Nirmalendu Bhattacharya v. President, Board of Secondary Education
1974-09-11
ANWAR AHMAD
body1974
DigiLaw.ai
JUDGMENT Anwar Ahmad, J. This application under Articles 226 and 227 of the Constitution of India is by the President Pandra High School, Poddar Dih, Dhanbad. It is prayed that the order of the President Board of Secondary Education (hereinafter referred to as the President of the Board), dated the 30th November, 1973, contained in Annexure 6, be quashed. It is further prayed that the President of the Board (respondent No.1) be restrained from enforcing his order contained in the said annexure, reinstating respondent No.4 to work as the Headmaster of the said High School. 2. It appears that respondent No.4 was appointed as the Headmaster of the Pandra High School in the year 1955 but as he did not function properly in that capacity, a number of charges were framed against him by the Managing Committee of the school on the 15th September, 1970, and later on by its resolution,-" dated the 27th September, 1970, respondent No.4 was suspended. A sub-committee was formed to enquire into the allegations made against respondent No.4, and he was asked to appear before it and to explain his conduct which he refused to do. The sub-committee submitted its report on the 7th October, 1970, for taking necessary action against him. As respondent No.4 did not submit any explanation nor respond to the letters of the Managing Committee, he was discharged from service by the resolution dated the 24th October, 1970, passed by the Managing Committee. Against the order of discharge, respondent No. 4 filed an appeal to the President of the Board. The Regional Deputy Director of Education was authorised by the President of the Board to hear the appeal and submit his report. Accordingly the Regional Deputy Director heard the appeal and submitted his report on the 16th October, 1973. This report was placed before the President of the Board, who, agreeing with the recommendation made by the Regional ; Deputy Director, reinstated respondent No.4, as Headmaster of the Pandra High School by his order dated the 30th November 1973. AM already indicated, this writ application has been filed by the President of the Pandra High School Managing Committee against the said order of the president of the Board. 3.
AM already indicated, this writ application has been filed by the President of the Pandra High School Managing Committee against the said order of the president of the Board. 3. It will not be necessary to go into the merits of the application in view of the fact, as it appears to me, that this application on behalf of the President of the Managing committee is not maintainable. Rule 31, sub-rules (1) and (2), Clause (xix), of the Bihar High Schools (Constitution, Powers and Functions of the Managing Committee) Rules, 1964 (hereinafter referred to as the Bihar High Schools Rules), framed under the Bihar High School (Control and Regulation of Administration Act, 1960 (Bihar Act XIII of 1960), runs as follows ; "31 (1) A Managing committee shall have all powers and shall exercise all functions which may be necessary for the proper management and administration of the school. (2) In particular and without prejudice to the generality of the powers, conferred on it under sub-rule (1), a Managing Committee shall have the powers. XXX (xix) To sue and defend all legal proceedings on behalf of the school; XXX It is thus clear that the right to sue or to defend a legal proceeding vests in the Managing Committee. In fact, rule 31, sub-rules (1) and (2) of the Bihar High Schools Rules deal with all the powers which a Managing Committee is made to possess. There is no mention, anywhere that any right of the Managing committee shall vest in the President. I am conscious of rules 33 (2) of the Bihar High schools Rules which provides for delegation of power of the Managing Committee to the President with regard to conduct of business alone. So far as the present application is concerned, it is not mentioned anywhere that the Managing committee by its resolution: has delegated its powers to the President -as contemplated in the aforesaid rule 33 (2). Therefore, the petitioner, who is the President, cannot by way of delegation claim the powers of the Managing Committee. By way of analogy, I may make a reference to section 12 of the Bihar and Orissa Municipal Act. The last line of section 12 is almost in the same words as that of clause (xix), sub-rule (2) of rule 31 of the Bihar High Schools Rules.
