LAXMANGIRI SHIVGIRI GOSAI v. STATE — 1977 DIGILAW 112 (GUJ)

S. H. SHETH, J. ( 1 ) THE facts of the case briefly stated are as follows: In Special Civil Application No. 728 of 1977 petitioner No. 1 joined service as a primary school teacher under District School Board Mehsana. With the formation of Gandhinagar District he was allotted and transferred in 1966 to Gandhinagar. With effect from 1st January 1973 he was placed in selection grade. Petitioner No. 2 joined service as a primary teacher in 1951 in the then State of Saurashtra. With the reorganization of States in 1956 he was absorbed in service by Surendranagar District School Board. In 1963 he was placed in selection grade. With effect from 11th January 1969 he was transferred to Gandhinagar. Both these petitioners had been serving in schools situated in villages in Gandhinagar District. In course of time they were transferred to Gandhinagar town. By a notification dated 16th September 1976 the Govt. has constituted two grades for primary teachers. One is the ordinary grade of Rs. 290-560 and another is the selection grade of Rs. 400-600. 20% of the total posts of primary teachers with 15 years service are reserved for selection grade. There are schools with higher strength of students and lesser strength of students and with 1st to 7th standards or less. It has therefore been provided that if a primary teacher is posted as the Head Master in a school which has standards I to VII and not less than 300 students he would be entitled to an allowance of Rs. 20. 00 per month. It appears that junior teachers were posted in such schools and therefore they used to get Rs. 20. 00 more per month. Senior teachers obviously felt aggrieved by this situation because they were not posted in such schools. Therefore there were complaints to the educational authorities for remedying such a situation. The Director of Education therefore issued a direction that postings to different schools should be made according to seniority. Seniority list as on 30th November 1975 for Gandhinagar was published by the Administrative Officer on 25th April 1976. It is the case of the petitioners that in that list petitioner No. 1 was at serial No. 74 petitioner No. 2 at serial No. 34 respondent No. 4 at serial No. 156 respondent No. 5 at serial No. 133 respondent No. 6 at serial No. 93. It is the case of the petitioners that in that list petitioner No. 1 was at serial No. 74 petitioner No. 2 at serial No. 34 respondent No. 4 at serial No. 156 respondent No. 5 at serial No. 133 respondent No. 6 at serial No. 93. Indisputably the position of petitioners in the seniority list was correctly shown. On 1 June 1977 the District Development Officer made an order posting the Petitioners as Head Masters in schools with Standards I to VII and more than 300 students. They therefore became entitled to a special allowance of Rs. 20. 00 per month. This order was approved by the administrative Officer. This order produced dis-satisfaction amongst those who were adversely affected by it. Therefore the Government made an order suspending the order of the District Development Officer. Ultimately the Government issued a direction to the District Education Committee Gandhinagar to cancel it. The implementation of the order made by the Government would have led to the petitioners being transferred to other schools which may or may not have Standards I to VII and students not less than 300. However the implementation of this order has been stayed by this Court during the pendency of this petition. ( 2 ) IT is this order of the Government which is challenged by the petitioners in the petition. ( 3 ) THE first contention raised before me by Mr. Mehta on behalf of the petitioners is that under the Bombay Primary Education Act 1947 (Bombay Act No. LXI of 1947) the State Government has no authority or power to issue such an order. The impugned order states that it has been issued under sec. 54 of the Bombay Primary Education Act. Mr. M. B. Shah who appears on behalf of the State Govt. has tried to justify it under sec. 10a. It is necessary therefore to consider the relative scopes of secs. 24 and 10a of the Bombay Primary Education Act 1947 ( 4 ) SEC. 54 provides as follows:notwithstanding anything contained in this Act the State Government shall have power to give to a district school board all such directions as it may consider necessary in regard to any matter connected with primary education and the district school board shall comply with such directions. This section enables the State Government to issue directions to the District School Boards. This section enables the State Government to issue directions to the District School Boards. It presupposes the existence of a district school board. Once the State Government issues such a direction the district school board is under an obligation to comply with it. Mr. Mehta has argued that the district school board is a statutory body constituted by sec. 3 of the Act. The powers duties and functions of a district school board have been laid down by the Legislature in Chapter III of the Act (see sec. 13 ). Relying upon these sections Mr. Mehta has argued that the power conferred upon the State Government under sec. 54 of issuing directions to a school board does not mean that it has the power to issue all sorts of directions amounting to interference by the State Government with the day to day functioning of the school board. When the Legislature establishes a statutory body and prescribes functions for its within the limits of its constitution it is an autonomous body and must be permitted to function autonomously. There is some substance in what Mr. Mehta has argued before me. In my opinion when a statutory body has been created by the Legislature which has defined its functions also the State Government must allow it to function autonomously within the scope of its constitution. Therefore if sec. 54 is so construed as to mean that the State Government has power under it to issue any kind of directions it is likely to interfere with the day to day working of such a statutory autonomous body. That cannot be the intention of the Legislature in enacting sec. 54. There are two extremes which in my opinion must be avoided whilst construing sec. 54 Excessive interference by the State Government with the day to day functioning of such a statutory body must be avoided because unless it is done there will be no point in creating a statutory body