Bimal Kumar Chatterjee vs President, West Bengal Board of Secondary Education

P.K. Banerjee, J.—In this Rules the Petitioners challenge an order of supersession of the Managing Committee of the school dated October 7, 1969, made by the President of the Board of Secondary Education u/s 28(2) read with Rule 6 of the Rules framed in 1960.

The Petitioner No. 1 is the Secretary and the Petitioner No. 2 is the President of the Managing Committee along with the Government nominee. It is stated in the petition that the school is a non-Government aided school, recognised by the West Bengal Board of Secondary Education. It is stated that the said Managing Committee of the school was elected in December 1965 for a term of three years and it was duly approved by the Respondent No. 7, West Bengal Board of Secondary Education and since then the Managing Committee has been functioning as such. It is stated further that the term of the said committee was to expire on December 16, 1968, and the Managing Committee, it is alleged, was taking steps for holding the election of a new Managing Committee. It is also stated that the Managing Committee was duly prepared to publish the notice for the holding of the election of the Managing Committee. On September 12; it is alleged that the teachers went; on strike and, it is also stated, because of the situation then prevailing the Head Master of the school postponed the election. The Managing Committee again, in meeting on November 23, 1968, resolved that the election of the Managing Committee would be held before December 1968. It may be mentioned here that the Managing Committee applied for extension of the term of the Managing Committee by letters dated November 23, 1969 and November 26, 1968, for one year in order that the election may be, held in the meantime. The letters are annexes. E and F to the petition. The letter was not replied to by the Board at all. The Board, however, continued to deal with the existing Managing Committee in all matters relating to the school. It is stated that the Board communicated the extension of recognition of the school as Class XI upto December 31, 1970, and also granted permission to present students for Higher Secondary Examination upto 1971. It is also stated, between December 1968 and October 1969 grant-in-aid was paid to the said Managing Committee by proper authorities for the purpose of the school. On May 27, 1969, however, the Board by circular No. 10 of 1969 informed all the recognised schools in West Bengal that the Government was contemplating to make new rules and stated that the Managing Committee should be reconstituted according to the new rules to be finalised.

Thereafter, it is stated that a new rule was promulgated with effect from July 15, 1969. As it has already been stated that on October 7, 1969, the President of the Board of Secondary Education superseded the Managing Committee and appointed the Respondent No. 4 as an Administrator of the school. The Petitioners moved this Court on October 15, 1969, and obtained the present rule and injunction.

On behalf of the Respondent Board of Secondary Education an affidavit was filed. It is stated therein that the Managing Committee was reconstituted on December 8, 1965. The terms of the said committee expired on December 8, 1968. The term of the Managing Committee, it is stated, was not extended and the authorities, of the school did not take any steps for the reconstitution of the Managing Committee at all. It is stated that after the term has expired on December 8, 1968, all its acts are illegal and inoperative and the Managing Committee has no locus standi to function according to the provision of the West Bengal Board of Secondary Education Act, 1963. It is stated that the President exercised his emergency power and superseded the Managing Committee and appointed Mr. B. K. Pani as an Administrator of the school. It is stated further that the Administrator of the school took the charge on October 9, 1968, but could not function because of the interim order of this Court. It is further stated that the circular No. 10 of 1969, annex. L, is not applicable in case of the Managing Committee as the term of the said committee expired before the publication of the circular. It is further alleged that the new rule of 1969 is only applicable to those committees which are reconstituted after the coming into force of the new rules and these rules are not applicable to the old Managing Committee formed under the old rules and that in case of the old Managing Committee the 1960 rules would apply. In that view of the matter it is stated that the order passed by the President u/s 28(2) read with Rule 6 of the old rule of 1960 is not illegal as alleged. The Board denied that the Petitioner applied for extension of the term of the Managing Committee by letters dated November 25, 1968 and November 26, 1968, as alleged.

In the affidavit-in-reply the Petitioners denied the allegations made in the affidavit-in-opposition and stated that the term of the Managing Committee did not expire and in fact they made an application for extension. The copy of the said application was annexed to the petition. It is further stated that in view of the circular of the Board all existing committees in power continued to function.

