TAPAN DASGUPTA Vs. STATE & ORS.

JUDGEMENT

(1.) In the instant case the petitioners herein challenged the validity of the order of the President dated 5th Aug., 1996 as was communicated by the Secretary of the Board by Memo No. S/186 dated 7th Aug., 1996. It appears that the said order dated 5th Aug., 1996 was passed by the President in exercise of powers under section 28(2) of the West Bengal Board of Secondary Education Act, 1963. Though the President may, in any emergency, can exercise powers of the Board or Executive Committee under the aforesaid section 28(2) of the Act, 1963, but condition precedent to exercise such power should be fulfilled before exercising such power by the President. In the instant case an affidavit has been filed on behalf of the respondent Board. Neither in the affidavit nor even in the records existence of such emergency has been mentioned.

(2.) The President of the Board can exercise power under section 28(2) of the West Bengal Board of Secondary Education Act, 1963 in case of emergency. The order passed by the President under section 28(2) of the said Act cannot be allowed to sustain when the condition precedent of existence of emergency for exercising such power does not exist and/or the President fails to satisfy with relevant materials on record regarding existence of such emergency. It is obvious that the powers under section 28(2) can under no circumstances be substitute of normal procedure. Any order passed by the President under section 28(2) of the said Act would become nullity in the eye of law in absence of fulfillment of condition precedent to invoke such power. The President can exercise his power under section 28(2) of the said Act only after fulfillments of the condition precedent and not otherwise.

(3.) For the foregoing reasons the order passed by the President on 5th Aug., 1996 as was communicated by the Secretary by Memo No. S/186 dated 7th Aug., 1996 being Annexure 'K' to the writ petition is liable to be set aside and hence set aside the same. I direct the Appropriate Authority of the Board to consider the matter of recognition of Nababanga Junior High School afresh after considering the decisions of this Honourable Court in the case of Nabadwip Chandra Das & Ors. Vs. State of West Bengal & Ors. reported in (1998)1 Cal LJ 141 and in the matter of State of West Bengal & Ors. Vs. Abdul Kuddus reported in AIR 2000 Cal 73. The entire exercise should be completed by the competent Authority of the Board within a period of four weeks and the decision should be communicated to the School Authorities within a week from the date of passing of the appropriate order.