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Case Number

Civil Misc. Writ Petition No. 976 of 1986

Advocates

A.K.Mehrotra
R.N.Singh
S.N.Singh

Judges

Aloke Chakrabarti, J.

Acts

Section 16-A, or Section 16-B or Section 16-C,
Section 16-CC and Section 16-CCC provisions
sub-section (3) of Section 16-D
Education (Amendment) Act, 1980
Section 16-CCC.
Section 16-B.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petition challenges two administrative orders (dated 3-12-1985 and 15-3-1985) directing compliance with an amended Scheme of Administration and, for non-compliance, the appointment of an authorised controller. After the Intermediate Education (Amendment) Act, 1980 came into force, the Deputy Director of Education issued a show-cause notice proposing amendments to the institution's Scheme of Administration on the ground that the existing scheme was not in conformity with the amended Act and its Schedule. The petitioner filed the writ petition contesting the two impugned orders. The matter was heard with counsel for the petitioner and the learned standing counsel for the respondents.

Legal Issues Presented

Whether a proposed modification of an already approved Scheme of Administration takes effect by operation of law (i.e., is deemed implemented) if the institution does not make a representation and the Director of Education does not make a specific approving order under Section 16-CCC of the Act.
Whether the Deputy Director of Education had the authority to propose or implement the modification of the Scheme of Administration under Section 16-CCC, including whether an existing notification (dated 23-8-1970) delegating certain powers to the Deputy Director can be read as delegating powers under Section 16-CCC.

Arguments of the Parties

Petitioner's Arguments

Section 16-CC and Section 16-CCC (as incorporated) empower the Director of Education to suggest alterations and require the institution to submit or amend its Scheme, and the institution has a right to make representations which the Director must consider and then may approve with or without modifications.
In the present case, although a notice (Annexure-1) was issued, the subsequent statutory stages (including consideration of representations and a specific approval order by the Director) were not completed; therefore there was no valid modification of the existing Scheme and the impugned directions for election and appointment of an authorised controller are illegal.
The proposed amendment/modification was signed by the Deputy Director of Education who, the petitioner contends, was not the appropriate authority under Section 16-CCC; the Director is the prescribed authority for that provision.

Respondents' Arguments (as advanced by learned Standing Counsel)

Notices had in fact been served (reference to paragraphs 8 and 9 of the writ petition are cited by respondents).
The petitioner did not file any objection/representation to the proposed modification, and therefore cannot raise objection now; if notice is not responded to, the modification should be treated as effective/final under the Act.
The power under Section 16-CCC had been delegated to the Deputy Director of Education by a notification dated 23-8-1970; although Section 16-CCC is not specifically mentioned in that notification, the delegation is argued to apply for actions under Section 16-CCC enacted later, to avoid an anomalous situation where the Deputy Director can act under Section 16-B but not under Section 16-CCC.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Committee of Management, Shahid Mangal Pandey Inter College v. State of U.P., 1994 (2) UPLBEC 1348	The case was cited in relation to the law concerning modification/administration matters under the Intermediate Education enactments (i.e., law "in this regard" relating to Section 16-CCC and related provisions).	The Court noted this authority had been relied on by the standing counsel and stated that the law decided in this case supports the view that delegation to the Deputy Director for Section 16-CCC cannot be presumed; the decision is consistent with the Court's interpretation of Section 16-CCC.
Committee of Management Janta Inter College v. Deputy Director of Education, 1996 (3) ESC 578 : (1996 All LJ 769)	Also cited to explain the law in regard to powers and procedure under the relevant statutory scheme (as referred to by the standing counsel).	The Court observed that the law as decided in this case likewise supports the Court's view that the Director's affirmative approval is required and that delegation to the Deputy Director for actions under Section 16-CCC was not shown to exist.

