, conferred by rule 6 of the Rules framed under the Act of 1950 is also available to the Board.

The reason is, as I have already held in some of my previous decisions, that the rules made under the Act of 1950 survive, until rules are made under the new Act, by virtue of section 25 of the Bengal General Clauses Act, 1897. My attention has been drawn to cases like (18) Harish Chandra v. Mathur, AIR 1965 SC 932(938), where, relying upon the decision in (19) Watson v. Winch, (1916) 1 KB 688(690), it has been held that subordinate legislation made under a statute die with the repeal of the statute. But to this very general principle, the provision in section 25 of the Bengal General Clauses Act offers an exception relating to the case where the repealed statute is re-enacted, with or without modifications. There being no provision in the English Interpretation Act corresponding to section 25 of the Bengal General Clauses Act [and section 24 of the (Central) General Clauses Act, 1897], in England, the rules etc. made under the repealed enactment, where they are intended to continue, have to be maintained by a saving clause in the repealing enactment. The provision in our General Clauses Acts, just referred to, dispenses with any such express saving clause and the existing rules continue by virute of the statutory provision in the General Clauses Act. until replaced by statutory instruments made under new Act (20) State of Bombay v. Pandurang, 1953 SCR 773(776-7); (21) Lakh, Prasad v. State. AIR 1957 Pat. 665 (666); (22) State v. Hankins, AIR 1957 Punj. 243(244); (23) Chief Inspector v. Thapar, AIR 1961 SC 839(842, 843); (24) Bhattar v. State, AIR 1957 Cal. 483(492). The position, is so patent now that I wondered at the seriousness with which the argument was advanced on behalf of the petitioners.

It has next been contended on behalf of the petitioners that section 25 of the Bengal General Clauses Act has no application to the instant case inasmuch as the Act of 1963 is not a re-enactment of the repealed enactment, because of the changes introduced by the new Act, e.g., the greater power of control vested in the State Government, by the new Act (vide sections 47-48). I have, earlier, explained that the scope and object of the Act of 1963 are the same as those of the Act of 1950. Ever since 1950, the State Legislature is seeking to regulate the system of Secondary Education in this State. It is true that, in this endeavour, the Legislature has had to introduce changes and innovations from time to time, in the light of experiences of the working of particular alternatives. But that does not change the character of the legislation, and as s. 25 of the Bengal General Clauses Act expressly says, that provision applies whether the later statute re-enacts the repealed provisions "with or without modifications." The introduction of innovations or the substitution of particular provisions, therefore, does not alter the re-enacting nature of a legislation, which is a question of substance to be determined from the object of the legislation and a reading of the relevant statutes as a whole, since there is no statutory definition of what is a ''re-enactment''.

It was next argued that the provisions of rule 6 are inconsistent with the provisions of the new Act, so that the application of sec. 25 of the Bengal General Clauses Act would be excluded. The inconsistency, it was urged, was with the regulation-maknig provisions in sub-sections (3) and (4) of section 27 of the new Act. But. as has been pointed out by me earlier, the regulation-making provisions are not new but also existed under the old Act. and. further, that the exercise of the power u/s 27(2) is not dependent upon the making of rules under sub-section (3). which constitutes only an enabling provision, I may add that there cannot be any question of a Rule being invalid for inconsistency with the regulation-making power, because it is common place to state that in the hierarchy of subordinate legislation, rules have a place superior to regulations. The usual legislative practice is to place the rule-making power in a superior administrative authority, empowering the latter to lay down principles of a more or less general character, while the power to make regulations for the detailed working of the statute is vested in the inferior authority which is in charge of administrating the Act. This is, in fact, made clear by sub-sections (2) and (3) of section 27 of the new Act. in so many words. Sub-section (3) opens with the words "subject to the provisions of sub-section (2)". It follows that the Board may legitimately exercise its regulation-making power only in so far as it is not inconsistent the provisions of sub-section (2). Now sub-section (2) says that the Board shall have the powers specified therein subject to the rules made by the State Government. The logical result, therefore, is that if the Board makes a regulation inconsistent with a rule made by the State Government, the regulation must fail, not the rule.

