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2012 DIGILAW 470 (ORI)

Jitindranath Das v. State of Orissa

2012-10-18

SANJU PANDA

body2012
JUDGMENT SANJU PANDA, J. : In this writ petition, the petitioner as the Secretary of the Governing Body of Santilata Mahavidyalaya, Utikiri in the district of Balasore has challenged the Notification No.20496 dated 1.7.2009 issued by the Commissioner-cum-Secretary to Government, Higher Education Department-opposite party No.1 treating the petitioner’s College as Sanitalata Degree Mahavidyalaya, Utikiri under Section 3 of the Orissa Education Act (hereinafter referred to as “the Act”) though the said institution is recognized as Santilata Mahavidyalaya, Uitikiri from its inception. 2.With a view to uplift the educational standard of the area, the local people wanted to establish a College. Accordingly, the College was established in the name and style “Sanitilata Mahavidyalaya, Utikiri” in the year 1980 with Intermediate Arts Course. The institution obtained concurrence from the State Government from the academic session 1981-1982 as an Intermediate College and also obtained affiliation from Utkal University vide order dated 16.4.1983 from the Session 1982-1983. Subsequently, on introduction of 10+2+3 Courses, the institution also got affiliation from the Council of Higher Secondary Education Orissa 27th July, 1983. The Governing Body of the College was constituted and approved in accordance with the provision of the Management of Private College Rules, 1979. While the college was continuing as such, the Governing Body made an application to the State Government for grant of permission to open +3 Degree Courses in the said College. Accordingly, the authority accorded permission for opening of the Degree Courses (+3) on 25.6.1987. Utkal University extended affiliation to the said Courses on 15.2.1988 for the session 1987-1988. Accordingly, the College has been functioning with +2 and +3 Courses under one premise, one boundary and one administration with one set of teaching personnel. While the College was continuing as such, the Governing Body of the petitioner’s College approached this Court in O.J.C. No.347 of 1989 and O.J.C. No.880 of 1991. Pursuant to the order passed by this Court, the State Government extended benefit of Grant-in-Aid in favour of the employees, who were continuing against 1st posts, against which posts concurrence and affiliation had been granted by the competent authorities so far as +2 Courses are concerned vide Letter dated 9.3.1991. The institution also obtained permanent recognition from the Regional Director of Education for Degree Classes in February, 2004 vie Notification dated 21.12.2004. The institution also obtained permanent recognition from the Regional Director of Education for Degree Classes in February, 2004 vie Notification dated 21.12.2004. From the only correspondence made by the competent authority to the College it reveals that the College was established in the name and style “Sanitilata Mahavidyalaya” at Utikir after establishment of Fakir Mohan University and the college has been functioning under the said University. The University allotted code number to the College as 120B. While the matter stood thus, the Orissa Education Act was amended providing Junior College i.e. a College imparting +2 Courses and a College imparting +3 Courses separately. The amendment was prospective in nature and under the amending provision of the Act, grant of permission was provided. Accordingly the institutions, which were seeking permission to establish +2 and +3 institutions after the amendment, were to apply separately. However, the institutions which were in existence prior to the amendment, such institutions are functioning as such. There is no provision for separating the existing college into two colleges i.e. for +2 Courses and +3 Courses. The Director, Higher Education in the case of Pradip Kumar Panda v. Sambalpur University and others in W.P.(C) No.3930 of 2006 filed an affidavit on 11.4.2008 stating, inter alia, that out of 364 of such composite existing colleges imparting +2 as well as +3 courses under one banner in the State of Orissa, the name of the petitioner’s college is found place at Sl.6 thereof. While the matter stood thus, the State Government amended the Grant in-in-Aid order, 1994 and introduced Grant-in-Aid order 2004, 2008 and 2009 in order to bring the employees of the aided institutions, who are not paid their salary because of paucity of fund of the State Government and some other institutions which are eligible to be notified as aided educational institutions under the Block Grant fold. The petitioner’s institution having composite status as stated above, is therefore, eligible to receive Grant-in-Aid for its teaching and non-teaching staff, who were appointed against 1st posts and who were appointed pursuant to the workload as prescribed by the State Government as well as the Council and the University. Accordingly, communication was made by the Director, Higher Education Orissa in its letter dated 27.12.2008 for verification of the teaching and non-teaching staff of the institutions. Accordingly, communication was made by the Director, Higher Education Orissa in its letter dated 27.12.2008 for verification of the teaching and non-teaching staff of the institutions. Pursuant to the said communication, the petitioner's College also submitted all the papers/particulars of teaching and non-teaching staff for necessary verification for the purpose of payment of their salary component. However, the authorities have not verified such documents. Therefore, the petitioner’s institution approached this Court in W.P.