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1973 DIGILAW 66 (PAT)

Ram Bilas Ojha v. President Board of Secondary Education Bihar

1973-03-29

S.N.P.SINGH, SHIVESHWAR PRASAD SINHA

body1973
JUDGMENT S.N.P. Singh, J. This writ application has been filed by two persons. Ram Bilas Ojha (petitioner no. 1) claims himself to be the Secretary and Shrimati Rupawanti Devi (petitioner no. 2) claims herself to be the President of the Managing Committee of Kolhuwa High School in the district of Saran. The petitioners have challenged the validity of the order of the President, Board of Secondary Education, Bihar, appointing an ad-hoc committee for the said school. A copy of the impugned order has been made Annexure ‘l’ to the application. 2. It appears that a Managing Committee for the said school was duly constituted on the 18th of the May, 1969, under the provisions of the Bihar High Schools (Control and Regulation of Administration) Act, 1960 (hereinafter to be called "the Act") and the rules framed there under. It is not disputed that petitioner no. 1 was declared to be a life member of the said school and he was elected as the Secretary. Petitioner no. 2 was subsequently elected as the President of the said school sometime in the year 1971 after the transfer of the Block Development Officer. The duly constituted Managing Committee of the school was functioning when' on the 13th of July, 1972, the President, Board of Secondary Education, Bihar, passed the impugned order appointing an ad-hoc committee in place of the Managing Committee (Annexure 1). It is clear from Annexure 1' that the ad-hoc committee has been appointed because in the opinion of the President, Board of Secondary Education, the term of the Managing Committee has expired. According to the statement made in paragraph 6 of the application, petitioner on. 1 learnt on the 26th of July, 1972, when he came to Patna, that an ad-hoc committee has been appointed for the school by the President. Certain allegations have been made in the writ application against respondent no. 3 and others which are not relevant for the purpose of disposal of this application. 3. The only point which falls for determination in this writ application is whether the President, Board of Secondary Education, Bihar, has the power to appoint an ad-hoc committee in the circumstances of the instant case. 3 and others which are not relevant for the purpose of disposal of this application. 3. The only point which falls for determination in this writ application is whether the President, Board of Secondary Education, Bihar, has the power to appoint an ad-hoc committee in the circumstances of the instant case. This case has been referred to a Division Bench as there were contradictory decisions of two learned Judges of this Court in C.W.J.C. No. 844 of 1972 and C.W.J.C. No. 1565 of 1971 decided on the 24th of August, 1972. The facts of C.W.J.C. No. 844 of 1972 were more or less similar and the President, Board of Secondary Education, had appointed an ad-hoc committee for the Town High School, Hajipur, on the ground that the term of the Managing Committee of the said school had expired. Sarwar Ali, J., after considering the relevant provisions of the Act and the Rules held that there was no power with the President, Board of Secondary Education, for the appointment of an ad-hoc committee on the ground that the term of the Managing Committee had expired. C.W.J.C. No. 1565 of 1971 related to Dhanaun High School. In that case also an ad-hoc committee had been appointed by the President, Board of Secondary Education, to function till the Managing Committee of the school was constituted afresh. In that case B. D. Singh, J., held that although there is no specific provision either in the Act or in the Rules for appointing an ad-hoc committee when the term of the Managing Committee expired according to clauses (5) and (7) of rule 9 and rule 17 A (1) of the Bihar High Schools (Constitution, Powers and Functions of Managing Committee) Rules, 1964 (hereinafter to be called "the Rules"), the President, Board of Secondary Education, has the implied power for appointing an ad-hoc committee. It may be stated here that in C.W.J.C. No. 841 of 1972 Sarwar AIi, J., took the view that the entire Managing Committee did not cease to exist on the expiry of three years from the date of the constitution of the Managing Committee whereas in C.W.J.C No. 1565 of 1971 B, D. Singh. J., took a contrary view. It may be stated here that in C.W.J.C. No. 841 of 1972 Sarwar AIi, J., took the view that the entire Managing Committee did not cease to exist on the expiry of three years from the date of the constitution of the Managing Committee whereas in C.W.J.C No. 1565 of 1971 B, D. Singh. J., took a contrary view. It is, therefore, necessary to decide the question as to whether the Managing Committee duly constituted under the provisions of the Act and the Rules will cease to exist altogether on the expiry of three years from the date of the constitution of the Managing Committee. In order to decide this question, it is necessary to refer to some of the provisions of the Act and the Rules. As provided under section 5 (1) or the Act, for every high school there has