It has lastly been argued that rule 6 is inconsistent with the provisions of sub-section (2) of section 27 itself, inasmuch as the power to ''regulate'' implies the continued existence of that which is to be regulated, and not its destruction, as the Privy Council observed in (25) City of Toronto v. Virgo. 1896 AC 88(93). It is to be noted, however, that the relevant word in section 27(2) is not ''regulate'' but ''control'', which is a much wider expression and would obviously include supersession or abolition where the institution or object cannot be controlled otherwise. As our Supreme Court has pointed out (14) Narendra Kumar and Others Vs. The Union of India (UOI) and Others, ; (26) Hamdard Dawakhana v. State of Madras, AIR 1960 SC 554 (564- -6), the word ''restriction'', though ordinarily it might imply some existence of the activity to be restricted, might include a total prohibition of the activity if the circumstances or exigency of the situation require such a drastic measure. The same principle is to be applied to the interpretation of the word ''control'' and it is difficult to maintain that the power to supersede conferred by rule 6 is per se inconsistent with the significance of the word ''control'' so as to render the rule ultra vires.

I must conclude that the contentions raised on the present point must fail and I hold that the Board has the power to supersede a Managing Committee and appoint an Administrator both under the provisions of the new-Act nad under rule 6 made under the Act of 1950 which still survives.

(II) The second point urged on behalf of the petitioners is that the impugned order at Ann. X(5) to the affidavit-in-opposition having been passed by the President is invalid, since u/s 28, it is the Board which is competent to make such order, if at all.

It is true, that u/s 28(1) of the Act of 1963, the President is, normally, the executive agency of the Board.-

responsible for carrying out and giving effect to the decisions of the Board...... constituted under this Act.

Admittedly, there is no order of the Board in the instant case to supersede the Managing Committee and to appoint an Administrator. Sub-section (2) of the section, however, authorises the President "in any emergency, to exercise any of the powers of the Board". The question is whether there was any emergency within the meaning of the sub-section. As I have pointed out, in an earlier case (27) Lilabati Kanjilal v. Administrator, 71 CWN 216, there being no definition of the word ''emergency'' in the statute, the Dictionary meaning of the word should be taken, namely, ''urgency'' or a situation which requires prompt action. In that earlier case, it was also pointed out that there should be a recital in the order made by the President u/s 28(2) as to the emergent circumstances which call for an exercise by him of his exceptional powers in lieu of the Board. In that case, there was no such recital. In the instant case, however, there is a clear recital to this effect:

As the inquiry report reveals a most unhappy state of affairs in the management of the School and also in consideration of the fact that delay in taking action against the Managing Committee will jeopardise the interest of the School, I, the President of the Board, agreeing with the recommendation of the D.P.I.

I, therefore, agree with Mr. Chaudhuri, appearing on behalf of the respondents, that in the instant case, there is sufficient compliance with the condition precedent of section 28(2) and the President''s order is not ultra vires.

Mr. Chaudhuri argued that the petitioners could not rely on this ground inasmuch as the pleading in this behalf in the petition was vague and not specific. I have, however, dealt with the ground inasmuch as it arises from and is also answered by the impugned order ex facie.

(III) It has next been contended on behalf of the petitioners that the impugned order is invalid for contravention of the principles of natural justice.

The rules of natural justice can, however, be invoked only if the function of supersession is quasi-judicial. The Division Bench, in (2) Panchanan''s case, (1965) 71 CWN 189(203), however, has already negatived the contention that the power in question is quasi-judicial.

That neither the Act nor the rule expressly provides for a hearing or other quasi-judicial duty is obvious. It was, however, urged that such obligation should be implied from the nature of the function, namely, that the order was made on a charge of misconduct or incompetence. But it is not necessary to pursue this matter at length to reject this argument inasmuch as rule 6, in question, has made the exercise of the power expressly dependent upon the subjective satisfaction of the Board, namely, "to supersede a Managing Committee that has in its opinion not been functioning properly". Apart from the fact that the order of supersession does not affect any common law right or fundamental right belonging to the petitioners, this is not a case where the relevant statutory provisions are merely silent, so that the common law would have a scope for supplying the deficiency of the legislature, having regard to the nature of the function. It is a case where the relevant statutory rule has made the exercise of the power dependent upon the subjective satisfaction of the authority, and to such a case, the doctrine of quasi-judicial obligation by implication cannot be applied, as has been held by our Supreme Court in (28) Sadhu Singh v. Delhi Administration, AIR 1966 SC 91(94, 96).

