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Judgment
S.N. Jha, J.—In these writ petitions the Petitioners have challenged the orders passed by the Special Directors (Secondary Education) in exercise of the appellate power u/s 28 of the Bihar State Madarsa Education Board Act, 1981 (Act 32/82) (hereinafter referred to as ''the Act'') an the ground, inter alia, of lack of jurisdiction. The point being common they are disposed of by this common order.
The Act provides for constitution of Bihar State Madarsa Education Board (in short ''the Board'') as an autonomous body for development and better supervision of Madarsa Education. Section 7 lays down the powers and functions of the Board. Section 13 enumerates the powers of its Chairman. Section 28 provides for appeal against the orders passed by the Board and the Chairman. It also prescribes the forum of appeal, namely, the State Government: The State Government has authorised the Special Director (Secondary Education) to hear and decide appeals u/s 23 vide notification No. 260 dated 11th March, 1983 of the Education Department. The point urged is that the statute having created the forum of appeal and vested the appellate powers in it, in the absence of any provision permitting delegation of powers and functions, the authorisation is ultra vires.
It is well settled that an appellate function, even where the appeal is from an administrative order and the appellate power is vested in another administrative authority, is a quasi judicial function. Reference may be made to the case of Harinagar Sugar Mills Ltd. Vs. Shyam Sundar Jhunjhunwala and Others, It is equally well settled that a function which is quasi judicial in nature cannot be delegated to another person or body unless such delegation is authorised by the statute expressly or by necessary implication.
On behalf of the Respondents attention was drawn to the Bihar State Madarsa Education Board Control (Appeal) Rules, 1983 framed purportedly u/s 27 of the Act, vide notification No. 260 dated 11th March, 1983 (hereinafter referred to as ''the Rules''), laying down the procedure of filing and manner of disposal of appeals u/s 28 of the Act. Rule 3 of the said Rules provides that the Managing Committee or any person aggrieved by the order of the Board or its Chairman can prefer appeal before the authority as may be authorised by the State Government under notification. Notification No. 260 dated 11th March, 1983 (supra) authorising the Special Director, Secondary Education to hear the appeals has been issued under the said Rules.
Section 27 of the Act under which the Rules have been framed empowers the State Government to give direction to the Board as may be necessary to achieve the objects of the Act, to call upon the Board to furnish necessary information or explanation for the above purposes etc. The rule making power has been conferred upon the State Government u/s 26 which runs as follows:
Power of the State Government to make Rules.-(1) The State Government may by notification in the official gazette make rules for carrying out the purposes of this Act, and
(2) In particular, and without prejudice to the generality of the foregoing provisions of this Act, such rules may provide for all or any of the following matters, namely:
XX XX XX XX
It may be stated that Sub-section (2) enumerates as many as 13 topics. It does not specify filing and manner of disposal of appeal u/s 28. The point is whether omission to specify a particular matter or topic disables the State Government to frame rules with respect thereto. In other words, whether the State Government is not competent to frame rules with respect to such a matter under Sub-section (1) ''for carrying out the purposes of the Act''. It should be kept in mind that if the statute provides for appeal, it would only be logical to say that the rules have to be framed to make the appellate provision meaningful and effective. The point is well settled by catena of decisions.
In the case of AIR 1945 156 (Privy Council) the Federal Court had struck down Rule 26 of the Defence of India Rules as being beyond the rule making power conferred upon the Central Government u/s 2 of the Defence of India Act, 1939. Section 2 of that Act empowered the Central Government to make rules as might appear to it to be necessary or expedient for securing the defence of British India, public safety, maintenance of public order etc. The subjects with respect to which the rules could be framed were specified in Sub-section (2) "without prejudice to the generality of the powers conferred by Sub-section (1)". Their Lordships observed (at page 160 of the Report),
The function of Sub-section (2) is merely an illustrative one; the rule making power is conferred by Sub-section (1), and the "rules" which are referred to in the opening sentence of Sub-section (2) are the rules which are authorised by, and made under Sub-section (1); the provisions of Sub-section (2) are not restrictive of Sub-section (1), as indeed is expressly stated by the words "without prejudice to the generality of the power conferred by Sub-section (1)
The decision of the Privy Council was followed by the Supreme Court in a number of cases. In Santosh Kumar Jain Vs. The State Union Of India (Intervener), the Court while considering the validity of the Sugar and Sugar Products Control Order, 1947 issued by the Provincial Government of Bihar In exercise of the powers conferred on it by Section 3 of the Essential Supplies (Temporary Powers) Act, 1948 by virtue of the delegation of the powers of the Central Government to make orders in relation to food stuffs u/s 3(2)(i) of that Act, stated, "It is manifest that Sub-section (2) of Section 3 confers no further or other powers on the Central Government than what are conferred under Sub-section (1), for it is "an order made thereunder" that may provide for one or the other of the matters specifically enumerated in Sub-section (2) which are only illustrative, as such enumeration is "without prejudice to the generality of the powers conferred by Sub-section (1)".
In the case of Afzal Ullah v. State of Uttar Pradesh the same question was agitated in relation to certain bye-laws framed by the municipality. The Court referred to the case of Sibnath Banerji and stated that even if the clauses of Section 298 of the U.P Municipalities Act referred to in the bye-laws did not justify the impugned bye-law, there can be little doubt that the said bye-law could be justified by the general powers conferred on the Board by Section 298(1). It was observed that it is now well settled that specific provisions, such as, are contained in several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of the power prescribed by Section 298(1). It was also observed that the validity of the provisions must be tested by reference to the question as to whether the Board has the powers to make the provisions. If the power is otherwise established, the source and the source of the power is incorrectly and inaccurately enumerated would not make the bye-laws invalid.