Court's Reasoning and Analysis

The Court examined the language and structure of Section 16-CCC and proceeded step-by-step:

The Court reproduced Section 16-CCC in full and identified its key components: (a) the Director must send a notice within three years suggesting alteration or modification where a previously approved scheme is inconsistent with the amended Act; (b) the Director must give reasons and afford an opportunity to the institution to make a representation within a specified period; and (c) the Director shall consider any representation and may approve the Scheme in its original form or subject to alteration or modification, and if a further alteration is proposed the institution must be given another opportunity to represent.
From the statutory language the Court emphasized that the duty to give reasons and afford an opportunity to represent is expressed using the word "shall", imposing a mandatory duty on the Director to consider representations. The power to approve is expressed as "may approve", indicating the Director must take a positive discretionary step to approve the Scheme (in some form) after considering representations.
Because Section 16-CCC requires the Director to consider representations and to approve (if any change is to take effect) the Court concluded there is no statutory provision that deems a modification to take effect by mere non-response from the institution. The section does not contain any deeming clause that would render a proposed change automatically effective.
The Court contrasted Section 16-CCC with the language of Section 16-CC (which, according to the Court, contains clearer deeming language). This difference in wording supported the conclusion that Section 16-CCC was not intended to operate by deeming modifications into effect without the Director's affirmative approval.
The Court noted that while the statute provides special powers where no approved scheme exists (including powers under subsection (3) of Section 16-D read with Section 16-B) to make a scheme applicable, such coercive powers for default are not mirrored in Section 16-CCC for modifying an already approved scheme; nonetheless authorities retain other powers to act against defaulting committees when required.
Regarding delegation, the Court examined the respondents' reliance on a notification dated 23-8-1970 which had delegated specified powers to the Deputy Director prior to the introduction of Section 16-CCC. The Court found that this earlier notification was issued in respect of sections existing before Section 16-CCC was introduced, and there is no basis to presume the notification applies to Section 16-CCC. The respondents did not produce any subsequent notification explicitly delegating Section 16-CCC powers to the Deputy Director.
The Court rejected the anomaly argument (that inconsistent delegation would produce an absurd result) by observing it is reasonable for the Legislature to require the Director himself to handle modifications or alterations while allowing delegation for creation of a first-time scheme; the Court stated it is not for the Court to presume a delegation that has not been shown.
Finally, the Court observed that the cited cases were relied upon by respondents but concluded that those authorities support the Court's interpretation (i.e., that delegation was not established and the Director's approval is required), and therefore the impugned orders premised on an implemented modification were not tenable.

Holding and Implications

Holding: The writ petition is allowed and the impugned orders at Annexures 2 and 3 are quashed. There will be no order as to costs.

Implications:

The direct effect is that the administrative orders directing compliance with the alleged amended Scheme of Administration and appointment of an authorised controller (the impugned orders) are set aside as the Court found no valid modification of the approved Scheme had been lawfully effected under Section 16-CCC.
The Court's decision rests on the statutory construction that Section 16-CCC requires a positive act of approval by the Director (after affording and considering representations) and that a mere failure to make a representation does not deem a modification to have been implemented.
The Court further held the respondents failed to establish any valid delegation of Section 16-CCC powers to the Deputy Director (no post-Section 16-CCC notification was produced), and therefore actions taken by the Deputy Director in this context could not be treated as authoritatively delegated under that provision.
The opinion does not purport to establish a broader novel precedent beyond its statutory interpretation; its immediate consequence is the quashing of the specific impugned orders and restoration of the legal position that the alleged modification had not been validly implemented.

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Committee Of Management, Barni Jain Uchchattar Madhyamik Vidyalaya v. State Of U.P And Others

1. In respect of running the institution concerned there is a Scheme of Administration duly approved by the Director of Education concerned. After the U.P Intermediate Education (Amendment) Act 1980 came into force, the Deputy director of Education sent show-cause notice stating that the Scheme of Administration of the petitioner's institution is not in conformity with the provisions of the amending Act and the Schedule and, therefore, an amendment was proposed. Thereafter orders dated 3-12-1985 and 15-3-1985 at Annexures-2 and 3 to the writ petition were passed stating that the Committee of Management had not been constituted in accordance with the amended scheme of administration and directing compliance thereof for getting the election completed in accordance with the amended Scheme of Administration and thereafter for not complying with the same directing appointment of authorised controller. Challenging the aforesaid two orders, this writ petition was filed.

