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Judgment
This is an application under Article 226 of the Constitution of India wherein the writ petitioner has challenged the impugned Memo dated April 13,
2018 being annexure P10 to the writ petition that has appointed a person as the President of the Managing Committee in place and stead of the
petitioner. The facts of the case are as follows :-
a) On January 16, 2015 the Joint Secretary to the Government of West Bengal, appointed the petitioner as the President of the Managing Committee
of Balapur High School. The term of the said committee was for a period of three years;
b) Subsequently, on November 30, 2017, the Joint Secretary vide a Memo of School Education extended the term of the Managing Committee, in
terms of the provision contained in Rule 10 of the Rules for Management of Sponsored Institutions (Secondary) Rules, 1972 (in short ‘the said
Rules’) for a period of one year or till a new committee was formed, whichever was earlier;
c) Subsequently, on April 13, 2018 the Assistant Secretary, Government of West Bengal, School Education Department, Secondary Branch,
nominated a new President to the Managing Committee of Balapur High School in place of the petitioner. The other members in the existing
Committee were directed to continue as members of the changed Managing Committee.
It is the contention of the writ petitioner that the writ petitioner cannot be removed within the period of one year for which the extension had been
granted to him by the letter dated November 30, 2017. Counsel on behalf of the writ petitioner submits that Rule 10 read with Rule 25 of the said
Rules requires the Government to follow a particular procedure for appointment or removal of a member of the Managing Committee.
It is his submission that cogent reasons are required to be given for the removal of the petitioner and appointment of another person in his place, as
without cogent reason his status, that he has obtained, would be demeaned. Counsel for the respondent authorities relied on an order of the Coordinate
Bench of this Court in W.P. 138(W) of 2015 (Md. Lukman Ali Vs. The State of West Bengal & ors.), wherein Hon’ble Justice Dipankar Dutta
had the occasion to deal with a pari materia case. Relevant portion of the order is provided below :-
“Mr. Bhattacharya, learned advocate appearing for the petitioner contends that before calling back the petitioner’s nomination, he should have
been extended reasonable opportunity of defence. According to him, the petitioner had attained a status and he could not have been relieved of such
status without there being any misdemeanor on his part.
I am afraid, the contention raised by Mr. Bhattacharya does not impress me. The petitioner never questioned himself as to why he was nominated by
the department in the first place to function as the President of the school. There is no provision in the Rules for Management of Sponsored
Institutions (Secondary) Rules, 1972 that once nominated by the department, the person concerned would continue to function as the President of the
Managing Committee for a particular period of time or that prior to calling back the nomination, he has to be heard.
In my view, the Government having nominated the petitioner without putting him through any process of section must be held to have the right to call
back the nomination at will without attaching any stigma relating to the mode and manner of functioning of the Managing Committee, of which the
petitioner was the President. Since no legal right of the petitioner appears to have been infringed by reason of calling back the nomination without
attaching any stigma, I find no reason to interfere.â€
Counsel on behalf of the petitioner relied on a decision reported in A.I.R. 1989 S.C. page 1607 in the case of Shri Anadi Mukta Sadguru Shree
Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and ors. Vs. V.R. Rudani and ors. to submit that the Writ Court has the power to
issue a mandamus to a public authority to compel performance of a public duty. He relied on the judgement to further submit that there is no limitation
for our High Courts to issue the writ in the nature of mandamus as Article 226 confers wide power on the High Courts to issue writs in the nature of
prerogative writs for the enforcement of any of the fundamental rights and for any other purpose. He has relied upon a decision reported in 2008(7)
Supreme 762 in the case of Nagar Palika Nigam Vs. Krishi Upaj Mandi Samiti & ors. to submit that the Court cannot read anything into a statutory
provision which is plain and unambiguous. He further submitted that the order in Md. Lukman Ali (supra) was an order passed in the year 2015 before
coming into effect of the second proviso to Rule 10 wherein the following has been stated :
“ Provided further that notwithstanding anything contained in any other rule, nominating authority may recall any nomination of a person as
President or Person Interested in Education on the Committee of an Institution, before the expiry of the term of the Committee is such authority is
satisfied on the basis of any formal or informal information that the replacement of such person is in the better academic or administrative interest of
the concerned institution.â€
According to learned Counsel for the petitioner, the above proviso makes it clear that if a nomination of a person is being recalled prior to expiry of the
term of the Managing Committee, the authority should be satisfied on the basis of any formal or informal information that the replacement of such
person is in the better academic or administrative interest of the concerned institution. According to him, the Memo dated April 13, 2018 fails to satisfy
the said proviso as no basis has been provided in the said Memo.
