Governing Body Of Regional ... vs Factual Background Involving The ...
2022 Latest Caselaw 2483 Ori

                   ORISSA HIGH COURT : C U T T A C K

               WP(C) NOS.16762/2021, 16804/2021 & 446/2022

       In the matter of Applications under Articles 226 & 227 of the Constitution of India

AFR   In W.P.(C) NO.16762 /2021

      Governing Body of Regional College
      of Management, Bhubaneswar
      represented through its President,
      Prof.Dr.Prabir Pal & Anr.                               :   Petitioners

                                          -Versus-

      State of Odisha & Others                                :   Opp.Parties


      For Petitioner                      :       M/s.Asok Mohanty, Senior Adv.

      For O.Ps.1 to 3                     :       Mr.S.Ghose, ASC

      For O.P.5                           :       M/s. A.K.Mohapatra & A.Mohanty

      For O.Ps.6, 7 & 8                   :       M/s. K.P.Mishra & M.K.Swain

      For O.P.10                          :       M/s.B.R.Behera, B.Jena
                                                  & N.A. Kulraj

      In W.P.(C) NO.16804 /2021

      Regional College of Management Trust
      represented through its Managing Trustee,
      Dr.Pritam Pal                                       :       Petitioner

                                          -Versus-

      State of Odisha & Others                                :   Opp.Parties


      For Petitioner                      :       M/s.M/s.B.Routray, Sr.Adv.,
                                                  S.Das & A.Mohanty
      For O.Ps.1 to 3                     :       Mr.S.Ghose, ASC

                                                                                Page 1 of 13
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For O.P.5                         :      M/s. A.K.Mohapatra & A.Mohanty

For O.P.10                        :      M/s.B.R.Behera, B.Jena
                                         & N.A. Kulraj

For O.P.15                        :      Mr.V.Mohapatra

In W.P.(C) NO.446 /2022
Governing Body of Regional College
of Management, Bhubaneswar
represented through its President,
Prof.Dr.Prabir Pal                                 : Petitioner

                                  -Versus-

State of Odisha & Others                           :   Opp.Parties

For Petitioner                    :      M/s.M.Mishra, Sr. Adv.
                                         & Mr.S.Das

For O.Ps.                         :      Mr.S.Ghose, ASC

                     CORAM :
                     JUSTICE BISWANATH RATH
                   Date of hearing & Judgment :: 09.05.2022


1.     Factual background involving the case is that pursuant to disposal of

W.P.(C) No.34818 of 2020 by a Coordinate Bench of this Court, vide its order

dated 18.12.2020, it is disclosed, the Regional Director, Higher Education,

Bhubaneswar has undertaken an exercise in the matter of re-constitution of the

Governing Body of the Regional College of Management, Bhubaneswar, in

the purported exercise under the direction of this Court in disposal of W.P.(C)

No.34818 of 2020 and also claiming to be in exercise of power conferred on it

under Section 7(2) of the Odisha Education Act, 1969 so also in exercise of

power under Rules 21, 23      & 24 of the Orissa Education (Establishment,

                                                                     Page 2 of 13
                                          // 3 //




Recognition and Management of Private High Schools) Rules 1991, hereinafter

called as, "Act 1969" and " Rules 1991" respectively.

2.     The Writ Petition bearing      W.P.(C) No.16762 of 2021 involves a

challenge to the impugned order of the Regional Director of Higher Education

vide Annexure-11. Other two Writ Petitions also confined to same relief as

claimed in W.P.(C) No16762 of 2021.

3.    Assailing the impugned order, Mr.A.Mohanty, learned Senior Counsel

appearing for the Petitioner-Establishment taking through the pleadings

involving the present writ petition, reading together with the development

taking place in the re-constitution of the Governing Body, the very same

Establishment, vide Annexure-7 on 07.01.19 and at this stage of the matter also

reading through the provision at Rule 23 of the Rules 1991 advanced his

submission that first of all looking to Annexure-4 directed to be disposed of in

W.P.(C) No.34818 of 2020, further reading through the disclosures through

paragraph-6 of the Writ Petition therein, raised following serious questions, if

there is locus standi of such person ?, the contents in Annexure-4 if it already

contains a proposal required to be considered ?, If it is submitted in terms of

Rule 23 of the Rules 1991 ? And further if there was time for reconstitution of

the Governing Body considering as Governing Body already existed, it was not

due to expire? It is in the above circumstance, reading through Annexure-11

Mr.Mohanty, learned Senior Counsel contended that there has been not only

mechanical but illegal consideration in taking a decision at Annexure-11 and

that too by an incompetent Authority. Mr.Mohanty, further alleged that the

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Petitioner in W.P.(C) No34818/2020 had absolutely no locus standi not only

that the Petitioner therein filed the Writ Petition in whole suppression of

material facts, it even did not involve the Parties likely to be affected by such

order, further also behind back of necessary Parties. It is at this stage of the

matter, bringing through the further material available in the W.P.(C) No.446

of 2022, again reading through the requirement of provision of Rule 23 of the

Rules 1991, bringing to the notice of this Court through Annexure-4 in W.P.(C)

