JUDGMENT
Kanhaiya Singh, J.
1. This is an application under Article 226 of the Constitution for a writ in the nature of ‘quo warranto’ calling upon opposite party Nos. 3 and 4 to exhibit the authority under which they are claiming to act as President and Secretary, respectively, of the Managing Committee of the Barabazar High School in the district of Manbhum and also for the issue of an appropriate writ restraining the opposite party from interfering with the affairs of the said school.
2. Sri Bhim Chandra Mahto who is a member of the Managing Committee of the Barabazar High School originally presented this application. Three more persons, namely, Dr. Jatindra Nath Modak and Gangadhar Singh, Secretary and Assistant Secretary, respectively of the Managing Committee, and Adya Charan Bhattacharjee, joint Head Master of the Barabazar High School, have, on their application, been added as petitioners sub-sequently. All the petitioners have a common case.
The opposite party consists of (1) the Deputy Director of Education (Secondary), Bihar, (2) Sri S. Thakur, Inspector of Schools, (3) Sri S. Prasad, Sub-Divisional Officer Purulia, President of ad hoc Managing Committee, and (4) Sri B. Singh, Circle Officer, Secretary of the said Committee. The application is rested on, the following facts: The Barabazar High School was established in 1937 and in 1047 the Board of Secondary Education accorded recognition to the school under Section V, Rule 286(1-B) of the Bihar Education Code.
The Managing Committee consists, of 11 members, and the vacancies on retirement of the members of the Managing Committee are filled by election. In December, 1953, six out of eleven members of the Committee tendered resignation. The outgoing Managing Committee prescribed the procedure for filling up the vacancies, which was to hold an election at a meeting of the general public and guardians of the students of the school convened for the purpose. It is alleged that at a meeting of the guardians of the students of the said institution and general public held in January, 1954, the Managing Committee was reconstituted.
This Managing Committee included members who had not tendered resignation. It started functioning in January 1954. The Education Department and the Board of Secondary Education dealt with this Committee as a duly constituted Committee and accepted it as such for over a year. On 7-2-1955, Dr. Jatindra Nath Modak, the Secretary of the Managing Committee, received a letter from the Inspector of the Schools, opposite party 2, dated 5-2-1955, to the effect that by letter No. 11M3/04/54E-33895 dated 21-12-1954, from the Deputy Director of Education (Secondary), Bihar, the Managing Committee of the School had been superseded and replaced by an ad hoc Committee and directing him to make over charge to the ex-officio Secretary of ad hoc Committee, namely, the Circle Officer, Barabazar.
It is alleged that the Managing Committee or its Secretary or the Head Master of the School had no previous notice of the proposed action against them and further that no charge of mismanagement or of any sort was ever levelled against the Managing Committee. On 10-2-1955, the Head Master of the school acting under the direction of the Managing Committee sent a telegram to the Inspector of Schools, and in reply they received the letter dated 18-2-1955, intimating that the Managing Committee had been superseded under Rule 182 read with Notification No. XVE-190-50E-3167 dated 1-4/5’54 from the Government of Bihar, Education Department with the direction that the Head Master and the members of the superseded Managing Committee should co-operate with the ad hoc Committee in the interest of the institution.
On 21-2-1955, the Secretary of the School, wrote a letter to the Director of Public Instruction protesting against the said action and asking for the reasons for the supersession of the Committee. It is said that no reply was received. Thereafter, the Sub-divisional Officer, opposite party No. 3, as President, the Circle Officer, opposite party No. 4, as Secretary and some other persons as members of the ad hoc Committee wanted to take over the management and possession of the school and illegally trespassed into the school premises.
The Sub-divisional Officer and the Circle Officer have initiated various criminal proceedings against the Head Master in respect of the affairs of the school, and the Circle Officer, opposite party No. 4, has asked the Post Master General, Patna, not to allow the Managing Committee to operate on the funds of the school. It is urged that the State of Bihar or the Deputy Director of Education (Secondary) has no power or authority to supersede the Committee and that in any event in superseding the Managing Committee they had improperly exercised the power, if any, by acting arbitrarily without notice to the Committee or giving it an opportunity of being heard. On these allegations, the petitioners pray for a writ of ‘quo warranto’ arid injunction as stated above.
3. The opposite party have shown cause and filed a counter-affidavit justifying the order of supersession of the Managing Committee and its replacement by an ad hoc Committee on the ground of maladministration, mismanagement of the school funds and lack of control resulting in indiscipline among the teachers and the students and disobedience to the directions of the Board of Secondary Education. Their case is that the Barabazar High School is a Government-aided school recognised by the Education Department of the State Government. It received grant-in-aid of Rs. 5397/- in 1950-51, Rs. 4176/- In 1951-52, Rs. 4176/- in 1952-53, Rs. 4172/- in 1953-54 and Rs. 5111/- in 1964-55.