By way of analogy, I may make a reference to section 12 of the Bihar and Orissa Municipal Act. The last line of section 12 is almost in the same words as that of clause (xix), sub-rule (2) of rule 31 of the Bihar High Schools Rules. For the sake of comparison, I may quote section 12 of the Bihar and Orissa Municipal Act:- "12 Constitution and incorporation of Municipal Commissioner: There shall be established for each municipality a body of Commissioners, who shall be a body corporate by the name of the Municipal Commissioners of the place by reference to which the municipality is known, having perpetual succession and a common seal, and may by that name sue and be sued. The word "sue" has been used in section 12 as well as in clause (xix) of sub-rule (2) of rule 31. The question whether the Chairman of a Municipality can maintain a suit on behalf of the Municipal Commissioners was considered by Wort, J., in Kali Prasad Sinha Chairman, Buxar Muncipality, V. Badri Narain Sahu AIR 1939 Pat 236. It was held that the Chairman could not maintain an action against a defendant for a relief which could only be enforced by the Municipal Commissioners. The Chairman not being a legal entity but merely a person, he could not be regarded as a representative of the Municipal Commissioners and there was no justification, on principle or on authority under the Act, to entitle a party to seek his relief against the Commissioners by bringing an action against the Chairman. It was also held that this was not merely a matter of form but it went to the very root of the action. So far as clause (xix) of rule 31 (2) of the Bihar High Schools Rules is concerned, it clearly states that it is the Managing Committee which has "to sue and defend all legal proceedings on behalf of the school". It is, undisputed that a Managing committee consists of some members in addition to the president and that body, as a whole, has been vested with the powers under rule 31, sub-rules (1) and (2) of the aforesaid Rules. The President, therefore, has no locus standi to file an application under Articles 226 and 227 of the Constitution of India for enforcement of any right whatsoever.
The President, therefore, has no locus standi to file an application under Articles 226 and 227 of the Constitution of India for enforcement of any right whatsoever. The right, if any, rests in the Managing Committee and not in the President. 4. Learned Counsel for the petitioner submitted that the words "to sue" in clause (xix) will not apply to an application filed before this court under Articles 226 and 227 of the Constitution of India. There is no substance in this submission. The ordinary dictionary meaning of the word "sue" as given in the shorter Oxford English Dictionary includes-"To institute a suit for, make a legal claim to : hence gen to petition or appeal for; to seek and obtain. spec. To make application before a court for the "grant of (a writ or other Legal process): often with implication of further proceedings being taken upon the writ etc. "As per Law Lexicon," 'To sue' means to make legal claim or to take legal proceedings against any person. It does not necessarily mean to file a suit by means of a plaint such as is referred to in the Civil Procedure Code. Taking any legal proceedings in matters of any kind would be to sue. Vajeram Sakerrem Dewan V. Purshottamdas Jamnadas, 7 Bom L.R.138 It the words "to sue" therefore, clearly includes an application for writ and nothing can be urged to the contrary. 5. It was also urged on behalf of the petitioner that there are cases in which the ordinary rule that unless a petitioner, who seeks to file an application under Article 226 of the Constitution, should have a personal or individual right in the subject matter, the petition may not be a bar in enforcing the remedy. If the person concerned is prejudicially affected by an act or omission of an authority, he can file writ even though he may have no propriety or finduciary interest in the subject matter. In support of this proposition reliance was placed on the decision in Gadde Venkateswara Rao. V. Government of Andhra Pradesh AIR 1966 SC 828 .
If the person concerned is prejudicially affected by an act or omission of an authority, he can file writ even though he may have no propriety or finduciary interest in the subject matter. In support of this proposition reliance was placed on the decision in Gadde Venkateswara Rao. V. Government of Andhra Pradesh AIR 1966 SC 828 . In the present case, however the application must be held to be not maintainabale in view of clause (xix) of sub-rule (2) of rule 31 of the Bihar High Schools,-Rules: I am not in a position to agree with learned Counsel that the President has got any interest apart from the Managing Committee. The right, if any, lies with the Managing Committee and not with the President. But even if I were to hold otherwise, there is a clear bar of clause (xix) of sub-rule (2) of rule 31 aforesaid. 6. The result, therefore, is that the application is dismissed as not maintainable. There will be no order as to costs. Application dismissed.