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2005 DIGILAW 575 (ORI)

PRATAP CHANDRA JENA v. STATE OF ORISSA

2005-09-29

N.PRUSTY, P.K.MOHANTY

body2005
JUDGMENT : P.K. Mohanty, J. - The petitioners have filed this Writ Petition by way of a public interest litigation with the following prayer: "It is therefore prayed that your Lordships may be pleased to admit the Writ Petition, issue Rule Nisi calling upon the Opp. Parties to show cause and if the Opp. Parties fail to show cause or show insufficient cause, appropriate Writ/Direction/Order be made quashing Annexure-18 and direct for withdrawal of permission/ concurrence/affiliation granted in favour of Korua Womens' College, which is an institution by fraud in nature and same being the position, declare that the said college is nugatory; And pass any other Writ/Direction/Order as may be deemed fit and necessary." 2. Briefly stated fact of the petitioners' case is that due to growth of population and advancement in the area, local people of Patkura Legislative Assembly Constituency were in need of educational institution particularly for women and, as such, the villagers of Korua and neighboring villages opened a Womens' College in the year 1981 in the name and style of "Chitrotpala Womens' College", of which one Bhagaban Nayak was the President and the present Opp. Party No. 6 was a member of the Governing body. The College was accommodated in the Girls' High School in Korua and got affiliation from the Utkal University for I.A. course for the session 1983-84. It is alleged that Opp. Party No. 6 surreptitiously with the help of political power, changed the name of the College to "Korua Womens' College" and described himself as the Secretary. The College having no proper infrastructure, the petitioner and some students protested against the non-availability of the facilities, but it yielded no result and Opp. Party No. 6 managed to run the institution till 1986-87. The Government in Education and Youth Services Department, in letter dated 28.6.1988 directed the Secretary of the College to place records for inspection. In the year 1990, the authorities allegedly being gained over by Opp. Party No. 6, came to hold that the ad hoc Governing Body led by Opp. Party No. 6 should continue to exist despite the fact that Opp. Party No. 6 did not fulfill the basic requirements for establishment of a College. The Government directed for a fresh enquiry and in turn, the Director nominated the Principal, J.K.B.K. College, Cuttack for inspection of the area on 5.11.1992. Party No. 6 should continue to exist despite the fact that Opp. Party No. 6 did not fulfill the basic requirements for establishment of a College. The Government directed for a fresh enquiry and in turn, the Director nominated the Principal, J.K.B.K. College, Cuttack for inspection of the area on 5.11.1992. The Tahasildar, Marshaghai through R.I. conducted the enquiry with regard to the land available with the College and furnished a report, copy of which is Annexure-9. On the basis of the report, a show cause was called for from Opp. Party No. 6 calling upon him as to why the concurrence granted to the College shall not be withdrawn. But, however, the Government gave permission to the institution for +2 course. It is alleged that apart from inadequacy of accommodation and infrastructure, the College also did not fulfil the conditions envisaged under the statute and failed to conduct the examination for different years properly, even then the recognition is still illegally continued. According to the petitioners, Opp. Party No. 6 is a litigant by nature and by enjoying political support managed to run such an institution and installed his son as Secretary of the Institution converting the same as his personal property. 3. The petitioners claim that the High Court in O.J.C. No. 8761 of 1993 filed by Opp. Party No. 6 has passed some orders for consideration of the case for recognition and the prescribed authority in office order dated 18.3.1997 (Annexure-17) had rejected the case of the petitioners for permission as against which Opp. Party No. 6 filed an appeal before the Minister, Higher Education. The Appellate Authority in his order under Annexure-18, without taking into notice the orders passed by the Government, allowed the appeal. The appellate order is assailed on the ground that the Minister without going into the fact whether the college has fulfilled the basic requirements provided u/s 5(3) of the Orissa Education Act and without being satisfied that the other requirements are fulfilled, allowed the appeal for political reasons, contrary to orders passed by the educational authorities from time to time. Hence the Writ Petition with the aforesaid prayer. 4. Opp. Hence the Writ Petition with the aforesaid prayer. 