Mr. D. Ghosh appearing for the Petitioners contended, firstly, that the order of supersession was made u/s 28(2) read with Rule 6 of the rules for the management of non-Government high schools including aided school promulgated on September 19, 1960, was bad in law; after the promulgation of the rules of 1969 with effect from July 15, 1969, the 1960 rules stood repealed and no power could be exercised under the said rule. Secondly, Mr. Ghosh contended that under Rule 8 of the new rules is incumbent on the part of the authorities concerned that before superseding a committee, the Board shall have'' due regard to the report of the Director and shall afford a reasonable opportunity to the committee to present its case before the Board. No such opportunity was given to the committee of which the Petitioners and Respondents Nos. 5 to 15 are the members. Mr. Ghosh further contended that assuming Rule 8 does not apply and Rule 6 applies, even then it is a duty of the President before passing the order to observe the principle of natural justice and that no material has been placed before the Court why it is necessary for the President to use the power as alleged.

At the outset I must hold in view of the decisions in Adwaita Kr. Maity and Ors. v. President, W.B. Board of Secondary Education and Ors. (1967) 71 C.W.N. 396, Lilabati Kanjilal v. Administrator, Nasra Girls School and Ors. (1966) 71 C.W.N. 216 and Panchanan Jash and Ors. v. Board of Secondary Education and Ors. (1965) 71 C.W.N. 189 it has been decided by this Court that the President of the Board can exercise the power of the Board in an emergency and the Court may not go into the question which is left to the subjective satisfaction of the authorities concerned.

Regarding the other two points it will be convenient for me to deal with them together. The West Bengal Board of Secondary Education Act of 1950 was enacted on May 18, 1950, to provide for the regulation, control and development of Secondary Education. u/s 62 read with Section 61 of the said Act the State Government framed rules for the management of non-Government high schools including aided schools on September 19, 1960. Under the West Bengal Board of Secondary Education Act, Section 2, Sub-section (d) defines the Managing Committee in the following terms:

Managing Committee used in reference to an Institution includes the Governor or the Governing Body of such an Institution.

Rule 6 and Rule 10 (hereinafter called 1960 rules) of the said rules it was provided as follows:

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.

In the case of aided schools, the constitution of the Managing Committee shall be forwarded to the Board of Secondary Education through the Director of Public Instruction whose observation on the personnel shall be considered by the Board before the Board approve of the Committee.

The term of the Managing Committee shall be for three years from the date of approval of the Committee by the Board unless the term of the Committee is extended by the Board for any reason.

The 1950 Act was repealed by the 1963 Act which came into effect from January 1, 1964. In Section 2(d) of the Act, Managing Committee has been defined as follows:

Managing Committee used in reference to an Institution includes the Governor or the Governing Body of such an Institution.

u/s 45 of the 1963 Act the State Government was empowered to frame rules for carrying out the purpose of the Act. Rule 45 (2) (d) gives power to the State Government to make rules for compensation, function and powers of the Managing Committee. Under the said power the State Government has framed rules for the Managing Committee of recognised non-Government institution (aided and non-aided) 1969. In the said rules, Rule 2, Sub-rule (c), ''Managing Committee'' and ''committee'' has been defined in the following terms:

''Committee'' means Managing Committee as defined in Clause (d) of Section 2 of the Act. The said rule makes an elaborate provision for constitution, composition, power and function of the Managing Committee of the secondary school. Rule 3 runs as follows:

Every recognised non-Government Institution shall have a Committee to be constituted in the manner and for the purpose hereinafter appearing.

In Rule 8 (hereinafter called 1969 rules) it was provided as follows: Power of Board to approve and supersede Committee:

(1) The constitution of a Committee shall be subject to the approval" of the Board and the Board shall have the power to supersede a Committee that has, in its opinion, not been functioning properly and to appoint an Administrator to exercise the powers and perform the functions of the Committee.

Provided that before superseding a Committee under this rule the Board shall have due regard to the report of the Director and shall afford a reasonable opportunity to the Committee to present its case before the Board.

(2) Notwithstanding anything contained elsewhere in these rules the Board shall have the power to approve of the special constitution of a Committee in special cases or classes of cases.

Provided that no approval shall be given to the special constitution of a Committee unless the Institution concerned has applied for such constitution in accordance with the terms of the trust-deed or other legal documents relating to the founding or establishment of the Institution.

