Afr Managing Committee Of ... vs State Of Odisha & Others
2022 Latest Caselaw 4299 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                       W.P.(C) No. 16527 of 2022

       An application under Articles 226 & 227 of Constitution of
       India.
                            ---------------
AFR    Managing Committee of Saraswati
       Sishu Vidya Mandir, Jagatpur         ......          Petitioner

                            -Versus-

       State of Odisha & others                 .......    Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner     :        M/s. D.N Rath, A.K. Saa,
                                     S.S. Rath, Advocates

          For Opp. Parties :     Mr. P.K. Panda, Standing
                                 Counsel for School and Mass
                                 Education Department.
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

th 30 August, 2022

SASHIKANTA MISHRA, J.

The petitioner is an institution imparting

education to students. It was established in the year 1993

and was registered on 20.03.2001 under the Societies

Registration Act. The Siksha Vikash Samiti granted

permission to the institution on 04.12.2008 to function in

the name of Saraswati Sishu Vidya Mandir. The

institution started imparting teaching in classes-I to VIII

being permitted by the Siksha Vikash Samiti. On

06.05.2015, the Director of Elementary Education, Odisha

granted NOC in favour of several schools including the

petitioner's school for running the same. Thereafter, the

students regularly appeared in the examinations and in

the year 2015, the institution submitted list of students of

Class-III and Class-V to appear in the Scholarship

Examination for the session 2015-16. The students were

allowed by the Block Education Officer to appear in the

examination and some of the students were also awarded

with scholarship on 15.11.2016. The petitioner institution

applied for certificate of recognition(COR) as required

under the Right of Children to Free and Compulsory

Education Rules, 2010 for the period from academic

session 2017-18 to 2021-22, i.e., for a period of 5 years as

per the norms. Such application was made online on

29.03.2018 bearing No.15219/2017. The petitioner

institution submitted names of some students appearing

in Class-III and Class-V examination, which was duly

received by the opposite party No. 4, who also issued

Admit Cards on 14.08.2018 permitting them to appear in

the scholarship examination, held on 18.08.2018. While

the matter stood thus, in the year 2019, the Pradhan

Acharya of the institution submitted a list of students of

Class-III and Class-V on 02.07.2019 before the opposite

party No.4 to appear in the scholarship examination

scheduled to be held in the month of August, 2019.

However, the opposite party No.4 did not receive the said

list. On query made by the Institution regarding non-

acceptance of the descriptive roll by the opposite party

No.4 for the scholarship examination of 2019, it was

intimated that the institution had not received recognition

pursuant to the application made by it earlier and

therefore, the descriptive roll would not be accepted. Since

the scholarship examination was due to be held in the 2nd

week of August 2019, finding no other way, the petitioner

institution approached this Court in W.P.(C) No. 13255

2019. This Court, as per order passed in the said writ

application directed the authorities to allow the students

to appear in the scholarship examination of 2019. Since

no action was taken on the application submitted by the

institution for grant of recognition, the managing

committee of the petitioner institution filed a

representation before the Director of Elementary

Education (opposite party No.3) on 29.08.2019, which was

followed by a reminder on 14.09.2019. Since no decision

was taken, the petitioner approached this Court in W.P.(C)

No.18955 2019 praying for necessary direction to the

opposite parties. By order dated 22.10.2019, this Court

directed the opposite party No. 3 to consider and dispose

of the representations of the petitioner in accordance with

law within a period of three months. Despite such order

being passed by this Court no action whatsoever was

taken by the opposite party authorities, for which the

petitioner was compelled to file a contempt petition

bearing CONTC No.1689 of 2020. The contempt petition

was disposed of by order dated 08.06.2020 by directing

the opposite parties to comply with the order of this Court

within a period of six weeks. Even then the opposite

parties did not comply with the direction of this Court for

which the petitioner filed another contempt petition

bearing CONTC No.3554 of 2020. The said contempt

petition was disposed of on 16.10.2020 again granting

opportunity to the opposite party authorities to comply

with the order, failing which suo motu contempt would be

registered by the registry. During pendency of the

contempt application, the opposite party No.3, by order

dated 30.09.2020 rejected the application of the petitioner

institution for grant of certificate of recognition, which was

received on 15.10.2020. The said order, which is enclosed

as Annexure-12, was passed without application of mind

for which the petitioner institution filed another writ

application before this Court during W.P.(C) No.13255

2019 to allow the students to appear in the scholarship

examination of 2019. An order was passed by the opposite

parties to allow the students to appear in the said

examination during pendency of the writ application,

which was accordingly disposed of. In view of the rejection

of its application for grant of certificate of recognition, the

petitioner challenged the same before this Court by filing

another writ application being W.P.(C) No. 29916 of 2020.