In December, 1953, six out of the eleven members of the Managing Committee resigned on various grounds. The Inspector of Schools, Chota Nagpur division, visited the school in the month of July, 1954, and his inspection disclosed that
(i) some dues on account of the building construction had not been paid by the Head Master, though he had accepted the liability for the same;
(ii) the evil of private tution had not ceased;
(iii) Sri Ghasiram Kedia, an ex-member of the Managing Committee, was granted loan without proper document;
(iv) several students attended classes, although their names were not borne on the rolls of the school;
(v) the reserve fund had been used for purposes for which it was not meant;
(vi) the Managing Committee failed to stop the political propaganda carried by Sri Gopeshwar Ghosh, a teacher of the school, among the boys to the great detriment of the interest of the institution;
(vii) the new Managing Committee was not properly constituted and was not representative of the guardians and the people of the locality, since the notice issued for the holding of the public meeting to elect the members of the Managing Committee was vague and misleading, and the public in general was not given an opportunity to elect the true representatives of the guardians, and the alleged public meeting of January, 1955, was not properly held and a great confusion prevailed in the meeting so much so that police had to be called to restore peace and order; and
(viii) the six members had resigned from the Committee in protest against the manner in which the Secretary and the Head Master managed the affairs of the school.
The Inspector of Schools, after this inspection, was satisfied that the so-called Managing Committee was a self-elected body and was not functioning in a way conducive to the maintenance of proper discipline in the school and flouted the rules meant for aided High Schools. He reported accordingly to the Board of Secondary Education and recommended that an ad hoc Committee should be formed to manage the affairs of the school.
The Education Department examined carefully the proposal of the Inspector of Schools and was satisfied that the affairs of the school had been mismanaged and the newly constituted Managing Committee did not enjoy the confidence of the people and the discipline of the school was on the wane, and the accounts of the school revealed acute financial stringency and maladministration of the fund.
In these circumstances, on 21-12-1954, the Deputy Director of Education formed an ad hoc Committee consisting of Sub-divisional Officer, Purulia, as President, Sri Hikim Kishorei Mohan Singh Deo as Vice-President, and the Circle Officer, Barabazar (Secretary), and Dr. Jatindra Nath Modak (former Secretary), Sri Ghasiram Kedia, Sri M. M. Mahanti and Sri Lalji Sahay, Deputy Superintendent of Education, as members. This ad hoc Committee took over charge of the school on 18-2-1955, and had the authority to manage the school affairs and operate on the school funds.
It is alleged that this action was taken by virtue of the provisions of Rule 182 of the Bihar Education Code read with Notification No. 3161 dated 1-5-1950, published in the Bihar Gazette dated 27-6-1951. It is further alleged that the first meeting of the ad hoc Committee was held on 4-3-1955. Dr. J. N. Modak, the ex-Secretary, declined to make over charge to the new Secretary, on 9-3-1955, the Head Master of the School informed the Secretary of the ad hoc Committee that he had resigned.
Their further case is that on 10-3-1955, a report was received by the Sub-divisional Officer, Purulia, that Sri Gangadhar Singh Modak was preparing himself to forcibly enter the school and there was likelihood of a breach of the peace. Proceedings under Section 144, Criminal P. C., were started and notice was served on Sri Gangadhar Singh Modak on 11-3-1955, restraining him from entering the school premises. It is said that in spite of this prohibitory order Sri Gangadhar Singh Modak entered the school and locked three rooms.
On 12-3-1955, the Sub-divisional Officer visited the school and the rooms were opened in presence of the Circle Officer, local officers, local members and citizens of Barabazar, and a list of papers found was prepared, but the Cash Book, the Pass Book and many other papers were not traceable. On 14-3-1955, Sri. Gangadhar Singh Modak filed a complaint against the Sub-divisional Officer, the Circle Officer and other members of the ad hoc Committee alleging that they had forcibly taken possession of the school.
On 15-3-1955, Sri Gangadhar Singh Modak, it is alleged, instigated about 20 students to start picketing preventing the other students from attending their classes, which led to the convening of an emergent meeting of the ad hoc Committee at G P.M. on 15-3-1955. The Assistant Head Master, Sri Ambujaksha Mahanthy, was appointed Head Master since the permanent Head Master had resigned.
The picketing of the school produced a very bad effect on the students, and since there was a danger of the breach of the peace, the Sub-divisional Officer, Purulia, started proceedings under Section 107, Criminal P. C., against Sri Gangadhar Singh Modak and others and took some security measures. They were ordered further to execute sureties to keep peace till the disposal of the case. The other allegations made in the petition are also denied. It is urged that the petition for the writ is misconceived and is fit to be dismissed.
4. It is common ground that the Barabazar High School in Question is a recognised school and is governed by the Bihar Education Code. It is further conceded that the rules embodied in the Bihar Education Code are not statutory rules. There is no law or enactment for the management of the High Schools.
