MAHATMA GANDHI HIGHER SECONDARY SCHOOL, MALIHABAD, DISTRICT LUCKNOW THROUGH ITS MANAGER SRI AHMAD WALI KHAN Vs. STATE OF UTTAR PRADESH THROUGH SECRETARY, EDUCATION DEPARTMENT, CIVIL SECRETARIAT, LUCKNOW

JUDGEMENT

(1.) This is a petition by Mahatma Gandhi Higher Secondary School, Malihabad, in the district of Lucknow under Art. 226 of the Constitution of India. The petitioner is a recognised Higher Secondary institution in Malihabad imparting education up to the High School classes, There is a Scheme of administration for this institution having been framed under Sec. 16-A of the Intermediate Education Act, duly authorised by the Director of Education, Uttar Pradesh, of which Annexure 1 is a copy. On 21-6-1971 a letter was received by the petitioner from the Deputy Secretary, Education Department of Uttar Pradesh Government, in which certain defects and irregularities in the management of the institution were listed having been brought to Government's notice by the Director of Education, Uttar Pradesh, with a recommendation that an Administrator of the Institution may be appointed in terms of para 20(b) of the Scheme of Administration (Annexure 1) because proper administration of the school had become impossible on account of so-called mismanagement of the school by the petitioner's Managing Committee. Copy of this letter of the Deputy Secretary dated 21-6-1971 is Annexure 4 to the writ petition. By this letter the petitioner was asked to submit a written explanation to the charges levelled against the Institution and reported by the Director of Education. On 5-7-1971 the petitioner submitted its written explanation to the charges (vide Annexure 5). From 24-8-1971 to 2-9-1971 there was a special audit of the records of this institution by the auditors (vide Annexure 6). By an order dated 16-10-1971 the Governor appointed an Administrator of this institution under para 20(b) of the Scheme of Administration. The petitioner came to know about this order when copy of the order of the Deputy Secretary, Education Department, dated 16-10-1971 addressed to the Director of Education, Uttar Pradesh (contained in Annexure 9) was forwarded to the petitioner for information. It is this order of appointment of an administrator of this institution contained in Annexure that is being challenged by this petition on the ground, firstly, that it appeared from the contents of Annexure 9 that action under Sec. 20(b) of the Scheme of administration was taken by the State Government on the basis of a recommendation of the Director of Education dated 3-9-1971 in respect of which no opportunity was afforded to the petitioner to submit a written explanation as required by para 20 (b) of the Scheme of Administration. It is impugned also on the ground that it is ultra vires.

(2.) I have heard learned counsel for the parties. A counter affidavit has been filed on behalf of opposite party No. 1 sworn by Krishna Sewak Lal, an Upper Division Assistant of the Education Department. The opposite parties maintained that the Administrator was not appointed in exercise of power conferred by Sec. 16-D of the Intermediate Education Act and that the appointment was made under para 20 of the Scheme of Administration. It is maintained for the opposite parties that the Director of Education has made a recommendation to the State Government in his letter of May 21, 1971 for the appointment of an Administrator of this institution under para 20(b) of the Scheme of Administration and an opportunity was afforded to the petitioner to submit an explanation about the charges contained in this recommendation and the letter of the Deputy Secretary dated 21-6-1971 (contained in Annexure 4 of the writ petition). It was denied in the counter affidavit that a fresh recommendation was made by the Director of Education in his letter of 3-9-1971. Under letter of the said date the Director of Education was said to have submitted his comments to the State Government on the explanation of the petitioner to the charges communicated under Annexure 4. A rejoinder affidavit has been filed in which the petitioner reiterates that the Administrator was appointed on the basis of recommendation which appeared to have been made by the Director of Education in his letter of 3-9-1971.

(3.) The first question which arises in this petition is whether no opportunity to meet the charges levelled against it by the Director of Education in his recommendation to the State Government under para 20(b) of the Scheme of Administration was afforded as required by the relevant provision of the Scheme of Administration as contended for the petitioner. Para 20 of the Scheme of Administration (Annexure 1) is in these terms :