4. Opp. Parties 1 & 2 in their counter affidavit have denied the allegation made and have taken a preliminary objection as to the locus standi of the petitioners to challenge the order of the Minister (Annexure-18) passed under Sub-section 8 of the Section 5 of the Orissa Education Act." According to these Opp. Parties, the petitioners are not the persons aggrieved and as such no Writ Petition can be filed as against the appellate order of the minister. The Government in order dated 22.9.1984 (Annexure-1) have accorded provisional recognition to Korua Womens' College for the years 1984-85 & 1985-86 with certain terms and conditions. It is stated that the Governing Body under the Secretaryship of the Opp. Party No. 6, having provided the basic infrastructure, the concurrence granted to the said college was renewed from time to time and Utkal University accorded permission for opening of Intermediate Arts course in Korua Womens' College for the session 1983-84. The Government renewed concurrence during the 1991-92 allowing the students of the College to appear at the examination. These Opp. Parties in their counter affidavit have specifically referred to the orders passed in O.J.C. Nos. 636 of 1989, 763 of 1989, 8761 of 1993 and 2515 of 1996 concerning the Korua Womens' College. 5. It is stated that on receipt of the order passed in O.J.C. No. 8761 of 1993, the Committee constituted by the Government to grant permission duly considered the question of grant of permission to either of the institutions for establishment of a Degree (+3) College and rejected the same on the ground that there is no educational need for establishment of a second Degree College in the Block and that the available infrastructural facilities are inadequate for establishment of a degree college. However, being aggrieved by the order of the competent authority, Opp. Party No. 6 preferred an appeal u/s 5(8) of the Orissa Education Act and the said appeal was allowed by the Minister by order as in Annexure-18 on due consideration on merit. 6. Opp. Party No. 5 in his counter affidavit, has challenged the locus standi of the petitioners in maintaining this Writ Application. According to this Opp. Party No. 6 preferred an appeal u/s 5(8) of the Orissa Education Act and the said appeal was allowed by the Minister by order as in Annexure-18 on due consideration on merit. 6. Opp. Party No. 5 in his counter affidavit, has challenged the locus standi of the petitioners in maintaining this Writ Application. According to this Opp. Party, the petitioners belong to rival group headed by one Bhagan Nayak, who fought a series of unsuccessful litigations claiming himself to be the Secretary of the governing Body of the Korua Womens' College, both at the Intermediate/+2 and the Degree/+3 level. The College was established in the year 1981 in order to meet the educational need of the women of the locality. It is submitted that after a series of litigations, the matter has been set at rest by this Court, inasmuch as, the College has fulfilled all the conditions required, under the Orissa Education Act, for grant of permission and recognition and, as such allegations have been falsely made with the motive to harass the Opp. Parties only. 7. A preliminary counter affidavit has been filed by the intervenor petitioners, who are the Principal-in-charge and teaching, non-teaching staff of the +2 Wing of the College. According to these Opp. Parties, the Writ Petitioners are some outsiders, who are no way connected to the Management of the College and only with lost in all his attempts to capture the College for his own benefits, the present Writ Application has been filed. The stand taken by the Opp. Parties has been adopted by these intervenor-petitioners. 8. In order to appreciate the contentions raised, it is necessary to reefer to the decisions in earlier Writ Petitions filed by the rival parties. O.J.C. No. 636 of 1989 was filed by the Governing Body claiming to be represented by one Baishnab Charan Nayak and O.J.C. No. 763 of 1989 by the Governing body of the said College claiming to be represented through Bhagaban Nayak. In both the Writ Petitions challenge was made to the order dated 10.1.1989 of the Council of Higher Secondary Education withdrawing the provisional affiliation granted in favour of the Institution for opening Higher Secondary Arts Stream from the session 1986-87 and the order dated 19.1.1989 of the State Government in Education and Youth Services Department in refusing to grant concurrence to the College. A Division Bench of this Court found that there is only one institution, which was accorded provisional recognition and affiliation and the dispute inter se between the two rival groups, each claiming to be in-charge of the Management of the institution, is not very relevant for deciding the question with regard to withdrawal of affiliation and recognition. However, both the Writ Petitions were allowed and the impugned orders were quashed directing the Opp. Parties 1 to 3 to enquire into the controversy relating to the constitution of the Governing Body of the Korua Womens' College and pass appropriate order promptly within two months. Then O.J.C. No. 1408 of 1991 was filed on behalf of the Governing Body of the College represented by Sri Baishnab Charan Nayak, as Secretary with a prayer to quash Annexures-7 & 8 therein, whereby the Director, higher Education was directed by the State of Orissa to conduct a spot enquiry regarding the rival claim of the petitioner and the Governing Body, with Bhagaban Nayak as Secretary with respect to the aforesaid Womens' College. Paragraph-7 of the aforesaid judgment reads thus : "7. From the narration of facts at Para-2 above, it is clear to us that the earlier decision of Opp. Parties in giving affiliation and concurrence to the college of the petitioner was a final decision and in pursuance of such decision, the petitioner had already