By order dated 13.09.2001, this Court remitted the matter

to the District Education Officer, Cuttack to consider the

application of the petitioner with further direction that if

any defect is found the same should be communicated to

the petitioner to comply the same within a period of three

weeks from the date of communication of the order.

Accordingly, the petitioner institution communicated the

order of this Court to the opposite parties by letter dated

29.09.2021. The opposite party No. 3 thereafter issued a

letter to the Secretary of the petitioner institution vide

letter dated 29.11.2001 asking it to remove the defects as

mentioned in the said letter within 15 days and informing

that after removal of the defect, on-site inspection would

be conducted and thereafter final decision would be taken

as regards grant of certificate of recognition in favour of

the school. It is clarified that the Secretary of the

petitioner institution complied with all the deficiencies

pointed out by the opposite party No.3 and communicated

the same vide letter dated 13.12.2021. In spite of removal

of the deficiencies, as pointed out by the opposite party

No.3, no action was taken for which the petitioner was

constrained to file another contempt application bearing

CONTC No.2579 of 2022, which is still pending before this

Court. While the matter stood thus, the opposite party

No.3 issued order dated 26.5.2022 stating that though the

deficiencies pointed out were said to have been removed,

but since the same were not available at the time of

submitting online application, the subsequent

developments cannot be taken as a part of the online

application and therefore, the institution was directed to

submit its application through online mode. Being thus

aggrieved by order dated 26.5.2022, enclosed as annexure

20 to the writ application, the petitioner has approached

this Court again in the present writ application seeking

the following relief:

"Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court may be

graciously pleased to issue a writ in the nature of writ of Mandamus or any other appropriate writ, direction or order by quashing the order dated 26.05.2022 passed by the opposite party no.3 vide Annexure-20 to the writ application.

And this Hon'ble Court be pleased to direct the opposite party no.2 to extend the Certificate of Registration in favour of the petitioner's institution from the session 2017-18 to 2021-22 pursuant to the application made by the petitioner's institution vide Annexure-5 to the writ application.

And the Hon'ble Court by pleased to pass any further order or orders s deem fit and proper in the facts and circumstances of the case"

2. A counter affidavit has been filed by the District

Education Officer, Cuttack (opposite party No.3). While

referring to all the undisputed facts mentioned in the writ

application, the opposite party No.3 has also referred to

several provisions of the Right of Children to Free and

Compulsory Education Act, 2009 to contend that there is

no provision for grant of recognition retrospectively and

that the same is always prospective in nature. It is further

stated that the petitioner institution does not fulfill the

required criteria laid down in the Act and the Rules. It is

further stated that grant of permission to the students to

appear in the scholarship examination in the past cannot

be treated as waiver of the defects which are required to

be removed as per the mandatory provisions of the

statute. Since the petitioner did not remove the defects,

the certificate of recognition cannot be granted to it. It is

further stated that the subsequent developments cannot

be taken as part of the online application, which has

already been submitted by the institution earlier.

3. The petitioner institution has filed another

affidavit clarifying the particulars mentioned in its letter

indicating removal of the deficiencies pointed out by

opposite party No. 3. It is basically stated that all the

teaching staff of the institution at the relevant time had

possessed training qualification and the details thereof

were given for appreciation of the Court.

4. Heard Mr. D.N. Rath, learned counsel for the

petitioner and Mr. P.K. Panda, learned Standing Counsel

for School and Mass Education Department.

5. It is argued by Mr. Rath that this Court having

specifically directed the authorities to point out the

deficiencies to the petitioner with further direction to the

petitioner to comply with the same, the impugned order

passed in holding that the subsequent development

cannot be taken into consideration, amounts to violation

of such order of this Court. Further, the claim for

recognition has to be considered in accordance with law

and in this context, the authorities are required to see if

the deficiencies pointed out have been actually removed or

not. The authorities have instead harped upon

technicalities and shut their eyes to the material produced

by the petitioner institution showing removal of the

deficiencies. The authorities should have kept in mind the

pious intent of the Act, 2009 as also the fact that such

approach can adversely affect the career of the students

belonging to the relevant period.