It is to be noted that, in fact, the petitioners were given an opportunity to meet the allegations made against them. Firstly, the Board took action upon the report of the Additional Inspector of Schools. In paragraph 12 of the petition it was averred that this inquiry had been held ex parte, that is, at the back of the petitioners. But in the copy of the report of this inquiry, which was annexed to the petition itself (Ann. B). it is stated at the outset that "complaint in an anonymous petition addressed to the Director of Public Instruction was inquired into by me on 11.5.64 with due notice to the Secretary, Bhupatinagar High School", and, in the body of the report, it is stated that the said Secretary. Sudarsan Bera, was present before the Additional Inspector at the inquiry held on 11.5.64. It cannot be overlooked that in the letter written by the learned Advocate for the petitioners in reply to the notice and report at Ann. B, it was not stated that the notice alleged to have been issued by the Additional Inspector was not received by the Secretary, Bera. or that service upon the Secretary was not communicated to the members of the Managing Committee or did not amount to service upon the latter, or that the Secretary did not attend the inquiry as stated in the report of the Additional Inspector. Hence, it must be concluded that the report upon which the President of the Board acted, was made upon inquiry held after due notice to the Secretary of the Managing Committee. There was no fraud or mala fides on this score.

By Ann. B, dated 26.9.64, the Secretary of the Board called upon the Secretary of the Managing Committee to show cause within 10 days of the receipt of the notice why the order of supersession should not be made, enclosing a copy of the report submitted by the Additional Inspector upon inquiry. Hence, it cannot be said that the impugned order was made without service of any notice upon the petitioners.

The question is whether a reasonable opportunity of showing cause was offered by this notice. On 9.10.64, the Secretary of the Managing Committee wrote the letter at p. 59, asking for two months'' time to show cause, on the ground that the School was closed for the Puja Vacation "shortly after" the notice to show cause had been served upon the Secretary on 1.10.64. It appears (paragraph 15 and page 65 of the petition) that in response to the request for two months'' time to show cause, the Secretary of the Board wrote a letter on 14.11.64, allowing 7 days'' time from the receipt of the letter, which, according to the letter was 21.11.64. So, the Board gave to the petitioners time till 28.11.64 to show cause and cannot be said to have rejected the prayer for time made by the petitioners. According to the show cause notice, the petitioners were to submit their explanation by 11.10.64 (i.e. within 10 days from service of the show cause notice), but the petitioners were allowed time till 28.11.64. It cannot, therefore, be held that the Board did not offer reasonable time and opportunity to the Managing Committee to show cause, having regard further to the fact that the allegations were in the main against the Secretary personally and that the inquiry had previously been made in his presence. Nor was the time eventually allowed much less than the two months sought for by the petitioners.

The impugned order was made by the President on the 5th December, or thereabout. Nobody stated before me that the actual date was within the two months'' time sought for by the petitioners. In these circumstances, nobody can come to the conclusion that the President made the impugned order without giving sufficient opportunity to the petitioners to show cause.

The petitioners'' conduct, on the other hand, will establish that this plea of violation of natural justice has no substance, and that they did not avail of the opportunity which was offered. For this, we have to look into the contents of the Advocate''s letter, dated 20.11.64, at page 60 of the petition. This letter is sought to be utilised by the petitioners for a two-fold purpose, - (a) to serve as a demand for justice before asking for mandamus; (b) to serve as their explanation to the notice to show cause in order to establish that the statement in the impugned order of the President that the Managing Committee "has so far failed to give any reply to the show cause notice", is incorrect. The concluding words of the Advocate''s letter make it clear that it was then intended by the petitioners as a demand for justice as a prelude to litigation in case the Board did not cancel the notice to show cause within two days.

The Advocate''s letter cannot be treated as the Committee''s explanation to the notice to show cause for the simple reason that it questioned the statutory power of the Board to order supersession instead of controverting the charges brought against the Secretary and the comments made by the Additional Inspector in his report. If the President has issued the impugned order after receipt of this notice, it can hardly be contended that the petitioners were not given an opportunity of meeting the allegations before superseding them on the charge of maladministration.

(IV) It remains to deal with the plea of mala fides.

It has been urged, firstly, that the Board has been influenced by the dismissed Headmaster (respondent 8) in making the impugned order, so that it is a colourable use of statutory power. This charge of mala fides against the Board is not expressly narrated in the petition in so many words, but, assuming that it has been vaguely suggested, I cannot hold that the order of supersession was made for the colourable purpose of re-instating the dismissed Headmaster. It is true that on 26.11.64, the Sub-Divisional Officer requested the Secretary of the petitioners to reinstate that Headmaster, in response to a letter received from the District Inspector of Schools, dated 25.11.64 (Ann. XI to the counter-affidavit of respondent No. 2), pointing out that the Managing Committee of the School could not discharge the Headmaster without ''prior approval of the Board''. If the District Inspector or the Sub-Divisional Officer brought this statutory requirement to the notice of the petitioners and requested the reinstatement, it does not follow that the President of the Board was actuated, in making the impugned order, by the complaint that the petitioners had not complied with that request.

