ORDER
1. Committee of Management, Clutterbuckganj Intermediate College, Bareilly has filed this petition under Article 226 of the Constitution. Aforesaid Committee runs an educational institution called the Clutterbuckganj Inter College, Bareilly which is recognised by the Board of High School andIntermediate Education, U. P. On 29th of June, 1972, the Director of Education, U. P. sent a communication to the Committee, purporting to be under Section 16-D (2) of the U. P. Intermediate Education (Amendment) Act, 1972. In that communication he pointed out 37 irregularities in the management of the aforesaid college and asked the Committee to remove them within one month of the date of its receipt. He also required the committee to forward to him a compliance report in duplicate through the District Inspector of Schools. It was further mentioned in that communication that in case no reply was received by the Director, it will be taken that the Committee had nothing to say in the matter and appropriate departmental proceedings would be taken. The petitioner sent a reply to the Director of Education on 8th of August, 1972, informing him what according to it was the correct position with regard to some of the defects as also about the removal of some other defects. It is claimed that by 25th of August, 1972, all the defects pointed out by the Director of Education in his letter dated 29th of June, 1972, which were capable of being removed, had, in fact, been removed and all the directions contained therein, had been complied with On 9th of November, 1972, the Sub-Divisional Magistrate, Bareilly (respondent No. 3) called Sri Satya Swamp, Advocate, President of the Managing Committee and showed to him a telegram received from the State Government, according to which he (S. D. M.) had been directed to immediately take over charge of the college as Authorised Controller under Section 16-D (5-A) of the Intermediate Education Act. The telegram further indicated that a formal order to that effect was under despatch, but the same was not received by any one connected with the committee of the management. The petitioner accordingly filed the present petition challenging the validity of the action of the State Government in appointing the Sub-Divisional Magistrate, Bareilly as the Authorised Controller under Section 16-D (5A) of the U. P. Intermediate Education Act.
2. The petitioner challenges the validity of the appointment of the Sub-Divisional Magistrate, Bareilly, as an Authorised Controller inter alia on the ground that neither the Director of Education afforded an opportunity to the petitioner to have its say in the matter before making a recommendation to the State Government under Section 16-D (3) of the Act, nor did the State Government give an opportunity to the petitioner to explain why the recommendation made by the Director of Education be not accepted, as is contemplated by Section 16-D (4) (5A) of the Act.
3. On behalf of the respondents it is contended that before making his recommendation to the State Government, the Director of Education served a notice, dated 29th of June, 1972, upon the petitioner and gave it full opportunity to explain the irregularities pointed out therein and to remove them. The petitioner submitted its explanation which was found to be unsatisfactory. The Director of Education accordingly, made a recommendation for the appointment of an Authorised Controller under Section 16-D (5-A) of the Intermediate Education Act. According to them, the State Government appointed the Authorised Controller after taking into consideration the irregularities pointed out by the Director of Education and the explanation given by the petitioner. Law does not require that after receiving the recommendation made by the Director of Education the State Government should give an opportunity to the Managing Committee to show cause against the recommendation made by the Director of Education. They claimed that in the circumstances, the order appointing an Authorised Controller is not invalid as alleged by the petitioner. In support of the contention that after receiving the recommendation from the Director of Education, the State Government is not required to issue afresh show cause notice to the Committee of Management or to afford it a further opportunity of explanation, reliance was placed on the decision of this Court in the case of State of U. P. v. Managing Committee Arya Kanya Inter College (Special Appeal No. 543 of 1972, decided on 12-12-1972} = (reported in AIR 1973 All 458).
4. Relevant portion of Section 16-D as amended upto the year 1972 runs as follows:--
'16-D. Inspection of recognized institution and removal of defects-
(1) The Director may cause a recognized institution to be inspected from time to time.
(2) The Director may direct a management to remove any defect or deficiency found on inspection or otherwise.
(3) If the management fails to comply with any direction made under Sub-section (2) the Director may, after considering the explanation or representation, if any, given or made by the management-
(a) refer the case to the Board for withdrawal of recognition; or
(b) recommend to the State Government to proceed against the institution under Subsection (4).