The Bihar Education Code is no more than a compilation of executive orders issued from time to time for the guidance of the Director of Public Instruction and his subordinates and for efficient administration of the educational institutions in accordance with the educational policy of the State Government.
In fact, the petitioners’ application for a writ is founded on the violation of the rules of the Bihar Education Code. It is contended by Mr. B. C. Ghose that the State Government or the Board of Secondary Education has no power or authority to supersede the Managing Committee and appoint an ad hoc Committee for the management of the school affairs. This requires an examination of the scope and effect of certain rules of the Bihar Education Code.
Rule 182 of the Bihar Education Code, 1944, provides for withdrawal of or withholding of recognition of schools. It lays down as follows ;
“Recognition shall only be withdrawn or withheld for reasons to be recorded in writing and on one of the following grounds :
* * *
(e) that the Managing Committee of the school is not functioning in a way conducive to the proper maintenance of discipline among the teachers and pupils and is not carrying out the directions of the Board, or administering the finances of the school properly;
(f) that it appears to the authority empowered to grant recognition for any, other reason to be injurious to the interest of education.
For reasons specified in Clause (e) the Board instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the Managing Committee and make such arrangement for management of the school as it considers suitable pending reconstitution of the Managing Committee.”
Rule 286 prescribes rules for recognized High Schools, and provides that these rules must be observed by every recognised High School under private management. One of the rules laid down therein is Rule 1-B which runs as follows :
“If the Board of Secondary Education finds after due enquiry that the managing committee is functioning in a way which is detrimental to the best interests of the school, the Board shall have the right to propose such alterations in the constitution of the managing committee as it may deem fit. If the committee does, not comply with the wishes of the Board, the Board will consider whether the recognition of the school should be continued or withdrawn.”
5. The contention on the part of the petitioners has been that in, the appointment of the ad hoc Committee, the Board of Secondary Education acted arbitrarily and did not comply with the provisions of Rule 1-B. It is alleged that the Board of Secondary Education did not give notice to the petitioner or, for the matter of that, other members of the Managing Committee with respect to the proposed action against it and did not afford them any opportunity to place their case before the Board.
It was urged that according to Rule 1-B the Board had no authority to act in the manner it did unless the Managing Committee refused to comply with the wishes of the Board and make alterations in the constitution of the Managing Committee as suggested by the Board. In short, the argument is that Rule 286 controls Rule 182. I do not agree. The objects which Rule 182 and Rule 286 have in view are entirely different. Rule 182 lays down the grounds on which the recognition of an institution may be either withdrawn or withheld.
On the other hand, Rule 286 prescribes rules which must be observed by every recognised High School under private management. While the rules prescribed by Rule 286 are to be followed by the schools, the provision of Rule 182 is intended for the guidance of the Board of Secondary Education in charge of such private schools. One has nothing to do with the other. It was contended that the recognition cannot be withheld or withdrawn unless the provisions of Rule 1-B were first complied with. I do not find any basis for this contention. It in no way restricts the power given to the Board to withhold recognition on any of the grounds mentioned in Rule 182.
Rule 286 purports to confer upon the Board a right to propose alterations in the constitution of the Managing Committee and imposes an obligation on the Managing Committee to respect the said wishes of the Board on the pain of the recognition of the school being withdrawn.
There appears to be no restriction on the power of the Board to withhold recognition in cases falling under Clause (e) of Rule 182 of the Bihar Education Code. Rule 1-B, far from restricting the unfettered discretion given by Rule 182, invests the Board of Secondary Education with additional power to propose alterations in the constitution of the. Managing Committee and to withdraw recognition on the failure of the Committee to comply with its wishes.
The true effect of Rule 1-B is to supplement rather than limit the power of the Board in the matter of withdrawal or withholding of recognition. In my opinion, therefore, the withdrawal or withholding of recognition as provided in Rule 182 is not subject to the provisions of rule 1-B prescribed by Rule 286 of the Bihar Education Code. Assuming, though not admitting; that recognition of a school cannot be withdrawn unless the Committee has refused to accept the proposal of the Board to make alterations in the constitution of the Managing Committee, Rule 1-B does not control at least Clause (f) of Rule 182 of the Education Code.
Rule 182 was amended in 1950 by inserting two new clasues, namely, Clasues (e) and (f) quoted above. The main object of Clause (f) is to qualify the severity of the provisions for withdrawal or withholding of recognition. Rule 182 enumerates the grounds on which recognition of a school may be either withheld or withdrawn,
One of the grounds is stated in Clasue (e), namely, the Managing Committee of the school is not functioning in a way conducive to the proper maintenance of discipline among the teachers and pupils and is not carrying out the directions of the Board, or administering the finances of the school properly. If the conditions laid down in Clause (e) are fulfilled, the Board of Secondary Education has two options: first, it can either withdraw or withhold recognition, and, secondly it can appoint an ad hoc Managing Committee as provided in Clause (f).
