Katra Educational Society Vs. State of
Uttar Pradesh & Ors [1966] INSC 15 (17 January 1966)
17/01/1966 SHAH, J.C.
SHAH, J.C.
GAJENDRAGADKAR, P.B. (CJ) SIKRI, S.M.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION: 1966 AIR 1307 1966 SCR (3) 328
CITATOR INFO :
R 1970 SC2079 (10) RF 1974 SC 1 (27) RF 1979
SC 83 (5) RF 1983 SC 1 (67) RF 1988 SC 305 (7)
ACT:
Intermediate Education Act (U.P. 2 of 1921)
as amended by Act 35 of 1958-Validity of ss. 16A to 161-Sections whether
unreasonable, discriminatory--Whether within legislative power of State
Legislature.
HEADNOTE:
The appellants society registered under the
Societies Registration Act 21 of 1860-conducted an educational institution at
Allahabad in Uttar Pradesh. Management of the affairs of the society was
entrusted by the memorandum of association to an Executive Committee whose
membership was confined to members of the Society. Under the Intermediate
Education Act (U.P. Act 2 of 1921) provision was made for establishing a Board
with powers to regulate High School and Intermediate Education This Act was
amended by U.P. Act 35 of 1958. By s. 7 of the amending Act which came into
force on January 23, 1959, ss. 16A to 16I, were incorporated into U.P. Act 2 of
1921. By letter dated September 12, 1960, the Regional Inspector of Girls
Schools called upon the Society to submit and get approved a scheme of
Administration of the institution managed by it. The society thereupon
presented a petition under Art. 226 of the Constitution for the issue of a writ
quashing the orders of.
the Regional Inspector and requiring the
authorities not to enforce the provisions of ss. 16A to 161. The High Court
dismissed the petition. In its appeal to this Court it was contended on behalf
of the Society that (1) The amending Act of 1958 was inoperative to the extent
to which it sought to impose controls upon the management of an educational
institution registered under the Societies Registration Act and thereby
directly trenched upon legislative power conferred by Entry 44 of List I and
Entries 10 and 18 of List HI. (2) Section 16I was discriminatory inasmuch as it
conferred uncontrolled power on the Regional Deputy Director of Education. (3)
The provisions of s. 16B(3) read with s.
16D(3)(a) and (b) were unreasonable. (4)
Section 16D(4) invaded the society's right to property guaranteed by Arts.
19 and 31 of the Constitution. (5) The
pro-visions in question made unlawful discrimination between private and State
institutions.
HELD : (i) The impugned legislation does not
fall under Entry 44 of List 1.
Board of Trustees v. State of Delhi, A.I.R.
1962 S.C. 458, applied.
it cannot also be said that the pith and
substance of the impugned Act relates to charities and charitable institutions
or to trusts and trustees. The true nature and character of the Act falls
within the express legislative power conferred by Entry 11 of List II and
merely because it incidentally trenches upon or affected a charitable
institution or the powers of the trustees of the institution it will not on
that account be beyond the legislative authority of the State. [333 E-G]
(ii)Section 16F(4) is enacted in the interest of the students of the
institution. When the Educational Authorities do not accept the suitability of
a person selected by the management on two successive occasions in respect of
the same vacancy, the Educational Authorities have been given power to fill up
the vacancy.
It is implicit in the provision that the
power has to be exercised by the Educational Authority in the interest of the
institution and for serving the cause of education, and it cannot be said that
the power conferred is uncontrolled.
[334 E] (iii)The pro-visions of s. 16B(3)
read with s. 16D(3)(a) and (b) are disciplinary and enacted for securing the
best interests of the students. The State in a democratic set up is vitally
interested in securing a healthy system of imparting education for its coming
generations of citizens, and if the management is recalcitrant and declines to
afford facilities for enforcement of the statute enacted in the interest of the
students, a provision authorising the State Government to enter upon the
management through its Authorised Controller cannot be regarded as
unreasonable. [335 A-B] (iv)Section 16D(4) does not affect the right to property
under Arts. 19 or 31. The property continues to remain the property of the
institution; only the right of management of the recalcitrant managers is taken
away temporarily to secure compliance with the provisions of the Act. [335 F]
(v)The provisions of the Act do not make unlawful discrimination between
educational institutions maintained by private citizens and institutions
maintained by the State or the Central Government or local bodies. The
institutions run by these authorities are governed by definite rules under
conditions which are entirely different from those prevailing in privately
managed institutions. The materials on record were sufficient to indicate that
the plea of unlawful discrimination had no basis. [337 B, C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 6 of 1965.
