Committee of Management, Inter College-Harsila (Bageshwar) vs Director, School Education and Others

B.S. Verma, J.—Heard Sri Alok Mehra, learned Counsel for the petitioner and Sri Vinod Nautiyal, learned Additional Advocate General for the State-respondents No. 1 to 3.

This writ petition has been filed to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18-6-2007 (Annexure No. 5) issued by the respondent No. 2, whereby the order of recommendation for amendment in Clause 5(d) of the Scheme of Administration made by the District Education Officer Bageshwar on 30-5-2007 has been cancelled with immediate effect by the Additional Director of Education, Kumaun Region.

Briefly stated, the facts giving rise to the present writ petition are that the petitioner-institution has amended the Scheme of Administration vide its Committee of Management resolution dated 18-04-2006 (Annexure No. 2), for which recommendation was made by the District Education Officer Bageshwar to the Joint Director. The District Education Officer vide his letter dated 27-4-2006 has forwarded the proposed amendment as per resolution No. 01 dated 25-4-2006 of the Committee of Management of Inter College Harsila (Bageshwar) to the Joint Director for necessary action. The Joint Director by his order dated 22-5-2006 approved/allowed the amendment. Subsequently, by the impugned order dated 18-6-2007 (Annexure No. 5), Additional Director of Education, Kumaun Region, Nainital, cancelled the amendment.

The record shows that by the amendment in Clause 5 (d) of the Scheme of Administration, it was proposed that the voting right can be exercised by the members whose membership is at least one year old.

Counter Affidavit has been filed on behalf of respondent Nos. 1 to 3-State and therein specific averment has been made that the Uttaranchal School Education Act has come into force from 22nd April, 2006 and under the Act, only the Director of Education has power to amend the Scheme of Administration, while the impugned order dated 22.5.2006 passed by the Joint Director is without competence.

I have perused the provision of Section 29 of the Uttaranchal School Education Act, 2006 (for short the Act), which deals with Scheme of Administration. Sub-section (5) of Section 29 reads as under:

(5) The Scheme of Administration of every institution shall be subject to the approval of the Director and no amendment to or change in the Scheme of Administration shall be made at any time without the prior approval of the Director.

Since the power of approval in respect of amendment to or change in the Scheme of Administration lies with the Director of Education and because the earlier order dated 22-5-2006 whereby the amendment in the Scheme of Administration, which was passed by the Joint Director and by that order amendment in the Scheme of Administration was made by the Joint Director is without competence. Therefore, the subsequent order dated 18-6- 2007 passed by the Additional Director thereby the amendment in the Scheme of Administration has been cancelled is also without jurisdiction, for the simple reason because it has not been established that the Additional Director has been conferred any powers under the Act to pass any order u/s 29(5) of the Act. No averment to this effect has been made in the counter affidavit.

Having heard the rival contentions of the parties and having perused the relevant provision of the Act, to my mind, the orders impugned in this writ petition, which have been passed by the Joint Director, are without competence and both the orders impugned dated 22-5-2006 and 18-6-2007 are liable to be quashed. The writ petition is liable to be to be allowed on this ground alone.

The writ petition is allowed. The order dated 22-5-2006 (Annexure No. 4) and order dated 18-6-2007 (Annexure No. 5) are hereby quashed. It is provided that the petitioner shall move an application along with the recommendation made by the District Education Officer to amend the Scheme of Administration, before the Director of Education along with certified copy of this order, and the Director of Education shall pass appropriate orders thereon, within a period of four weeks thereafter. Costs easy.