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Judgment
Ashok Bhushan and Arun Tandon, JJ.—Heard, learned Counsel for the parties.
This intra court appeal is directed against the judgment and order of the Hon''ble single Judge dated 9th October, 2007 whereby Writ Petition No. 49367 of 2007, filed by the appellant has been dismissed after recording that the controversy raised in the writ petition is covered by the judgment of this Court in the case of Committee of Management, Devraha Baba Inter College and Anr. v. Regional Joint Director of Education, 7th Region, Gorakhpur and Anr. 2005 (4) ESC 2692. The Hon''ble single Judge has upheld the order impugned which provides that the relevant clause of the amendment in the scheme of administration extending the term of the elected Committee of Management from 3 years to 5 years would be applicable only in respect of the Committee of Management, elections whereof take place subsequent to the approval of the amendments by the Regional Joint Director of Education.
Challenging the judgment and order of the Hon''ble single Judge, learned Counsel for the appellant contends that the power to make amendments in the scheme of administration has been conferred u/s 16A (5) of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as the Act, U. P. Intermediate Education Act. 1921). Such amendments in the scheme of administration take effect from the date the amendments are approved by the Director of Education. The petitioner''s Committee of Management which was elected in the year 2005 had proposed amendments in the scheme of administration, whereby the term of the elected Committee of Management has been changed from 3 years to 5 years during subsistence to its 3 years term. The amendments have infact been approved during the same period. However, the Regional Joint Director of Education has incorporated a totally unwarranted condition in the order of approval that such amendment in the scheme of administration (qua extension of the term) would take effect only in respect of the Committee of Management, which is elected subsequent to the approval of the amendments. It is contended that the letter of the Director of Education, U. P. at Allahabad dated 4th August, 2003 which provided that such amendments extending the term of the Committee of Management from 3 years to 5 years would take effect only in respect of the Committee of Management, which is elected subsequent to the date of approval of the amendments, is in excess to his statutory powers u/s 16A (5). It is submitted that the Director of Education has no authority under the provisions of Act, 1921 to control the manner in which the amendments are to take effect.
Learned Counsel for the petitioner-appellant has placed reliance upon the judgment of this Court in Committee of Management, M. M. I. Inter College, Bijnor v. Deputy Director of Education and Ors. 1994 (24) ALR 410, as well as upon the unreported judgment dated 18th September, 2003 passed in Writ Petition No. 14041 of 2003. Committee of Management of Shri Guru Nanak Manya Inter College, Bilaspur, Rampur and Ors. v. State of U. P. and Ors.
Opposing the contentions so raised on behalf of appellant, learned Counsel for the respondents submits that the judgments relied upon by the learned Counsel for the appellant were delivered at a point of time when the circular of the Director of Education dated 4th August, 2003 had not seen the light of the day. In view of the circular of the Director of Education, it is obligatory upon the Delegatee Authority, namely Regional Joint Director of Education to comply with the directions issued under the circular while approving the amendments. Therefore, the order passed by the Regional Joint Director of Education impugned in the writ petition dated 3rd September, 2007 is strictly in accordance with law. It is further stated that from the judgment of this Court in the case of Committee of Management, Devraha Baba Inter College (supra), specifically paragraph 8, it is apparently clear that the amendments affected in the scheme of administration have to abide by the condition mentioned in the order approving the amendments. Since in the facts of the present case, the Regional Joint Director of Education had specifically recorded in his order dated 3rd September, 2007 (while approving the amendments), that the benefit of the extended term will entail to the Committee, elections whereof are held subsequent to the date of approval, the writ petition filed by the petitioner-appellant has rightly been dismissed by the Hon''ble single Judge vide judgment and order dated 9th October, 2007.
We have considered the submissions made by the learned Counsel for the parties and have gone through the records.
For the purposes of appreciating the controversy raised in this appeal it would be necessary to state the facts relevant for the purpose.
Arya Kanya Intermediate College, Gulawathi district Bulandshahr is an aided institution recognised under the provisions of Act, 1921. The said institution is run and managed in accordance with the approved scheme of administration.
Last undisputed elections of the Committee of Management of the institution are stated to have taken place on 7th September, 2005. Papers pertaining to the said elections were transmitted to the Regional Level Committee, constituted under the Government order dated 19th December, 2000 of which the Regional Joint Director of Education is the Chairman. The Regional Level Committee approved the elections vide its decision dated 20th December, 2005. As a consequence thereto, the District Inspector of Schools also attested the signatures of Sunil Kumar as the lawful manager of the Committee of Management. Under Clause 8 of the approved scheme of administration, as was existing on the date of the aforesaid elections of the year 2005, the term of the elected office bearers was provided as three years with a condition that for grace period of one month, the office bearers of the Committee of Management shall continue to hold the office and in case the newly elected Committee of Management does not take over charge with the aforesaid period of three years and one month, it shall be deemed to have become time barred and in such a circumstance a Tadarth Samiti shall be appointed by the Arya Paritinidhi Sabha for holding fresh elections of the Committee of Management within six months.
