The Bombay High Court has ruled that Executive cannot issue Directions contrary to Legislative intent and the power is confined to filling up the gaps or covering grey areas.
The Division Bench comprising of Justice Sunil Shukre and Justice Amit Borkar that orders issued by Executive should be ancillary to the Legislation and not contrary or in defeat of its aim.
The Court's observaton came in while dealing with one plea of Rashtriya Shikshan Sangh, which ran three Ashram Shalas in Maharashtra. The Authority withdrew recognition for all. The order was upheld by the Secretary, Department of Social Justice. The Sangh was granted recognition in 1993 and all its schools were granted recognition by March 1995.
The present petition is the second round of litigation as previously the High Court had remanded the matter back to the concerned authorities.
The Sangh raised three broad contentions via its Counsel:
-First, the impugned order of cancellation of recognition is without the authority of law as the Respondent No. 4 has no power to pass the order of cancellation of recognition;
-Second, the order dated 27th February 2012 is 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 is passed with mala fide purpose at the instance of Respondent No. 6.
The respondents, in a reply affidavit had submitted that the Ashram School Code was not in existence and cancellation of recognition for Primary Ashram School was governed by the Rules under Bombay Primary Education Rules, 1949. The Secondary School Code governed the cancellation of recognition for Secondary Ashram School. The procedure laid down under both was different and was followed in the present case.
It was stated before the Court that though the provisions of the Bombay Primary Education Rules, 1949 and Secondary School Code were made applicable, the officers of the Education Department were not under the control of the Social Justice Department. In solution to it, for administrative convenience, the power of cancellation of recognition of Primary Ashram School was conferred upon the Director of Social Welfare by two government resolutions in Nov and Dec 1995.
The AGP supported the impugned order and reasoned that the purpose of conferring power was administrative in nature as the officers of the Education Department are not under the control of the Social Justice Department.
High Court Observation
The Court at the outset examined Article 162 which deals with the executive powers of the State and noted the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.
"The proviso clause to the said Article also states that in any matter with respect to which the Legislature of State and Parliament have 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."
It thus noted that 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 Court referred to SC Ruling in B. N. Nagarajan & Ors Vs. State of Mysore & Ors, 1966 Latest Caselaw 61 SC wherein it was observed that it is necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of the executive power under Article 162 the Constitution ignore or act contrary to that Rule. It also mentioned Constitutional Bench Ruling in Ram Javya Kapoor v. State of Punjab.
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