Executive Power Of State Under Article 162 Constitution Not Available When Field Of Law Is Occupied By Legislative Act: Bombay High Court

A division bench of Justices Sunil Shukre and Amit Borkar, in a judgement last week, further observed,

The bench was hearing a petition filed by one Rashtriya Shikshan Sangh, which ran three Ashram Shalas in Maharashtra's Sangli district, recognition for all of which was withdrawn by the Director, Directorate of V.J.N.T. & Other Backward Class & Special Backward Class in February 2012. This order was upheld by the Secretary, Department of Social Justice in October the same year. The Sangh was granted recognition in 1993 and all its schools were granted recognition by March 1995.

The current round of litigation was the second after the High Court had remanded the matter back to the concerned authorities in the first round.

Advocates appearing for the Sangh argued broadly on three points. First, that order of cancellation of recognition was without the authority of law as the concerned Director had no power to pass such an order; Second, that the February 2012 was in breach of principles of natural justice and in any case without following the procedure laid down under Rule 109(2) of the Bombay Primary Education Rules, 1949 and Clauses 7(1) to 7(4) of the Secondary School Code; and Third, that the order was passed with mala fide purpose at the instance of a private party.

The respondents, in a reply affidavit before the court, said that the Ashram School Code was not in existence and cancellation of recognition for Primary Ashram School was governed by the Rules under Bombay Primary Education Rules, 1949. The Secondary School Code governed the cancellation of recognition for Secondary Ashram School. The procedure laid down under both was different and was followed in the present case.

It was also stated that though the provisions of the Bombay Primary Education Rules, 1949 and Secondary School Code were made applicable, the officers of the Education Department were not under the control of the Social Justice Department and, therefore, for administrative convenience, the power of cancellation of recognition of Primary Ashram School was conferred upon the Director of Social Welfare by two government resolutions in November and December 1995.

The Additional Government Pleader supported the orders citing the government resolutions and justified it by saying that it was for administrative convenience as the officers of the Education Department were not under the control of the Social Justice Department.

The High Court bench, however, did not agree with the State and the concerned departments arguments and said that what the bench was essentially being called upon to adjudicate was – Whether in the exercise of powers under Article 162 of the Constitution of India the concerned authorities were justified in passing GRs in November and December 1995 when the field was already occupied by the statutory rules in the form of Bombay Primary Education Rules, 1949 and Secondary School Code, which had been held to have statutory force by the full bench of the Bombay High Court in the case of Shikshan Mandal and others v. State of Maharashtra & Others.

The bench said that rule 109(2) of the Bombay Primary Education Rules, 1949 provides for detailed procedure for withdrawal of recognition by conferring power on Competent Authority as defined under the said rules and lays down the detailed procedure for withdrawal of recognition. Same was the case with the Secondary School Code, the bench observed.

"The executive power of the State under Article 162 of the Constitution of India is co-extensive with the legislative power, and when the field of law is occupied by a Legislative Act, the exercise of executive power is not available...Once the statutory rules confer powers on a specified authority, the State Government could not have under its executive power under Article 162 pass a GR to confer power on Respondent No. 4 (Director, Directorate of V.J.N.T. & Other Backward Class & Special Backward Class) as the exercise of the power of withdrawal of recognition was already occupied by Rule 109(2) of the Bombay Primary Education Rules, 1949, and Clauses 7(1) to 7(4) of the Secondary School Code," the bench observed.

The bench, however, noticing the number of issues raised against the functioning of the schools, allowed the concerned authorities to hold a fresh inquiry into the allegations after following applicable provisions of law and directed the petitioners to not restart the schools until the conclusion of inquiry.

Case Title: Rashtriya Shikshan Sangh and others vs State of Maharashtra