Appeal by special leave from the judgment and
order dated May 1, 1962 of the Allahabad High Court in Civil Misc. Writ No.
2892 of 1960.
Gopinath Kunzru, D. D. Verma, S. S. Khanduja
and Ganpat Rai, for the appellant.
K.L. Misra, Advocate-General, Uttar Pradesh,
C B. Agarwala, Atiqur Rehman and O. P. Rana, for the respondents.
Shah, J. The appellant--A society registered
under the Societies Registration Act 21 of 1860 conducts an educational
institution styled "Dwarka Prasad Girls Intermediate College" at
Allahabad. Management of the affairs of the Society is entrusted by the
memorandum of association to an Executive Committee consisting of six
office-bearers, seven members elected at the general meeting of the Society,
and two nominees of the settlors of certain buildings, in which the College is
conducted, and it is provided by the memorandum that no one who is not a member
of the Society can become or remain an office-bearer or member of the Executive
Committee.
Under the Intermediate Education Act (U.P.
Act 2 of 1921) provision was made for establishing a Board with power to
prescribe courses of instruction for the Intermediate classes and the Higher
Sections of English Schools, to grant diplomas or certificates 330 to conduct
examinations at the end of the High School and Intermediate courses, to
recognize institutions for purposes of its examinations, and to do all such
other acts and things as may be requisite in order to further the objects of
the Board. This Act was amended by the U.P. Act 35 of 1958. By S. 7 of the
amending Act which came into force on January 23, 1959, ss. 16A to 161 were
incorporated into U.P. Act 2 of 1921. By s. 8 the State Government was
authorised to promulgate Regulations in respect of matters covered by ss. 16A
to 161.
By letter dated September 12, 1960 the
Regional Inspector of Girls Schools, IIIrd Region, Allahabad called upon the
Society to submit and get approved a Scheme of Administration of the
institution managed by it. The Society thereupon presented a petition under
Art. 226 of the Constitution in the High Court of Judicature at Allahabad for
the issue of a writ quashing the orders passed by the Regional Inspector of
Girls Schools and requiring the State of U.P., the Director of Education, the
Regional Inspector of Girls Schools and the Board of High School and Intermedicate
Education, who were respectively respondents Nos. 1 to 4, not to enforce the
provisions of ss. 16A to 161 as originally enacted or as modified by the
Removal of Difficulties Orders issued under s.9 of the amending Act. It was
submitted by the Society that ss. 16A to 161 were not within the competence of
the State Legislature, and also because they infringed the fundamental rights
of the Society guaranteed by Arts. 14, 19(1) (c), 19(1) (f) and 31 of the
Constitution. It was urged that by the Act unreasonable restrictions were
imposed on the management of educational institutions and the Act conferred
unguided and untrammelled powers upon executive authorities, no distinction
having been made between "well-managed and badly-managed"
institutions. The High Court rejected the contentions raised by the Society.
With special leave, the Society has appealed to this Court.
The effect of ss. 16A to 161 which were added
to the U.P. Act 2 of 1921 by the amending Act 35 of 1958 is briefly this. For
every institution there shall be a Scheme of Administration which shall amongst
other matters provide for the constitution of a Committee of Management vested
with authority to manage and conduct the affairs of the institution, and which
shall describe the powers, duties and functions of the Headmaster or the
Principal and of the Committee of Management in relation to the institution and
that the Headmaster or the Principal of the institution and two teachers
thereof selected by rotation according to seniority shall be exofficio members
of the Committee with a right to vote : (S. 16A). In the case of an institution
recognized at the date of commencement of the Intermediate Education
(Amendment) Act, 1958, a draft of the Scheme of Administration shall be
prepared and submitted to the Director for his approval: (s. 16B); and if the
Scheme 331 of Administration is not submitted within the time allowed, the
Director shall take action in accordance with cl. (a) or (b) of sub-s. (3) of
s. 16 D: (s. 16C). The Director is authorised to inspect recognized
institutions and to remove defects or deficiencies found on inspection or
otherwise and if the management fails to comply with any directions the
Director may, after considering the explanation or representation, if any,
given or made by the management, refer the case to the Board for withdrawal of
recognition or recommend to the State Government to proceed against the
institution in the manner provided by sub-s. (4) of s. 16.