with statutory functions. If sec. 54 is construed so as to mean that the State Government has the power or authority to interfere even with the day to day working of a statutory body then there is no point in creating such a body. In such a case the functions assigned to such a body could as well have been exercised by the Government itself. Therefore in my opinion sec. In such a case the functions assigned to such a body could as well have been exercised by the Government itself. Therefore in my opinion sec. 54 does not contemplate excessive interference by Government which is likely to destroy the Independent and separate identify of such a statutory body. On the other hand it cannot be free from the control of the State Government. The public interest may require the State Government to correct the course of a wrong section which such a statutory body may be following in my opinion therefore what sec. 54 contemplates is that the Government has the power or authority to issue directions to the district school bounds an legal to norms and principles which it should follow the standards which it should adopt and also an regard to matters of general public Importance no consider the scope of sec. 54 beyond this limit is to defeat the intention of the Legislature in creating a statu tory body with statutory functions assigned to st. Now the impugned order shows that the Government did not issue any direction as to norm principle or standard or in the matter of general public importance. The impugned order did not even state the reasons why it became necessary for the State Government to make it. The only question which led the State Government to make the Impugned order related to the postings of the petitioners and respondents 2 and j to different schools. It did not raise a master of principle or a matter of general importance. therefore though the impugned order states that it was made under sec. S4 of the Bombay Primary Education Act 1947 already could not have been made under that section because an my opinion st interferes without laying down any principles norms or standards or without trying to deal with a situation of general importance with the day to day detailed working of the school board. ( 5 ) MR. Shah has however tried to rely upon sec. 10a of the Act which confers upon the State Government power to issue directions in a case where there is no district school boards and where the functions of a school board are performed by an authority appointed by the State Government Mr. ( 5 ) MR. Shah has however tried to rely upon sec. 10a of the Act which confers upon the State Government power to issue directions in a case where there is no district school boards and where the functions of a school board are performed by an authority appointed by the State Government Mr. M. B. Shah who appears on behalf of the State has argued that Gandhinagar town does not have a district school board within the meaning of sec. 10a. He has further submitted that the powers and duties of the district school board under the Bombay Primary Education Act are exercised by the District Development Other who has been appointed by the State Government for Gandhinagar town. It is true that the State Government has not filed any affidavit in reply stating that Gandhinagar township does not have a district school board. However there is no dispute about the fact that Gandhinagar township does not have a district school board. There is also no doubt about the fact that powers and functions of the district school board under bombay Primary Education Act 1947 for Gandhinagar town are exercised by the District Development Officer. ( 6 ) SUB-SEC. (1) of sec. 10a provides as follows:notwithstanding anything contained in this ACt and save as otherwise provided in sec. 18a in any district for which a district local Board has not been established the powers and duties of the district school board under this Act shall be exercised and performed by such authority as the State Government may appoint. The exercise of such powers and the performance of such duties shall be in accordance with such directions as the State Government may from time to time give. It is in exercise of the power conferred upon the State Government by the later part of sub sec. (1) of sec. 10a that the State Government has issued the impugned direction as argued by Mr. M. B. Shah. It is clear that under sub sec. (1) of sec. 10a the State Government issues direc tions to its nominee or to its delegate. Therefore by doing so it does not interfere with the statutory autonomous character of a district school board. In such a case it is open to the State Government to control the exercise of power by its nominee by issuing sanctions to it. (1) of sec. 10a the State Government issues direc tions to its nominee or to its delegate. Therefore by doing so it does not interfere with the statutory autonomous character of a district school board. In such a case it is open to the State Government to control the exercise of power by its nominee by issuing sanctions to it. Such directions therefore as are issued under sec. 10a need not be directions as to norms principles or standards or matters of general public importance. It is really the will of the State Government to which effect must be given. Under sec 54 it is not so inasmuch as the will of the State Government cannot be given effect to so as to destroy altogether and wholly the will of the district school board. ( 7 ) MR. Mehta has argued that the impugned order does not state that it was made under sec. 10a. Mr. M. B. Shah has argued that a reference to a wrong section cannot deprive the State Government of the authority which it has to issue any kind of directions to District Development Officer in the matter of exercise of his power and performance of his duties under the Bombay Primary Education Act 1947 Since I am of the opinion that under sec. 10a it is open to the State Government to issue any kind of direction to the authority appointed by it I find that there is no want of power or authority on the part of the State Government. Reference to a wrong section is not in my opinion fatal to the impugned order. It would have been more desirable if the State Government had applied its mind to the scheme of these two sections and referred to the correct section. Therefore the first contention raised by Mr. Mehta cannot be upheld and is rejected. [ Rest of the judgment is not material for reports. ] .