(C) No.5889 of 2009 seeking a direction to the opposite parties to cause verification of the documents. This Court while disposing of the aforesaid writ petition on 21.4.2009 directed the authority to cause verification of the records with a stipulation that if on such verification, the petitioner’s institution is found to be eligible to Grant-in-Aid, necessary recommendations are to be made to the opposite party No.1-State Government by the Director for release of Grant-in-Aid. Accordingly, the Regional Director of Education recommended the employees of the petitioner’s institution for approval of the competent authority to release the Block Grant in terms paragraph-3 of the Grant-in-Aid Order, 2004 vide impugned notification and petitioner’s institution name was indicated as Santilata Degree Mahavidyalaya in stead of Santilata Mahavidyalaya, hence the writ petition to extend such financial benefit in favour of the institution. 3.A counter affidavit has been filed by the opposite parties 1 and 2 taking a stand that two sets of rules have been framed for establishment, recognition and management of +2 private colleges and +3 private colleges in the year 1991 by repealing the earliest rules as per section 27 of the Orissa Education Act, 1969. The said rules are as follows : (i)The Orissa Education (Establishment, Recognition and Management of Private Junior Colleges/Higher Secondary Schools) Rules, 1991; (ii)The Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991; As per the said notification, under Section 3(i-1), Junior College means an educational institution imparting instruction in Higher Secondary course as defined in Orissa Higher Secondary Act, 1982. However, the staffing pattern and its base are decided with reference to separate identity of +2 (Junior) College and +3 (Degree) Colleges and in view of that one educational agency may establish +2 College and +3 College in one campus but their Governing Bodies should be different to cater their respective needs and as such there exists no rule for management, establishment and recognition of composite colleges in Orissa. Therefore, existence of composite college is contrary to the statutory provisions. Government order was issued in accordance with the relevant provision of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991 and subsequently its amendment Rules, 2001. Therefore, the action of the Government directing for treating +3 (Degree) wing of Santilata Mahavidyalaya, Utikiri as a separate wing and constitution of a separate Governing Body for the same is not illegal and arbitrary and the allegations of the petitioner are unfounded and denied. 4.Further, the Governing Body in respect of +3 (Degree) wing of Santilata Mahavidyalaya, Utikiri in the district of Balasore has been registered separately under the provisions of Societies Registration Act, 1860 vide Registration No.BLS-4817-27/1994-1995. It shows that +3 (Degree) wing of the aforesaid College is having a separate entity and identity. Therefore, both the courses are separate, which cannot be said that Santilata Mahavidyalaya, Utikiri with +2 and +3 wings is composite in nature. During the year 1989-1990 the Government after appreciating the National Policy of Education have issued a Resolution vide Letter No.33506/EYS, dated 31.7.1989 wherein it was decided to differentiate the +2 Colleges (Junior Colleges) from +3 Colleges (Degree Colleges) in the State in accordance with the recommendation made in the National Policy of Education, where it was specifically mentioned how to separate +2 wings. Accordingly, the opposite parties have verified the records and notified the petitioner’s College under impugned notification to receive Grant-in-Aid in shape of Block Grant to its eligible employees with effect from 1.1.2004 as per the Grant-in-Aid order, 2004. Accordingly they prayed for dismissal of the writ petition. 5.One Shantilata Jena filed an application numbered as Misc. Case No.7369 of 2010 with a prayer to implead her as opposite party No.4 stating therein that she has filed a Case bearing Grant-in-Aid Case No.330 of 2009 before the State Education Tribunal against the inaction of the State functionaries for not verifying the records of the staff members of the Degree College and the same is subjudice. Therefore, the intervenor-opposite party No.4 be heard in the writ petition. Accordingly the intervenor was also heard in the matter. 6.From the above narration of facts, it appears that the College was established in the year 1980 in accordance with the statutory provision. Therefore, the intervenor-opposite party No.4 be heard in the writ petition. Accordingly the intervenor was also heard in the matter. 