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2002 DIGILAW 342 (ORI)

HRUDANANDA BEHERA v. STATE OF ORISSA

2002-06-19

P.K.MISRA, R.K.PATRA

body2002
JUDGMENT : R.K. Patra, J. - The aforesaid two writ Petitions being analogous and interconnected were heard together with consent of the counsel for parties and are disposed of by this common judgment. 2. OJC No. 6924 of 2001 is a writ petition in which Petitioners 1 to 5 are some members of teaching staff and Petitioners 6 to 10 are said to be the guardians of some of the pupils of Surendra Sai Vidya Mandir, V.S.S. Nagar, Bhubaneswar. Their principal prayer is that the Director, Elementary Education, Orissa (opposite party No. 2) should be directed to accord approval to the Managing Committee of the school in accordance with the Orissa Education (Establishment, Recognition and Management of Private Upper Primary Schools) Rules, 1991. Their case is that the aforesaid Vidya Mandir (hereinafter referred to as the 'school') is an Upper Primary School which was established by some public spirited persons in the year 1986. P.C. Patnaik (Opposite party No. 5) was one of the founding members of the school. The Director, Elementary Education, Orissa in his office order No. 615 dated 28.1.1989 (Annexure-2) granted recognition to Class I to VII of the said school. While the matter stood thus, there was difference of opinion between the President and Secretary of the school as a result, P.C. Patnaik (opposite party No. 8) remained himself detached from the affairs of the school. Bipin Bihari Ray (opposite, party No. 6) who had no business to meddle with the affairs of the school, called a meeting of the guardians and formed a Managing Committee and submitted a proposal to the District Inspector of Schools for approval. Without examining the rules governing the constitution of the Managing Committee, the' District Inspector of Schools, Bhubaneswar in his office memo No. 813 dated 17.2.1991 approved the constitution of the Managing Committee in exercise of powers purported to be under the Orissa Education (Management of Private Schools) Rules, 1980 with the following members as office bearers : 1. Sri Abhaya Kumar Behera ... President 2. Sri Bipin Bihari Ray ... Secretary 3. Sri Maheswar Biswal ... Member 4. Sri Dhirendranath Dash ... Member 5. Sri Bipin Bihari Sahu ... Member 6. Sri Ashok Singh ... Member 7. Sri Purna Chandra Kar ... Member 8. Headmaster ... Ex-officio Member 9. Teacher's representative ... Sri Abhaya Kumar Behera ... President 2. Sri Bipin Bihari Ray ... Secretary 3. Sri Maheswar Biswal ... Member 4. Sri Dhirendranath Dash ... Member 5. Sri Bipin Bihari Sahu ... Member 6. Sri Ashok Singh ... Member 7. Sri Purna Chandra Kar ... Member 8. Headmaster ... Ex-officio Member 9. Teacher's representative ... -do- P.C. Patnaik (Opposite party No. 5) as Secretary of the Managing Committee and one Sanjukta Nayak. as Ex-officio member of the Managing Committee filed writ petition (OJC No. 849 of 1991) in this Court challenging the validity of the aforesaid office memo of the District Inspector of Schools on the ground inter alia that immediately after establishment of the school a nine-member Managing Committee was constituted with one Harekrushna Sahu as its President and P.C. Patnaik was Secretary which in course of time became defunct because some of its members resigned/vacated. P.C. Patnaik as the Secretary of the old Managing Committee initiated process for reconstitution of the Managing Committee and a resolution was passed on 25.11.1990 constituting a fresh Managing Committee which was forwarded to the Director. Elementary Education through the District Inspector of Schools for taking appropriate decision. Rule 25 of the Orissa Education (Management of Private Schools) Rules, 1980 required the District Inspector of Schools to furnish his inspection report on the basis of which the Director under Rule 26 was to approve the Managing Committee. Instead Of following the prescribed procedure, the District Inspector of Schools approved constitution of Managing Committee in his office memo No. 813 dated 17.9.1991 consisting of new members whose names did not find place in the original resolution. A Bench of this Court at the stage of admission disposed of the aforesaid writ petition (OJC No. 849 of 1991) by order dated 20.2.1991 directing to keep in abeyance the office memo No. 813 of 17.9.1991 and further requiring the educational authorities to apply their mind to the proposal for approval of the Managing Committee. The order is extracted hereunder: A Managing Committee was formed and its approval was sought for as contemplated by Rule 4 of the Orissa Education (Management of Private Schools) Rules. 