Judgment

SAHAI, J.- The main question of law that arises for consideration in this appeal, directed against judgment and order of the Bombay High Court, is if the High Court correctly construed Section 15(2) of the Maharashtra State Board of Secondary and Higher Secondary Education Act, 1965 (hereinafter referred to as the Act). And even if it be so then whether it was an eminently fit and proper case for exercise of discretion under Article 226 of the Constitution of India.

2. In April-May 1984 the examination for first year engineering students was held at Nilanga. The respondent, who was a lecturer in a polytechnic college, was appointed as a supervisor at the examination centre. Later on complaints of mass copying were received. And the University of Marathwada, on recommendation of a Committee of experts, cancelled results of the candidates who appeared from that centre and debarred them, further, from appearing in examination for next two years. It also decided not to entrust any examination duty in future to the respondent. On August 22, 1984 the Director of Technical Education issued a circular debarring many lecturers, including the respondent, from being assigned any examination duty. Some of the students approached the High Court by way of Writ Petition Nos. 808 and 809 of 1984 against the order passed by the University. On December 7, 1984 their petition was partly allowed. The order cancelling the examination was upheld. But the order debarring them from appearing in future examination was quashed as the order was passed without affording any opportunity. The Director of Technical Education, on March 21, 1985, issued a letter withdrawing the earlier circular issued by it in view of the judgment in the writ petitions. In March 1986 the respondent was nominated as a member of the State Board of Maharashtra Secondary and Higher Secondary Education at its Aurangabad Divisional Board. It appears after his appointment the University informed the Government that the respondent was not a proper person to have been appointed as a member of the Board as it was during his supervisorship that mass copying had taken place in one of the centres and the results of the candidates who appeared from that centre were cancelled. On being apprised of it the Government issued a show-cause notice on October 22, 1986 to the respondent that he having been found to have failed in discharge of his duty as supervisor at the examination centre Nilanga, honestly and diligently, the Government was of the view that his continuance as member of the Board was not conducive to the proper functioning of the Board and, therefore, it proposed to remove him from the membership. This notice was replied by the respondent and it was claimed by him that the action had been taken against him on suspicion. It was stated that the decision of University having been set aside by the High Court and the Director of Education having withdrawn the circular nothing survived against him. The Government did not agree with the explanation and by order dated September 16, 1987 cancelled membership of the respondent. This order was challenged by way of writ petition. It was allowed and the order cancelling membership was quashed as ultra vires as aplain reading of Section 15(2) of the Act indicated that the Government could take action, only, if it was of opinion that the activities of the respondent were detrimental to or obstructing the proper functioning of the Board. The Bench held that since the show-cause notice issued by the Government did not show anything to this effect and it merely stated that respondents activities were not conducive to the functioning of the Board the objectionable conduct of the respondent in April and May 1984 could not by any stretch of imagination amount to activities which were detrimental to or obstruct the proper functioning of the Board, therefore, the order removing the respondent from the Board was bad.

3. For proper appreciation of