6.From the above narration of facts, it appears that the College was established in the year 1980 in accordance with the statutory provision. Initially +2 wings were recognized and the degree courses i.e. +3 wings were also established by the same Governing Body after obtaining permission from the competent authority in the year 1987-88. Both +2 and +3 wings are continuing in one premises having one set of teaching and non-teaching staff as per the provision of the Orissa Education Act and Rules. While the matter stood thus, two separate rules i.e. The Orissa Education (Establishment, Recognition and Management of Private Junior College/Higher Secondary Schools) Rules, 1991 and The Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991 were introduced by the State Government for establishment, recognition and management of Private Junior College and +3 Private College separately for smooth management and functioning of the college by way of amendment and the same were came into existence after the rules were published in the official gazette. Thereafter, it reveals from the record that all correspondences were made with the opposite parties by the institution as well as by the opposite parties with the institution vice-versa in the name of Santilata Mahavidyalaya, Utikiri, Balasore. However, more than 300 institutions are still continuing as such even after 1991 when the aforesaid two rules came into force. The said facts find corroboration from the affidavit filed by the Director, Higher Education before this Court in W.P.(C) No.3930 of 2006. The Director has also stated that the existing Colleges are still imparting +2 as well as +3 courses in one banner till 2008. 7.Rule 16 of the Orissa Education (Establishment, Recognition and Management of Private Junior Colleges/Higher Secondary Schools) Rules, 1991 specifies regarding Old Institutions and under Chapter-IV, Transitory Provisions are provided under Rule 20 and onwards regarding approval of an institution which has already been established, application for recognition of an institution which has already received the approval, application pending for recognition and also Chapter-V stipulates regarding constitution of the Governing Body, approval of the Governing Body and reconstitution of the Governing Body. Likewise, under Chapter-IV of The Orissa Education (Establishment, Recognition and Management of Private Colleges), Rules, 1991, Transitory Provisions stipulates regarding approval of a college which has already been established and application for recognition of a College which has already received the approval. Chapter-V of the said rule stipulates regarding management, constitution of the Governing Body, approval of Governing Body, reconstitution of the Governing Body, approval of the reconstituted Governing Body and Governing Body of Aided College. It also appears from the rules that constitution of Governing Body of the private Junior College with that of the private College is slight different from each other before those colleges received permission and were accorded recognition and approval, after the institution received Grant-in-Aid. 8.The above rules came into existence since 1991. From the assertions made by the petitioner as well as in the counter affidavit filed by the opposite parties do not reveal that at any point of time +2 and +3 wings were separated and two sets of management are existing to run the separate wings of the Colleges. Therefore, it can safely be concluded that the College is continuing as one institution having one management. Though a stand has been taken by the opposite parties 1 and 2 in their counter that the Governing Body in respect of +3 wings has been registered separately under the provision of Societies Registration Act, 1860 vide Registration No.BLS-4817-27/1994-1995, but not a piece of paper is produced before this Court regarding establishment, permission and recognition obtained by the said body or the opposite parties 1 and 2 have ever made correspondences with them for smooth functioning of the College. However, the intervenor has filed a case before the State Education Tribunal i.e. G.I.A. Case No.330 of 2009 which is still pending. It is open to the parties to establish their case on its own merit. Though the State Government issued resolution dated 31st July, 1988 to separate +2 wings as Junior Colleges, there are many such colleges existing and imparting +2 as well as +3 courses in one banner under one management in one premises in the State of Orissa till 2008. The petitioner’s college is one of such existing colleges and at no point of time +2 and +3 wings have been separated. The petitioner’s college is one of such existing colleges and at no point of time +2 and +3 wings have been separated. 9.In the above backdrop of the facts of the case, the opposite party No.1 has notified 13 number of Private Educational Institutions as Aided Educational Institutions to receive block grant in terms of the provision of paragraph-3 of the Grant-in-Aid order, 2004 under the heading of list of 13 Degree Private Educational Institutional and petitioner’s institution was at Sl. No.1. However, they have reflected the name as Shantilata Degree Mahavidyalaya, Utikiri, though there is no existence of such Shantilata Degree Mahavidyalaya, Utikiri, rather it was Santilata Mahavidyalaya, Utikiri. Therefore, this Court directs the Secretary, Higher Education Department-opposite party No.1 to correct the notification dated 1st July, 2009 in respect of name of petitioner’s institution as Shantilata Mahavidyalaya, Utikiri in place of Shantilata Degree Mahavidyalaya, Utikiri and release block grant to the staff, whose services have been approved by the opposite parties. With the above observation the writ petition is disposed of. Petition disposed of.