1980. The resolutions of the general body meeting held on 8.7.1990 and 25.11.1990 were forwarded for this purpose vide Annexures 3 and 4. Instead Of passing any order in that matter, a new Managing Committee was constituted on 17.2.1991. 1980. The resolutions of the general body meeting held on 8.7.1990 and 25.11.1990 were forwarded for this purpose vide Annexures 3 and 4. Instead Of passing any order in that matter, a new Managing Committee was constituted on 17.2.1991. According to us it is a fit case where the authorities should apply their mind to the proposal of the general meeting for approval of the Managing Committee which was selected in its meeting held on the aforesaid dates. Let the authorities apply their mind accordingly and dispose of the matter and if for any reason they feel disinclined to accord approval, the same shall not be given. Accordingly, Annexure-10 is kept at abeyance and this writ petition is disposed of. In obedience to the aforesaid direction, the Director, Elementary Education, Orissa in his letter No. 1793-G dated 10.6.1991 (Annexure-6) brought to the notice of the Secretary to the Government in Education Department that relevant records/documents were not made available to the District Inspector of Schools by the previous new Secretary of the Managing Committee for examination and in the circumstances the question of granting approval of the Managing Committee of the school did not arise. Taking advantage of the stalemate Narendranath Nayak (Opposite party No. 7) claimed himself as the Secretary of the School and started interfering with the management and functioning of the school. This led to disturbances and created law and order problem for which local police had to intervene. According to the Petitioners, for all practical purposes, there is no Managing Committee approved by the competent authority and therefore, this Court should interfere and direct for constitution of the Managing Committee in accordance with the relevant rules. 2. OJC No. 16940 of 2001 : This is a writ petition filed by Narendranath Nayak (opposite party No. 7) in OJC No. 6924 of 2001). He claims to be the Secretary of the School and seeks quashing of the office order No. 106/DEE dated 13.8.2001 (Annexure-2) issue by the Director. Elementary Education Orissa approving the constitution of the Managing Committee. His case is that the Educational Agency which founded the school (in which he was one of the members) continued to manage the school and on 8.11.1990 a meeting was held consisting of the guardians and resolution was adopted in the meeting for constitution of a Managing Committee. Elementary Education Orissa approving the constitution of the Managing Committee. His case is that the Educational Agency which founded the school (in which he was one of the members) continued to manage the school and on 8.11.1990 a meeting was held consisting of the guardians and resolution was adopted in the meeting for constitution of a Managing Committee. The prescribed authority without considering the aforesaid resolution approved the new Managing Committee on 17.9.2001 which was challenged in this Court by P.C. Patnaik on OJC No. 849 of 1991. This Court by order dated 20.2.1991 disposed of the writ petition with a direction to the educational authorities to apply their mind to the proposal made by the public in the General Body meeting. After coming into force of the Orissa Education (Establishment, Recognition and Management of Private Upper Primary Schools) Rules 1991 (hereinafter referred to as "the 1991 Rules'), the District Inspector of Schools in office order No. 3431 dated 31.7.1993 (Annexure-3) approved the Managing Committee. In the said Managing Committee, the Petitioner-Narendranath Nayak was one of the members. As provided under Sub-sections (1) and (4) of Section 7 of Orissa Education Act. 1969 the Managing Committee shall continue for a period of three years from the date of its approval. In view of the said provision, the term of aforesaid Managing Committee was to expire on 31.7.1996. As required under Rule 27 of the 1991 Rules, prior to 90 days of the expiry of the term, a proposal was admitted in the prescribed form by the outgoing Managing Committee for constitution of a new Managing Committee. But no decision was taken by the concerned authority. The District Inspector of Schools on 12.8.1997 submitted a list of members (Annexure-4) constituting a Managing Committee to the Director, Elementary Education. Contention of the Petitioner is that the old Managing Committee has to continue in office