furnished his proposal for reconstitution of the Governing Body under Rule 3(2) of the rules. The decision of the Government thus was in accordance with the statute and was in exercise of the statutory powers. Once a decision was taken in pursuance of this Court's direction in the earlier two Writ Petitions, it was not open thereafter to Opp. Party No. 1 to change the same without the permission of this Court. The Court had directed for a decision to be taken so as to put an end to the controversy between the present petitioner and Opp. Party No. 4 being conscious of the fact that the controversy regarding governing bodies of two parallel colleges had created an unhealthy air of competition which was quite undesirable in educational institutions. Therefore, no decision should have been taken again to vary the earlier one because Opp. Party No. 4 addressed a representation to the Chief Minister. Party No. 4 being conscious of the fact that the controversy regarding governing bodies of two parallel colleges had created an unhealthy air of competition which was quite undesirable in educational institutions. Therefore, no decision should have been taken again to vary the earlier one because Opp. Party No. 4 addressed a representation to the Chief Minister. Even otherwise also, the decision could not be changed since no power of review is conferred on Government while once it has been exercised statutorily. If at all it was found that the petitioner's college was deficient in any respect, he could have been called upon to supply the deficiencies within a time fixed and in the event of those deficiencies being not removed within the fixed time, then only concurrence and affiliation could have been withdrawn by the competent authorities. Nothing of the kind has been done." The Division Bench, after observing as above held that the decision of the Government was rather extraordinary, because even though right had accrued in favour of the petitioner therein, yet the same was set naught even without affording opportunity to him in the matter, and as such, the altered decision of Opp. Parties 1 to 3 cannot be sustained. The Writ Petition was allowed quashing Annexures-7, 8, 12 & 13 and restoring the earlier decision in Annexures 2 & 3. However, the Opp. Parties 1 to 3 were granted liberty to withdraw the concurrence and affiliation from the college of the Writ Petitioner, if the petitioner fails to comply with any direction to be given by them in accordance with law. The third Writ Petition bearing O.J.C. No. 8761 of 1993 was filed by the said Baishnab Charan Nayak, present Opp. Party No. 6, as the Secretary for issuance of a Writ of mandamus to the Opp. Parties to grant concurrence in +3 Arts Stream and approve the Governing Body in accordance with the provisions contained in the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991. A further prayer was made for a direction to grant affiliation in favour of the College managed by the petitioner Governing body. The Division Bench observed that the real controversy centers round the fact that by the same name two different Governing Bodies started functioning; one through the Secretary Baishnab Charan Nayak and other through the Secretary Bhagaban Nayak, who has been arrayed as Opp. The Division Bench observed that the real controversy centers round the fact that by the same name two different Governing Bodies started functioning; one through the Secretary Baishnab Charan Nayak and other through the Secretary Bhagaban Nayak, who has been arrayed as Opp. Party No. 4. The Court again observed that the dispute relates to +3 Arts stream and in O.J.C. No. 1408 of 1991, the Court has already reached a conclusion that Baishnab Charan Nayak, Opp. Party No. 6, had never resigned and Bhagaban Nayak had never taken over charge as the Secretary of the Governing Body and the decision with regard to resignation of Baishnab Charan Nayak was quashed, as the resignation letter of Baishnab Charan Nayak was found to be a spurious one. 'Further, the Governing Body through Sri Baishnab Charan Nayak as the Secretary did receive an intimation from the Director, Higher Education according permission for opening of +3 classes in Arts stream. This permission had been granted pursuant to an application made by the Governing body with Baishnab Charan Nayak as its Secretary for permission to open +3 classes in Arts stream. The subsequent report of the Assistant Director (Planning) filed along with additional affidavit which suggested that the College led by Baishnab Charana Nayak should be granted concurrence for + 2 Arts stream and the College led by Bhagaban Nayak, opposite party No. 4 should be granted concurrence for +3 Arts stream was wholly misconceived, inasmuch as at no point of tine there was any dispute with regard to +2 Arts stream and admittedly the Governing body with Baishnab Charan Nayak as Secretary has been approved by the State Government to be the Governing Body of the +2 College. Since two sets of statutory Rules are operating, one for the +2 College and the other for +3 Degree Colleges, it is reasonable to accept that there would be two Governing bodies, one in charge of +2 College and the other for +3 College and there is no bar for approval of same set of Governing body for both the Colleges. The further observation is that the Governing body with