At best, it can be argued that if it proposes to exercise the option of withholding or withdrawing recognition, it cannot act under Clause (e) of Rule 182 without complying with Rule 1-B, as prescribed by Rule 286 of the Bihar Education Code. In other words, before it withdraws or withholds recognition of Schools, it shall give sufficient opportunity to the members of the Managing Committee to introduce such alterations in the constitution of the Managing Committee as it may deem fit in the best interests of the school, and if the Managing Committee flouts the directions of the Board, then the school may be deprived of the privilege of recognition.
If, however, the circumstances of a given case do not warrant immediate withdrawal or withholding of recognition of the school and at the same time the interest of the school had to be protected against the mismanagement of the Managing Committee, it has been given’ a discretion by Clause (f) of Rule 182 to appoint an ad hoc Committee for the management of the school pending reconstitution of the Managing Committee.
The withdrawal or withholding of recognition will no doubt affect the interest of hundreds of students for no fault of theirs. It will be indeed unjust and improper to punish students by withdrawal or withholding of recognition for the faults of some of the members of the Managing Committee. Before the amendment of Rule 182 in 1950 the Board of Secondary Education had no option but to withhold or withdraw the recognition if the Managing Committee functioned in a way which was detrimental to the best interests of the School.
In order, therefore, to provide adequate safeguards for the interests of the students, it seems that the State Government imposed upon the Board of Secondary Education a discretion to replace the Managing Committee by an ad hoc Committee instead of taking the extreme course of withdrawing or withholding recognition.
It is, therefore, provided in Clause (f) of Rule 182 that if the Managing Committee of the school is not functioning in a way conducive to the proper maintenance of discipline among the teachers and pupils and is not carrying out the directions of the Board, or administering the finances of the schools properly, the Board instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the Managing Committee and make such arrangement for the management of the school as it considers suitable, pending reconstitution of the Managing Committee.
Rule 1-B, as prescribed by Rule 286 of the Bihar Education Code, does not, therefore, come into play at all when there is no question of withdrawal or withholding of recognition of the school. While’ Rule 1-B provides the procedure for continuance or withdrawal of recognition of a school, Clause (f) of Rule 182 provides for an alternative remedy without affecting recognition of the school, and the alternative remedy is the appointment of an ad hoc Committee to manage the affairs of the school until reconstitution of the Managing Committee.
Clause (f) provides for a temporary measure to meet an emergent situation created by mismanagement on the part of the Managing Committee, and accordingly the question of elaborate procedure of enquiry and notice to the members of the Managing Committee does not appropriately arise. Thus, in any event, Clause (f) of Rule 182 under which the Board of Secondary Education purports to act and which is relevant to the present enquiry is not controlled by Rule 1-B of Rule 286.
6. It is next contended by Mr. Ghose that although the words of Clause (f) of Rule 182 taking in their literal sense may justify the action taken by the Board of Secondary Education and although Rule 286 may not apply in cases falling under Rule 182, there was a clear violation of the implied rule of natural justice that no man is to be deprived of any right or privilege without his having an opportunity of being heard.
It is contended in this connection that before proceeding to appoint an ad hoc Committee the Board ought to have given notice to the members of the Managing Committee of the proposed action and afforded them an opportunity of answering the charges levelled against them. This argument overlooks the fact that the very foundation of Clause (f) of Rule 182 is natural justice, namely, to safe-guard the interest of the students by maintaining the recognition and to ensure smooth working of the institution by substituting an ad hoc Committee for the Managing Committee, and accordingly if the action taken by the Board of Secondary Education, is in accordance with the rule, there is, in essence, no violation of natural justice at all in such cases.
Further, the principles, of natural justice, which govern a Court of law or a tribunal constituted by any law or enactment, do not apply in the same way to the rules framed by the executives, or in other words, for domestic tribunals. A similar question arose for consideration in the well-known case of — ‘Maclean v. The Workers’ Union,’ 1929-l Ch 602 (A). In that case, Neil Maclean had been expelled from the membership of the Workers’ Union, and he brought the action for a declaration that the resolution of the executive committee purporting to expel him was ultra vires and void.
One of the grounds urged was that the members of the committee who passed the resolution were judges in their own cause and were further biased against the plaintiff so as to be incapable of performing the quasi-judicial functions required of them under the rule in question. Maugham J., observed as follows ;
“The jurisdiction of the Courts in regard to domestic tribunals–a phrase which may conveniently be used to include the committees or the councils or the members of trade unions, of members’ clubs, and of professional bodies established by Statute or Royal Charter while acting in a quasi-judicial capacity–is clearly of a limited nature.