(4) If on the receipt of a recommendation under Sub-section (3) the State Government is satisfied that-
(a) the affairs of the recognized institution are being mismanaged; or
(b) the management of the institution has wilfully or persistently failed in the performance of its duties; or
(c) the institution is being conducted otherwise than in accordance with the scheme of Administration; or
(d) the draft or the scheme of Administration has not been submitted within the time allowed. It may by order make provision-
(i) .....
(ii) .....
(5) .....
(5-A) If on receipt of a recommendation referred to in Sub-section (4) the State Government is satisfied that the circumstances mentioned in para (a) or para (b) of that Sub-section exist and is further satisfied that for special and exceptional reasons, which shall be recorded, action under that sub-section will not be adequately effective and that in the interest of the institution it is necessary that the management of that institution be immediately handed over to an Authorised Controller, the State Government may by an order, for such period as may be specified in the order, appoint an Authorised Controller and that Authorised Controller may take over the management of the institution including management of the land, buildings, funds and other assets belonging to or vested in the institution to the exclusion of the management or any such person, and whenever the Authorized Controller so takes over the management he shall, subject only to such restrictions as the State Government may impose, have in relation to the management of the institution all such powers and authority as the management would have if no orders were made under this sub-section or Sub-section (4).
(5-B) .....'
The scheme underlying the section indicates that the Director has been given a power to inspect a recognized institution from time to time. If as a result of the inspection or otherwise, some defect or deficiency in the management of the institution comes to his notice he is to issue a direction under subsection (2) to the management to remove such defects or deficiency. Sub-section (3) then provides that if the management fails to remove the defects or deficiency which were directed to be removed under Sub-section (2), the Director may, after considering the explanation or representation, if any, given or made by the management refer the matter either to the Board for withdrawal of recognition of the institution or to the State Government for taking action under Sub-section (4). Sub-section (3), in my opinion, postulates that after a direction has been given to the management to remove any defect or deficiency under Sub-section (2) and the Director comes to a conclusion that the management has failed to comply with the direction, he is to give an opportunity to the management to explain as to why the defect or deficiency as pointed out by him has not been removed. At that stage, the management can tell the director that the defect or deficiency pointed out by him have either in fact been removed or it may offer an explanation for the same. It is only when the Director finds that the defect or deficiency pointed out by him has not been removed by the management and its explanation is not satisfactory that he can make a recommendation contemplated by Section 4. In a case where the management has, in fact, removed the defects or deficiencies pointed out by the Director under Sub-section (2), it will not be open to him to call for an explanation or representation from the Committee of Management, as contemplated by Sub-section (3), in respect of past defects and deficiencies in the management, which were either not capable of being removed and on the basis of which the Director might reasonably have apprehended that the affairs of he Institution may be mismanaged in future. The explanation or representation contemplated by Sub-section (3) is an explanation which the management is to submit in respect of the directions issued under Sub-section (2) namely, the defects or deficiency which were directed to be removed by the Director of Education. It necessarily follows that in a case where Director wants to proceed to make a recommendation under Sub-section (4), he has not only to issue a direction to the management to remove defects or deficiencies coming to his notice, but also to inform it that the defects or deficiencies pointed out by him have not been removed so that the management may have an opportunity of offering an explanation or making a representation with regard to the defects pointed out or the direction issued to it. This opportunity is to be given after the time mentioned in the notice for removing the defects or deficiencies has run out. Unless such an opportunity has been given, the Director of Education cannot make a recommendation either to the Board for withdrawal of recognition or to the State Government for taking action under subsection (4). The jurisdiction of the State Government to make an order under Sub-section (5-A) arises only when a recommendation as contemplated under Sub-section (4) has been received by it.
