JUDGMENT Aloke Chakrabarti, J.
1. In respect of running the institution concerned, there is a Scheme of Administration duly approved by the Director of Education concerned. After the U. P. Intermediate Education (Amendment) Act, 1980 came into force, the Deputy Director of Education sent show-cause notice stating that the Scheme of Administration of the petitioner's institution is not in conformity with the provisions of the amending Act and the Schedule and, therefore, an amendment was proposed. Thereafter orders dated 3.12.1985 and 15.3.1985 at Annexures-2 and 3 to the writ petition were passed stating that the Committee of Management had not been constituted in accordance with the Amended Scheme of Administration and directing compliance thereof for getting the election completed in accordance with the amended Scheme of Administration and thereafter for not complying with the same, directing appointment of authorised controller. Challenging the aforesaid two orders, this writ petition was filed.
2. Heard the learned counsel for the petitioner and Mr. A. K. Mehrotra learned standing counsel for the respondents.
3. The contention of the petitioner is that after incorporation of Section 16CC and Section 16CCC, provisions were made in the original statute empowering the Director of Education to send a notice to any institution having approved Scheme of Administration suggesting alteration or modification and requiring the institution to submit a fresh Scheme of Administration or to amend or to alter the existing Scheme. The institution concerned was given a right to make a representation which the Director of Education is to consider and thereafter may approve the scheme of administration in its original form or subject to any alteration or modification as suggested or with any other change as may appear to him to be just and proper. By a specific provision a further opportunity was provided if the Director proposes to make any new alteration or modification in the Scheme. But. it is complained, in the present case, although the notice at Annexure-1 was issued, the subsequent stages and the procedure prescribed therefor, were not completed and there was no order modifying or altering the Scheme of Administration already existing and. therefore, the direction for holding election and for action of appointing authorised controller for non-compliance of holding such election according to the amended Scheme, are illegal as admittedly there was no order modifying the existing Scheme. The further contention of the learned counsel for the petitioner is that the amendment and/or modification of the Scheme proposed (Annexure-1 to the writ petition) was signed by the Deputy Director of Education although he was not appropriate authority as prescribed by the statute. Reference was made to the provisions of Section 16CCC for the purpose of contending that the Director of Education is the authority prescribed in the said provision.
4. Learned standing counsel appearing for the respondents contended that notices had been served in fact and in this connection he referred to paragraphs 8 and 9 of the writ petition. it is further stated that the petitioner having not filed any objection to the proposed modification, no further objection can be raised by the petitioner and the modification in the Scheme has to be accepted as effective. it is contended further that if the notice is not responded and no representation is made, the modification is to be treated as final and in support of such contention reference was made to various provisions of the said Act.
5. Law in this regard as referred to and decided in the cases of Committee of Management, Shahld Mangal Pandey Inter College v. State of U. P. and others, 1994 (2) UPLBEC 1348 and Committee of Management Janta Inter College v. Deputy Director of Education, 1996 (3) ESC 578, have been sought to be explained by the learned standing counsel.
6. The learned standing counsel also contended that the power under Section 16CCC has been delegated to Deputy Director of Education by notification dated 23.8.1970 further contending that although in the said notification Section 16CCC has not been mentioned but still the same applies in the case of an action under Section 16CCC which has been enforced subsequent to issuance of the said notification. It is contended that unless such delegation of power is recognised by the Court there will be anomaly as by virtue of the said notification dated 23.8.1970 the Deputy Director of Education has been delegated the power of action under Section 16B and, therefore, in respect of Scheme of Administration modified by the Director under Section 16CCC action is permissible to be taken by the Deputy Director of Education under Section 16B and such an interpretation as regards the authority is not desirable for bringing in inconsistency and for avoiding anomaly.
7. After considering the aforesaid contentions, I find that the amendment of the Scheme of Administration in case of the petitioner was proposed by the Deputy Director of Education. Admittedly, the requisite procedures under Section 16CCC providing for making a representation by the Commitlee and specific order of approval of the Scheme by the Director have not been there. Question, therefore, comes up for consideration that in such circumstance whether the modification is to be treated as implemented.
8. For proper consideration of the said question, the language of Section 16CCC is material. The said section is as follows :
"16CCC. (1) Where in relation to any institution, the Scheme of Administration has been or deemed to have been approved under Section 16A, or Section 16B or Section 16C, at any time before the commencement of the Intermediate Education (Amendment) Act, 1980 and such Scheme of Administration is inconsistent with the provisions of this Act. the Director shall send, within a period of three years from such commencement, a notice to such institution suggesting any alteration or modification therein and requiring the institution to submit a fresh Scheme of Administration or to amend or alter the existing Scheme.
