- (1.) COMMITTEE of Management, Clutterbuckganj Intermediate College, Bareil ly has filed this petition under Art. 226 of lie Constitution. Aforesaid Committee runs an educational institution called the Clutter buckganj Inter College, Bareilly which is re cognised by the Board of High School and Intermediate Education, U. P. On 29th of June, 1972, the Director of Education, U. P. sent a communication to the Committee, pur porting to be under Section 16-D (2) of the U. P. Intermediate Education (Amendment) Act, 1972. In that communication he pointed out 37 irregularities in the management of the aforesaid college and asked the Committee to remove them within one month of the date of its receipt. He also required the committee to forward to him a compliance report in duplicate through the District Ins pector of Schools. It was further mentioned in that communication that in case no reply was received by the Director, it will be taken that the Committee had nothing to say in the matter and appropriate departmental pro ceedings would be taken. The petitioner sent a reply to the Director of Education on 8th of August, 1972, informing him what ac cording to it was the correct position with regard to some of the defects as also about the removal of some other defects. It is claimed that by 25th of August, 1972, all the defects pointed out by the Director of Educa tion in his letter dated 29th of June, 1972, which were capable of being removed, had, in fact, been removed and all the directions contained therein, had been complied with On 9th of November, 1972, the Sub- Divi sional Magistrate, Bareilly (respondent No. 3) called Sri Satya Swarup, Advocate, President of the Managing Committee and showed to him a telegram received from the State Gov ernment, according to which he (S. D. M.) had been directed to immediately take over charge of the college as Authorised Controller under Section 16-D (5-A) of the Intermediate Education Act. The telegram further indicat ed that a formal order to that effect was under despatch, but the same was not receiv ed by any one connected with the committee of the management. The petitioner accord ingly filed the present petition challenging the validity of the action of the State Govern ment in appointing the Sub-Divisional Magis trate, Bareilly as the Authorised Controller under Section 16-D (5A) of the U. P. Inter mediate Education Act.
(2.) THE petitioner challenges the vali dity of the appointment of the Sub-Divisional Magistrate, Bareilly, as an Authorised Con troller inter alia on the ground that neither the Director of Education afforded an op portunity to the petitioner to have its say in the matter before making a recommendation to the State Government under S. 16-D (3) of the Act, nor did the State Government give an opportunity to the petitioner to ex plain why the recommendation made by the Director of Education be not accepted, as is contemplated by Section 16-D (4) (5A) of the Act. On behalf of the respondents it is contended that before making his recom mendation to the State Government, the Director of Education served a notice, dated 29th of June, 1972, upon the petitioner and gave it full opportunity to explain the irre gularities pointed out therein and to remove them. The petitioner submitted its explana tion which was found to be unsatisfactory. The Director of Education accordingly, made a recommendation for the appointment of an Authorised Controller under Section 16-D (5-A) of the Intermediate Education Act. Ac cording to them, the State Government ap pointed the Authorised Controller after taking into consideration the irregularities pointed out by the Director of Education and the explanation given by the petitioner. Law does not require that after receiving the re commendation made by the Director of Education the State Government should give an opportunity to the Managing Committee to show cause against the recommendation made by the Director of Education. They claimed that in the circumstances, the order appointing an Authorised Controller is not invalid as alleged by the petitioner. In sup port of the contention that after receiving the recommendation from the Director of Education, the State Government is not re quired to issue afresh show cause notice to the Committee of Management or to afford it a further opportunity of explanation, reli ance was placed on the decision of this Court in the case of State of U. P. v. Managing Committee Arya Kanya Inter College (Special Appeal No. 543 of 1972. decided on 12-12-1972) = (reported in AIR 1973 All 458).