2. Heard the learned counsel for the petitioner and Mr. A.K Mehrotra learned standing counsel for the respondents.

3. The contention of the petitioner is that after incorporation of Section 16-CC and Section 16-CCC provisions were made in the original statute empowering the Director of Education to send a notice to any institution having approved Scheme of Administration suggesting alteration or modification and requiring the institution to submit a fresh Scheme of Administration or to amend or to alter the existing Scheme. The institution concerned was given a right to make a representation which the Director of Education is to consider and thereafter may approve the scheme of administration in its original form or subject to any alteration or modification as suggested or with any other change as may appear to him to be just and proper. By a specific provision a further opportunity was provided if the Director proposes to make any new alteration or modification in the Scheme. But, it is complained, in the present case, although the notice at Annexure-1 was issued, the subsequent stages and the procedure prescribed therefor, were not completed and there was no order modifying or altering the Scheme of Administration already existing and, therefore, the direction for holding election and for action of appointing authorised controller for non-compliance of holding such election according to the amended Scheme, are illegal as admittedly there was no order modifying the existing Scheme. The further contention of the learned counsel for the petitioner is that the amendment and/or modification of the Scheme proposed (Annexure-1 to the writ petition) was signed by the Deputy Director of Education although he was not appropriate authority as prescribed by the statute, Reference was made to the provisions of Section 16-CCC for the purpose of contending that the Director of Education is the authority prescribed in the said provision. Learned Standing Counsel appearing for the respondents contended that notices had been served in fact and in this connection he referred to paragraphs 8 and 9 of the writ petition. It is further stated that the petitioner having not filed any objection to the proposed modification, no further objection can be raised by the petitioner and the modification in the scheme has to be accepted as effective. It is contended further that if the notice is not responded and no representation is made, the modification is to be treated as final and in support of such contention reference was made to various provisions of the said Act.

4. Law in this regard as referred to and decided in the cases of Committee of Management, Shahid Mangal Pandey Inter college v. State of U.P reported in 1994 (2) UPLBEC 1348 and Committee of Management Janta Inter College v. Deputy Director of Education reported in 1996 (3) ESC 578 : (1996 All LJ 769) have been sought to be explained by the learned standing counsel.

5. The learned Standing Counsel also contended that the power under Section 16-CCC has been delegated to Deputy Director of Education by notification dated 23-8-1970 further contending that although in the said notification Section 16-CCC has not been mentioned but still the same applies in the case of an action under Section 16-CCC which has been enforced subsequent to issuance of the said notification. It is contended that unless such delegation of power is recognised by the Court there will be anomaly as by virtue of the said notification dated 23-8-1970 the Deputy Director of Education has been delegated the power of action under Section 16-B and, therefore, in respect of Scheme of Administration modified by the Director under Section 16-CCC action is permissible to be taken by the Deputy Director of Education under Section 16-B and such an interpretation as regards the authority is not desirable for bringing in inconsistency and for avoiding anomaly.

6. After considering the aforesaid contentions, I find that the amendment of the Scheme of Administration in case of the petitioner was proposed by the Deputy Director of Education, Admittedly, the requisite procedures under Section 16-CCC providing for making a representation by the Committee and specific order of approval of the Scheme by the Director have not been there. Question, therefore, comes up for consideration that in such circumstance whether the modification is to be treated as implemented.

7. For proper consideration of the said question, the language of Section 16-CCC is material, the said section is as follows:

“16-CCC.(1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 16-A, or Section 16-B or Section 16-C, at any time before the commencement of the Intermediate Education (Amendment) Act, 1980 and such Scheme of Administration is inconsistent with the provisions of this Act, the Director shall send, within a period of three years, from such commencement, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh scheme of Administration or to amend or alter the existing Scheme.

(2) While making any suggestion in the Scheme of Administration under sub-section (1), the Director shall give his reasons therefor and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice.

(3) The Director shall consider any representation made in accordance with sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or modification suggested under sub-section (1) or with any other changes as may appear to him to be just and proper:

Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him.”

