Shahadat Vs. Superintendent District Jail and ors. - Court Judgment

Excerpt:
(i) constitution - appointment of civil authority - article 258 of constitution of india - state government can appoint civil authorities under foreigners' order, 1948 through powers delegated by central government - such civil authority is also a civil authority for purpose of foreigners' (internment) order, 1962 - hence he has powers to arrest also. (ii) police officers as civil authorities - section 20 of police act, 1861 - police officers can also be appointed as civil authorities. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - , dated the 19th april, 1958, clearly mentioned that the president with the consent of the state government concerned entrusts to the government of each of the state the functions of the central government under rule 3 of the registration of foreigners rules, 1939: in making orders of the nature specified in various clauses of section 3 of the foreigners' act, 1946, and under the foreigners order 1948, subject to certain conditions. 10. as all the contentions in support of thepetition fail, it is dismissed.tripathi, j.1. by this petition under section 491 of the code of criminal procedure the petitioner challenges the validity of his detention in the district jail at kanpur in pursuance of an order of the civil authority, kanpur dated 26-9-1965 purporting to be under para. 5/8 of the foreigners' (internment) order, 1962.2. the facts which are relevant to the questions in controversy shortly stated are these.3. the petitioner came to india on the basis of a pakistani passport and a short term visa in august 1956. the government of uttar pradesh moved the central government to determine the national status of the petitioner in accordance with section 9(2) of the citizenship act, 1955, and the rules made thereunder. a notice was issued to the petitioner to show cause. in response to that notice the petitioner sent a written representation to the central government praying that he be declared to be a citizen of india. the central government, however, by its order dated the 27th august, 1956, after considering the cause shown by the petitioner determined that the petitioner had voluntarily acquired the citizenship of pakistan after 26th of january, 1950, and before 24th of july, 1956 in pursuance of an order passed by the civil authority, the petitioner was arrested on 26th of september, 1965, and since then he is in the district jail at kanpur.4. learned counsel for the petitioner has raised various contentions for challenging the validity of the detention order it is contended that when the government of india's notification dated the 19th april, 1958, entrusting to the state governments its powers under the foreigners' act was issued, sub-section (g) of section 3 of the act as it stands today was not in existence and therefore there was no delegation by the central government to the stale government of its functions in respect of that sub section it is contended that the appointment of civil authorities by the state government, for effecting arrest and detention of the foreigners under the foreigners' (internment) order is therefore invalid the other contentions raised by the learned counsel are that investing powers of the civil authority in a police officer contravenes the provisions of section 20 of the police act and the detention of the petitioner being against the provisions of the geneva convention act, 1960 must be struck down as unsustainable in law learned counsel contends that the entrustment of the functions of the central government to the state government and to its executive officers by the central government is not in accordance withthe provisions of article 268 of the constitution and as such the state government or its officers cannot derive any authority in law to function in respect of the foreigner's act, foreigners' (internment) order and registration of foreigners rules etc.5. the government of india's notification no. 4/8/56-(1) f. i., dated the 19th april, 1958, clearly mentioned that the president with the consent of the state government concerned entrusts to the government of each of the state the functions of the central government under rule 3 of the registration of foreigners rules, 1939: in making orders of the nature specified in various clauses of section 3 of the foreigners' act, 1946, and under the foreigners order 1948, subject to certain conditions. this notification has been issued by the president in exercise of the powers conferred by clause 1 of article 258 of the constitution. the argument of the learned counsel that the entrustment is not in accordance with the aforesaid article is, therefore, wholly misconceived and must be rejected.6. by virtue of the authority delegated to it by the government of india the state government by its notification dated december 28,1959, and in exercise of the powers conferred by sub-paragraph (2) of paragraph 2 of the foreigners' order, 1948, has appointed the district superintendents of police as civil authorities for their respective districts.7. section 2 of the foreigners' (internment) order, 1962, defines civil authority as the civil authority appointed under paragraph 2 of the foreigners' order, 1948, and section 5 of the aforesaid order invests the 'civil authority' of the area to arrest or cause to be arrested any pakistani national or other foreigner it is, therefore, obvious that the appointment of the civil authority by the state government under the foreigners' order, 1948, is valid having been made in exercise of the power delegated to it by the central government and the 'civil authority' so appointed is also the 'civil authority' for the purposes of the foreigners' (internment) order, 1962 and the power of arrest which he exercises in respect of the foreigners and pakistani nationals is a power which has been vested in him by the foreigners' (internment) order, 1962. therefore, the fact that when the government of india entrusted its functions to the state government in respect of the foreigners' act, 1946, and the foreigners' (internment) order, 1962. sub-clause (g) of section 3 of the foreigners' act was then not in existence is not of any significance.8. in the case of shaflquel rahman khan v. supdt. meerut jail. cr. misc case no. 2958 of 1965. (air 1966 all 431), we have already held that section 20 of the police act does not create any bar for the respective police officers to function as civil authorities for the purposes of foreigners' (internment) order.9. the contention of the learned counsel that the detention of the petitioner is against the provisions of the geneva conventions act,1960, is again misconceived. the provisions ofthe aforesaid act do not come into play in a case of the present nature and there is nothing to show that the petitioner is not being treated in a humane manner.10. as all the contentions in support of thepetition fail, it is dismissed.