(3.) RELEVANT portion of Section 16-D as amended up to the year 1972 runs as follows:- "16-D. Inspection of recognized institu tion and removal of defects- (1) The Director may cause a recognized institution to be inspected from time to time. (2) The Director may direct a manage ment to remove any defect or deficiency found on inspection or otherwise. (3) If the management fails to comply with any direction made under sub-section (2) the Director may, after considering the ex planation or representation, if any, given or made by the management- (a) refer the case to the Board for with drawal of recognition; or (b) recommend to the State Government to proceed against the institution under sub section (4). (4) If on the receipt of a recommenda tion under sub-section (3) the State Govern ment is satisfied that- (a) the affairs of the recognized institu tion are being mismanaged; or (b) the management of the institution has wilfully or persistently failed in the perfor mance of its duties; or (c) the institution is being conducted otherwise than in accordance with the scheme of Administration; or (d) the draft or the scheme of Adminis tration has not been submitted within the time allowed. It may by order make provision- (i) (ii) (5) (5-A) If on receipt of a recommenda tion referred to in sub-section (4) the State Government is satisfied that the circumstances mentioned in para (a) or para (b) of that sub-section exist and is further satisfied that for special and exceptional reasons, which shall be recorded, action under that sub-section will not be adequately effective and that in the interest of the institution it is necessary that the management of that institution be immediately handed over to an Authorised Controller, the State Government may by an order, for such period as may be specified in the order, appoint an Authorised Controller and that Authorised Controller may take over the management of the institu tion including management of the land, build ings, funds and other assets belonging to or vested in the institution to the exclusion of the management or any such person and whenever the Authorized Controller so takes over the management he shall, subject only to such restrictions as the State Government may impose, have in relation to the manage ment of the institution all such powers and authority as the management would have if no orders were made under this sub-section or sub-section (4). (5-B) ................................." The scheme underlying the section indicates that the Director has been given a power to inspect a recognized institution from time to time. If as a result of the inspection or otherwise, some defect or deficiency in the management of the institution comes to his notice he is to issue a direction under sub section (2) to the management to remove such defects or deficiency. Sub-section (3) then provides that if the management fails to re move the defects or deficiency which were directed to be removed under sub-section (2), the Director may, after considering the ex planation or representation, if any, given or made by the management refer the matter either to the Board for withdrawal of recogni tion of the institution or to the State Govern ment for taking action under sub-section (4). Sub-section (3), in my opinion, postulates that after a direction has been given to the management to remove any defect or defici ency under sub-section (2) and the Director comes to a conclusion that the management has failed to comply with the direction, he is to give an opportunity to the management to explain as to why the defect or deficiency as pointed out by him has not been removed. At that stage, the management can tell the director that the defect or deficiency pointed out by him have either in fact been removed or it may offer an explanation for the same. It is only when the Director finds that the defect or deficiency pointed out by him has not been removed by the management and its explanation is not satisfactory that he can make a recommendation contemplated by Section 4. In a case where the management has, in fact, removed the defects or deficiencies pointed out by the Director under sub-sec tion (2), it will not be open to him to call for an explanation or representation from the Committee of Management, as contemplated sub-section (3), in respect of past defects and deficiencies in the management, which were either not capable of being removed and on the basis of which the Director might rea sonably have apprehended that the affairs of the Institution may be mismanaged in future. The explanation or representation contem plated by sub-section (3) is an explanation which the management is to submit in res pect of the directions issued under sub-sec tion (2) namely, the defects or deficiency which were directed to be removed by the Director of Education. It necessarily fol lows that in a case where Director wants to proceed to make a recommendation under sub-section (4), he has not only to issue a direction to the management to remove de fects or deficiencies coming to his notice, but also to inform it that the defects or defi ciencies pointed out by him have not been removed so that the management may have an opportunity of offering an explanation or making a representation with regard to the defects pointed out or the direction issued to it. This opportunity is to be given after the time mentioned in the notice for remov ing the defects or deficiencies has run out. Unless such an opportunity has been given, the Director of Education cannot make a recommendation either to the Board for withdrawal of recognition or to the State Government for taking action under sub section (4). The jurisdiction of the State Government to make an order under sub-sec tion (5-A) arises only when a recommenda tion as contemplated under sub-section (4) has been received by it.;