Provided further that any special constitution of a Committee shall provide for the election or nomination to the Committee of the same number of guardians and teachers as specified in rules 6 and 7 respectively in the same manner as specified in those rules and shall also provide that the number of Other members in the Committee shall not exceed 50 per cent of the total number of guardians and teachers so elected or nominated, as the case may be, to the Committee including the head of the Institution who shall be an ex-officio member and Joint Secretary of the Committee.

(3) An Administrator appointed under Sub-rule (1) shall exercise the powers and perform the functions of the superseded Committee for not more than six months during which period the Committee shall be reconstituted under these rules.

(4) The constitution of a Committee shall be forwarded to the Board through the Director whose observations thereon shall be considered by the Board before the Board approves of the Committee.

In Rule 12 it is provided as follows:

Subject to the approval of the Committee by the Board the term of the Committee shall be three years from the date on which its constitution or reconstitution is completed by the election of the office-bearers and nomination by the Director or from the date of expiry of the term of the previous Committee whichever is later.

Provided that such term may be extended by the Board for good and sufficient reasons so, however, that the period of extension shall in no case exceed one year.

It was also provided in the said rules that every institution shall constitute committee in accordance with the rules within six months from the date of publication of this rule in the Calcutta Gazette. The time is now being extended from time to time and as at present stands the time to constitute the Managing Committee is extended up to May 1970. The provisions which is necessary for the disposal of the points raised by Mr. Ghosh have been set out hereinabove. Mr. Ghosh contended that under Rule 8 of the new rules which is applicable in the facts of the present case unless a committee was given a reasonable opportunity to present its case before the Board, it cannot be superseded.

Mr. Biswas on behalf of the Respondent contended that the rule which is applicable in the facts of this case is Rule 6 of 1960 rules and not Rule 8 of the 1969 rules and, as such, the order passed u/s 28(2) read with Rule 6 is a valid order.

Mr. Biswas contended that rule of 1969 is only applicable in respect of committee which came into existence after the constitution or reconstitution thereof under 1969 rules and in that view of the matter the provision of Rule 6 does not apply in respect of committee not formed under the present rule but under 1960 rules. Mr. Biswas submitted that so far as the committees are not formed under the new rules are concerned they are still guided by the rules of 1960 or, in the other words, Managing Committee formed before 1969 rules, are still governed by 1960 rules and the committees formed under the rules of 1969 will in future be governed by the said rules. In my opinion, however, Mr. Biswas'' contention cannot be correct. With the enactment of the Board of Secondary Education Act of 1963, the earlier Act, that is, West Bengal Board of Secondary Education Act of 1950 stood repealed, but for Section 25 of the Bengal General Clauses Act the rules framed under the said Act could not have continued. The West Bengal Board of Secondary Education Act of 1963 is a re-enactment of the Act of 1950, the rules framed under the 1950 Act continue in force so far as these are not inconsistent with the provision of 1963 Act and unless and until superseded by a rule framed under the provision of the 1963 Act or, in other words, till the time the State Government does not promulgate any rule under the new enactment the old rules continue, but as soon as the new rules are promulgated the old rules cease to exist. In the present case, on July 15, 1969, in exercise of powers conferred in Sub-section (1) and Clause (d) of Sub-section (2) of Section 45 of the West Bengal Board of Secondary Education Act of 1963 the State Government was pleased to make the new rules for management of recognised non-Government institution aided and non-aided). In the said rules the State Government has promulgated the rules for management of the said schools containing inter alia that every institution must have a Managing; Committee to be constituted. It is provided in the said rules that there is a provision for registration of voters, election of the committee, power of the Board to approve and supersede the committee, procedure for election framed by the committee and other powers and functions of the committee as well have the powers of the said committee. As with the promulgation of the rules framed u/s 45(2)(d) of the Act of 1963, the rules of 1960 cease to operate and the only rule which is applicable is a rule of 1969. In that view of the� matter there is no substance in the contention of Mr. Biswas that the old rule applies to the old Managing Committee and the new rule applies to the new Managing Committee, more so when I found the ''committee'' as defined in the rule means a Managing Committee as defined in Clause (d) of Section 2 of the Act. To accept Mr. Biswas'' contention would mean that the Managing Committee formed under the old rules or the present Managing Committee which is formed under the new rules and also to hold even when new rules are framed and even when the Act of 1950 is repealed and that even though Section 25 of the Bengal General Clauses Act does not apply, still the old rules would continue. Under Rule 8 the Board can supersede a Managing Committee after giving an opportunity to present its case before the Board. Admittedly, no such opportunity was given. The word ''supersede'' means to set aside, adopt, or appoint another person or thing in place of (The Concise Oxford Dictionary)--to take place or office of; to remove or cease to be removed so as to make way for another (Webster).