The elected Committee of Management is stated to have passed a resolution on 10th June, 2007 proposing amendments in the scheme of administration specifically Clause 8 referred to above, whereby the term of the elected Committee of Management was extended from 3 years to 5 years. The resolution of the Committee of Management was considered in the meeting of the general body held on 20th July, 2007 and is stated to have been approved on the said date. Papers in respect of the amendments so proposed, were transmitted to the Regional Joint Director of Education through the office of the District Inspector of Schools.
The Regional Joint Director of Education by means of the order dated 3rd September, 2007 approved the amendments so proposed in the scheme of administration with the condition that the said extension of the term of the Committee of Management would be applicable only in respect of the elections, which will take place subsequent to the amendments so approved. Reference in the letter has been made to the letters of the Director of Education, U. P. at Allahabad dated 30th March, 1998 and dated 4th August, 2003, wherein it has been provided that amendments in the scheme of administration for the purposes of extension of the term of the Committee of Management, if approved, shall take effect only in respect of the Committee of Management, elections whereof are held subsequent to the date of resolution of the Committee of Management proposing the amendments in the scheme of administration.
Not being satisfied with the condition so incorporated in the order approving the amendments dated 3rd September, 2007 petitioners approached this Court by means of the writ petition questioning the order dated 3rd September, 2007 as also the order of the Director of Education dated 4th August, 2003. The writ petition filed by the petitioner has been dismissed as noticed hereinabove.
For the purposes of resolving the controversy raised, it is necessary to refer to Section 16A of Act, 1921 which provides for the scheme of administration alongwith procedure for amendments to be made therein, and reads as follows:
16A. Scheme of Administration.- Notwithstanding anything in law, document, or decree or order of a Court of other instrument, there shall be a scheme of administration (hereinafter referred to as the Scheme of Administration) for every institution, whether recognised before or after the commencement of the Intermediate Education (Amendment) Act, 1958. The Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management (hereinafter called the Committee of Management) vested with authority to manage and conduct the affairs of the institution. (The Head of the institution) and two teachers, thereof, who shall be selected by rotation according to seniority in the manner to be prescribed by Regulations, shall be ex-officto members of the Committee of Management with a right to vote.
(2) No member of the Committee of Management shall either attend a meeting of the Committee or exercise his right to vote whenever a charge concerning his personal conduct is under discussion.
(3) The Scheme of Administration shall also describe subject to any Regulations, the respective powers, duties and functions of (the Head of the Institution) and Committee of Management in relation to the institution.
(4) Where more than one recognised institution is maintained by a body or authority, there shall be separate Committee of Management for each institution unless otherwise provided in the Regulations for any class of institutions.
(5) The Scheme of Administration of every institution shall be subject to the approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without the prior approval of the Director:
Provided that where the Management of an institution is aggrieved by an order of the Director refusing to approve an amendment or change in the Scheme of Administration, the State Government, on the representation of the Management, may, if it is satisfied that the proposed amendment or change in the Scheme of Administration is in the interest of the institution, order the Director to approve of the same, and thereupon the Director shall act accordingly.
(6) Every recognised institution shall be managed in accordance with the Scheme 0/ Administration framed under and in accordance with Sub-section (1) to Sub-section (5) and Sections 16B and 16C.
From the facts as they exist on record, it is apparent that the only amendment proposed under the resolution of the Committee of Management dated 10th June, 2007 as approved by the general body on 20th July, 2007 was in Clause 8 of the existing scheme of administration to the extent, that the term of the Committee of Management shall be 5 years in place of 3 years.