Parenthetically I may observe that I am not confident that precisely the same principles will apply in all these cases; for it may be that a body entrusted with important duties by an Act of Parliament is not in the same position as, for example, the executive committee in the present case. Speaking generally, it is useful to bear in mind the very wide differences between the principles applicable to Courts of justice and those applicable to domestic tribunals.
In the former the accused is entitled to be tried by the Judge according to the evidence legally adduced and has a right to be represented by a skilled legal advocate. All the procedure of a modern trial, including the examination and cross-examination of the witnesses, and the summing up, if any, is based on these two circumstances.
A domestic tribunal is in general a tribunal composed of laymen, It has no power to administer an oath and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; it is indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like an English jury in ancient days) are themselves both the witnesses and the Judges.
Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross-examination the truth of the statements that may be made. The members of the tribunal may have been discussing the matter for weeks with persons not present at the hearing, and there is no one even to warn them of the danger of acting on preconceived views.
“It is apparent and it is well settled by authority that the decision of such a tribunal cannot be attacked on the ground that it is against the weight of evidence, since evidence in the proper sense there is none, and since the decisions of the tribunal are not open to any sort of appeal unless the rules provide for one…..
“It is certain, therefore, that a domestic tribunal is bound to act strictly according to its rules and is under an obligation to act honestly and in good faith. It is not suggested in the present case that the rules as they stand have not been complied with, and on the evidence before me I am quite unable to hold that the committee acted otherwise than honestly and in good faith.
Indeed I was, not invited to do so. It is however, contended that there are other implied rules or implied obligations, sometimes described as obligations of natural justice, which the plaintiff may invoke, for example a rule that no person or persons should sit on the tribunal or be present at the hearing if he or they are in effect prosecutors or if he or they may fairly be suspected of a bias against the accused. It is, therefore, desirable to consider the principle on which these contentions must ultimately rest.
“In such a case as the present, where the tribunal is the result of rules adopted by persons who have formed the association known as a trade union, it seems to me reasonably clear that the rights of the plaintiff against the defendants must depend simply on the contract, and that the material terms of the contract must be found in the rules…..
If, for instance, there was a clearly expressed rule stating that a member might be expelled by a defined body without calling upon the member in question to explain his conduct, I see no reason for supposing that the Courts would interfere with such a rule on the ground of public policy. Moreover, it is well settled by decisions of the Court of Appeal that, if the parties to a contract agree that a person who may well be suspected of a bias or who may be deciding in his own a cause shall be the Judge in a dispute between the parties, the Courts will not interfere…..
“Eminent judges have at times used the phrase ‘the principles of natural justice’. The phrase is, of course, used only in a popular sense and must not be taken to mean that there is any justice natural among men. Among most savages there is no such thing as justice in the modern sense. In ancient days, a person wronged executed his own justice. Amongst our own ancestors, down to the thirteenth century, manifest felony, such as that of a manslayer taken with his weapon, or a thief with the stolen goods, might be punished by summary execution without any form of trial.
Again every student has heard of compurgation and of ordeal; and it is hardly necessary to observe that (for example) a system of ordeal by water in which sinking was the sign of innocence and floating the sign of guilt, a system which lasted in this country for hundreds of years, has little to do with modern ideas of justice.
It is unnecessary to give further illustrations. The truth is that justice is a very elaborate conception, the growth of many centuries of civilization; and even now the conception differs widely in countries usually described as civilized.
“A person who joins an association governed by rules under which he may be expelled, e.g., such rules as in the present case exist in rules 45 and 46 has in my judgment no legal right of redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may be, provided that it acts in good faith.
It is impossible to doubt that, if the rules postulate an inquiry, the accused must be given a reasonable opportunity of being heard. The phrase, ‘the principles of natural justice’, can only mean in this connection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an enquiry necessarily imports that the accused should be given his chance of defence and explanation. On that point there is no difficulty.
Nor do I doubt that in most cases it is a. reasonable inference from the rules that if there is anything of the nature of a Us between two persons, neither of them should sit on the tribunal. But when it is sought to lay down elaborate rules, taken from decisions as to Courts of law, and to apply them in such a case as the present, I think, it is prudent to remember that these more or less artificial principles have no application except so far as they can be derived from a fair construction of the rules, and that the implication can only be made if it is clear that the parties, who are laymen and not lawyers, must have intended it.”
7. These principles apply mutatis mutandis in the present case. The Managing Committee of the Barabazar, High School, is not a creature of any statute. It has only obtained certain privileges from the Board of Secondary Education on the condition of fulfilment of the rules issued by it from time to time. Those rules as embodied in the Bihar Education Code have no statutory force, but are only domestic rules for the management of the internal affairs of the school.