In my opinion, the plain meaning of the word ''supersede'' presupposes an existence of a Managing Committee which was sought to be removed by the order and in its place an Administrator was sought to be appointed. Unless there is an existing Managing Committee, no order of supersession of the Managing Committee and the appointment of an Administrator in order to replace the said committee can arise. The impugned order itself shows that the Respondent of the Board ordered supersession of the Managing Committee and ordered the Administrator to take over the charge and discharge the function of the said committee.

Mr. Biswas further contended that the Petitioners who are some of the members of the Managing Committee have no locus standi to move this application and, therefore, this rule must fail on that ground alone. It must be stated that it was nowhere to be found from the affidavit of the Board of Secondary Education that the approval of the Managing Committee of the school was given by the Board of Secondary Education. It is stated in the affidavit-in-opposition that the application for extension was not given by the Petitioners'' Managing Committee of the school, but it appears from the affidavit-in-reply that before the expiry of the term of the Managing Committee calculated from the date of the taking over the charge the Managing Committee applied to the Board for extension of the terms which was duly received by the Board, but the Board did not take any steps in regard there to. Moreover, from the circular No. 10 which is annex. I to the petition it was stated that the existing Committees that are, in power, the Administrator or the Ad hoc Committee, already appointed by the Board, or a school committee allowed to function as an Ad hoc Committee for any other reason, should continue to function, pending the finalisation of the new rules until further orders, as the case may be, and all reconstitutions of the Managing Committee should be kept postponed including the cases where such reconstitutions have been ordered by the Board.

It was further stated in the said circular that-the Managing Committee which has been functioning according to the new rules or according to the special constitution approved by the Board and have already come to power should also continue to function until further orders. Without any prejudice to any of the provisions of law in general all Managing Committees, whose life is due to expire in the meantime, may pray for extension of their term till the reconstitution held according to the new rules that are going to be framed. From the reading of the said order it appears to me that all existing committees in power were allowed to continue till reconstitution was made of the Managing Committee. It was further directed that ho election may be held regarding such reconstitution, and that election would be held according to the new rules which was likely to be finalised shortly by the State Government. In that view of the matter, it cannot be said that the Managing Committee of the school of the Petitioners, who are members of the Managing Committee, has no locus standi to challenge the order of supersession passed against the Managing Committee. Mr. Biswas referred to me two decisions of this Court, West Bengal Board of Secondary Education v. A.N.M. Salim and Ors. Unreported decision of A. C. Gupta J. dated April 14, 1970. as also Civil Order No. 3435 of 1964 by the Hon''ble Mr. Justice P. B. Mukharji (as his Lordship then was) Unreported decision of P. B. Mukharji J. in Civil Order No. 3435 of 1964 whereby their Lordships refused to interfere in the matter of an application for injunction in a suit on the ground the term of the Managing Committee being for three years under Rule 10 of 1960 rules and that term has* expired, there is no prima facie case for an injunction in favour of the Petitioner Plaintiff in the suit. It was held by his Lordship the Hon''ble Mr. Justice Gupta that the Board proposed to appoint an Administrator is sufficient to say that the Board was not inclined to allow the old committee to function any longer. In the fact of the present case, in view Of the circular issued by the Board it appears to me that the Board allowed the Managing Committee to continue to function pending the finalization of the promulgation of the new rules by the State Government. In my view, therefore, in view of the said notification it is clear that the term of the Managing Committee in power continues till the new election is held under the new rules and those cases are clearly distinguishable in the facts of the present case. It appears to me that the circular which is annex. I to this petition was not placed before his Lordship when the order Was made, in that view of the matter I hold that there is no substance of the contention of Mr. Biswas that the Petitioners have no locus standi to challenge the supersession.

In the result, I hold that the order passed by the President of the Board of Secondary Education is without jurisdiction being in violation of the rules. The order must be set aside and quashed. The rule is made absolute. There will be no order as to costs.