The order of the Regional Joint Director of Education dated 3rd September, 2007 approving such amendments, in so far as it is relevant for our all purposes, reads as follows:
mDr la''kks/ku ds lEcU/k esa fo|ky; dh izcU/k lfefr ds izLrko fnukad 10-6-2007 ,oa lk/kkj.k lHkk ds izLrko fnukad 20-7-2007 tks fd vkids }kjk izfrgLrk{kfjr dj izLrqr fd;s x;s gS] ds vk/kkj ij vk;Z dU;k b.Vj dkyst] xqykoBh �cqyan''kgj� dh iz''kklu ;kstuk dh /kkjk 8 esa fd;k x;k la''kks/ku vuqeksfnr fd;k tkrk gS] ijUrq f''k{kk funs''kd] mRrj izns''k] bykgkckn ds i= la[;k % lk0&1@izFke f''kfoj@1954&88@97&98 fnukad 30-3-98 ,oa i=kad % lk0&1@f''kfoj
okn@3530&3680@2003&04 fnukad 4-8-2003 esa fn;s x;s funsZ''kkuqlkj izcU/k lfefr ds dk;Zdky o`f) lEcU/kh /kkjk 8 esa fd;s x;s la''kks/ku dk ykHk orZeku izcU/k lfefr dks vuqeU; ugh gksxk A ftlds dk;Zdky esa mDr la''kks/ku ikfjr gqvk gSA vr% /kkjk 8 esa vuqeksnu fd;k x;k la''kks/ku vkxkeh pquko esa uoxfBr izcU/k lfefr ds lEcU/k esa gh izHkkodkjh gksxk A mDr la''kks/ku ds lEcU/k esa ;fn Hkfo"; esa ;g rF; laKku esa yk;k tkrk gS fd rF;ksa dks fNikdj ,oa vfu;fer :i ls mDr la''kks/ku djk;k x;k gS vkSj tkapksijkUr mldh iqf"V gks tkrh gS rks fd;k x;k la''kks/ku Lor% fujLr le>k tk;sxk A
layXud % la''kksf/kr @ vuqeksfnr izLrko A
Hkonh; �ch0 ds0 lDlsuk� la;qDr f''k{kk funs''kd izFke e.My] esjB A
It is also worthwhile to reproduce the relevant portion of the circular of the Director of Education dated 4th August, 2003 which has been referred to in the order of approval. Relevant portion whereof reads as follows:
v''kkldh; ek/;fed fo|ky;ksa esa izca/k lfefr dk dk;Zdky rhu o"kZ ls nks o"kZ ck;s tkus ds laca/k esa bl dk;kZy; ds i=kad&lk0&1 �izFke�@19954&38@97&98 fnukad 30-3-98 ds }kjk funsZ''k ikfjr fd;s x;s Fks %
mDr ds laca/k esa ;g Li"V fd;k tkuk gS %
�1� v''kkldh; ek/;fed fo|ky;ksa dh izca/k lfefr ds dk;Zdky esa ifjorZu@la''kks/ku gsrq lk/kkj.k lHkk dk izLrko izkIr fd;k tk; A
�2� izcU/k lfefr ds dk;Zdky esa la''kks/ku gsrq lk/kkj.k lHkk dk izLrko gksus ij ijh{k.kksijkUr larq"V gksus dh n''kk esa izLrko ekU; fd;k tk ldrk gS] tks fd bl vk''k; dk izLrko ikfjr gksus ds fnukad ds mijkUr pquko esa uoxfBr izca/k lfefr ds laca/k esa izHkkodkjh gksxk A bl izLrko dk ykHk ml izca/k lfefr dk vuqeU; ugh gksxk] ftlds dk;Zdky dh vof/k esa ;g izLrko ikfjr gqvk A
mDr fd vuqlkj dk;Zokgh lqfuf''pr dh tk; A
Hkonh; � lat; eksgu � f''k{kk funs''kd �ek/;fed� mRrj izns''k] y[ku� A
From aforesaid Section 16A (5) of the U. P. Intermediate Education Act, 1921, it is apparent that power to approve the scheme of administration as also the amendments, if any, in the approved scheme of administration has been conferred upon the Director.
"Director" has been defined u/s 2 (aaa) of the Act, 1921, it reads as follows:
Director" means the Director of Education, Uttar Pradesh (and except for purposes of Section 3, includes an Additional Director of Education).
It is not in dispute between the parties that the power to be exercised by the Director of Education u/s 16 of the Act, 1921 has been delegated to the Regional Joint Directors of Education under Government order applicable and therefore, the Regional Joint Director of Education while approving the scheme of administration as well as amendments made infact exercises the power of the Director of Education only.
It has been settled that when a statutory power is delegated by the competent authority upon a subordinate authority, the delegated power so exercised is that of the Principal Authority itself. Reference be had to the judgment of the Hon''ble Apex Court in Roop Chand Vs. State of Punjab, , wherein in paragraph 11,it has been held as follows:
The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal u/s 21 (4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government? We think it must be the order of the Government....
When the delegate exercises the power, he does so for the Government....
Thus, the power exercised by the Joint Director of Education, while approving the amendments made in the scheme of administration of a recognised intermediate college, is infact the power of the Director of Education himself.
The Director of Education under his circular dated 4th August, 2003 has clarified that whenever enhancement in the term of the elected office bearers under the approved scheme of administration is provided by way of amendments, such amendments, if approved, will take effect only in respect of Committee of Management, election whereof is held subsequent to the date of the resolution proposing amendments in the scheme of administration.
It would be relevant to refer to Section 19A of the U. P. General Clauses Act, 1904 which reads as follows:
19A. Ancillary powers.- Where, by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any Act or thing, all such powers shall be deemed also to be given as are necessary to enable that person, officer or functionary to do or enforce the doing of the act or thing.