5. In the instant case Annexure I to the writ petition is a copy of the letter purporting to be under Section 16-D (2) issued by the Director of Education pointing out as many as 37 defects. Many of those defects were such which could not be removed, although they may possibly have led to an inference of gross mismanagement. Surely the direction contained in the letter to remove the defects or deficiency pointed out could not relate to such defects or deficiency which were not capable of being removed. The management sent letters dated 8th of August, 1972 and 25th of August, 1972, copies of which have been filed as Annexures II and III to the writ petition, offering its explanation with regard to the defects pointed out by the Director of Education and also pointed out certain defects, which according to it were capable of being removed, had been removed. According to the respondents the Director of Education did not find the explanation given in those two letters satisfactory and accordingly made a recommendation to the State Government for necessary action undersub-section (5-A), As the averment made in the counter-affidavit did not clearly disclose whether in the opinion of the Director of Education, the explanation given by the Managing Committee that it had removed all such defects pointed by the Director which were capable of being removed, was incorrect, I asked the learned Standing Counsel to place before me the record showing the recommendation made by the Director of Education and he placed the same for my perusal. The recommendation made by the Director of Education shows that he recommended for the appointment of an Authorized Controller, as in his opinion serious irregularities existed in the institution which could lead to a serious and explosive situation and that the explanation of the Managing Committee appeared to be baseless. There is not a single word in his recommendation which may show that in his opinion any defect or deficiency which the management was asked to remove and could remove, had not been removed by it. In the instant case the notice dated 29th of June, 1972, obviously was one under Section 16-D (2) of the Act, by which certain defects and irregularities were pointed out and the petitioner was directed to remove them. It could not be construed as a notice for affording an opportunity to the petitioner to give an explanation or to make a representation as required by Sub-section (3). It is admitted that apart from the letter dated 29th of June, 1972, no other opportunity was given to the petitioner to explain or make representation in respect of non-compliance of the directions given by the Director of Education under Section 16-D (2). The recommendation made by the Director on which the State Government has acted also does not disclose that in the opinion of the Director, the defects or deficiencies pointed out by him which were capable of being removed had in fact not been removed by the petitioner. In the circumstances it was not open to the State Government to pass the impugned order on the basis of the recommendation made by the Director of Education.
6. Learned Standing Counsel strongly relied upon a Division Bench decision of this Court in the case of (Special Appeal No. 543 of 1972 decided on 12-12-1972 = (Reported in AIR 1973 All 458)) and urged that in that case also a procedure similar to that adopted in the present case had been adopted and this Court held that there was no defect in the order, appointing the Authorized Controller. I have carefully gone through that judgment and find that in that case the main point in controversy was whether after receiving the recommendation made by the Director of Education for taking action under Sub-section (4), it was obligatory upon the State Government to afford an opportunity to the petitioner to have his say in the matter before making an order under Sub-section (4). In view of the language used in the statute, this Court came to the conclusion that Section 16-D did not require that the State Government should give any further opportunity of explanation to a Committee of management and that the opportunity given by the Director of Education before making his recommendation under Section 16-D (3) was adequate and sufficiently complied with the principle of natural justice. In that case the question whether a sufficient opportunity to give an explanation or to make a representation had to be given to the management after a direction had been issued to it under Sub-section (2) was neither canvassed nor considered. The Court proceeded on the footing in that case, that there had been full compliance of the provisions of Section 16-D (2) and (3) of the Act. I am accordingly of the opinion that the decision in Special Appeal No. 543 of 1972 does not cover the aforesaid controversy raised in the petition before me.
7. Since the State Government has passed the impugned order on the basis of a recommendation made by the Director of Education, which is in contravention of the provisions of Section. 16-D (3), it cannot he upheld.
8. Learned counsel for the petitioner wanted to impugn the validity of the order appointing the Authorised Controller under Section 5-A on several other grounds as well, but in view of the aforesaid discussion, I do not think it necessary to consider those grounds.
9. In the result, the petition succeeds and is allowed. The order passed by the State Government appointing Sub-Divisional Magistrate as Authorised Controller of the Clutterbuckganj Inter College which is impugned in the Writ Petition is quashed. Costs on parties.