No.446 of 2022, bringing reference to Annexure-7 in W.P.(C) No.16762 of

2021, Mr. Mohanty, learned Senior Counsel claimed that as per the

requirement of provision of Rule 23 on the term of the existing Governing

Body to expire, there is presently pendency of a claim of the Institution in the

matter of reconstitution of the Governing Body, which is valid in the eye of

law. It is in the circumstance Mr. Mohanty, learned Senior Counsel claimed for

setting aside the impugned order at Annexure-11 and requiring appropriate

direction to be passed by this Court.

4.     It is here taking this Court to Annexure-4 in the Writ Petition being

W.P.(C)No.446 of 2022, for there is already submission of a proposal of the

Institution involved on 05.10.2021, a submission is made, in the event of

reconsideration of the issue for there is already submission of proposal for re-

constitution of the approved Governing Body and for being issued strictly in

consonance with Rule 23 of the Rules 1991, this proposal is also required to be

considered in further exercise of the Authority.



                                                                    Page 4 of 13
                                          // 5 //




5.     Mr.M. Mishra, learned Senior Counsel appearing in W.P.(C)

No.446/2022 while adopting the submissions of Mr.Mohanty, learned Senior

Counsel bringing to the disclosures in the Writ Petition also submitted that for

the existing Governing Body constituted on 07.01.2019 vide Annexure-7 of the

W.P.(C) No. 16762 of 2021, term of which was to expire on 06.01.2022 and

Annexure-1 of the W.P.(C) No.446 of 2022 following provision of Rule 23 of

the Rules 1991, there was requirement of submission of proposal before at least

ninety days by the approved Governing Body, such proposal, vide Annexure-4

herein has been submitted to the competent Authority for its consideration and

pending consideration of the Competent Authority and Governing Body

officiating is in ad hoc status.

6.      Mr.B.Routray, learned Senior Counsel appearing for the petitioner in

W.P.(C) No.16804 of 2021 simply adopted the submission of Mr.Mohanty,

learned Senior Counsel and Mr.Mishra, learned Senior Counsel and pressed

for interference in the impugned order at Annexure-11 and further issuing

lawful direction.

7.     Mr.Mohapatra, and Mr.B.S. Tripathy, learned counsel appearing for

some of the contesting opposite parties in the respective Writ Petitions in their

opposition to the claim of the petitioners involved herein attempted to oppose

the claim of the petitioners on the premises that there is dispute involving the

Managing Committee and in the submission of the proposals. Both of them

however have no answer to the allegations of the learned Senior Counsel for

the Petitioners in all the Writ Petitions clandestinely and behind their back

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obtained the final order therein. Both of them, however, attempted to justify the

impugned order being based on direction in the disposed of Writ Petition. Both

the learned Counsel, however, in their alternate prayer submitted that in the

event the matter is remitted for fresh consideration, their Clients should be

provided opportunity to have their case.

8.     Mr.S. Ghose, learned Additional Standing Counsel appearing for the

Higher Education Department adopted the submissions of Mr.Tripathy and

Mr.Mohapatra, attempted to justify the order at Annexure-11 being followed by

the direction of this Court in the disposed of Writ Petition bearing W.P.(C)

No.34818/2020 and prayed for lawful direction in the Writ Petition. Mr.Ghose,

learned Additional Standing Counsel, however, could not be in a position to

oppose the submissions of the Senior Counsel under the provisions of law nor

disputed the fact that while decision for reconstitution was taken up, there

existed a valid Governing Body and term of such Governing Body was not to

expire within six months. Further the Director was directed to take decision on

Annexure-4 in disposed of Writ Petition. The Regional Director should not

have taken up the issue.

9.     Background

involved here remains to be the Regional College of

Management, Chandrasekharpur, Bhubaneswar has already got its Governing

Body re-constituted for a period of three years on the decision of the

Department of Higher Education Bhubaneswar vide Annexure-7. The new

Governing Body started functioning since 07.01.2019. This Court here finds

the term of Governing Body reconstituted was for a period of three years. It is

// 7 //

here taking into consideration the Rule 23 of the Rules 1991, this Court finds

Rule 23 reads as follows:-

23. Reconstitution of the Governing Body- (1) Not less than ninety days prior to the date of expiry of the term of a Governing Body, a resolution shall be passed in a meeting of the Governing Body nominating five members in accordance with Clause (g) of Sub-rule (2) of Rule 21 from among themselves or other persons in the local area interested in the field of education to be members of the Governing Body to succeed it on the expiry of its terms and to be its President and Secretary:

Provided that where a Charitable Trust had established the College, the Trust shall nominate the above persons to be members, President and Secretary of the Governing Body:

Provided further that if the outgoing Governing Body or the Charitable Trust does not pass a resolution nominating members, the Director shall be competent to reconstitute the Governing Body:

Provided also that-

(i) no person shall be the Secretary for more than two terms; and;

(ii) no person shall be a member of the Governing Body for more than two consecutive terms except of ex officio members, donors and those nominated by a Charitable Trust in case of such a Trust established the College.