Sri Baishnab Charan Nayak has already been approved and granted recognition for opening of a Junior College and when the same set of Governing body applied for opening of + 3 classes in Arts stream and sent the proposal for approval of the Government with Baishnab Charan Nayak as the Secretary, the education authorities called upon the Governing body to have another person as Secretary and one Natabar Naik has been suggested as Secretary. The Court held that in view of the conclusion of the Court in O.J.C. No. 1408 of 1991, it is crystal clear that initially it is the Governing Body with Baishnab Charan Nayak as its Secretary which had sought for approval of the institution and had sent the proposal to open +3 classes in Arts stream in the name of Korua Womens' College and it is merely on the basis of a fictitious resignation letter of said Baishnab Charan Nayak, the State Government took the decision to approve the Governing body with Bhagaban Nayak as the Secretary. In the aforesaid premises, the Court observed in that Writ Petition that the inter se dispute between the two sets of Governing Bodies, one with Baishnab Charan Nayak as Secretary and the other with Bhagaban Nayak as Secretary has to be resolved in respect of +3 Arts stream. The Court in the aforesaid Writ Petition observed and directed as under: "From the Available materials on record, though prima facie, we are satisfied that the institution with the Governing Body having Baishnab Charan Nayak as Secretary made the application for approval of opening of Plus III Arts classes and, in fact, the Directorate issued approval at the earlier point of time, but the final decision lies with the State Government and the State Government has not applied its mind to the relevant and germane considerations which has resulted in ultimate decision vitiated. We would accordingly call upon the State Government to consider the question of grant of concurrence to the Korua Womens' College having its Governing Body with Baishnab Charan Nayak as the Secretary in respect of Plus III Arts stream provided the Government is satisfied that the said College has all the pre-requisites and necessary infrastructures for having the Degree College. We would accordingly call upon the State Government to consider the question of grant of concurrence to the Korua Womens' College having its Governing Body with Baishnab Charan Nayak as the Secretary in respect of Plus III Arts stream provided the Government is satisfied that the said College has all the pre-requisites and necessary infrastructures for having the Degree College. The Government may also think of according concurrence in favour of the other Governing body with Bhagaban Nayak as its Secretary in respect of the Degree College with an altered name, as suggested by the Assistant Director (Planning), if that College also satisfied the pre-conditions for opening of a Degree College." Emphasis supplied. 9. In view of the clear observations and findings of this Court in the earlier Writ Petition, there cannot be any controversy as to whether there was one College or two colleges in the same name or as to who was the real Secretary of the Governing Body. In OJC No. 8761 of 1993 by judgment dated 8.3.1995 the State Government wad directed to consider the question of grant of recognition to the Korua Women's College having its Governing Body with Baishnab Charan Nayak, Opp. Party No. 6 as Secretary in respect of + III Arts stream, provided the Government was satisfied that this College has all the pre-requisites and necessary infrastructure for having the Degree College. The Court also observed that the Government may also think of according concurrence in favour of the other Governing Body with Bhagaban Nayak as its Secretary in respect of the Degree College with an altered name if that college satisfies all pre-conditions for opening of a Degree college. 10. The Prescribed Authority-cum-Additional Director, Higher Education, in his officer order dated 18.3.1997 (Annexure-17) had communicated the decision of the Committee refusing to grant permission for establishment of Korua Womens' College (Degree College (+3)) for the reasons that (i) there is no educational need for establishment of a second Degree College in the Block and (ii) the available infrastructural facilities are inadequate for establishment of a Degree College. The Management of the College carried an appeal before the Minister, Higher Education under Sub-section 8 of Section 5 of the Orissa Education Act, 1969 (hereinafter called the "Act"). The Management of the College carried an appeal before the Minister, Higher Education under Sub-section 8 of Section 5 of the Orissa Education Act, 1969 (hereinafter called the "Act"). The appellate authority on hearing the parties, has allowed the appeal granting permission for establishment of a Degree College from the year 1996-97, named Korua Womens' College. This petitioners allege that the appellate order is illegal and arbitrary. It is submitted that since there is no adequate infrastructure, the appellate authority could not have allowed the appeal and granted permission to the College. A perusal of the impugned order indicates that the appellate authority taking note of the observation made in the judgment of this Court in O.J.C.No. 8761 of 1993 found that the College has already been granted permission for establishment as laid down in the letter and the instruction issued by the educational authorities. 