1987 (5) TMI 376 - HC - Indian Laws

Summary

Issues Involved:
1. Whether Section 8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 can be used as a substitute for the rule-making power under Section 7.
2. Validity of the suspension order of the petitioner.
3. The necessity of framing statutory rules under Section 7.

Detailed Analysis:

1. Whether Section 8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 can be used as a substitute for the rule-making power under Section 7:

The primary issue addressed in this judgment is whether Section 8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, which empowers the State Government to remove difficulties in giving effect to its provisions, can be utilized for subordinate legislation as a substitute for the rule-making power under Section 7. The court held that Section 8 cannot be used as a cloak for subordinate legislation and cannot substitute the express rule-making power under Section 7. The court emphasized that Section 8 is meant to remove difficulties encountered in the enforcement of the Act and not to create statutory rules. The court referenced the Supreme Court's decision in Madeva Upendra Sinai v. Union of India, which elaborated on the limited scope of "removal of difficulty" clauses, underscoring that such provisions should not be used for making substantive rules. Consequently, all notifications issued under Section 8 (Annexures 2, 7, 10, and 11) were struck down as they were devoid of any valid statutory source.

2. Validity of the suspension order of the petitioner:

The petitioner challenged his suspension order on the grounds that it was not approved by the District Education Officer as required by the relevant Clause 7 of Annexure 2. The respondents countered that the earlier notification had been superseded by a subsequent circular which mandated that the District Superintendent of Education would take disciplinary action after obtaining orders from the Chairman of the District Establishment Committee. The court noted that in the absence of statutory rules under Section 7, the power of suspension remains a procedural aid to holding disciplinary proceedings. The court found that the suspension order issued at the behest of the District Magistrate was in substantial compliance with the provisions of Annexure 6, which designated the District Magistrate as the Chairman of the Committee. Thus, the suspension order was upheld as valid.

3. The necessity of framing statutory rules under Section 7:

The court highlighted the failure of the State Government to frame any statutory rules under Section 7 despite the passage of eleven years since the enforcement of the Act. The court underscored that the framing of rules under a statute is a legislative function and an integral part of the statute. The absence of such rules led to a plethora of confusing and contradictory notifications under Section 8, which created further difficulties rather than removing them. The court urged the State Government to proceed with utmost expedition to frame rules under Section 7 for the proper governance, management, and development of elementary education in the State of Bihar.

Conclusion:

The court concluded that Section 8 cannot be used as a substitute for the rule-making power under Section 7. All notifications issued under Section 8 were struck down. The suspension order of the petitioner was upheld as it complied with the provisions of Annexure 6. The court emphasized the necessity for the State Government to frame statutory rules under Section 7 to ensure the proper governance of elementary education in Bihar.