State of
Maharashtra Vs. Prabhu [1993] INSC 472 (3 November 1993)
Sahai,
R.M. (J) Sahai, R.M. (J) Singh N.P. (J) Bharucha S.P. (J) Citation: 1994 Scc
(2) 481
Act:
Headnote:
The
Judgment Of The Court Was Delivered By Sahai, J.- The Main Question Of Law That
Arises For Consideration In This Appeal, Directed Against Judgment And Order Of
The Bombay High Court, Is If The High Court Correctly Construed Section 15(2)
Of The Maharashtra State Board Of Secondary And Higher Secondary Education Act,
1965 (Hereinafter Referred To As 'The Act'). And Even If It Be So Then Whether
It Was An Eminently Fit And Proper Case For Exercise Of Discretion Under
Article 226 Of The Constitution Of India.
2.In
April-May 1984 The Examination For First Year Engineering Students Was Held At Nilanga.
The Respondent, Who Was A Lecturer In A Polytechnic College, Was Appointed As A Supervisor At
The Examination Centre. Later On Complaints Of Mass Copying Were Received. And
The University Of Marathwada, On Recommendation Of A Committee Of Experts, Cancelled
Results Of The Candidates Who Appeared From That Centre And Debarred Them,
Further, From Appearing In Examination For Next Two Years. It Also Decided Not
To Entrust Any Examination Duty In Future To The Respondent.
On August 22, 1984 The Director Of Technical Education
Issued A Circular Debarring Many Lecturers, Including The Respondent, From
Being Assigned Any Examination Duty. Some Of The Students Approached The High
Court By Way Of Writ Petition Nos. 808 And 809 Of 1984 Against The Order Passed
By The University. On December
7, 1984 Their Petition
Was Partly Allowed. The Order Cancelling The Examination Was Upheld. But The
Order Debarring Them From Appearing In Future Examination Was Quashed As The
Order Was Passed Without Affording Any Opportunity. The Director Of Technical Education, On March 21, 1985, Issued A Letter Withdrawing The Earlier Circular Issued By
It In View Of The Judgment In The Writ Petitions. In March 1986 The Respondent
Was Nominated As A Member Of The State Board Of Maharashtra Secondary And Higher Secondary Education At Its Aurangabad Divisional Board. It Appears After
His Appointment The University Informed The Government That The Respondent Was
Not A Proper Person To Have Been Appointed As A Member Of The Board As It Was
During His Supervisorship That Mass Copying Had Taken Place In One Of The Centres
And The Results Of The Candidates Who Appeared From That Centre Were Cancelled.
On Being Apprised Of It The Government Issued A Show-Cause Notice On October
22, 1986 To The Respondent That He Having Been Found To Have Failed In
Discharge Of His Duty As Supervisor At The Examination Centre Nilanga, Honestly
And Diligently, The Government Was Of The View That His Continuance As Member
Of The Board Was Not Conducive To The Proper Functioning Of The Board And,
Therefore, It Proposed To Remove Him From The Membership.
This
Notice Was Replied By The Respondent And It Was Claimed By Him That The Action
Had Been Taken Against Him On Suspicion. It Was Stated That The Decision Of
University Having Been Set Aside By The High Court And The Director Of
Education Having Withdrawn The Circular Nothing Survived Against Him. The
Government Did Not Agree With The Explanation And By Order Dated September 16, 1987 Cancelled Membership Of The
Respondent. This Order Was Challenged By Way Of Writ Petition. It Was Allowed
And The Order Cancelling Membership Was Quashed As Ultra Vires As A 485 Plain Reading Of Section 15(2) Of The Act
Indicated That The Government Could Take Action, Only, If It Was Of Opinion
That The Activities Of The Respondent Were Detrimental To Or Obstructing The
Proper Functioning Of The Board. The Bench Held That Since The Show-Cause
Notice Issued By The Government Did Not Show Anything To This Effect And It
Merely Stated That Respondent's Activities Were Not Conducive To The
Functioning Of The Board The Objectionable Conduct Of The Respondent In April
And May 1984 Could Not By Any Stretch Of Imagination Amount To Activities Which
Were Detrimental To Or Obstruct The Proper Functioning Of The Board, Therefore,
The Order Removing The Respondent From The Board Was Bad.
3.For
Proper Appreciation Of The View Taken By The High Court Section 15(2) Of The
Act Is Extracted Below :
"The
State Government May Suo Motu By Order Remove Any Member Of The State Board Or
A Divisional Board Or Any Council Or Committee Thereof, Elected Or Nominated Or
Designated, Whose Activities Are, In The Opinion Of The State Government,
Detrimental To, Or Obstruct, The Proper Functioning Of The State Board Or Of
The Divisional Board Or Of Any Council Or Committee Thereof :
Provided
That, No Member Shall Be Removed From Office Unless He Has Been Given A
Reasonable Opportunity Of Showing Cause Why Such Order
Should Not Be Made Against Him." A Bare Perusal Of The Sub-Section
Indicates That Even Though The Power To Remove A Member Of The Board Exists In
The State Government But It Can Be Exercised Only If The Government Is Of
Opinion That The Activities Of The Member Are Detrimental Or Obstructing The
Functioning Of The Board.