to be a managing committee constituted in the prescribed manner. Chapter III of the Rules is headed "Constitution of Managing Committee of a School other than a Proprietary School". It is an admitted position that Kolhuwa High School is a Government aided School and as such the provisions of Chapter III of the Rules are applicable. Rule 3, which in the first rule in Chapter III, provides that the Managing Committee of a School other than a Proprietary school shall consist of (1) all hereditary members (declared under rule 4); (2) the Headmaster; (3) a teachers representative; (4) an officer of the Education Department of the State Government; (5) two donors, if available; (6) two guardians; (7) one member of the State Legislature and (8) three persons of the locality interested in education, of which one shall be a member of the Scheduled Castes or Scheduled Tribes, if not otherwise a member. As provided under rule 4 (2), each hereditary member and life member becomes a member of the Managing Committee for his lift time with effect from the date he is declared as such under sub-rule (1) of rule 4. A teachers representative is to be appointed by the Headmaster in rotation for a period of one year from the date of his appointment under rule 5 (1). In rule 6 provisions for election of donors have been made. In rule 7 provisions for the selection of two guardians have been made. A teachers representative is to be appointed by the Headmaster in rotation for a period of one year from the date of his appointment under rule 5 (1). In rule 6 provisions for election of donors have been made. In rule 7 provisions for the selection of two guardians have been made. In rule 8 provisions for co-option of one member of the State Legislature and three persons of the locality interested in education have been made. Rule 9 provides for the election of the President and the Secretary of the Managing Committee. Sub-rule (5) of rule 9 provides as follows: “The term of office of the President of the Committee shall be three years from the date of his election or till the date he ceases to be a member of the Committee, whichever is earlier.” As provided under sub-rule (7) of rule 9, "the term of office of the Secretary of a Committee, shall be three years from the date of his election or till the date he ceases to be a member of the Committee, which ever is earlier." Chapter V of the Rules is applicable to all Managing Committees. Rule 17 A (1) occurs in Chapter V and it reads as under: “The terms of office of nominated, elected, selected or co-opted members of a committee shall be three years from the date of constitution of the committee.” Rule 36 provides that "the constitution of a Managing Committee of a school under these rules shall be deemed to be completed from the date on which the President and the Secretary of the said Committee are elected, appointed or nominated, as the case may be." Broadly speaking, there are two categories of members of the Managing Committee of a school. The first category consists of hereditary members and life members, the Headmaster, and the teachers representative. The second category consists of the donors, the guardians representatives, a member of the State Legislature, three persons of the locality and an officer of the Education Department of the State Government to be nominated by the President of the Board of Secondary Education. Rule 17A (1) is applicable only in respect of the members of the Managing Committee of the second category and these members will cease to be members of the Managing Committee after the expiry of three years from the date of the constitution of the Committee. Rule 17A (1) is applicable only in respect of the members of the Managing Committee of the second category and these members will cease to be members of the Managing Committee after the expiry of three years from the date of the constitution of the Committee. There is no question of expiry of the term of the hereditary members and life members as also the Headmaster of the school. So far as the teachers' representative is concerned, he is to be appointed by the Headmaster in rotation in the manner laid down in rule 5. Rule 17 A (1). therefore, is not applicable to the case of teachers representative. It is, therefore, not possible to hold that by virtue of the provisions as contained in rule 17A (1) the entire Managing Committee, will cease to exist after three years from the date of the constitution of the Managing Committee. It was submitted on behalf of respondent no. 3 and Gopalji Singh, who claims himself to be the headmaster of the school, that though the provisions of rule 17 (A) (1) do not in terms apply to the first category of the members of the Managing Committee, in effect due to the operation of that rule and sub-rules (5) and (7) of rule 9 the Managing Committee will cease to exist and in that view of the matter some arrangement has to be made for managing the affairs of the school till the Managing Committee is duly reconstituted. In my opinion, it is very difficult to accept this submission. It is clear from the various provisions contained in Chapter III of the Rules that nomination, election, selection and co-option of members of the