Counsel on behalf of the writ petitioner further submits that it may be noted that the Managing Committee of the school has itself nominated him to
challenge the Memo dated April 13, 2018. According to him, such was not the case in the order passed in Md. Lukman Ali’s case (supra).
Counsel on behalf of the respondent submits that the writ petition is liable to be dismissed in limini for non-joinder of the parties as the person who has
been appointed as the new President has not been made a party to the writ petition. It is his submission that a valuable right has accrued to the person
newly appointed and he should have been made a party as he was a necessary and proper party.
Counsel on behalf of the petitioner discards this argument by submitting that the new person has not taken charge till date inspite of the fact that the
order was passed by the Government on April 13, 2018. Such submission is negated by the Counsel on behalf of the State-respondents. I have heard
the submissions of the Counsel on behalf of the appearing parties and perused the materials placed before this Court. It is to be noted that the
amendment of Rule 10 that includes a new proviso does not provide for a hearing to be granted to the person who is being replaced. The proviso only
allows for a subjective satisfaction on the basis of formal or informal information for better academic or administrative interest. The above satisfaction
is to be arrived at by the authorities prior to recalling the nomination of the person. The case of the petitioner is based on the factual matrix that no
reason has been provided to him for his removal.
In my opinion, the new proviso as amended does not require the Government to give specific reasons to the petitioner for the above change. It is to be
noted that the petitioner has been nominated by the Government without having gone through any process of selection and as such no vested right
accrues on him with regard to the continuation in such a post. In the present case, the petitioner has completed his three years period starting from
January, 2015, the same having been extended for a period of one year or on appointment of a new committee, whichever is earlier by a letter dated
November 30, 2017.
The letter dated November 30, 2017 clearly provides that the term of the committee may be curtailed on the appointment of a new committee.
According to me, the order passed by the Coordinate Bench of this Court in Md. Lukman Ali’s case (supra) being pari materia to the present case
would be very much applicable in the present case. The addition of the proviso in Rule 10 only entails the Government to come to a subjective
satisfaction to the recalling a person who has been nominated. The same does not provide for giving the person being replaced a chance of hearing
nor is there any requirement to provide the said person with cogent reasons for the same.
In any event, the petitioner has completed his three years and was on an extended period of one year/appointment of new committee, whichever was
earlier. By the order dated April 13, 2018 the Government has formed a new committee and the said Memo need not explain the reasons for the
change in the committee. As no legal right of the petitioner has been infringed in the present case, this Court is of the opinion that there is no reason to
interfere at this stage.
The respondent authorities were granted time on June 8, 2018 to file a report in the form of affidavit detailing the basis of the “subjective
satisfaction†that was carried out prior to issue of the Memo dated April 13, 2018 (annexure P10 to the writ petition). Today, when the matter was
taken up, Counsel on behalf of the respondent authorities submitted that after going through the file they were unable to find any “subjective
satisfaction†arrived at by the respondent authorities prior to issue of the said Memo.
Accordingly, Counsel on behalf of the respondent authorities submits that this Court may pass an order allowing them the option of reviewing the
matter at a later stage. In view of the above, it is amply clear that the respondent authorities did not comply with Rule 10 of the said Rules. I,
accordingly, set aside the impugned order dated April 13, 2018 passed by the Assistant Secretary, School Education Department, Secondary Branch,
Government of West Bengal. The respondent authorities shall be at liberty to act in accordance with law with regard to reconstitution of the Managing
Committee of the said school.
With the above observations, this writ petition is disposed of without however any order as to costs. Since no affidavit is called for, the allegations
made in the writ petition are deemed not to have been admitted. Urgent Photostat copy of this order, if applied for, be given to the parties on usual
undertaking.