The
Use Of The Word 'Are' Is Capable Of Giving Rise To The Construction That The
Activities Which Could Empower The Government To Take Action Of Removal Of A
Member Must Arise Out Of His Functioning As A Member Of The Board. It Can Legitimately
Be Urged As Was Attempted By The Learned Counsel For The Respondent That It Is
Activities In Praesenti Which Could Give Rise To An Action Under This Sub-
Section And Not What Had Happened In Past. That Is What Appears To Have
Persuaded The High Court To Take The View In Favour Of Respondent. But What Was
Lost Sight Of Was That An Appointment Of A Member Who Does Not Carry An
Acceptable Social Image In The Society Is Ipso Facto Bad. A Teacher Who Is
Expected To Instill Discipline In Students And Prepare Them For Future Found
Responsible For Assisting Or Permitting Copying In Examination Cannot Be
Considered To Be A Proper Person Who Could Have Been Entrusted With Such Duties
And Responsibilities As Are Required To Be Discharged By The Board. Induction
Of The Respondent Who With His Past Records Was Undoubtedly Ineligible, To Be
Appointed As Member, Was Detrimental To The Board. It Is Not Necessary To Deal
With This Aspect Further As The Order Cannot Be Sustained For Other Reason.
4.
Even Assuming That Construction Placed By The High Court And Vehemently
Defended By The Learned Counsel For Respondent Is Correct Should The High Court
Have Interfered With The Order Of Government In Exercise Of 486 Its Equity
Jurisdiction. The Distinction Between Writs Issued As A Matter Of Right Such As
Habeas Corpus And Those Issued In Exercise Of Discretion Such As Certiorari And
Mandamus Are Well Known And Explained In Countless Decisions Given By This
Court And English Courts. It Is Not Necessary To Recount Them. The High Courts
Exercise Control Over Government Functioning And Ensure Obedience Of Rules And
Law By Enforcing Proper, Fair And Just Performance Of Duty.
Where
The Government Or Any Authority Passes An Order Which Is Contrary To Rules Or Law It Becomes Amenable
To Correction By The Courts In Exercise Of Writ Jurisdiction.
But
One Of The Principles Inherent In It Is That The Exercise Of Power Should Be
For The Sake Of Justice. One Of The Yardstick For It Is If The Quashing Of The
Order Results In Greater Harm To The Society Then The Court May Restrain From
Exercising The Power.
5.On
This Test The Order Of The High Court Does Not Appear To Be Well Founded. Even
Assuming There Was Technical Breach And The Show-Cause Notice Did Not Spell Out
Those Relevant Facts Which Could Have Empowered The Government To Take Action
The Social Injury By Nominating Or Appointing The Respondent To An Office Of
Responsibility Must Not Only Have Raised The Eyebrows In The Educational Circle
But Is Susceptible Of Creating Unhealthy Atmosphere.
Reliance
Was Placed On The Letter Issued By The Director Of Education Withdrawing His
Circular Debarring The Respondent From Being Entrusted With Any Examination
Work. It Is Not Necessary To Comment On It. But The Letter Obviously Was Issued
Without Properly Appreciating The Effect Of Order Passed By The High Court.
Such Hasty Actions By Superior Officers Are Destructive Of
Discipline Which Is Necessary To Be Maintained. In Any Case The Director Might
Have Acted Under Constraints For Reasons More Than One But The High Court Was
Not Bound By It. It Was In A Better Position To Appreciate The Effect Of Such
Order. Therefore, Even If The Order Of The Government Was Vitiated Either
Because It Omitted To Issue A Proper Show Cause Notice Or It Could Not Have
Proceeded Against The Respondent For His Past Activities The High Court Should
Have Refused To Interfere In Exercise Of Its Equity Jurisdiction As The Facts
Of The Case Did Not Warrant Interference. What Could Be More Harmful To Society
Than Appointing The Respondent As Member Of The Board, A Position Of Importance
And Responsibility, Who Was Found Responsible For Mass Copying At The
Examination Centre Of Which He Was A Supervisor. It Shakes The Confidence And
Faith Of The Society In The System And Is Prone To Encouraging Even The Honest
And Sincere To Deviate From Their Path. It Is The Responsibility Of The High
Court As Custodian Of The Constitution To Maintain The Social Balance By
Interfering Where Necessary For Sake Of Justice And Refusing To Interfere Where
It Is Against The Social Interest And Public Good.
6.In
The Result, This Appeal Succeeds And Is Allowed.
The
Order Of The High Court Quashing The Order Dated September 16, 1987 Is Set Aside. The Writ Petition Filed In The High Court By
The Respondent Shall Stand Dismissed. But Parties Shall Bear Their Own Costs.
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