If these rules have been strictly followed and there is no proof of bad faith the functions of the Court of law are at an end., The Court cannot intervene even if it thinks that the penalty is too severe or that too strict a standard has been applied. Following the case of Maclean (A), above referred to, the Privy Council in the case of –‘Lennox Arthur Patrick O’Reilly v. Cyril Cuthbert Gittens’, AIR 1949 PC 313 (B), has laid down that a person who joins an association, governed by rules under which he may be expelled has no legal right of redress, if he be expelled according to the rules however unfair and unjust the rules or the action of the expelling tribunal may be, provided that it acts in good faith.
In the case of — ‘Province of Bombay v. Madhukar Ganpat’, AIR 1952 Bom 37 (C), the Bombay High Court was considering the legality or otherwise of the dismissal of Madhukar Ganpat Nerlekar, a Sub-Inspector of Police by the order of the Inspector General of Police Bombay, after a departmental enquiry which was held by the District Superintendent of Police. Argument was advanced in that case that there was a breach of rules of natural justice, The Bombay High Court disposed of this argument in the following terms :
“The expression ‘rules of natural’ justice’ has been the subject of consideration in many cases, and it has been held that so long as a domestic tribunal acts honestly, in good faith, with a sense of responsibility and in consonance with its own rules, its decision cannot be questioned on ground of breach of rules of natural justice for the reason that in that case the rules of natural justice will be deemed to have been observed.”
The case of Maclean (A), quoted above was followed in this case also. As will be observed, the Bihar Education Code does not provide for any enquiry into the affairs of the school before the appointment of the ad hoc Committee. The position will be entirely different if the rules postulate an enquiry. In that, case the person affected is entitled to demand that he should be given a reasonable opportunity of being heard. It is plain that a provision for enquiry carries with it by necessary implication on obligation that before a person is condemned he would be afforded a fair opportunity of answering the accusations against him.
The rules of the Bihar Education Code vest in the Board of Secondary Education an absolute discretion to appoint an ad hoc Committee in place of the Managing Committee when it considers that the activities of the Managing Committee fall within Clause (e) of Rule 182. It is for it to judge whether or not in a case there was such gross mismanagement as to justify the assumption of the management of the school by an ad hoc Committee.
Where the rules invest the domestic , tribunal with such absolute discretion and there is a faithful compliance with the rules, it will be wholly wrong to import the principles of natural justice, and demand an enquiry as a condition precedent to the exercise of the said- discretion. It appears to me that we have no power to question the propriety of the appointment of the ad hoc Committee which is transparently in consonance with the rules, for the simple reason that there are no materials to enable us to determine whether the Board of Secondary Education came to a right conclusion.
In the nature of the things, there could be no evidence. The Board of Secondary Education could not even on hearsay evidence or upon its own appreciation of the situation. We are not here sitting in appeal over the decision of the Board of Secondary Education, nor are we called upon to determine whether or not the decision was right.
All that we have to see is whether the appointment of the ad hoc Committee was in accordance with the rules. If the rules support the appointment, the members of the Managing Committee cannot legitimately raise any objection. After all, the members of the Managing Committee voluntarily and with full knowledge sought for and obtained recognition of the school on certain conditions as embodied in the rules. If a particular action has been taken pursuant to any of the rules of the Bihar Education Code, the members of the Managing Committee cannot turn round and say that there was violation of natural justice in that they were not given an opportunity to be heard.
It is always open to the Managing Committee to forego the recognition and manage the school in any way it likes. In that case the Board of Secondary Education cannot interpose and interfere with the management. But, it cannot obtain recognition of the school on the terms laid down in the rules and at the same time refuse to be governed by those rules or claim any right or privilege in excess of what is conferred by the rules. The rules on the point are quite explicit.
There is clear provision in Rule 182 of the Bihar Education Code for the appointment of an ad hoc Committee on the fulfilment of the conditions mentioned in Clause (f) of that rule, and there is absolutely no fetter on the exercise of this power. Hence the members of the Committee cannot make a grievance that they were not given any opportunity to be heard before the appointment of the ad hoc Committee.
8. The material question that fulls for determination is whether in appointing an ad hoe Committee in supersession of the Managing Committee the Board of Secondary Education on for the matter of that, the Deputy Director of Education (Secondary) acted honestly and with good faith. (After discussing the evidence, the judgment proceeded.) There is thus no evidence to enable me to hold that in making the appointment of the ad hoc Committee the Government was actuated by any motive unworthy of a Government.
If the Board of Secondary Education acted honestly and bona fide and there was strict compliance with the rules, the orders appointing the ad hoc Committee cannot be set aside on the ground that they were contrary to the dictates of natural justice. The contention of Mr. Chose is, therefore, devoid of any substance.