In Sudarshan Mineral Co. v. Union of India : (AIR 1975 SC 946) again the point came to be considered in the context of the rule making power of the State u/s 13 of the Mines and Minerals (Regulations and Development) Act, 1957. Clause (c) of Sub-rule (1) of Rule 27 was impugned as being ultra vires on the ground that it transgressed the rule making power u/s 13(2)(g) of the Act. The Court observed, "as is well settled the power to make rules in regulating grant for prospective licences and mineral leases in respect of minerals and for the purposes connected therewith is to be found in Sub-section (1) of Section 13, Sub-section (2) merely illustrates the nature of the power. It does not restrict the general power under Sub-section (1)". The same view was expressed by the Supreme Court in the case of K. Ramanathan Vs. State of Tamil Nadu and Another, and Ajay Canu Vs. Union of India (UOI) and Others, . In the latter case the question was whether Rule 498A of the A.P. Motor Vehicles Rules requiring driver of motor cycle or scooter to put on a helmet was in excess of rule making power. Section 91 of the Motor Vehicles Act, 1939 empowered the State Government to make rules for the purpose of carrying into effect provisions of this Chapter. Sub-section (2) enumerated the matters "without prejudice to generality of the foregoing power''. The argument was that Clause (I) of Sub-section (2) of Section 91 empowering the State Government to make rules for the prevention of danger, injury or nuisance to the public or any person or of danger or injury to property or of obstruction to traffic did not cover the above said rule. The argument was rejected observing "even assuming that Rule 498A does not come within the purview of Clause (1) of Sub-section (2) of Section 91, sub-section (2) of Section 91 contains illustration and does not in any way restrict the general power under Sub-section (1). Thus, even assuming that Rule 498A is not covered by Clause (1) of Sub-section (2) it is quite immaterial inasmuch as such a rule can be framed in exercise of a general power under Sub-section (1) for the purposes of carrying into effect Chapter VI relating to control of traffic."
Sant Saranlal and Another Vs. Parsuram Sahu and Others, is a converse case on the point. The High Court on construction of the provisions of Rule 3(3) of the Bihar Money Lenders Rules, 1938 and contents of the prescribed form of Registration certificate (form II) had negatived the claim of the Plaintiff-money lenders beyond Rs. 4999/- as, according to it, in view of the said provisions it could not transact money lending business in excess of the amount mentioned in the certificate. The Supreme Court did not agree with the conclusion of the High Court. It held that Section 27 empowers the State Government to prescribe, inter alia, the form of the registration certificate and the particulars to be contained in the application for registration but the rule making power of the Government does not extend to the fixation of any upper limit for the loan remaining outstanding at any particular time. In that connection it was observed (at page 1855):
It is significant to note that rule making power given to the State Government is not prescribed in the usual form, i.e., is not to the effect that the State Government may make rule for the purpose of the Act. The rule making power is limited to what is stated in cls. (a) to (e) of Section 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by money lenders are to remain outstanding at any particular moment of time.
In other words, according to the Supreme Court, had the usual clause that the Government may make rule for carrying out the purposes of the Act been there, mentioned in the section, it would have been competent to the Government to also prescribe the upper limit, as mentioned in the certificate.
It may be stated that in all the cases cited above except, of course, the case of Sant Saral Lal the Act conferred power on the Government to make rules for carrying out the purposes of the Act and the topics with respect to which the rules could be framed were specified "without prejudice to generality of the rule making power of the Government", as in the instant case. The Supreme Court has thus consistently held that the enumeration of subjects is merely illustrative in nature and does not restrict the general power of the Government to frame rules for carrying out the purposes of the Act. There can, therefore, be no doubt that the 1983 Rules relating to filing and manner of disposal of appeals fail within the ambit of rule making power of the State Government. In other words, the State Government was competent to frame rules and make provisions regarding delegation of the appellate functions.
Ordinarily, a power which involves exercise of discretion is not to be delegated. The ordinary rule again is that a quasi-judicial function cannot be delegated unless delegation is permissible expressly or by necessary implication, (See Vine v. National Dock Labour Board (1956) 3 ALL ER 939). Halsbury in his Laws of England (Vol. 1, 4th Edn. para 32) states, "In accordance with the maxim delegateas non potest delegare, a statutory power must be exercised by the body or officer in whom it has been confided unless sub-delegation of the power is authorised by express words or by necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind". The Supreme Court, however in Barium Chemicals Ltd. v. Company Law Board (AIR 1987 SC 296) observed,
But the maxim "delegates non potest delegare" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the Statute should be adopted.
I have said above that neither the competence of State Government to frame rules for carrying out the purposes of the Act can be disputed nor the validity of the 1983 Rules can be questioned as being ultra vires the rule making power. Now Rule 3 contemplates delegation. Delegation of the appellate function, therefore, must be held to be permissible by necessary implication. The jurisdiction of the Special Director (Secondary Education) to decide appeals u/s 28 of the Act, therefore, cannot be questioned and the orders passed by her, impugned in these writ petitions, cannot be said to be bad on that ground.
The result is that I do not find any merit in the writ petitions which are, accordingly, dismissed. There will be no order as to cost.