Managing Committee of the second category are to be made by the Education Authorities and the Managing Committee is not responsible if no nomination, election, selection or co-option is made before the expiry of three years. The framers of the rules expected that the Education Department will act promptly in the matter of nomination, election, selection and co-option of members of the Managing Committee and as such no specific rule was made for the management of school in a situation which obtains in the instant case. The framers of the rules expected that the Education Department will act promptly in the matter of nomination, election, selection and co-option of members of the Managing Committee and as such no specific rule was made for the management of school in a situation which obtains in the instant case. In my opinion, the view taken by Sarwar Ali, J. in C.W.J.C. No. 844 of 1972 that the whole of the Managing Committee does not cease to have any legal existence on the expiry of three years from the date of the constitution of the Committee appears to be a correct view. 4. The provision for the appointment of an ad hoc committee is to be found in section 5 (3) of the Act. As provided under section 5 (2), if the Board forms the opinion that the Managing Committee of a high school is not functioning in a way conducive to the maintenance of discipline among its teachers and pupils and is not carrying out the directions of the Board or administering the finances of the school properly it may, by an order, after giving the Managing Committee a reasonable opportunity of being heard, suspend for a period not exceeding six months or dissolve the Managing Committee. Under section 5(3) of the Act, the Board has been given the power to appoint a person or persons to perform the powers and duties of the Managing Committee until, the expiry of the period of suspension or the reconstitution of the Managing Committee, as the case may be. It was fairly conceded on behalf of the respondents that the provisions of section 5 (3) of the Act are not applicable in this case as no order of suspension or dissolution of the Managing Committee has been passed under sub-section (2) of section 5 the Act. It was fairly conceded on behalf of the respondents that the provisions of section 5 (3) of the Act are not applicable in this case as no order of suspension or dissolution of the Managing Committee has been passed under sub-section (2) of section 5 the Act. There are some provisions in Chapter VIII of the Rules to which a reference may be made Rule 37 provides that a Managing Committee shall be constituted in accordance with the rules within a period of two years from the date of publication of the rules in the Official Gazette Rule 39 lays down as follows: “Where a Managing Committee is not constituted, in accordance with these rules, within the period specified in rule 37, the powers and duties of the Managing Committee, President and Secretary shall, until its constitution in accordance therewith be exercised and performed by such person as may be appointed by the President of the Board of Secondary Education for the purpose.” Rule 39 is also not applicable in the instant case as the Managing Committee had already been constituted after the Rules came into force. This position is also conceded. Thus, the power to appoint an ad hoc committee has been circumscribed in section 5 (3) of the Act and rule 39 of the Rules and they are clearly not applicable to the facts of the instant case. I, therefore, agree with the view of Sarwar Ali, J., that there is no power with the President, Board of secondary Education, to appoint an ad hoc committee in a situation which obtains in the instant case. As I have already indicated, B. D. Singh. J., was also conscious of the position that there is no specific provision either in the Act or in the Rules for appointing an ad hoc committee in a similar situation. The learned Judge, however took the view that the President has an implied power for the appointment of an ad hoc committee. A reference was made to some passage from the Statutory Construction of Interpretation of Law by Crew ford 1940 publication. 5. Having given my anxious consideration to the question, I find it difficult to accept the view that the President, Board of Secondary Education, has got the implied power for appointing an ad-hoc committee in a situation which obtains in the instant case. 5. Having given my anxious consideration to the question, I find it difficult to accept the view that the President, Board of Secondary Education, has got the implied power for appointing an ad-hoc committee in a situation which obtains in the instant case. It is a well settled principle that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" (vide Craies on Statute Law, page 69). 6. For the foregoing reasons, I hold that the President, Board of Secondary Education, Bihar (respondent no. 1), has no power to appoint an ad hoc committee in the circumstances of the instant case. This application is accordingly allowed and the order as contained in Annexure 1' is quashed. In the circumstances, the parties are directed to bear their own costs. S. P. Sinha J. I agree. Application allowed.