Judgment:
C.L. Pangarkar, J.
1. Rule. Rule made returnable forthwith. Heard finally with consent of the parties.
2. The petitioners challenge the order passed by respondent No. 1 taking over the management of the school and also challenge further order whereby extension to the appointment of Administrator was granted.
3. Petitioner No. 1 is a registered Educational Cooperative Society, registered under the Maharashtra Cooperative Societies Act. Petitioner No. 2 is a School run by petitioner No. 1 - Society at village Rui in Yavatmal District. Respondent No. 1 had accorded sanction for running said school. The school has been receiving grant-in-aid right from 1965. A Junior College with Arts and Commerce Faculty is attached to this school and the school also conducts M.C.V.C. Courses. The said M.C.V.C. Course also receives grant-in-aid. It is contended by the petitioner that all facilities have been made available in the said school. The school was being run right from 1964 up to year 2006 smoothly and there was not even single complaint against the school or management of any misappropriation or mismanagement. There is also no dispute amongst the members of the Managing Committee except that one change report was pending with the Assistant Charity Commissioner, which has now been accepted. The petitioners submit that two members of the Managing Committee, however, were aggrieved by the acceptance of the change report and they have been acting against the interest of petitioner No. 1 and also the school. On the basis of the false complaint made in the year 2005 against the petitioners, an inspection of the school was conducted and no major defect or shortfall was found in the working of the school. Minor deficiencies were immediately removed. It is alleged further that the aggrieved members were very close to one influential political person and they managed to issue a false and baseless show cause notice to the petitioner through respondent No. 4. The petitioner, in fact, offered appropriate explanation in the matter. However, on 12/7/2006 respondent No. 2 issued another show cause notice with some different charges levelled against the petitioners. Again an explanation was submitted to the said show cause notice. On 5/9/2006 respondent No. 2 issued a notice of hearing to the petitioner as to why the management should not be taken over. It was intimated that the matter is fixed on 7/9/2006 and the petitioners were called upon to remain present. Petitioners attended the hearing but no effective hearing was given to the petitioners. They were simply asked to produce the record and no opportunity of being heard was in fact given. On 1/12/2006, respondent No. 2 issued an order taking over the management of the school. On 5/12/2006 the Administrator took charge of the school and the Managing Committee was suspended. An appeal was preferred by the petitioners. On 26/12/2006 notice of hearing of the appeal was issued by respondent No. 3 and it was received by the petitioner on 29/12/2006 whereby date of hearing was actually fixed on 28/12/2006 as a result the petitioner could not remain present at the time of hearing. The appeal is still pending before he respondent without there being any hearing. The petitioners made several representations to respondent but they have been ignored. The petitioners apprehend that the respondent is likely to grant an extension to the appointment of the Administrator. During pendency of this petition, it is alleged that on 2/1/2009 the respondent extended the appointment of the administrator for a period of one year more. The petitioners challenge the said order also.
4. Respondents Nos. 3 and 4 contested the petition. It is the contention of the respondent that there was a dispute in the management and the contention of the petitioner that there was no dispute is not correct. It is also contended by the respondent that an offence under Section 420 r/w 448 and 294 and other sections have been registered against one of the members of the Managing Committee and he has been subsequently convicted. It is contended that several instances of mismanagement were noted at the time of inspection and that is the reason why the respondents were compelled to appoint an administrator. The teaching and non-teaching staff have made several complaints against the petitioner. A Sarpanch of the village had also made a complaint. The result of the school in the year 2002-2003 was 19% only and in the year 2004-05 it was 34.9% and the result was affected because of the fact that the non-teaching and teaching staff were under stress due to the ill treatment meted out to them. It is further contention of the respondents that after the administrator was appointed, the percentage of the result has increased manifold i.e. 86.66% and 82.51% in the year 2007. The respondents, therefore, submit that the petition is, therefore, liable to be dismissed.
5. I have heard the learned Counsel for the petitioners and the respondents.
6. The challenge initially was to the order passed by the Director on 1/12/2006 appointing an administrator for a period of two years. This petition came to be filed because of the fact that even after lapse of long time, the appeal pending before the Government has not been decided. The Administrator had taken charge of the school in pursuance to the order dated 1/12/2006 and 5/12/2006. The term of two years came to an end by 5/12/2008. The Director after the term came to an end extended the term by another year by passing an order on 2/1/2009. The petitioner as stated earlier therefore sought an amendment challenging this extension order also. The said amendment has already been allowed.
7. I do not propose to go into the question of legality or otherwise of the first order dated 1/12/2006 because of two reasons. The first one being the period of two years is already over. The second reason is that the appeal against that order is already pending before the Government. The legality or otherwise of the same order would be decided in appeal which exercise infact would an exercise in futility. Therefore, the material questions that need to be considered are two (i) Whether an extension order could be passed without giving hearing to the petitioner (ii) Whether the extension order could be passed much after the first term had come to an end.
8. I shall take up the second question first. We have seen that the first order was made on 1/12/2006 and the administrator was appointed for a period of two years. The administrator had taken charge on 5/12/2006. Term of two years, therefore, expired on 5/12/2008. This term had come to an end by efflux of time. The extension order was passed on 2/1/2009 which at Annexure 'T'. The learned Counsel for the petitioner submits that the extension order should have been passed before the expiry of the first term and if any order of extension is to be passed after expiry of period of term then a fresh exercise would be required. The very term extension means and presupposes stretching of time. If the original time fixed is to be stretched, it should not expire before it is stretched. In fact, such extension after expiry would amount to refixing of time afresh and not extending or stretching the original time fixed. The word Extension has been defined in the advanced the Law Lexicon by P.Ramanatha Aiyar as follows:
Extension. the act of extending or stretching out; enlargement in any direction, in length, breadth, or circumference the continuance of an existing thing (as); extension of the term of Parliament.
'EXTENSION', is the enlarging, or giving further duration to, any existing right, but 'does not import the re-vesting of an expired right; that would not be an 'Extension' but a 'Re-creation'
Thus when any order is passed extending the time after the original time is fixed would be re-fixing of time for a fresh period and not an extension of the original time fixed.
9. The extension order is passed after the original time fixed had expired. The administrator ceased technically to hold the office from 6/12/2008. The fresh order is passed on 2/1/2009. Obviously from 6/12/2008 to 1/1/2009 there was no order of appointment of administrator in existence. Thus, the old order ceased to hold the field from 6/12/2008. Therefore, if the period was to be extended after expiry of whole term a fresh exercise under Section 3 of the Maharashtra Educational Institution (Management Act) 1976 was necessary. Whenever any order under Section 3 is required to be passed as a fresh order (not extension order before expiry) the exercise under Section 3 would be absolutely necessary. No fresh notice was given to the petitioners and therefore order extending the time or making an appointment of an administrator for a fresh period of one year would be an order which is bad in law. No notice was given to the petitioners and therefore the impugned order dated 2/1/2009 appointing an administrator for further period of one year must be set aside. Further, it may be mentioned here that the order passed on 2/1/2009 does not show that it was retrospective in effect. If there is no retrospective effect new order does not relate back to 6/12/2008. Thus, it is clear that it is not an order of continuation to the earlier order and if it is second order or fresh order it has to be set aside for the simple reason that it has been passed without hearing the petitioners. In the circumstances, that order dated 2/1/2009 needs to be set aside. The questions are answered accordingly. The petition therefore must succeed. In the circumstances, the petition is allowed. The order passed by the respondent/State appointing an administrator for further period of one year from 2/1/2009 is set aside. The Administrator shall forthwith handover the charge to the Management.
No order as to costs.