In fact, the impugned order is a speaking order, giving the reasons for the supersession, amongst which the dismissal of the Headmaster does not find place. Learned Advocate for the petitioners has, therefore, to shift to another ground to substantiate mala fides, namely, that the impugned order itself will show that the President did not apply his mind or that the reasons given therein were unreal, so that the order would lose its foundation. But I am unable to accede to this contention as well.

Four reasons are given in the impugned order:

(i) That the report of the inquiry of the Additional District Inspector discloses "a most unsatisfactory state of affairs in the management of the School".

(ii) That "the present Managing Committee had not been reconstituted for a long time with the result that the Managing Committee has lost its representative character."

(iii) That the other papers in the file "indicate that a chaotic condition prevails in the School at present."

(iv) That the Managing Committee have failed to show cause within the specified time.

Of these, learned Advocate before me challenged the reality of reasons (ii) and (iv) only. As to (iv), I have already held that the lawyers'' demand for justice did not constitute a cause shown by the ptitioners against the notice. It is reason (ii) which was seriously attacked, with reference to the averment in paragraph 5 of the petition that the petitioners'' Managing Committee was constituted only on 2.2.64. and that in December. 1964, it could not be said to have been constituted long ago. Prima facie, this reason in the impugned order lacks strength on the facts presented in the affidavits but that does not render the impugned order invalid or mala fide, for, the other reasons were there and a reading of the order as a whole would make it clear that, in superseding the Managing Committee, the President was primarily actuated by the motive of saving the interests of the School from being jeopardised by mismanagement, - proper evidence as to which was before the President. It is to be recalled that the power was rested by the statutory rule upon the subjective opinion and estimate of the Board (or the President) that the Committee had not been "functioning properly". Once this condition was satisfied by the impugned order and supported by the materials before the Board, the impugned order could not be struck down on the ground of mala fides or ultra vires, in any of its facets.

(V) It was lastly urged that no supersession of the petitioners'' Committee could be valid in law inasmuch as by the deed of endowment the properties were vested in the Managing Committee. It was, in fact, a constitutional plea which was not taken in the petition, specifically.

Apart from that, this constitutional plea was urged before the Division Bench in (2) Panchanan''s case, (71 CWN 189), but rejected with elaborate reasons (pp. 199-201, ibid). Those reasons need not be reiterated in rejecting the contention raised before me. I would, however, point out that the assertion that the property had been vested in the petitioners in any individual or collective right is not true in fact, in this case. The terms in the deed at Ann. A, on the other hand, clearly negative such contention (paras. 8-10 of the deed). The opening words of the deed vest the properties in the School as an institution and no individual or individuals shall have any title to it. Though the Managing Committee for the time being has the right to possess the properties for the purposes of the School, the members of the Managing Committee would lose their possessory interest as soon as their membership was gone. This point must also fail, accordingly.

Not only have the petitioners failed to establish any of the points urged on their behalf, they are not entitled to any relief in a proceeding under article 226, for a paramount reason. The term of a Managing Committee, under the Rules in force is three years from the date they take charge of the School. This date being the 2nd of February, 1964, according to paragraph 5 of the petition, the statutory term of the petitioners'' Committee, irrespective of any other consideration, has already expired during the pendency of this proceeding. The petitioners have, therefore no subsisting right to membership of the Committee and the Court cannot hold out an infructuous relief in the instant proceeding. The irony of the situation is that by virtue of the interim injunction granted by this Court the Administrator could not take charge and the petitioners have already enjoyed more than their normal term of three years. I would, therefore, direct the Administrator to take the earliest possible steps for a reconstitution of the Committee after taking over charge from the petitioners. The President''s impugned order empowered the Administrator to take steps in this behalf "as and when he considers it expedient", but the Administrator could not take any action owing to the interim injunction, which would stand vacated by the instant order.

Let the Rule be discharged. Let the petitioners be directed to deliver charge of the office of the Managing Committee of the School to the Administrator (respondent 7) within two weeks from this date, and the Administrator be directed to take the initial steps for reconstitution of the Managing Committee within four weeks from the date of his taking charge. There would be no order as to costs in this proceeding.

Let the operation of this order be stayed for one month from this date.