If on receipt of a recommendation, the State
Government is satisfied that the affairs, ,of the institution are being
mismanaged, or the management of the institution has wilfully or persistently
failed in the performance of its duties, or the institution is being conducted
otherwise than in accordance with the Scheme of Administration, or the draft of
the Scheme of Administration has not been submitted within the time allowed,
the State Government may by order provide for exercising control over such
institution by an Authorized ,Controller for such period as may be specified by
the Government, and on the making of such order the institution and its
management shall, so long as the order continues, in force, be conducted and
carried on in accordance with the provisions of the order, and every person
having any function of management of such institution shall comply with such
directions. Where the management or any person having any function of
management does not comply with or refuses to carry out any direction given by
the Authorized Controller, that Officer may, with the previous approval of the
State Government and for such period as the State Government may fix, take over
the management of the institution including management of the land, buildings,
funds and other assets belonging to or vested in the institution, to the
exclusion of the management or any such person and wherever the Authorized
Controller so takes over the management he shall have in relation to the management
of the institution all such powers and authority as the management would have
if the institution were not taken over under sub-ss. (4) or (5) : (s. 16D).
Qualifications for appointment as Principals, Headmasters and teachers of
different subjects shall be prescribed by regulation and there shall be
constituted in every recognized institution a Selection Committee for selecting
candidates for appointment as teachers in the institution: (s. 16E).
Qualifications which the Principal or Headmaster or teacher shall possess, and
the procedure for appointment of selected candidates to the office of Principal
or Headmaster or teacher are also to be prescribed : (s. 16F). Every person
employed in a recognised institution shall be governed by such conditions of service
as may be prescribed by Regulations and any agreement between the management
and such employee insofar as it is inconsistent with the provisions of the Act
or with the Regulations shall be void: the 332 Regulations shall inter alia
provide for the period of probation, the conditions of confirmation and the
procedure and conditions for promotion and punishment, scales of pay and
payment of salaries, transfer of service from one recognized institution to
another, grant of leave and Provident Fund and other benefits and maintenance
of record of work and service etc. The Committee of Management may not remove
or dismiss from service or reduce in rank or reduce the emoluments of any
Principal, Headmaster or teacher except with the prior approval in writing of
the Inspector: (s. 16G). By S. 16H the provisions of ss. 16A, 16B, 16C, sub-ss.
(2) to (7) of S. 16 D and ss. 16E, 16F and 16G are not to apply to recognized
institutions maintained by the State Government or the Central Government and
in the case of recognized institutions maintained by a local body, the State
Government may declare that all or any of those provisions shall not apply or
shall apply subject to such alterations, modifications or additions as it may
make. The Director may, by notification in the Official Gazette delegate all or
any of the powers which he exercises under the Act except certain powers: s.
161.
Some of these provisions have been amended
from time to time by orders issued under s. 9 of the amending Act. For reasons
which we will presently set out, we do not propose in this appeal to enter upon
the question whether the amendments were validly made. We have referred to the
act as it was originally enacted.
Counsel for the Society contends that the
amending Act insofar as it incorporates ss. 16A to 161 in the U.P. Act 2 of
1921 is beyond the legislative competence of the State Legislature, because in
substance it seeks to supersede the provisions of the Societies Registration
Act, 1860-a field of legislation which is exclusively within the competence of
the Parliament-and in any event because the Act insofar as it affects the
powers of trustees of charitable institutions cannot be enacted without
conforming to the requirements of Art. 254.