From the aforesaid, it is apparently clear that if a power is conferred upon an authority under a State Act, such power will include within its ambit all necessary ancillary powers, which may be necessary for effective exercise of powers conferred under the statutory provisions. The powers to approve the amendments being the statutory power of the Director, it logically follows that he has necessarily competence to impose such condition while approving the amendments, as may be fair and just.
We, therefore, arrive at a conclusion that the Director of Education, while approving the amendments in the scheme of administration, is entitled to impose fair and just conditions. It is within his competence to provide that if any existing Committee of Management seeks amendments in the clause provided for the term of the elected office bearers (in the facts of the present case 3 years to 5 years), then while approving such amendments in the scheme of administration, it is always open to the Director of Education to provide that such extension of term (3 years to 5 years) would be applicable only in respect of Committee of Management, which is elected subsequent to the date of resolution of the Committee of Management proposing amendment. Such condition imposed by the Director of Education cannot be said to be arbitrary or unfair. The condition so imposed would be within his statutory competence and within the framework of the power as conferred by Section 16A (5) of 1921, Act.
The aforesaid finding leads the Court to another issue, namely, as to whether the Director, upon whom the statutory power has been conferred, can issue guidelines by way of Circulars/letters binding upon the delegatee authorities, who have been delegated the power to approve such amendments in the scheme of administration under the said relevant Government order.
It will be relevant to notice at this stage that earlier the Regional Joint Directors of Education were passing orders on proposals of amendments in scheme of administration submitted for extension of the term of the Committee of Managements differently. In some cases amendments were being approved of and in some cases amendments were being turned down. To bring uniformity in respect of decision taken qua such amendments for extension of the term, the Director had issued the earlier circular dated 30th March, 1998 referred to in the impugned order of Regional Joint Director of Education, wherein permission was granted to approve the amendments for extension of the term from 3 years to 5 years only.
As already recorded above, power to approve the amendments in the scheme of administration continues to be that of the Director and the Regional Joint Directors of Education are only delegatees, who infact exercise the power of the Director only. There are large number of Regional Joint Directors of Education in the State of Uttar Pradesh appointed for various regions, it is well within the competence of the Director (Principal Authority) to issue circulars/letters for regulating the exercise of power to approve the amendments in the scheme of administration by the delegatees in an uniform manner. Such circulars requiring the delegatees to act uniformally, while approving the amendments in the scheme of administration has the effect of treating all similarly situate persons in similar manner and at par. It further obviates the chances of different orders being passed by the different delegatees, Regional Joint Directors of Education in respect of similar proposals seeking amendments in the scheme of administration qua extension of the term of the elected Committee of Management. Such circular or letter of the Director is therefore, in furtherance of his principal power to approve the amendments in the scheme of administration and for ensuring that delegatees, while approving the amendments in the scheme of administration treat all similarly situate Committee of Managements in the same manner.
In our considered opinion, the power of the Director (Principal) as contained in the statutory provisions u/s 16A (5) qua approval of the scheme of administration as well as amendments proposed therein, is not lost only because such power has been delegated to the Regional Joint Director of Education under relevant Government order. Principal, i.e., Director still retains his statutory power u/s 16A (5) of Act, 1921 subject however, to the condition that once the power has been exercised by the delegatee, the principal, i.e., Director will have no power of superintendence/review over such order of the Regional Joint Director of Education. (Reference Special Appeal No. 1054 of 2008, Committee of Management v. Rama Shankar Singh and Ors. decided on 28th August, 2008).
Even otherwise, we feel that it is appropriate and it is fitness of things that the Committee of Management, which is elected in accordance with the provisions of the scheme of administration must be permitted to continue only for the term, which was applicable at the time of the elections. The extension of the term so provided '' by seeking permission of its own term and by suggesting amendments in the scheme of administration cannot be approved of by this Court and, therefore, we have little hesitation to hold that the provision as contained in the circular/letter of the Director dated 4th August, 2003 as also in the condition imposed in the order of the Regional Joint Director of Education dated 3rd September, 2007 while approving the amendments in the scheme of administration with the extended term applicable only in respect of Committee of Managements , which are elected subsequent to the date of the approval order, is fair and just. Such orders do not warrant any interference in equitable jurisdiction under Article 226 of the Constitution of India.
The judgments relied upon by the learned Counsel for the parties do not say to have any application in view of the circular of the Director. Therefore, it is not necessary for this Court to refer to any of the aforesaid judgments relied upon by the parties. The amendments incorporated in the scheme of administration qua extension of the term of the elected Committee of Management has to be approved of alongwith condition as provided for under the Circular/Order of the Director of Education dated 4th August, 2003.
In view of the aforesaid, this special appeal is dismissed and the judgment and order of the Hon''ble single Judge dated 9th October, 2007 is hereby affirmed.