until reconstitution of a successor Managing Committee. Besides this, the founder members of the school constituted a trust which decided that the trust would manage the school. The trust submitted a proposal to the District Inspector of Schools for approval of the Managing Committee under Rule 28(1) of the 1991 Rules and the District Inspector of Schools in his office order No. 2262 dated 10.5.2001 (Annexure-5) accorded his approval to the constitution of the Managing Committee. The trust submitted a proposal to the District Inspector of Schools for approval of the Managing Committee under Rule 28(1) of the 1991 Rules and the District Inspector of Schools in his office order No. 2262 dated 10.5.2001 (Annexure-5) accorded his approval to the constitution of the Managing Committee. He, however, subsequently passed office order dated 4.8.2001 (Annexure-1) keeping his own office order No. 2262 dated 10.5.2001 in abeyance on the ground of dislocation and disturbances in the administration of the school. A few days thereafter, the Director, Elementary Education by office order No. 106/DEE dated 12.8.2001 and Directors office order No. 106/DEE dated 13.8.2001 at Annexure-2 on the ground that they are without jurisdiction. 4. The District Inspector of Schools (opposite party No. 3) has filed his counter affidavit. His case is that he accorded provisional approval to the Managing Committee in his office order No. 2262 dated 10.5.2001 (Annexure-5) on the basis of the representation made by the Petitioner in the capacity of the Secretary in pursuance of Rule 28(1) of the 1991 Rules. After granting such provisional approval, he called for the relevant documents and records from the Headmaster of the School for verification in office letter No. 2412 dated 28.7.2001. The Headmaster, despite such requisition did not produce any record on or before the date fixed for the purpose. In the meantime, number of complaints were received from the teachers and students' guardians alleging mismanagement in the school. Accordingly, on 2.8.2001 he made a surprise visit to the school being accompanied by the Deputy inspector of Schools and Sub-Inspector of Schools to find out the real position. He found that 13 members of the teaching staff had launched Dharana' in front of the School gate. The students" attendance position was very poor. In course of inquiry, a lot of irregularities committed by the Petitioner came to light. As the school was gradually leading to complete closure, by office order dated 4.8.2001 (Annexure - 1), he kept his earlier order of provisional approval in abeyance. Such a decision was taken to check dislocation and disturbances in the management and administration of the school. Thereafter, by office order No. 4297 dated 9.8.2001 (Annexure-C/3) the office order No. 2262 dated 10.5.2001 was cancelled. Such a decision was taken to check dislocation and disturbances in the management and administration of the school. Thereafter, by office order No. 4297 dated 9.8.2001 (Annexure-C/3) the office order No. 2262 dated 10.5.2001 was cancelled. The District Inspector of Schools has further pleaded that after enforcement of the 1991 Rules, approval of the Managing Committee was made under Rule 24 of the office order No. 3462 dated 31.7.1993 (Annexure-3). The term of the Managing Committee was to expire on 31.7.1996 on completion of three years. But the then Managing Committee did not submit its proposal for reconstitution for the next term within the time stipulated under Rule 27 i.e. within 90 days prior to the date of expiry of the term of the Managing Committee. A proposal for reconstitution was however submitted by the erstwhile Managing Committee (whose term*had already expired on 31.7.1996} on 6.8.1996 before him. The aforesaid proposal was transmitted to the Director since he is the "prescribed authority" under the Rules to consider approval of the reconstitution of the Managing Committee or to substitute any name in the' proposed committee as per the powers conferred upon him under Rule 27(3). With regard to creation of the so-called trust, the District Inspector of Schools has submitted in his counter affidavit that the said trust had no sanctity in the eye of law. The trust has been created unauthorisedly with the apparent object of Managing the school and to overcome Rules 24 and 27 of the 1991 Rules which provide that no person shall be Secretary for more than two terms and this restriction would not apply to the private Upper Primary Schools which are established by charitable trusts. For the application of such proviso, a school has to be established by charitable trust from its inception. 