Management of the affairs of the Society was
entrusted by Its memorandum of association to the Executive Committee, but the
Society is required by s. 16A to submit a Scheme of Administration providing
for the constitution of a Committee of Management invested with authority to
manage and conduct the affairs of the Society, and of this Committee of
Management the Headmaster or the Principal and two teachers selected by
rotation are ex officio members. The Director has the power to inspect the
School and to interfere with the management calling upon them to remove any
defect or deficiency found on inspection, and the State Government is empowered
to appoint an Authorized Controller to exercise with respect to the institution
and its management such functions or control as may be specified in the order
of the State Government.
333 In the matter of appointment and removal
of the Principal or the Headmaster, and teachers the authority of the Executive
Committee of the Society is restricted. Management of the affairs since the
enactment of the amending Act has therefore to be carried on not in accordance
with the memorandum of association of the Society, but in accordance with and
subject to the provisions of ss. 16A to 161 as added by the amending Act.
Power of the State Legislature to legislate
under the head "education including Universities" in Entry II of List
II of the 7th Schedule would prima facie include the power to impose
restrictions on the management of educational institutions in matters relating
to education. The pith and substance of the impugned legislation being in'
regard to the field of education within the competence of the State
Legislature, authority to legislate in respect of the maintenance of control
over educational institutions imparting higher secondary education and for that
purpose to make provisions for proper administration of the educational
institutions was not denied. But it was said that the impugned Act is
inoperative to the extent to which it seeks to impose controls upon the
management of an educational institution registered under the Societies
Registration Act and managed through trustees, and thereby directly trenches
upon legislative power conferred by Entry 44 of List I and Entries 10 & 18
of List III. This argument has no substance. Ibis Court has in Board of
Trustees v. State of Delhi (1) held that legislation which deprives the Board
of Management of a Society registered under the Societies Registration Act of
the power of management and creates a new Board does not fall within Entry 44
of List 1, but falls under Entry 32 of List II, for by registration under the
Societies Registration Act the Society does not acquire a corporate status. It
cannot also be said that the pith and substance of the Act relates to charities
or charitable institutions, or to trusts or trustees. If the true nature and
character of the Act falls within the express legislative power conferred by
Entry 11 of List II, merely because it incidentally trenches upon or affects a
charitable institution, or the powers of trustees of the institution, it will
not on that account be beyond the legislative authority of the State. The
impact of the Act upon the rights of the trustees or the management of a
charitable institution is purely incidental, the true object of the legislation
being to provide for control over educational institutions. The amending Act
was therefore within the competence of the State Legislature and the fact that
it incidentally affected the powers of the trustees or the management in
respect of educational institutions which may be regarded as charitable, could
not detract from the validity of the exercise of that power.
(1) A.I.R. 1962 S. C. 458.
334 The plea that certain specific provisions
were invalid as infringing Arts. 19, 31 and 14 may now be considered.
Section 16F (4) was challenged as conferring
an uncontrolled power upon the Regional Deputy Director of Education. By that
provision, when a recommendation for appointment of a teacher or a Principal or
Headmaster made by the management has been rejected and another selection made
is again disapproved after representation of the management is considered, the
Regional Deputy Director of Education in case of a teacher, and the Director in
case of a Principal or Headmaster, may appoint any qualified person out of the
list of candidates applying for the vacancies and such appointment is made
final. It is clear that the selection of teachers and principals or headmasters
is in the first instance left to the Committee of Management. But the exercise
of the power is subject to approval of the Education Authorities. The
Educational Authorities may reject the selection after considering the
representation of the management. The Selection Committee would then have power
to make another recommendation. If that second recommendation also be not
accepted after considering the representation made by the management, power is
conferred upon the Educational Authorities to make appointments of qualified
persons out of the list of candidates applying for the vacancies. But the
person to be so appointed must possess the prescribed qualifications, and his
name must be included in the list of candidates applying for the vacancy' The
provision is enacted in the interest of the students of the institution. Where
the Educational Authorities do not accept the suitability of a person selected
by the management on two successive occasions in respect of the same vacancy,
the Educational Authorities have been given the power to fill up the vacancy,
It is implicit in the provision that the power has to be exercised by the
Educational Authority in the interest of the institution and for serving the
cause of education, and it cannot be said that the power conferred is
uncontrolled.
It was then urged that the provisions of S.