C.R. No. 120 (W) of 1966.

The facts of this case are similar to those in C.R. 1392 (W) of 1964, in so far as the petitioners are the members of the Managing Committee of the Dankuni Ramkrishna Vidyasram who challenge the validity of the order of supersession passed by the Board of Secondary Education on 29.12.65, which was communicated to the Secretary of the Managing Committee by the letter dated 15.1.66, which is at Ann. M (p. 52) of the petition.

There are, however, certain special features in this case :

(a) There was no interim order in the instant proceeding. As a result, the Administrator (respondent No. 5) appointed by the impugned order took charge of the School on 4.2.66, in pursuance of the impugned order, so that the petitioners are physically out of office since then, though their normal term of three years have not yet expired.

(b) Admittedly, the impugned order was passed by the Board and not its President, as in the other case.

(c) The impugned order was, however, passed on the express ground that the Managing Committee had-

refused to comply with the orders of the Board regarding reinstatement of Sri Asutosh Roy as Headmaster of the School.

So far as the grounds that (i) the Board has no jurisdiction under the new Act to make an order of supersession of the Managing Committee and that (ii) the impugned order is bad for contravention of the principles of natural justice are concerned, the reasons given in the other Rule for rejection of these contentions will apply to the instant case and it is needless to repeat them. It should be pointed out, however, that in the instant case, the Board served upon the petitioners a notice to show cause (paragraph 8 and Ann. X of the counter-affidavit of Amalendu Gupta) within 10 days from the service of that notice dated 10.7.65; in response to that notice, the Managing Committee did not show any cause, but addressed the letter dated 23.7.65 (p. 21 of the same counter-affidavit) stating that it was not possible for the Committee to reinstate the dismissed Headmaster as the other teachers were not willing to work with him. At the same time a request was made in that letter (p. 23, ibid), that the Board should "make a decision on the report of the investigation conducted by Shri R. Chatterjee. Assistant Inspector of Schools in this regard", assuring that "the decision made by you on basis of the said inquiry report will be accepted without demur by the Managing Committee.

In reply to the last letter of the petitioners, the Secretary of the Board wrote, on 2.9.65 (p. 24 of the counter-affidavit of Amalendu Gupta), that Shri Chatterjee, in his inquiry report had held the dismissal of the Headmaster as highly irregular and that the D.P.I., had recommended an immediate reinstatement of that Headmaster (respondent No. 7). The Board accordingly reiterated their earlier direction and asked the petitioners to give effect to it within 10 days of receipt of the letter dated 2.9.65. But, instead of reinstating the Headmaster as assured in their previous letter, the Managing Committee of the petitioners passed the resolution reproduced in the letter of their Secretary dated 13.9.65 (p. 26, ibid), seeking the advice of the Secretary of the Board again as to the implementation of its direction, in view of the resolution adopted by the Teachers'' Association.

It was in view of the above resolution that the Board came to the conclusion that the Managing Committee would not comply with its directive, and, accordingly, superseded it. In the circumstances, it cannot be contended that the petitioners were not given any opportunity of showing cause before making the impugned order. Such opportunity was given and, in substance, the petitioners showed a cause for noncompliance which, of course, was not acceptable to the petitioners. That, however, is a different matter.

The ground of mala fides, however, has to be given a separate treatment in view of the fact that the supersession was ex facie, being ordered because of the refusal of the Managing Committee to comply with the direction of the Board to reinstate the dismissed Headmaster.

The facts being admitted, the question to be determined is one of law relating to rule 6 of the Rules framed under the Act of 1950 which expressly empowers the Board to supersede a Managing Committee, as explained in the other case. As pointed out in that case, the power to supersede rests on the subjective opinion of the Board that a Managing Committee has "not been functioning properly". It is obvious that ''functioning properly'' is a very wide expression. The question which we have to determine is whether - (a) non-compliance with any direction issued by the Board; or/and (b) a direction to reinstate an employee, supposed by the Board to have been wrongfully dismissed, is a consideration foreign or extraneous to the concept of ''functioning properly''. The answer, to my mind, must be in the negative, for the following reasons:

(a) As explained already, the power vested in the Board by the statute [section 27(2)] to ''direct, supervise and control'' Secondary Education is a power of the widest amplitude and the Board cannot effectively exercise its power of control if it cannot supersede a Managing Committee, which, in its opinion, has violated any direction issued by itself. Not that a person or persons who think that the power has been used by the Board arbitrarily in any case is without any remedy. As the terms of section 27(2) itself indicate, the exercise of the powers of the Board is ''subject to the general or special orders of the State Government''. The Board has the obligation to supply information as to its activities to the State Government (section 38) and the State Government has the power to suspend any order or act of the Board which is, in the opinion of the State Government "in excess of the powers conferred by or under this Act" upon the Board (section 39). In this situation, it is not for this Court, as if sitting in appeal, to say that in a particular case of non-compliance with any of its directions, the Board ought not to have superseded the Managing Committee but ought to have resorted to some other corrective. It is the State Government, not this Court, which has been endowed by the statute with powers to determine whether any particular act of the Board has been proper or not. Of course, the position would have been otherwise if the exercise of the power in any case were patently ultra vires, - which, of course, is a doctrine to be applied reasonably. It cannot reasonably be held that where a Managing Committee disobeys a direction issued by the statutory authority intended to control its acts. It must still necessarily be held that the Committee has been functioning properly.

(b) It is next urged that whatever might be the amplitude of the Board''s power to supersede, it should not be used for the purpose of re-instating an employee, for, section 22(3) of the new Act places a specific remedy in the hands of the aggrieved employee, namely, to appeal to the Appeal Committee of the Board itself. The appellate power, however, can be exercised by the Committee of the Board only if an appeal has been preferred by the aggrieved person. It does not follow from this that the Board shall not be entitled to exercise any other power conferred by the Act, sou motu, because of this provision for appeal. The real question is whether the Board has the power to ''control'' and, consequently, to supersede a Committee, in the matter of wrongful dismissal of an employee. The dismissal of a Headmaster, in particular, is a matter of grave concern to an educational institution, and that is why rule 25 makes the exercise of this power by a Managing Committee subject to the prior approval of the Board, in the case of aided schools. As I have fully explained the implications of rule 25 in the case of (27) Lilabati Kanjilal v. Administrator, (1967) 71 CWN 216, we need not dilate upon it again. In this case, no such approval was sought for by the petitioners and this was pointed out by the Board in its letter dated 6.4.65 (pp. 11-12 of the counter-affidavit of Amalendu Gupta), and the Board directed the Committee not to give effect to the order of termination till the Board could come to a final decision in the matter, which was within its competence in view of rule 25. The Managing Committee was plainly acting ultra vires in proceeding to terminate the services of the Headmaster without obtaining the prior approval of the Board. In such a situation, it would be defeating the object of the statute to hold that even in such a case the Board cannot use its powers to supersede the Committee in case the latter persists in its action in spite of the Board''s directive not to do so. It will appear from the subsequent correspondnce at Ann. X to the same counter-affidavit that on receipt of the letter of the Board just mentioned, the petitioners kept their order of dismissal of the Headmaster in abeyance, but, nevertheless, made another order to suspend him, even before they heard from the Board further. On receipt of this information, the Board again asked the Committee not to give effect to the order of suspension pending an inquiry and final decision of the Board, by a letter dated 5.5.65 (vide p. 17 of the same counter-affidavit). But the Committee paid no heed to that directive of the Board either, and that is why the notice to show cause to supersede the Board was issued by the letter of 10.7. 65 (vide pp. 17-18, ibid). Even after the inquiry was held and the D.P.I, reported that the termination of the services of the Headmaster had not been made in conformity with the law and procedure relating thereto and this was pointed out to the Committee, and the Board asked the Committee again to reinstate the Headmaster within 10 days of receipt of its letter of 2.9.65 (pp. 24-25, ibid), the Committee did not comply with that directive and sought for a reconsideration in the light of the resolution of the Teachers'' Association (pp. 26-7, ibid). It is only then that the Board came to its conclusion that the Committee was not going to comply with its directives, in a resolution of 29.12.65, and issued the order of supersession, on 15.1.66 (pp. 29-30).

It is within the statutory powers of the Board to refuse to give its approval to the termination of the services of a teacher, and this Court cannot substitute its own decision in the matter. In the circumstances of this case, therefore, from any reasonable standpoint, it is impossible to hold that the impugned order has been either ultra vires or mala fide, in any sense. This plea must be rejected, and the petition dismissed.

It is also to be noted that instead of approaching the State Government to intervene on the ground that the Board was not acting properly, the petitioners came to Court. In my opinion, this is a fit case for awarding costs against the petitioners. The Rule is accordingly discharged, with a costs of five gold mohurs payable by the petitioners to respondent No. 3, the Board of Secondary Education.