The Bombay High Court has recently held that the power of the State Government to issue executive directions is confined to filling up the gaps or covering the area which otherwise has not been covered by the existing statutory Rules, and such instructions or orders must be subservient to the statutory Rules.
The Bench of Justices Sunil Shukre and Amit Borkar added,
“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. The Government cannot supersede statutory Rules by administrative instructions. Still, if the Rules are silent on any particular point, the Government can fill the gaps by framing Rules and issuing instructions not inconsistent with the already-framed Rules.”
By this petition under Articles 226 and 227 of the Constitution of India, the Petitioners challenged orders passed by Respondent No. 1 along with an order of Respondent No. 4 withdrawing recognition of Petitioner No. 2 to 4 schools purportedly under Clauses 7(1) to 7(4) of the Secondary School Code, Rule 109 (2) of the Bombay Primary Education Rules, 1949 and powers conferred by Government Resolutions (“GRs”) dated 21st November 1995 and 19th December 1995.
Advocate for the Petitioners broadly made three submissions: First, it was argued that the impugned order of cancellation of recognition was without the authority of law as the Respondent No. 4 had no power to pass the order of cancellation of recognition; Second, the order dated 27th 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, the impugned order was passed with mala fide purpose at the instance of Respondent No. 6. The AGP supported the impugned order by stating that Respondent No. 1 has been duly authorized by GR dated 21st November 1995 along with Corrigendum dated 12th December 1995 and GR dated 19th December 1995. He submitted that the purpose of conferring power on Respondent No. 4 was administrative in nature as the officers of the Education Department are not under the control of the Social Justice Department.
The Advocate for Respondent No. 6, submitted that neither the provisions of the Bombay Primary Education Rules, 1949 nor the provisions of the Secondary School Code are applicable and, therefore, Respondent No. 4 was justified in passing the order in exercise of the power conferred under GRs dated 21st November 1995 and 19th December 1995. He submitted that the Ashram School Code would govern the parties' rights.
On consideration of the submissions made by parties, the court observed that the issue which arose for consideration was as to whether in the exercise of powers under Article 162 of the Constitution of India Respondent No. 1 was justified in passing GRs dated 21st November 1995 and 19th 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 was held to have statutory force.
The Court further opined that reading of Article 162 makes it clear that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has the power to make laws. The Court further observed that the proviso clause to the said Article also states that in any matter with respect to which the Legislature of State and Parliament have the power to make laws, the executive power of the State shall be subject to, and limited to, the executive power expressly conferred by any law made by the Parliament.
The court also ruled 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. Even under the Secondary School Code, which has statutory force, the power of withdrawal of recognition has been conferred on the authority stated thereunder, added the court.
Further while holding that the impugned Government Orders not only covered the area covered by the legislature by enacting Rules and codes, the court held,
“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 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. In our opinion, GRs dated 21st November 1995 and 19th December 1995 could have been passed when the Rules do not have gaps regarding the power of withdrawal of recognition and are covered field by the said Rules.”
The court allowed the concerned authorities to hold a fresh inquiry into the allegations and directed the petitioners to not restart the schools until the conclusion of the inquiry.
Case Details
Case Name: Rashtriya Shikshan Sangh and others v. State of Maharashtra
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