16B(3) read with s. 16(d) (3) (a) & (b) are unreasonable provisions. By S. 16
D power is given to the Director to inspect recognized institutions and to
direct removal of defects. If the management fails to comply with the
directions made by the Director, that Officer may after considering the
explanation or representation, if any, given or made by the management, refer
the case to the Board for withdrawal of recognition or recommend to the State
Government to proceed against the institution under sub-s. (4) and the powers
which the State Government may exercise after being satisfied that the affairs
,of the institution are being mismanaged or that the management has wilfully or
persistently failed in the performance of its duties, include the power to
appoint an Authorised Controller to manage the affairs of the institution for
such period as may be specified by 335 the Government. The provision is
disciplinary and enacted for securing the best interests of the students. The
State in a democratic set-up is vitally interested in securing a healthy system
of imparting education for its coming generation of citizens, and if the
management is recalcitrant and declines to afford facilities for enforcement of
the provisions enacted in the interests of the students, a provision
authorising the State Government to enter upon the management through its
Authorized Controller cannot be regarded as unreasonable.
Section 16B (3) authorises the State
Government to take action under s. 16D (3) in the event of the Scheme of
Administration not being submitted. The basis of an effective exercise of the
controls envisaged by the amending provisions is the Scheme of Administration
for educational institutions. If with a view to prevent enforcement of the
provisions of the Act the management seeks to nullify the control envisaged by
the provisions of the Act by the State Government, a provision whereby
compliance with the requirements of the statute may be secured cannot also be
regarded as unreasonable.
It was then urged that property of the
Society is taken away under s. 16D (4) if the Scheme of Administration is not
submitted within the time allowed, and the Authorized Controller is appointed
by the Government pursuant to a recommendation made under sub-s. (3) of s. 16D.
But on a plain reading of the terms of s. 16D (4) it is clear that the powers
contemplated to be entrusted to the Authorized Controller are merely of
management. Management of the institution in respect of which an Authorized
Controller has been appointed has to be conducted and carried on in accordance
with the directions given by the Authorized Controller. The property continues
to remain the property of the institution: only the right of management of the
recalcitrant managers is taken away temporarily to secure compliance with the
provisions of the Act. Temporary deprivation of management to secure compliance
with the provisions of the Education Act does not amount to deprivation of
property of the educational institution which may attract the protection
guaranteed by Art. 19 or Art. 31 of the Constitution.
It was then urged that unlawful
discrimination is made between educational institutions maintained by private
citizens and institutions maintained by the State Government or the Central
Government or local bodies. On that part of the case it may be noticed that the
petition filed by the Society is singularly defective: it is baldly averred in
the petition that the provisions of S. 16H are ultra vires of the U.P. Legislature
as they are discriminatory and infringe the guarantee of the fundamental
freedom under Art. 14 ,of the Constitution. Section 16H exempts all recognized
educa336 tional institutions maintained by the State Government and the Central
Government from the operation of certain specified provisions of the Act and in
the case of recognized institutions maintained by a local body the State
Government may declare that all or any of those provisions shall not apply or
shall apply subject to such alterations, modifications or additions as it may
make. Prima facie, there is a justifiable classification between the privately
managed educational institutions and those maintained by the State Government,
the Central Government and local bodies.
To claim the protection of Art. 14 it must be
shown that persons differently treated are similarly situated and
discrimination is made with an uneven hand. In the petition, no particulars are
furnished as to why the classification made is not based on a rational basis having
relation to the objects sought to be achieved thereby. In the affidavit which
has been filed on behalf of the State by the Deputy Director of Education it is
stated that since the termination of the Second World War there was a marked
increase in the number of private schools imparting higher secondary education
and there were many complaints against the management of those schools, and
discontentment among the teachers was rife. A Committee appointed by the State
Government to enquire into the conditions of the private institutions was of
the view that the managing committees of the private schools as then
constituted were unsatisfactory as many of them were ridden by factions and
they had failed to give a sense of security to teachers, that it was necessary
that teachers should have a right of representation on such managing
committees, and that the Government should have power to supersede any managing
committee for persistent and serious dereliction of duty.
