MANAGING COMMITTEE HIGH Vs. NANDAN SINHA

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent arising from the judgment of a learned single Judge of this Court dated the 3rd of February, 1976 C.W.J.C. No. 693 of 1974. In that application under Articles 226 and 227 of the Constitution of India, respondent No. 1 Shri Sheonandan Sinha 'Vikas' was the petitioner whereas the two appellants here were respondents 3 and 4 respectively. Respondents 2, 3, 4 and 5 to this appeal were respondents 1, 2, 5 and 6 respectively in the aforesaid writ application. Originally a number of prayers had been made in that application, but ultimately the application was confined to the issuance of a writ for quashing annexure 4 to the writ application. By the impugned judgment, that annexure which is the resolution of the managing committee of the High School, Jamui, Monghyr (hereinafter to be referred to as the school), appellant No. I, dated the 8th of May, 1973 was quashed. By that resolution, the managing committee had resolved that, in view of the State Government's decision to abolish the system of higher secondary education in schools, the posts of the Principal and the Vice-Principal were also being abolished and the positions as was obtaining before the coming into vogue of the system of higher secondary education was to continue thenceforth. The practical effect of that resolution was that appellant No. 2 Shri Nand Kishore Prasad, who was, prior to the introduction of the aforesaid scheme or system of education, the Assistant Headmaster of the school while the school was a mere secondary school, was permitted to act as the Headmaster of the School whereas respondent No. 1, who was the writ petitioner and who had been acting as the Vice-Principal of the school during the continuance of higher secondary education system was reverted to his original post of an Assistant Teacher.

(2.) There is not much controversy with regard to the facts obtaining in this case. The points of law, which have been raised in support of this appeal, are short but one of the points is not free from difficulty. Mr. B.G. Ghose, learned Counsel for the appellants raised two points in support of this appeal. The first and the most vital point that was raised is as to whether a writ could issue to the managing committee of the school or not. Although the fact as to whether the school in question was an absolutely private school or a Government-aided school is not clear from the records of the case, learned Counsel for the appellants proceeded upon the assumption that the school was an aided school, ft was contended that the managing committee of the school was neither the creature of any statute nor under it but was merely governed by some statutory provisions in discharge of its junctions, in other words, the submission was that the managing committee not being a statutory body, this Court had no jurisdiction to issue a writ in exercise of its power under Articles 226 and 227 of the Constitution of India. The other point that was canvassed at the Bar was that, since the scheme of education known as higher secondary education in the school was itself abolished, the posts of Principal and Vice-Principal should automatically be deemed to have been abolished and with the abolition of these posts, there could not be said to be any legal right vested in respondent No. 1, who was the writ petitioner, to claim to. continue on the post of Vice-Principal or to his promotion as the Principal or the Headmaster as a matter of legal right. It was contended that, since there was a cessation of the post, there was a cessation of work, and that being so, there could not be said to have been any infirmity in the Impugned resolution of the managing committee.

(3.) I propose to dispose of the second point raised by Mr. Ghose first. Reliance was placed by Mr. Ghose on the decisions of the Supreme Court in N. Ramnatha Pillat v. The State of Kerala. and State of Hatyana v. Shri Des Raj Sangar . The principle established by these decisions is that the power to create, continue and abolish any civil post is inherent in every sovereign Government. It is a policy decision exercised by the executive and is dependent on the exigencies of circumstances and administrative necessity The abolition of a post may have the consequence of termination of service but such termination is neither dismissal nor removal within the meaning of Article 311 of the Constitution. The abolition of a post is not a personal penalty imposed on any Government servant. As long as the decision of the Government regarding the abolition of a post is taken in good faith, the same is not questionable in a court, for it is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. These decisions can be of no avail to the appellants on the facts and in the circumstances of the instant case. In this connection annexure 3 to the writ application must be noticed as it was relied upon by learned Counsel for both the parties. Annexure 3 is a memo of the State Government issued by the Director of Public Instruction to all the school authorities throughout the State. The memo is dated the 10th of November, 1971. It was conveyed through that memo that, in view of the Government Resolution No. 1188 dated the 27th of March, 1971, the scheme of higher secondary education had been abolished and the State administration had taken a decision that all such higher secondary and multipurpose schools should be treated as mere high schools and that in future the appointments of teachers and other personnel in the schools should be made in accordance with the pattern of high schools on the approved pay scale for such posts. It was, however, further communicated that the teaching staff appointed in higher secondary and multi-purpose schools, whose appointments had been approved by the competent authority, shall not, in any way, be prejudicially affected either by termination of their service or by changing their pay scale and status, Mr. Ghose for the appellants contended that this was merely an executive or administrative instruction having no binding force and that, therefore, the abolition of the system of higher secondary or multipurpose schools amounted to an automatic cessation of work of the Principals and Vice-Principals appointed during the period that such system of education was in vogue. This argument, to my mind, is fallacious. Such instructions issued by the Director of Public Instruction were in conformity with the Rules framed by the State Government under the rule-making power vested in it Section 8 of the Bihar High Schools (Control and Regulation of Administration Act, 1960 (hereinafter to be referred to as the Act). And, such rules relevant for the present purpose were framed being termed the Bihar High School "Service Condition" "Rules", 1972 (hereinafter to be referred to as the Service Condition Rules). The instructions or circular issued (Annexure 3) are in consonance with Rule 12 of the Service Condition Rules, the English version of which (translation rendered by me) runs thus. Any post of any teacher in a school shall not be abolished nor a post abolished can be re-created or revied without the prior approval of the competent authority. In any case, the competent authority shall inform the Board with regard to the ultimate decision taken in this behalf-either in relation to abolition of a post or for re-creating an abolished post. And, a 'teacher' has been defined in Rule 2(xxxiii) as including an assistant teacher, an assistant headmaster and a headmaster. Rule 2(vii) defines a ,headmaster" as including a principal or any person duly appointed by the competent authority in any school in that behalf while Rule 2(ii) defines an assistant headmaster as including a vice-principal. It was not debated at the Bar that the Service condition Rules aforesaid have the force of law having been duly framed by the State Government under its rule making power under Section 8 of the Act. In that view of the matter, learned Counsel for the appellants in his submission become a little lukewarm in so far as this second point is concerned, For the reasons aforesaid and for the cogent reasons given by the teamed single Judge in this regard. I do not find any substance in this contention of Mr. Ghose. This contention must, therefore, be repelled.