5. On careful perusal of the pleadings and on consideration of submissions of counsel for parties, it is evident that the dispute in both the writ Petitions centres around the constitution and validity of the Managing Committee of the School which is an upper primary school. From its very inception, it has had teething troubles with regard to constitution of its Managing Committee because of apparent rivalry between/amongst certain persons whose object is not the students' interest or smooth running 'of the institution, but to have control/dominion over its management. The school came to be established in the year 1936. From its very inception, it has had teething troubles with regard to constitution of its Managing Committee because of apparent rivalry between/amongst certain persons whose object is not the students' interest or smooth running 'of the institution, but to have control/dominion over its management. The school came to be established in the year 1936. The Director, Elementary Education, Orissa in his office order No. 615 dated 28.1.1989 accorded recognition for Class-I to VII to the school. 6. From the narration of facts of both the cases, we have no hesitation to hold that the so-called Managing Committee constituted by the District Inspector of Schools. Bhubaneswar in office memo No. 813 dated 17.12.1991 did not function at all in view of the Stay Order dated 20.2.1991 passed by this Court in OJC No. 849 of 1991. Although this Court in the aforesaid order dated 20.2.1991 directed the educational authorities to apply their mind to the proposal of the general meeting for approval of the Managing Committee, nothing could be done as the Director. Elementary Education in letter No. 1793-G dated 10.6.1991 (Annexure-5 in OJC No. 6924 of 200.1) pleaded his helplessness to form/approve the Managing Committee in absence of relevant document/records from the concerned Headmaster. Thus, the Managing Committee so constituted by the District Inspector of Schools in the aforesaid office memo remained non-functionat. The Managing Committee which remained in suspended animation had its natural death. Therefore, any proposal or step taken by any of its member/office bearer for constitution/re-constitution of the Managing Committee, has to be held as without jurisdiction. We declare accordingly. 7. At this stage, let us look at the relevant provisions of the 1991 Rules. Rule 4 lays down that any Educational Agency desirous of establishing a private upper primary school shall make an application to the prescribed authority seeking its permission for establishment. Rule 2(1)(e-1) defines "Educational Agency" to mean any person or body of persons desirous of establishing a private Upper Primary School in accordance with the provision of the Orissa Education Act, 1969. Rule 7 provides that the prescribed authority after scrutinising the application and after following the formalities would grant permission. Thereafter, under Rule 13 application has to be made for recognition. After being satisfied that the school fulfils the pre-conditions, the "prescribed authority" grants recognition. Rule 7 provides that the prescribed authority after scrutinising the application and after following the formalities would grant permission. Thereafter, under Rule 13 application has to be made for recognition. After being satisfied that the school fulfils the pre-conditions, the "prescribed authority" grants recognition. Rule 24 provides that after establishment of the Private Upper Primary School, the Educational Agency in whose favour permission has been granted shall constitute a Managing Committee for managing the affairs of the school. Under Rule 25 of the Educational Agency is required to submit in Form III the details of the Managing Committee so constituted by it for approval of the Director through the District Inspector of Schools. The District Inspector of Schools is required to submit his recommendation to the Director as regards constitution of the Managing Committee Rule 26 the Director on consideration of the proposal of the Educational Agency and the recommendation of the District Inspector of Schools shall approve the Managing Committee. The Scheme of the 1991 Rules is that after the school receives recognition from the competent authority, the Educational Agency is to constitute the Managing Committee which needs the approval of the Director. On approval being granted, the said Managing Committee shall be the first Managing Committee. The term of the Managing Committee is three years (vide Section 4 of the Orissa Education Act. 1969). Prior to the date of expiry of its term, the