Another Committee appointed by the Government
of U.P. to examine the progress of the scheme of reorganisation of secondary
education recommended that in the interest of better management of non-Government
institutions the head of the institution and representatives of the teachers of
the institution should be included in the managing committee of each aided
institution to support and safeguard the legitimate interests of the teachers.
The Government had also received representations from time to time from
associations interested in education that the service conditions of teachers
should be ameliorated and high handedness on the part of the management of the
recognized institutions should be checked. From the statistics collected by the
Director it appeared that a situation had arisen which required effective
measures to be adopted for reasonably restricting the activities of the
managing bodies of the recognized institutions in the interest of the students
and the teachers with a view to harmonise the relationship between the teachers
and the management so as to bring about an atmosphere conducive to efficient
imparting of education. A table was incorporated in paragraph-16 of the
affidavit showing the number of recognized educational institutions imparting
higher secondary education.
337 From an analysis of that table it is
apparent that between the years. 1956-57 and 1959-60 the number of State
Government institutions was less than 9 % of the total number of the
institutions, and them ,number of Central Government institutions was less than
0-5% and that of local bodies' institutions approximately 2-5%. The
institutions run by the State Government, Central Government and local bodies
were governed by definite rules laying down the conditions of service of
teachers and the institutions were run through official agencies under
conditions which were entirely different from the conditions prevailing in the
privately managed institutions. Another table showed that there was year after
year great disparity between the percentages of successful candidates trained
in the Government and local body institutions, and non-Government institutions.
The materials placed on the record by the State, viewed in the light of
complete absence of any details furnished by the Society, are sufficient to
indicate that the plea of unlawful discrimination has no basis.
It was then urged that the State had accorded
to the Society and others similarly situated, as against the Anglo-Indian
Schools which are privately managed institutions a discriminatory treatment to
the detriment of the former.
But there is no specific allegation in the
petition in this behalf. From the table submitted in paragraph-18 of the
affidavit of the Director of Education it appears that the number of students
appearing from the Anglo-Indian Schools is very small, that no adverse reports
were received against the management of such institutions, and that there is a
separate Code of Regulations for the Anglo-Indian Schools in the State of' U.P.
laying down the necessary conditions with regard to all the important aspects
of their educational activities and such institutions are not governed by the
U.P. Educational Code of 1958 which applies to other recognized institutions. A
plea of unlawful discrimination cannot be adjudged unless the petition contains
a full averment of the grounds on which equality is claimed, and the denial of
equality is pleaded as not based on a rational relation to the object sought to
be achieved by the statute which makes a classification. We therefore do not
propose to deal with this. question in this appeal.
There only remains to be considered the
challenge to the.
validity of s. 9 of the amending Act. By that
section the State Government has been authorized for the purpose of removing
any difficulties in relation to the enforcement of the Act to direct that the
Act shall take effect subject to such adaptations, whether by way of
modification, addition or omission as it may deem necessary or expedient and
may make such other temporary provision for the purpose of removing any such
difficulty as it may deem to be necessary or expedient. The High Court was of
the view that the legislative policy has been laid down in the amending Act and
by338 s.9 power has been conferred on the State Government for the purpose of
removing any difficulties in relation to the enforcement of the Act, and since
this may be done only within a period of twelve months from the date of the
commencement of the Act and the adaptations whether by way of modification,
addition or omission may only be made for the purpose of removing any
difficulties in relation to the enforcement of the Act, no legislative power
was conferred thereby on the State Government, and on that account the
provisions are not invalid. The High Court also observed that the period in respect
of which various orders were passed had expired and it was therefore immaterial
for the purpose of the petition to consider whether s. 9 of the impugned Act is
invalid. In our opinion, on the averments made in the petition and the
materials brought before this Court, it is unnecessary to enter upon the
question as to the validity of s. 9 and the orders issued there under. No
specific Removal of Difficulties Order affecting the rights or -the Society has
been brought to our notice. But we may state that nothing in this judgment may
be understood as according approval to the views expressed by the High Court on
the validity of s.9 or the orders issued there under. We leave that question
open. to be canvassed when a suitable occasion arises.
The appeal fails and is dismissed with costs
Appeal dismissed.
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