(2) The outgoing President shall furnish the Director for his approval the names and the details granting the proposed reconstruction of the Governing Body including the name of the representative to be elected by the teachers the name of one representative duly elected from non-teaching staff and the name of the Principal of the College along with the names of the persons to be the President and the Secretary of the Governing Body.

(3) The Director shall be competent to substitute any name in the proposed Governing Body to bring it in conformity with the provision of these Rules or with a view to improve the efficiency of the management of the College;

Provided that the Director shall consult the outgoing Governing Body in the matter before making such substitutions.

Reading through the aforesaid Rule, this Court finds, the Rule prescribes

submission of proposal by the existing Governing Body having a resolution to

such proposal in the matter of re-constitution of the Governing Body to succeed

it on the expiry of the term of the existing Body undisputedly expiring on

06.01.2022. Getting into the pleadings in W.P.(C) No.446 of 2022, this Court

// 8 //

finds in terms of Rule 23 of the Rules 1991, there is already a proposal

submitted to the Competent Authority by the existing Governing Body on

05.10.2021 appears to be pending consideration of the Competent Authority.

10. It is, in a development in disposal of the W.P.(C) No.34818 of 2020 at

the instance of one Mr. Brajakishore Dash, this Court while keeping in view

the dispute of all the Petitioners here on the locus standi of such persons leaves

it open to be agitated and adjudicated in the appropriate proceeding. However,

keeping in view the scope of consideration in W.P.(C) No.34818/2020, this

Court finds, the above Writ Petition involved the following prayer :-

In the circumstance the petitioner prays that this Hon'ble Court will graciously be pleased to issue Rule Nisi calling upon the Opp. Parties to show cause as to why the proposed Governing Body of the Regional College of Management, Bhubaneswar under Annexure-4 shall not be approved forthwith;

AND If the Opp. Parties fail to show cause or show insufficient cause, the said Rule may be made absolute;

AND Issue any other writ(s)/direction(s)/order(s) as this Hon'ble Court deems fit and proper;

AND For which act of kindness the petitioner as in duty bound shall ever pray.

11. This Court also records the submission of learned Senior Counsel for the

petitioner that this Writ Petition undisputedly did not involve the whole

background and developments by the time of disposal of Writ Petition by the

time of filing such Writ Petition. This Court, however, finds the matter was

decided at the admission stage without issuing notice, further also in no

involvement of the Institution involved herein as well as Parties likely to be

affected. Naturally there was no scope for the Institution and/or the Parties

likely to be affected by the finalization of such Writ Petition to bring the facts

// 9 //

already existing by the time of disposal to the fold of consideration. Be that as

it may, this writ petition was disposed of on admission stage only involving the

State Counsel passing the following order :-

"This matter is taken up through Video Conferencing because of COVID-19.

Heard Mr.Amitav Mohanty, learned counsel for the petitioner and Mr.A.K.Sharma, learned Additional Government Advocate.

In the present writ petition, the petitioner has sought for a direction to the opposite party No.2 to approve the proposed Governing Body of the Regional College of Management, Bhubaneswar under Annexure-4.

Learned Counsel for the petitioner submits that pursuant to the General Body meeting held on 06.09.2020 the Governing Body of the Regional College of Management has been reconstituted and the College authority by its letter dated 27.11.2020 has submitted the reconstituted Governing Body of the College to the Director, Higher Education, opposite party no.2 for approval. But the opposite party No.2 sat over the matter without approving the reconstituted Governing Body.

Learned counsel for the petitioner further submits that if a direction would be issued opposite party no.2 to consider the proposed Governing Body of the Regional College of Management Bhubaneswar under Annexure-4, and take a decision on the same on its own merit in accordance with law within a stipulated time, then the grievance of the petitioner shall be redressed.

Mr.A.K.Sharma, learned Additional Government Advocate, however has no serious objection to that course of action.

Considering the limited nature of grievance and without delving into the merits of the matter, the writ petition is disposed of with a direction to the Director of Higher Education, opposite party No.2 to consider and take a decision on the proposed Governing Body of the Regional College of Management, Bhubaneswar under Annexure-4 in accordance with law as expeditiously as possible preferably within a period of four weeks on production of certified/authenticated copy of this order along with a copy of the writ petition.

