MAHADEB KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The two writ petitioners are the Members of the Managing Committee of the Malidaha High School in the district of North 24-Parganas. The fact, in short, is that the said School was established by the local people and is a recognised and aided one. With the permission of the Director of School Education a clerk was appointed but a Class IV staff, was not appointed since 1986. On 4th August, 1990 the Managing Committee of the School formed a Selection Committee for the selection of a Class IV staff. It is alleged that the Secretary of the School was not satisfied with the Selection Committee as it did not consist of the persons favoured by him and as such he wanted to do away with the resolution forming the Selection Committee on 4th August, 1990. The Secretary convened another meeting on 17th August, 1990 but it was not convened after serving a clear seven days' notice which is mandatory under the Statute and there was no item on the agenda to cancel the previous Selection Committee but when the resolution relating to the formation of the Selection Committee was taken up for confirmation the said resolution No. "2Kha" was not confirmed without assigning any reason. It is further stated that without confirming the said resolution relating to the Selection Committee in the meeting of 17th August, 1990, another meeting was convened on 31st August, 1990 and the notice of the same was not served upon the three members including the, petitioners, even the Headmaster who is a Joint-Secretary was not served with the notice. In the meeting held on 31st August, 1990 a fresh Selection Committee was formed with persons favoured by the Secretary. The contention of the petitioners is that the meeting held on 17th August 1990 ,and 31st August, 1990 were wholly illegal and without jurisdiction. There after the new Selection Committee took interview and selected one Ashim Kumar Mondal as No. 1 in the Panel for the post of Class IV staff. It is the apprehension of the petitioners that the Secretary who have played foul might forward 'the recommendation of the Selection Committee to the District Inspector of Schools (S.F,.), North 24-Parganas, any time for approval. It is the contention of the petitioners that unless the selection made by the Selection Committee is quashed the School will suffer irreparable loss and injury. Hence the writ petition.

(2.) No Affidavit has been filed by the private-respondents but exhaustive arguments were made and they filed written submission.

(3.) The first argument of Mr. Islam on behalf of the petitioners was that a Writ lies against Managing Committee of the School though no prayer has been made against any State-respondent. In this connection he cited the case of Vidya Dhar Pande v. Vidyut Grih Siksha Samiti and Ors. reported in AIR 1989 SC 341 wherein it was decided that Higher Secondary School though run by private trust receiving hundred per cent grant from Government is amenable to writ jurisdiction. In this case section 28(2) (d) of the M. P. Madhyamik Siksha Adhiniyam, 1965 and Regulations framed there under were in question and it was held that the service of the Principal of the School was terminated in breach of Reg. 79. He also referred to the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner New Delhi, (AIR 1978 SC 85,1) where the Supreme Court held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The point of Mr. Islam is to bring home the point that writ lies. The maintainability of the writ was not challenged by the private-respondents on the grounds as contented by Mr. Islam but on some other grounds which I shall deal after- wards. The learned Counsel for the petitioners has placed Rule 16 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 which clearly says that "Not less than seven days notice of the meeting shall ordinarily be given". On the basis of Rule 16 he submitted that the second meeting of 17th August, 1990 being Annexure 'B' to the writ petition was bad in accordance to Rule 16 though the petitioners were present, and he cited AIR 1954 SC 340 (Kiran Singh and Ors. v. Chaman Paswan and Ors.) which deals with the unamended sections 9 and 21 of the Civil Procedure Code and section 11 of the Suits Valuation Act, 1887. It was held that decree passed without jurisdiction is a nullity. On this point he cited two more cases reported in AIR 1990 SC 1176 (Som Raj and Ors. v. State of Haryana and Ors.) and AIR1990 SC 1402 (Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors.). In the first case Their Lordships of the Supreme Court while discussing the Rule of Law said that discretion means sound discretion guided by law or governed by known principles of rules not by whim or fancy or caprice of the authority. But at the same time Their Lordships categorically stated that the validity of the Rules have not been questioned in this case. While in the second case Their Lordships emphasised to act with fairness in administrative action and one must take a decision in accordance with the provisions of the Act and Statutes and must not be guided by extraneous or irrelevant consideration. Mr. Islam submitted that the deficiency of seven days' notice makes any decision taken in the Managing Committee bad in law and though the petitioners raised objection in that meeting to this effect but they were overruled. He further submitted that arbitrary decision was taken by reversing the decision of formation of the Selection Committee and so far as the third and last meeting held on 31st August, 1990 was concerned the notice was not served upon several members. In conclusion he cited the case of Jay Charan Lal Anal v. The State of U.P. and Ors.' reported in AIR 1968 SC 5 wherein the Supreme Court held that according to section 87-A(3) of the U.P. Municipalities Act, 1916 there was no breach of provisions of the Act as seven clear days intervened between date of despatch of notice and date of meeting. It is further held that the important or material date according the provisions, of that Act was the date of despatch of notice and not the date of its receipt. So far the International Airport Authority's case as reported in AIR 1979 SC 1628 is concerned and as referred to by the learned Advocate, 1 do not think it requires discussion as it totally deals with a different subject matter though construction Was involved there and test of eligibility laid down was an. objective test and not a subjective one.