9. Assuming that the members of the Managing Committee were entitled to be heard before it was superseded and the ad hoc Committee was appointed in its place, it appears that they were given adequate opportunity to explain their conduct. It is alleged in paragraph 16 of the show cause petition that when the Inspector of Schools visited this school in July, 1954, he
“met all the members of the old and new Managing Committee, held the enquiry openly and gave chances to all members of the self-styled Managing Committee to explain their conduct and after due deliberation, Government orders were passed.”
In the rejoinder to the show-cause petition all that the petitioners state in paragraph 23 is that “the Inspector of Schools did not hold any ‘enquiry openly’ in July, 1954”. He does not deny specifically that the Inspector of Schools met all the members of the old and the new Managing Committee and further that he gave opportunity to the members of the new Managing Committee to explain their conduct.
There is therefore, no sufficient denial of the averment that the members of the Managing Committee were in fact allowed to offer explanations of their conduct and place their case before the Inspector of Schools. It follows, therefore, that although the rules do not provide for an enquiry there was an enquiry by the Inspector of Schools, and the members of the Managing Committee were in fact heard before the impugned orders were issued. On merits also, there was, therefore, no violation of the principles of natural justice.
10. It was next contended by Mr. Ghose that the supersession of the Managing Committee and the appointment in its place of an ad hoc Committee amounted to an infraction of the fundamental right guaranteed by Articles 19(1)(f) and 31 of the Constitution in the following way. The property moveablc, and immoveable of the school vests in the Managing Committee.
The Managing Committee is for the time being the owner of the property and has the power of disposal. Article 19(1)(f) guarantees to every citizen the right to acquire hold and dispose of property, while Article 31 recognises inviolability of property and provides that no person shall be deprived of his property save by authority of law. His argument is that the members of the Managing Committee have been deprived of their right to hold the property of the school and further that if the action of the Government amounted to acquisition of the property by the State, this acquisition was legally null and void for want of public purpose and compensation.
This argument assumes that the members of the Managing Committee are the owners of the property and can deal with it in any way they like. It is not disputed that the property in fact belongs to the public of the locality and that the management of the property for the ‘time being’ vests in the Managing Committee. No individual member can claim any vested right in the property. In fact, no member has got any right to hold and dispose of the property. The property vests not in individual members, but in the managing Committee.
The Managing Committee is not a permanent body. It is liable to reconstitution from time to time according to the rules in vogue in that school. If, therefore, it is the Managing Committee in which vests the property of the school, then there is a Managing Committee, namely, the ad hoc Committee, in which the property will be deemed to have vested after the supersession of the old Managing Committee.
Once it is assumed that this ad hoc Committee is a legally constituted body and has the power to manage the affairs of the school, the contention of Mr. Ghose loses all its force. There is a Managing Committee legally constituted, as held above, which can hold and dispose of the property of the school in accordance with the rules of the institution. Whether or not this ad hoc Committee is a legal body and can legally replace the old Managing Committee is a different question altogether,
As observed above, the constitution of the ad hoc Committee is perfectly in consequence with the rules. which are binding upon the old Managing Committee, and therefore the property of the school legally vests in this Managing Committee. It will thus appear that the fundamental question in this case is whether or not the ad hoc Committee was legally constituted by the Board of Secondary Education, and, properly speaking, no question of infringement of the fundamental right guaranteed by the Constitution is involved. I, therefore, overrule this contention.
11. It is common ground that the constitution of the Managing Committee which came into existence in 1954 was not approved by a competent authority. It has been argued on behalf of the opposite party that since the school was an aided school, and the constitution of the Committee had not obtained the approval of the competent authority, it has no legal status and, consequently, no ‘locus standi’ to ask the Court to annul the appointment of the ad hoc Committee by an appropriate writ.
The view I have expressed above, does not render it absolutely necessary that I should give any opinion on this part of the case, but since this question has been agitated at the bar, I feel bound to state my views. It is admitted that this school is a recognized school, & under the rules framed for the regulation of the affairs of the recognized school, there was, as shown above, no legal objection to the constitution of the ad hoc committee independent of the question whether or not the school in question is an aided school.
In my opinion, however, the school is an aided school. Rule 3 of the Bihar Education Code, 1944, defines aided and unaided institutions. It lays down that recognised institutions under private management are classified as aided or unaided, according as they do or do not receive aid from public funds. Rule 305 gives an extended meaning to the aided schools, and says that the term “aided school” includes a school which it is proposed to establish if a grant is given.
Rule 306 enjoins that every aided school should, unless especially excepted by the Director be governed by a representative Managing Committee and that the duly appointed Secretary to this Committee will be the corresponding agent of the school recognised by Government. Rule 309, which is relevant to the present enquiry, provides as follows:
“The constitution of the committee of a school seeking a grant-in-aid, or the renewal of a grant-in-aid requires the approval of the authority competent to sanction or renew the grant, as the case may be. All intermediate resignations, removals or appointment should be reported to the inspector, inspectress or district inspector as the case may be, for his or her approval.”