8. A perusal of the said provision indicates that in a case where Scheme of Administration has been or deemed to have been approved under Section 16-A or Section 16-B or Section 16-C before the commencement of the Intermediate Education (Amendment) Act, 1980 and such Scheme is inconsistent with the provisions of that Act the Director shall send within a period of three years from such commencement a notice to such institution suggesting alteration or modification. It has also been provided that the Director is to require the institution to submit a Scheme of Administration or to amend or alter the existing Scheme. The Director is required to give reasons for such suggestion and also to afford an opportunity to the institution to make a representation within a time specified in the notice. The law requires the Director to consider any representation and empowers the Director to approve the Scheme of Administration in its original form or subject to any alteration or modification or with any other changes as may appear to him to be just and proper. For making such new alteration or modification in the Scheme the Director is required to give an opportunity to the institution to make a representation.

9. The aforesaid indicates clearly that there is no provision for deeming a modification for making no representation by the institution concerned. It is apparent that the law requires that the Director is required to give reason and afford opportunity to the institution to make a representation and is also to consider such representation. While indicating such duties of the Director the expression “shall” has been used. The law thereafter empowers the Director to approve the Scheme and in doing this the Statute uses the expression “may approve”. Therefore, it is clear that there must be a positive act of the Director for approval of the Scheme either in its original form or subject to any alteration or modification. This is the power given to the Director which the Director may exercise. In such circumstance the aforesaid law cannot be interpreted that if the institution does not make representation, the modification stands.

10. In this connection it is further important to note that if any further change is felt to be just and proper by the Director he is required to give a further opportunity to the institution to make a representation. This provision also supports that there could not be any automatic modification of the existing approved scheme by applying any deeming provision.

11. The difference of language in Section 16-CCC with the language of Section 16-CC indicates that in the later clear language has been used for deeming provision. Therefore, in the absence of such a provision and there being no reason for presuming existence of such a deeming clause, a Scheme already approved cannot be deemed to have been modified in the present facts. A specific requirement of approval by the authority concerned for any modification of existing scheme also negatives the contention in support of such deeming provision.

12. The law in this connection has been framed in a manner that in case there is no approved Scheme of Administration the authorities wee empowered to make the institution to have a Scheme of Administration duly approved and in case of default of the Committee of Management appropriate powers have been provided for getting such a scheme applicable. In such a case power for taking action in accordance with sub-section (3) of Section 16-D has been provided in Section 16-B. But while modifying an existing ‘Scheme of Administration similar power has not been provided in Section 16-CCC of the Act. But it goes without saying that if the institution commits default by not complying with the requirements of modification or alteration, the authorities are having ample power to take action against the erring committee of management.

13. In view of the aforesaid, it can be concluded that there was no deeming provision for implementation of modification under Section 16-CC and, therefore, the impugned orders at Annexures 2 and 3 are not tenable as the modified scheme is still not there and, therefore, there cannot be any violation thereof.

14. With regard to exercise of power by the Deputy Director of Education, I find that the said notification dated 23-8-1970 was issued in respect of specified existing section before introduction of S. 16-CCC. Therefore, there cannot be any presumption that the said notification applied to Section 16-CCC. The respondents have not been able to produce any further notification of similar nature empowering the Deputy Director of Education to act on behalf of the Director in exercise of power under Section 16-CCC. With regard to the contention as regards anomaly I find that any provision for compelling an institution for introducing a Scheme of Administration need not be identical to the powers for implementing modification or alteration. It would be quite reasonable for the Legislature to enact for the purpose of modification or alteration empowering the Director to act himself while providing for delegation of power for introducing scheme for the first time. In any event it is not for the Court to presume that a delegation was there. The law decided in the aforesaid cases of Committee of Management, Shahid Mangal Pandey Inter College (1994 (2) UPLBEC 1348) (supra) and Committee of Management Janta Inter College (1996 All LJ 769) (supra) also supports the aforesaid view.

15. In view of the aforesaid findings, this writ petition is allowed. The impugned orders at Annexures 2 and 3 are hereby quashed. There will be no order as to costs.

16. Petition allowed.

Committee Of Management, Barni Jain Uchchattar Madhyamik Vidyalaya v. State Of U.P And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Arguments (as advanced by learned Standing Counsel)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Committee Of Management, Barni Jain Uchchattar Madhyamik Vidyalaya v. State Of U.P And Others

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