(2) While making any suggestion in the Scheme of Administration under sub-section (1), the Director shall give his reasons therefor and shall also afford an opportunity to the institution to make a representation within such period as may be specified in the notice.
(3) The Director shall consider any representation made in accordance with sub-section (2) and may approve the Scheme of Administration in its original form or subject to any alteration or modification suggested under sub-section (1) or with any other changes as may appear to him to be just and proper :
Provided that where the Director proposes to make any new alteration or modification in the Scheme of Administration, he shall give an opportunity to the institution to make a representation within such period as may be specified by him."
9. A perusal of the said provision Indicates that in a case, where Scheme of Administration has been or deemed to have been approved under Section 16A or Section 16B or Section 16C before the commencement of the Intermediate Education (Amendment) Act, 1980 and such Scheme is inconsistent with the provisions of that Act. the Director shall send within a period of three years from such commencement a notice to such institution suggesting alteration or modification. it has also been provided that the Director is to require the institution to submit a Scheme of Administration or to amend or alter the existing Scheme. The Director is required to give reasons for such suggestion and also to afford an opportunity to the Institution to make a representation within a time specified in the notice. The law requires the Director to consider any representation and empowers the Director to approve the Scheme of Administration in its original form or subject to any alteration or modification or with any other changes as may appear to him to be just and proper. For making such new alteration or modification in the Scheme, the Director is required to give an opportunity to the institution to make a representation.
10. The aforesaid indicates clearly thai there is no provision for deeming a modification for making no representation by the institution concerned. it is apparent that the law requires that the Director is required to give reason and afford opportunity to the institution to make a representation and is also to consider such representation. While indicating such duties of the Director, the expression 'shall' has been used. The law thereafter empowers the Director to approve the Scheme and in doing this, the Statute uses the expression "may approve". Therefore, it is clear that there must be a positive act of the Director for approval of the Scheme either in its original form or subject to any alteration or modification. This is the power given to the Director which the Director may exercise, in such circumstances, the aforesaid law cannot be interpreted that if the institution does not make representation. the modification stands.
11. in this conneciion. it is further important to note that if any further change is felt to be just and proper by the Director, he is required to give a further opportunity to the institution to make a representation. This provision also supports that there could not be any automatic modification of the existing approved Scheme by applying any deeming provision.
12. The difference of language in Section 16CCC with the language of Section 16CC indicates that in the later clear language has been used for deeming provision. Therefore, in the absence of such a provision and there being no reason for presuming existence of such a deeming clause, a Scheme already approved cannot be deemed to have been modified in the present facts. A specific requirement of approval by the authority concerned for any modification of existing Scheme also negatives the contention in support of such deeming provision.
13. The law in this connection has been framed in a manner that in case there is no approved Scheme of Administration, the authorities were empowered to make the Institution to have a Scheme of Administration duly approved and in case of default of the Committee of Management, appropriate powers have been provided for getting such a Scheme applicable. in such a case, power for taking action in accordance with subsection (3) of Section 16D has been provided in Section 16B, But while modifying an existing Scheme of Administration, similar power has not been provided in Section 16CCC of the Act. But it goes without saying that if the institution commits default by not complying with the requirements of modification or alteration, the authorities are having ample power to take action against the erring Committee of Management.
14. in view of the aforesaid, it can be concluded that there was no deeming provision for implementation of modification under Section 16CCC and, therefore, the impugned orders at Annexures-2 and 3 are not tenable as the modified scheme is still not there and, therefore, there cannot be any violation thereof.
15. With regard to exercise of power by the Deputy Director of Education, I find that the said notification dated 23.8.1970 was issued in respect of specified existing section before introduction of Section 16CCC. Therefore, there cannot be any presumption that the said notification applied to Section 16CCC. The respondents have not been able to produce any further notification of similar nature empowering the Deputy Director of Education to act on behalf of the Director in exercise of power under Section 16CCC.
16. With regard to the contention as regards anomaly, I find that any provision for compelling an Institution for introducing a Scheme of Administration need not be identical to the powers for implementing modification or alteration. it would be quite reasonable for the Legislature to enact for the purpose of modification or alteration empowering the Director to act himself while providing for delegation of power for introducing Scheme for the first time. in any event, it is not for the Court to presume that a delegation was there. The law decided in the aforesaid cases of Committee of Management, Shahid Mangal Pandey Inter College (supra) and Committee of Management Janta Inter College (supra), also supports the aforesaid view.
17. in view of the aforesaid findings, this writ petition is allowed.
The impugned orders at Annexures-2 and 3 are hereby quashed. There will be no order as to costs.