6. Per contra, Mr. P.K. Panda has argued that

there is no provision whatsoever in the Act, 2009 to grant

recognition retrospectively. Secondly, unless the

deficiencies have been pointed out, no recognition can be

granted. As per the guidelines, applications are to be

considered only through the online mode and therefore, all

subsequent developments taking place after submission

of the application earlier, cannot be considered. It is for

the School to apply afresh through the online mode, if it

seeks recognition, but the same can only be prospective in

nature.

7. The basic facts of the case are not disputed

inasmuch as the petitioner institution had applied for

certificate of recognition for the period from the academic

session 2007-18 to 2021-22 for a period of 5 years

through online mode on 29.03.2008. No action was taken

on such application for a long time. It required the

intervention of this Court in W.P(C) No.18955 of 2019,

and CONTC No.1689 of 2020 for the opposite authorities

to wake up from their long slumber and to take up the

application of the petitioner institution for consideration

only to reject it by order dated 15.10.2020. The said order

of rejection was passed on several grounds, which being

challenged before this Court in W.P.(C) No. 29916 of 2020,

were adequately dealt with and the matter was remitted to

the District Education Officer to reconsider the application

for recognition. For immediate reference, the operative

portion of the order passed by this Court in the aforesaid

writ application is quoted herein below:

".........If there is any non-compliance of the Rules, or any defect in the application, the authority should have pointed out the same, so that the petitioner could have make good of the same in accordance with law. Without indicating the same, because the petitioner approached this Court by filing writ petition, and contempt petitions, abruptly without application of mind, the order impugned in Annexure-12 has been passed, thereby, the same cannot sustain in the eye of law. Accordingly, the same is liable to be quashed and is hereby quashed. The matter is remitted back to the District Education Officer, Cuttack to consider the application filed by the petitioner under Annexure-5 and if any defect is there, the same should be communicated to the petitioner to comply the same within a period of three weeks from the date of communication of this order and thereafter the authority shall apply its mind and pass appropriate order in accordance law."

8. Thus considering all the aspects, this Court

specifically directed that if any defect is noticed, the same

should be communicated to the petitioner institution to

comply within a period of three weeks, and thereafter the

authority shall apply its mind and pass appropriate orders

in accordance with law. The deficiencies were pointed out

by letter dated 29.11.2021. In response, the petitioner

institution submitted compliance on 13.12.2001. Such

being the case, it does not at all stand to reason that the

application would not be considered on the ground that

the facts furnished by the petitioner institution were

subsequent developments, which cannot be taken as part

of the online application and that the Secretary of the

School has to apply afresh through online portal with all

the required information and the same will be considered

accordingly. When this Court had specifically directed the

authorities to communicate the defects and the same was

acted upon by the authorities by making such

communication, which the petitioner institution duly

complied, it is no longer open to the authorities to turn

around and take a stand that the compliance being

relatable to subsequent developments cannot be

considered. This Court is persuaded to accept the

contention of Mr. Rath that the impugned order amounts

to indirect violation of the order passed by this Court.

Another significant aspect to be noted is that in their

counter the opposite party authorities while taking several

pleas, have also taken the stand that the recognition

cannot be granted retrospectively. In this regard, two

aspects are to be considered, firstly, the petitioner

institution had applied for grant of recognition way back

in the year 2018 and it is the opposite party authorities

who slept over the matter till 15.10.2020. Subsequently,

this Court passed a detailed order and issued specific

direction to the authorities, which was never challenged in

the higher forum. Secondly, there is nothing in the Act to

prohibit grant of recognition retrospectively. In such view

of the matter, the stand taken by the opposite parties

cannot be accepted. Even otherwise, it is noticed that the

impugned other simply mentions that the subsequent

developments cannot be taken note of and that the

institution has to apply afresh in the online portal. The

opposite party authorities in their counter have taken

several other stands that are obviously improvements

upon the specific ground taken in the impugned order. It

is well settled that the stand which is not taken in the

original order cannot be taken subsequently in the

counter.

9. For the forgoing reasons therefore, this Court is

of the considered opinion that the impugned order is

contrary to the directions of this Court issued earlier and

therefore, cannot be sustained in the eye of law. In the

result, the writ application is allowed. The impugned order

under Annexure-20 is hereby quashed. The opposite party

authorities are directed to take into account the

compliance furnished by the petitioner institution and to

pass necessary orders in accordance with law in the

matter of grant of certificate of recognition to the

petitioner institution within a period of four weeks from

the date of communication of this order or on production

of certified copies thereof by the petitioner institution.

10. The writ petition is disposed of accordingly.

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 30th August, 2022/ A.K. Rana, P.A.