Rule 310 runs as follows:
“The election of the Chairman and of the Secretary of the committee requires the approval of the inspector, inspectress or district inspector, as the case may be.”
If the school in question is an “aided school” it is quite obvious that the constitution of the Managing Committee which was effected in January, 1954, required the approval of the authority competent to sanction or reject the grant as the case may be. The important question is whether it is an aided institution. What will constitute grant-in-aid is not defined by the Bihar Education Code.
According to rule 3, all institutions receiving aid from public funds are aided institutions within the meaning of the Bihar Education Code. Accordingly the receipt of any aid from public funds, irrespective of the nature and amount of the aid, is sufficient to convert any school into an aided school. There is no doubt that the Barabazar High School received a ‘grant-in-aid of Rs. 5397/- in 1950-51, Rs. 4176/- in 1951-52, Rs. 4176/- in 1952-53, Rs. 4172/- in 1953-54 and Rs. 5111/- in 1954-55.
The petitioners admit the receipt of this grant from the Government. There is further no dispute that these grants were advanced from public funds. The case of the petitioners, however, is that these amounts do not constitute grants-in-aid properly speaking, but were intended to reimburse the school for the loss of revenue on account of clearness allowance to the teachers, remission of fees to the boys of class V and below and free education to the boys of aboriginal and Harijan community.
It is alleged that in 1949 the Government of Bihar decided to make tuition fee up to Class V of a High School free. In 1949. the teachers, of the Secondary Schools and the District Board Schools all over the State put forth a united demand of dearness allowance and threatened to start a strike if their demand was not accepted. Again, the Government decided to impart free education to the aboriginal and Harijan boys.
The Government wanted that the private institutions also should give free education in pursuance of the educational policy and pay the teachers dearness allowance. Since, however, the schools under private management had no sufficient funds, they expressed their inability to follow the instructions of the Government, and thereupon the Government undertook to Compensate them for that loss. Therefore, the grants-in-aid which were made in 1950 to 1955 were it is said, really compensatory allowance equivalent to the loss of revenue.
Whatever may be the reasons and purpose for these grants, they were undoubtedly advances from public fund and did constitute grants-in-aid. There is in the Bihar Education Code no provision whatsoever excluding such payments from the category of grants-in-aid. They were not absolute gifts. These payments were made for specified purposes. It was, therefore, imperative on the part of the Government to see that the amounts were applied to the purpose for which they were intended.
It cannot be reasonably argued that the Managing Committee was the sole judge, and after payment the Government had no power to control the disposal of the amounts. For instance, if there were no aboriginal and Harijan students, the committee was not entitled to any grant on that score. If a grant was made, in fact, for that purpose, it was incumbent upon the Government to see that the amount was spent on the object for which it was earmarked.
Whether these payments were compensatory allowance or whether they were grants for the general purposes of the school, they were aid to the School within, the meaning of Rule 3 of the Bihar Education Code. In my opinion, the receipts of these payments will make the school an aided school. The petitioners, however, rely upon letter No. 99393/1 G-74-53 dated 5-6-1953, from the Inspector of schools, Chota Nagpur Division, addressed to the Head Master of the Barabazar High School.
It appears that the Head Master had asked for the approval of the Inspector for the opening of provident fund accounts in respect of the staff of the school, and in reply to this letter the Inspector sent the above letter which is as follows;
“With reference to your letter No. 1-P-53 dated the 14th March 1953, I have to say that as your school is unaided, no approval for the opening of the provident fund accounts in respect of the staff of your school is required.”
It appears that the Head Master also treated this school as an aided school. The Inspector of schools, however, said that it was unaided. It is not shown on what authority the Inspector addressed this letter. There are not sufficient materials on this point. At best, it embodies the opinion of the Inspector of schools. His opinion is certainly not binding upon the Court. There is a counter-assertion of the Deputy Director of Education ‘Secondary) and others, opposite party, that it is an aided institution.
I do not think that the letter aforesaid constitutes an estoppel against the Government. It is really a question of construction of the relevant rules of the Bihar Education Code in the light of admitted facts. We have to construe the provisions of the Bihar Education Code and see whether on a correct interpretation of these rules this institution can be termed as an aided institution.
As a matter of pure construction of the rules, however, I do not see how after receiving money from public fund every year, this institution can be described otherwise than an aided school. In my opinion this school is an aided school. Any way, I do not think anything turns upon it.
12. All considered, there is, in my view, no merit in this application. It is accordingly dismissed. In the circumstances of the case, I make no order as to costs.
Das, C.J.
13. I agree to the order proposed
by my learned brother. It is unnecessary to decide if the school is an aided school. The present
application can be disposed of on the findings
(1) that there has been a substantial compliance
with the rules of the Education Code; (2) that
there has been no violation of fundamental’ rights;
and (3) no bad faith has been established.