outgoing Managing Committee by way of resolution is to nominate required number of members to be the member of the incoming Managing Committee. The said resolution is to be submitted to the prescribed authority (District Inspector of Schools) for his approval. The Managing Committee so approved by the District Inspector of Schools shall be a reconstituted Managing Committee. The same was the scheme under the Orissa Education (Management of Private Schools) Rules,-1980 which have been repealed by the 1991 Rules. In the case at hand, the first Managing Committee approved by the District Inspector of Schools (who was the prescribed authority under the 1980 Rules) in his office memo No. 813 dated 17.9.1991 did not function at all because of the stay order granted by this Court in OJC No. 849 of 1991 and had. as already indicated, its natural death. As the first Managing Committee factually and legally did not come into being, question of its re-constitution' does not arise at all. as already indicated, its natural death. As the first Managing Committee factually and legally did not come into being, question of its re-constitution' does not arise at all. In the circumstances, the office order No. 3462 dated 31.7.1993 (Annexure-3 in OJC No. 10.940 of 2001) of the District Inspector of Schools approving the Managing Committee of the school in purported exercise of power under Rule 24 of 1991 Rules is to be declared null and void inasmuch as under 1991 Rules the first Managing Committee's approval has to be made by the Director and not by the District Inspector of Schools. We order accordingly. As the school had no first Managing Committee, question of reconstituting it under Rule 28 of the 1991 Rules does not arise. Therefore, the District Inspector of Schools' office order No. 2262 dated.15.5.2001 (Annexure-6 in OJC 16940 of 2001) approving the Managing Committee under Rule 28 is misconceived in law and the same is hereby declared as null and void. Of course the District Inspector of Schools in his office order No. 4327 dated 4.3.1991 initially kept the office order No. 9362 dated 10.5.2001 in abeyance and ultimately by office order No. 4367 dated 9.3.2001 (Annexure6/2 in OJC 16940 of 2001) cancelled the memo. 3. It is relevant to note the submission of Shri Routray. He contended that since a trust has been created for the school in the meantime. 1991 Rules cannot be made applicable for constitution of the Managing Committee. The District Inspector of Schools in his counter affidavit alleged that the so-called trust has been created unauthorisedly and to overcome restrictions contained in Rules 24 and 27 of the 1991 Rules which provided that no person shall be Secretary for more than two terms. But the same shall not be applicable to the private upper primary schools which are established by charitable trust. This contention has to be stated to be rejected, inasmuch as it has not taken into account the proviso contained in Rule 14. In order to avail of the benefit, a school has to be established by charitable trust from its very inspection. It is nobody's case that the school in question was established by charitable trust from its very beginning. In order to avail of the benefit, a school has to be established by charitable trust from its very inspection. It is nobody's case that the school in question was established by charitable trust from its very beginning. As the approval of the Managing Committee constituted by office order No. 3462 dated 31.7.1993 (Annexure-2 in OJC 10940 of 2001) of the District Inspector of Schools has been found to be null and void, the proposal said to have been sent by it for its reconstitution on 6.8.1996 has to be ignored. 9. On our direction the counsel for the State has produced before us the relevant file from the Directorate. We have perused the same The Director after considering the pros and cons has rightly accorded his approval to the constitution of the first Managing Committee of the school in office order No. 106/DEE dated 13.8.2001 (Annexure-2 in OJC 10940 of 2001). For the reasons indicated we declare the aforesaid order of the Director is valid, legal and binding on all concerned. 10. In the result, OJC No. 10940 of 2001 is dismissed and OJC No. 6924 of 2001 is allowed. With the dismissal of OJC No. 10940 of 2001 all the interim orders passed in that case stand automatically dissolved. The Collector Khurda is directed to forthwith handover the charge of the Managing Committee of the school to the Managing Committee approved by the Director in his office order No. 106/DEE dated 13.8.2001. P.K. Misra, J. 11. I agree. Final Result : Dismissed