VINAY SAIHGAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The Government has shifted the headquarters of the Himachal pradesh Board of School Education (the Board) from Shimla to Dharamsala in public interest. Some of the employees of the Board, the present petitioners, are up in arms. They challenge the competency of the Government to order the shifting of the headquarters. They point out that even one of the members of the Board. Shri Keval Ram Chauhan, Members, Legislative Assembly, is opposed to this shifting. They rely on an undated letter (Annexure-PD) written by him to the Chairman of the Board asking the latter to find the views of the Board before the decision is implemented by the Board. We may straightway point out that this letter is not on the records of the 'Board since it was a personal letter written to the Chairman of the Board, Shri Hardayal. It may also be pointed out that this letter in original as well as its copy was handed over by Shri Kewal Ram Chauhan to Shri Gita Ram, General Secretary of the Employees Association of the Board, to be handed over to the Chairman. It is stated to have been received by the Chairman on 24th May, 1983. However, neither Shri Chauhan nor any other member of the Board has come forward to challenge the decision.

(2.) Mr. Chhabil Dass, learned counsel for the petitionary, contends that the Government could not act under. Section 5 of the Act since this power could be exercised only once. It is submitted that under Section 3 (2) the Board had the power to shift the headquarters. It is stated that the Government could have acted under Sub-section (4) of Section 11 of the Act but then it would have become incumbent upon the Government to submit a report to be laid on the table of the Legislative Assembly under Sub-section (6) of Section 11. In order to appreciate the contentions of the learned counsel, it is necessary to refer to various Sections of the Act.

(3.) The Board was established under the Himachal pradesh Board of School Education Act (the Act). Section 3 deals with the incorporation of the Board. Sub-section (1) enables the Government to establish by a notification in the Official Gazette the Board with effect from such date as may be specified in the notification. Since the contentions centre around this section, it is better if we reproduce it in full:- "3. Incorporation of the Board.--(1) The Government shall establish, by notification in the Official Gazette, a Board of School Education for Himachal Pradesh with effect from such date as may be specified in the notification. 2. The Board shall be a body corporate by the name of the Board of School Education for Himachal Pradesh and shall have perpetual succession and a common seal with power to acquire and hold property both movable and immovable, and subject to the provisions made under this Act to transfer any property held by it and to contract and to do all other things necessary for the purposes of its constitution and may sue or be sued in its corporate name." Section 4 relates to the composition of the Board. The Board is to consist of the Chairman to be nominated by the Government under Section 18, Director of Education as the ex-officio member, three persons elected by the Himachal Pradesh Legislative Assembly from amongst its members, the members to be nominated by the Government as detailed in Clause (III) of Sub-section (1), and a member to be co- opted by the Board for his expert and wide knowledge of school education. Section 5 refers to the headquarters of the Board. It reads:- "The Board shall have Headquarters at a place to be notified by the Government in the Official Gazette." Section 6 prescribes the term of office of the members and the method of filling of casual vacancies. Except the ex-officio member, the term of office of other members is ordinarily three years. The members of the Legislative Assembly are to continue as the members of the Board unless they cease to be members of the Legislative Assembly which elected them. The outgoing members continue in office until the election, nomination, or co-option of the successors as notified in the official Gazette unless the Government otherwise directs. Subsection (4) empowers the Government to terminate the term of office of any nominated member if the Government is of the opinion that his continuance in the office is not in the interest of the Board. Section 7 prescribes the quorum of at least nine members for a meeting of the Board. The proceedings of the Board or a Committee thereof are not to become invalid merely by existence of a vacancy among its members or by reason of a defect in its constitution or an irregularity in procedure not affecting the merits of the case (Section 8). Section 9 debars a member to take part in discussion or vote on any matter in which he has any personal or pecuniary interest. The powers and functions of the Board are laid down in detail under Section 10. One of such powers and functions is to: "place before the Government the views of the Board on any matter with which it is concerned" (Sub-section 10). The Board empowered, to "do all such other acts and things ancillary to any of the purposes specified above or for the purpose of carrying into effect the provisions of this Act" (Subsection 18), Section 11 lays down the powers of the Government, It empowers the Government to address the Board with reference to anything eon-ducted or done by the Board and to communicate to the Board its views on any matter with which the Board is concerned. The Board is duty bound to report to the Government the action taken upon the communication received and furnish an explanation if it fails to take action. After considering the explanation the Government has the power to: "issue such directions, consistent with this Act, "as it may think fit and the Board shall comply with such directions." Subsection (4) lays down "In any emergency which in the opinion of the Government, requires that an immediate action should be taken, the Government may take such action, consistent with this Act, as it deems necessary without previous consultation with the Board and shall forthwith inform the Board thereof." Sub-section (5) empowers the Government to suspend the execution of any resolution or order of the Board and prohibit the doing of any act ordered or purporting to be ordered, to be done fay the Board, if it finds the resolution or order or act in excess of the powers conferred by this Act upon the Board. Sub-section (6) enjoins upon the Government to submit a report to be laid on the table of the Legislative Assembly at the earliest opportunity where the Government has taken action under Sub-sections (3), (4) and (5) along with the reasons for taking such actions. Sections 12, 13 and 14 relate to the constitution to the Board fund custody and investment of the Board fund and application of the Board fund, whereas Section l5 relates to the audit of the accounts of the Board. Section 16 prescribes the mode of entering into a contract whereas Section 17 talks about the officers of the Board. In this case we are not concerned with these provisions. The next relevant provision for our purposes is Section 19 which lays down the powers and duties of the Chairman. The Chairman is to be the administrative head of the Board and it is his duty to see that the Act and the regulation are faithfully complied with. Under Sub-section (2) of this section the Chairman is required: "at prescribed intervals or on receipt of a requisition signed fey not less than one-third of the total number of members of the Board and stating the business to be brought before the Board call a meeting of the Board in the prescribed manner." Subsection (3) takes care of the emergency. It empowers the Chairman to take immediate action as he deems necessary in an emergency arising out of the administrative business of the Board requiring immediate action. He is required to report his actions to the Board at its next meeting. Section 20 makes the Director of Education as ex-officio Vice-Chairman of the Board. Section 21 prescribes the powers and duties of the Vice-Chairman whereas Section 22 lays down the powers and duties of the Secretary. The Secretary, is to be appointed by the Government. Under Section 23 it is the Government which appoints Deputy Secretaries and Assistant Secretaries of the Board. The Board can employ only other officers and servants. The Board is required to constitute the committees referred to in Section 24 where as Section 25 requires the Board to consider the reports of the committees on matters, delegated to any committee by regulation before exercising its powers on that matter. Section 26 enables the Board to make regulations for the purposes of carrying into effect the provisions of the Act. Section 27 relates to the first regulation of the Board. It reads :--