Omprakash Trivedi, J. - (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 Section 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 Section 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 Section 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 : "(1) When the State Government is of the opinion that circumstances have arisen which have rendered it impossible to carry on properly the administration of the school in normal manner it may appoint an Administrator : Provided that no such Administrator shall be appointed except:- (a) On the recommendation of the It Committee; or (b) On the recommendation' of the Director of Education and after allowing the President an opportunity to submit a written explanation against the said recommendation;" The wordings of para 20(b) of the Scheme of Administration made it clear that an opportunity must be afforded to the President of the institution concerned to submit a written explanation against tile recommendation of the Director of Education before action for the appointment of an Administrator is taken by the State Government from which it follows that the recommendation of the Director of Education for the appointment of an Administrator must be forwarded to the President of the institution and his written explanation required to he submitted against the recommendation. For then only can it be conceived that the President of the institution will be in a position to submit explanation against the recommendation. In the present case it is admitted on all hands that no recommendation of the Director of Education was ever forwarded by the State Government to the Manager or the President of this institution for purposes of affording an opportunity of submitting a written explanation thereto. The petitioner was required to submit an explanation within two weeks to the charges contained in the letter of the Deputy Secretary of Education dated 21-6-1971 (Annexure 4) but it will appear from a upheld by a learned Single Judge in reading of this letter that it does not contain a reproduction of the recommendation of the Director of Education nor does it appear that a copy of the recommendation of the Director of Education dated 21-5-1971 was for, warded with it to the Manager of this school. Without entering into the controversy whether the letter of the Director of Education dated 3-9-1971 amounted or not to a fresh recommendation as contended for the petitioner, the conclusion appears inevitable that no opportunity was given to the petitioner to submit a written explanation against any recommendation of the Director of Education. That being so, the essential condition contained in the proviso to para 20 of the Scheme of Administration does not appear to have been complied with and, therefore, I come to the conclusion that the order of appointment of Administrator is bad in law for non-fulfilment of the conditions laid down by the proviso to para 20 of the Scheme of Administration.;