11. Chapter II of the Orissa Education Act makes provision for regulating the establishment, management and control of educational institutions. Section 5 of the Act prescribes the manner and mode of establishment of a private educational institution. It requires that any person or body of persons intending to establish a private educational institution is to make an application to the prescribed authority within the prescribed period and in the manner prescribed for grant of permission therefor. Sub-section (5) requires the prescribed authority to scrutinize each of the applications, consider the applications which are found complete in all respect and which have been made in conformity with the Act and the Rules made therein and after making such enquiry as may be necessary, make a report in respect of each application with his recommendation which in turn is to be placed before the Committee constituted by the State Government to consider such application along with reports for grant of permission. The committee on consideration of such report, if satisfied that there is an educational need of the local area justifying the establishment of an educational institution and other conditions laid, may accord permission subject to conditions to be fulfilled by such agency. 12. In the present case, the original authority being the Committee, which had refused permission, the appellate authority, i.e., the Minister, could exercise all the powers that could be exercised by the Committee constituted, by the Government. 12. In the present case, the original authority being the Committee, which had refused permission, the appellate authority, i.e., the Minister, could exercise all the powers that could be exercised by the Committee constituted, by the Government. In the impugned order of the Minister, it has been made clear that the educational agency is to comply with and fulfill all the conditions envisaged under law as well as the conditions in the order. So far as grant of permission is concerned, it is clear from the order passed by this Court in Writ Petitions, referred to above, that permission was granted to the institution with conditions and stipulations requiring the College to fulfill the same. In such view of the matter, the decision of the appellate authority in according permission for establishment of the College cannot be faulted specially when the appellate authority has specifically directed that the College shall comply with all the conditions and requirements of law. It is relevant to notice Section 6 of the Act requiring the recognition of an educational institution. A pre-condition for grant of recognition is establishment of the College with prior permission under the Act. Sub-section (4) requires the prescribed authority to scrutinize the application, inspect or cause an inspection of the educational institution in respect of which recognition has been applied for and then make a report with his recommendation to be placed before the Committee constituted by the State Government in that behalf. Under Sub-section (6), the Committee is to consider the application for recognition together with the report and recommendation of the prescribed authority. The Committee can also call for additional information or cause further inspection, if necessary. It may either grant recognition or temporary recognition with or without conditions or may reject the application for reasons to be recorded. 13. In view of the provisions of Sections 5 & 6, as discussed in the foregoing paragraphs, it is manifestly clear that the educational authorities even after permitting establishment of an educational institution may ultimately refuse to grant recognition if such institution does not fulfill the conditions laid under the rules or the conditions given in the letter of permission itself. In view of the provisions of Sections 5 & 6, as discussed in the foregoing paragraphs, it is manifestly clear that the educational authorities even after permitting establishment of an educational institution may ultimately refuse to grant recognition if such institution does not fulfill the conditions laid under the rules or the conditions given in the letter of permission itself. In the case at hand, the Minister, Higher Education as the appellate authority has only directed grant of permission for establishment of the college subject to fulfillment of conditions laid in the Act, the Rules made thereunder and the conditions imposed while granting permission. The recognition of the institution will obviously depend on fulfillment of the conditions and the requirements of law. 14. In any view of the matter, we do not find any merit in the Writ Application to interfere at this stage with the impugned order. However, we dispose of the Writ Application with the observation that the educational authorities while considering the grant of recognition shall conduct an enquiry to find out as to whether the College in question has fulfilled the conditions like providing adequate accommodation, necessary infrastructure and has appointed qualified teaching and non-teaching staff to be eligible for grant of recognition. The Writ Application is disposed of in the aforesaid terms. N. Prusty, J. 15. I agree.