1999 Supreme(Raj) 320

High Court Of Rajasthan
Judgename : B.S.CHAUHAN
UMED HIGHER SECONDARY SCHOOL, JODHPUR - Appellant
Versus
STATE OF RAJASTHAN - Respondent
CIV. WRIT PETITION 941 Of 1998
Decided On : 04/29/1999

The Court held that the impugned order dated 18-2-1998, passed by the respondent No. 1, is without jurisdiction as no such order can be passed within the purview of the provisions of Section 10 of the Act and rules 19, 23 and 24 of the Rules, 1993. The Court also held that the impugned order dated 18-2-1998, passed by the respondent No. 1, is arbitrary and mala fide.

Headnote:

RAJASTHAN NON-GOVERNMENT EDUCATIONAL INSTITUTIONS ACT, 1989 - SECTION 10 - TAKING OVER MANAGEMENT - ADMINISTRATOR - APPOINTMENT - PRIVATE PERSON/SOCIETY - RULES 19, 23 AND 24 OF THE RAJASTHAN NON-GOVERNMENT EDUCATIONAL INSTITUTION (RECOGNITION, GRAND-IN-AID AND SERVICE CONDITIONS ETC.) RULES, 1993 - INTERPRETATION - COURT ANALYSIS - MALA FIDE - BURDEN OF PROOF - DISCRETIONARY POWER - ARBITRARINESS - PUBLIC INTEREST - NATURAL JUSTICE - REASONS FOR DECISION - COLOURABLE EXERCISE OF POWER - JUDICIAL REVIEW.

Fact of the Case:

The petitioner, a registered society, was responsible for managing a non-governmental aided institution, namely, Umed Senior Secondary School, Jodhpur. The State Government issued a Show Cause Notice to the President of the petitioner society under Section 10(1) of the Rajasthan Non-Government Educational Institutions Act, 1989 (the Act). Before any final order could be passed in pursuance of the said show cause notice, the election of the Management Committee took place and the present committee stood elected in July, 1997. The petitioner filed a reply to the show cause notice and also held a meeting with the Special Secretary in the Education Department. The petitioner received the impugned order dated 18-2-1998, passed by the respondent No. 1, by which the respondent No. 3 was appointed as Administrator of the school. The petitioner made a representation to the respondent No. 1 and operation of the impugned order dated 18-2-1998 was put in abeyance by passing the order dated 16-3-1998. Respondent No. 4 asked for certain information from the District Education Officer, Jodhpur, and in response to the same, the latter wrote a letter to the Principal of the school, but before receiving any reply of the said letter respondent No. 2 submitted a report on the basis of which the order dated 23-3-1998 was passed by the respondent No. 4, by which it revived the order dated 18-2-1998.

Finding of the Court:

The Court held that the impugned order dated 18-2-1998, passed by the respondent No. 1, is without jurisdiction as no such order can be passed within the purview of the provisions of Section 10 of the Act and rules 19, 23 and 24 of the Rules, 1993. The said provisions read as under:-"section 10.- Powers of the State Government to take over management :-(1) Notwithstanding anything contained in any law for the time being in force, whenever it appears to the State Government that the managing committee of any recognised institution has neglected to perform any of the duties assigned to it by or under this Act or the rules made thereunder or has failed to manage the institution properly and that it has become necessary in the public interest to take over the management of such institution, it may, after giving to such managing committee a reasonable opportunity of showing cause against the proposed action, take over such management and appoint an administrator to exercise control over the assets of the institution and to run the institution for such period as the State Government may from time to time fix. " (Emphasis added.) Rule 23 of the Rules 1993 provides for constitution of Management Committee consisting of not less than 15 and not more than 21 members including the Head or Heads of the institution or institutions run by the society, out of which not more than two-thirds of the members of the managing committee shall not belong to any one community, caste or sect. It further provides that one elected member from amongst the permanent staff shall be included in the managing committee and the Director of Education shall nominate and officer of the department now below the rank of the Head of the concerned institution or an eminent educationist, to be member of the managing committee. Rule 24 provides for functions and powers of the Managing Committee. Accordingly, the Managing Committee shall be responsible for the proper management of the institution and shall perform such functions and have such powers as specified in the bye-laws of the institution.

Issues: 1. Whether the impugned order dated 18-2-1998, passed by the respondent No. 1, is without jurisdiction? 2. Whether the impugned order dated 18-2-1998, passed by the respondent No. 1, is arbitrary and mala fide?

Ratio Decidendi: 1. The Court held that the impugned order dated 18-2-1998, passed by the respondent No. 1, is without jurisdiction as no such order can be passed within the purview of the provisions of Section 10 of the Act and rules 19, 23 and 24 of the Rules, 1993. 2. The Court held that the impugned order dated 18-2-1998, passed by the respondent No. 1, is arbitrary and mala fide.

Final Decision: The Court partly allowed the writ petition and quashed the impugned order dated 18-2-1998, to the extent of handing over the school to respondent No. 3 society. The Court directed the respondent No. 1 to pass appropriate order of appointing the Administrator after hearing all concerned. The Court also directed the respondent No. 1 to review the orders passed by respondent No. 3 from time to time after affording the opportunity of hearing to its office-bearers and concerned employees and take appropriate action accordingly.