The opposite party no.2 shall act on production of certified/authenticated copy of this order along with a copy of the writ petition.

As restrictions are continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this order available in the High Court's Website or print out thereof at par with certified copies in the matter prescribed, vide Court's Notice No.4587, dated 25.03.2020."

Reading through the aforesaid order, this Court finds, there is innocuous

direction in the disposal of the writ petition directing the Director therein,

// 10 //

opposite party No.2 to consider the representation involved therein at

Annexure-4 but however in accordance with law. It appears, Annexure-11 is a

progress involving such direction. Considering the contest of the parties

involving Annexure-11 being an outcome of consideration of Annexure-4 in

W.P.(C) No.34818 of 2020, this Court finds in the event the Director of Higher

Education was directed to take a decision on Annexure-4, since it was aiming

for re-constitution of Governing Body, in the above of Writ Petition since the

request involved re-constitution of the Governing Body of an Establishment,

this Court finds strange in the attitude of the Regional Director of Higher

Education Department even without having such power, as under the

provisions at Rule 22 and Rule 23 herein making it clear, the Director alone

has such power entering into the re-constitution of a Governing Body without

even ascertaining if Annexure-4 therein involved a proposal for re-constitution

of Governing Body and further if it was by the competent person and further if

there was any such contingency at all in getting into re-constitution aspect,

more particularly in absence of any head and tail in the proposal, if any, in

Annexure-4 and the parties likely to be affected taking a decision in

reconstitution of the Governing Body. This Court here also records the

statements made by the learned counsel that the Regional Director not only

illegally stepped into such matter but has concluded such proceeding on his last

date of officiating in such Post.

12. Further since this Court has already recorded hereinabove that there

already existed a Governing Body duly constituted, vide Annexure-7 was to

// 11 //

expire on 06.01.2022, this Court finds, there was no requirement under the

Rule for having the exercise of re-constitution of the Governing Body existing

at least commencing such exercise much prior to the expiry of such Governing

Body. In the event there was direction of this Court to take a decision on

Annexure-4, first of all there was direction to the Director, thus the Regional

Director has unnecessarily and illegally exercised his power when Rules 21, 22

& 23 of the Rules 1991 unequivocally gives such power to the Director. There

was no business with the Regional Director to poke his nose except leaving it

to the decision by the Director. Further, looking to the provision at Section 2(e)

in the Orissa Education Act, 1969, this Court observes, the Director may

include the Deputy Director with authorization for the purpose but in no

circumstance, can include the Regional Director.

13. In the circumstance, this Court finds, there is gross abuse of power by

the Regional Director, Higher Education Department in deliberate avoidance of

direction of the High Court in the disposed of Writ Petition bearing W.P.(C)

No.34818/2020 and in complete ignorance of the legal provisions taken note

hereinabove and as a consequence, the impugned order at Annexure-11 of

W.P.(C) No.16762 of 2021 must fail. In the result, this Court declaring order at

Annexure-11 as bad in the eye of law and even without authority, finds, in the

natural process, following the provision of Rule 23 of Rules 1991and the

existing Governing Body has already sent a proposal with the approval of the

Governing Body by virtue of letter dated 5.10.2021 finds place as Annexure-4

in W.P.(C) No.446/2022 even though addressed to the Regional Director but at

// 12 //

Page-32 there appears to have also been served on the Director, Department of

Higher Education and in the event no copy of such proposal is placed in the

Office of the Director, the Regional Director, O.P.3 shall forward copy of

Annexure-4 to the Director for the Director, O.P.2 taking decision on the same

in terms of Rule 23 of the Rules, 1991. Since there is already time for

considering the re-constitution of the Governing Body, the Director, O.P.2

shall take decision on the pending proposal but however involving the parties

likely to be affected and, if necessary, inviting their objections, if any.

This Court here from the counter affidavit of opposite party No.5 finds,

there has been a dispute with regard to the management continuing. This Court

expresses its inability to go to such extent and leave such aspect, if agitated to

be indicated by the Competent Authority at appropriate time.

Since the proposal is already pending consideration, this Court directs

opposite party No.5 in W.P.(C) No.16762 of 2021, if any other party is

interested in such approval process, to appear before the Direction on 20th

May, 2022 along with his objection with service of copy on the other side and

the Petitioner herein will accordingly get at least two weeks' time to file

response involving objection, if any, and the decision in the matter of

recognition of the Governing Body shall be taken within a period of two

months from today.

14. For quashing of Annexure-11 in W.P.(C) No.16762 of 2021 and the

other directions hereinabove, other Writ Petitions do not require any further

// 13 //

direction. All the Writ Petitions stand disposed of accordingly but in the

circumstance, there is no order as to cost.

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

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 9th May, 2022/MKR, A.R.-cum-Sr.Secy.