JUDGMENT Dr. B.R. SARANGI, J. - The governing body of Khunta Mahavidyalaya, Khunta has filed this application to quash the order passed by the Director Higher Education, Odisha, opposite party no.2, which was communicated to the petitioner vide memo dated 04.08.2001 in Annexure-4, whereby the appeal preferred by Surya Narayan Singhbabu and six others, namely, opposite parties no. 3 to 9, has been allowed and direction has been issued that the services of opposite parties no. 3 to 9 were not terminated and the governing body of the college should allow them to resume their duty with immediate effect. 2. The petitioner, governing body is constituted and is functioning in accordance with the provisions of the Orissa Education Act, 1969 and Rules framed thereunder and, as such, the same was registered under the Societies Registration Act. Due to financial crisis, the college could not function till 1990. The educational agency applied under Section 5 of the Orissa Education Act to opposite party no.1 for grant of permission for establishment of the college from the session 1991-92, which was granted. Thereafter, the college in question after getting concurrence from the State Government, as well as affiliation from the Council of Higher Secondary Education, Orissa started functioning from the session 1991-92. For management of the institution, governing body was constituted, which was duly approved by the Director, Higher Education, Orissa from time to time. 2.1. The petitioner institution is a recognized educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969. Consequentially, it has to follow the provisions contained under the Orissa Education Act and Rules framed thereunder. When the college was functioning in accordance with the rules framed by the State Government, notice was served on the governing body by the Director Higher Education, Orissa, opposite party no.2 directing the governing body to appear before him in the matter of appeal filed by opposite parties no. 3 to 9, as per the orders passed by this Court in OJC No. 1831 of 1999. The petitioner had no knowledge about the writ application filed by the opposite parties no. 3 to 9 before this Court, since no notice was served by this Court. On enquiry, the petitioner could came to know that the opposite parties no. 3 to 9, as per the orders passed by this Court in OJC No. 1831 of 1999. The petitioner had no knowledge about the writ application filed by the opposite parties no. 3 to 9 before this Court, since no notice was served by this Court. On enquiry, the petitioner could came to know that the opposite parties no. 3 to 9 had filed a writ application before this Court challenging the action of the governing body to the effect that they, having been appointed by the governing body, were prevented to discharge their duties, therefore, prayed for a declaration that the action of the petitioner preventing the opposite parties no. 3 to 9 to discharge their duty as illegal and further sought for reinstatement in service. Vide order dated 15.12.1999, since there was availability of alternative remedy, this Court directed the Director Higher Education to consider the appeal within a period of two months from the date of communication of the order of this Court. Consequentially, the Director instituted the appeal and in compliance of order passed by this Court in OJC No. 1831 of 1999, took up the appeal and consequentially issued notice to the petitioner. The petitioner contended that opposite parties no. 3 to 9 were appointed by the Secretary of the approved governing body of the college, but they voluntarily deserted their posts for which they ceased to be the employee of the college. As such, opposite parties no.3 to 9 were never prevented by the management from discharging their duties nor were their services terminated, rather they had voluntarily abandoned their services. But the Director did not believe the contention of the petitioner stated inter alia that there is nothing on record to prove the allegation made by the Secretary of the governing body against willful abandonment of service by the opposite parties no. 3 to 9. Assuming that the opposite parties no. 3 to 9 had voluntarily remained absent from duty, it is not understood as to what prevented the management from issuing formal order of termination. The orders of termination were not issued and served on the opposite parties no. 3 to 9 in order to deprive them of any opportunity to make appeal before the prescribed authority against such termination. Therefore, the Director disbelieved the contention of the petitioner regarding voluntary abandonment of service by the opposite parties no. The orders of termination were not issued and served on the opposite parties no. 3 to 9 in order to deprive them of any opportunity to make appeal before the prescribed authority against such termination. Therefore, the Director disbelieved the contention of the petitioner regarding voluntary abandonment of service by the opposite parties no. 3 to 9 and allowed the appeal and directed the petitioner to allow the opposite parties no. 3 to 9 to resume their duties with immediate effect. Hence this writ application. 3. Mr. D.N. Rath, learned counsel for the petitioner though argued the matter on merits, but Mr. S. Jena, learned counsel for opposite parties no. 3 to 9 raised a preliminary objection with regard to the maintainability of the writ application at the instance of the present petitioner and contended that the governing body of the college, who had filed this application, has no locus standi, in view of the fact that the said governing body was constituted on 04.08.1997 and, after three years, its tenure expired on 03.08.2000. As the writ application was filed by the said governing body on 21.12.2001, at the instance of such defunct governing body, the writ application is not maintainable. 4. Mr. D.N. Rath, learned counsel for the petitioner contended that in view of the provisions contained under Section 7(6) of the Orissa Education Act, the prescribed authority can allow the governing body, whose term has been expired. It is further contended that in view of sub-Section (4) of Section -7, even if the tenure of the governing body is three years, but the same can continue till its reconstitution in accordance with Rule 25 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991, if the prescribed authority allows to continue. 5. In view of the preliminary objection being raised by Mr. S.Jena, learned counsel appearing for opposite parties no. 3 to 9, this Court considered it to be decided as a preliminary question instead of going to the merits of the case. In the event the maintainability of the writ application at the instance of the present petitioner is allowed, then the Court may consider the merits of the case. 6. This Court heard Mr. D.N. Rath, learned counsel for the petitioner, Mr. B. Senapati, learned Addl. Government Advocate and Mr. S. Jena, learned counsel appearing for opposite parties no. 3 to 9. 6. This Court heard Mr. D.N. Rath, learned counsel for the petitioner, Mr. B. Senapati, learned Addl. Government Advocate and Mr. S. Jena, learned counsel appearing for opposite parties no. 3 to 9. Pleadings having been exchanged, the matter has been heard and disposed of at the stage of admission by giving opportunity of hearing to all the parties. 7. The facts, delineated above, are admitted. So, on that basis, the question of maintainability is to be taken as preliminary objection raised by the opposite parties no. 3 to 9 for just and proper adjudication of the case. The relevant provisions of the Orissa Education Act, 1969 are quoted below:- “7. Managing Committee or Governing Body of the educational institution- Xx xx xx (4) A Managing Committee or the Governing Body, as the case may be, shall continue in Office for a term of three years from the date of its approval by the Prescribed Authority under Sub-sec.(2) and shall be reconstituted in accordance with the rule. Xx xx xx (6) The Prescribed Authority may allow the Governing Body or the Managing Committee, as the case may be, whose term has expired under sub-sec. (4) or Sub-sec.(2) of Section 7-A to continue in office till the Governing Body of the Managing Committee is reconstituted or appoint any person or persons to exercise the powers and discharge the functions of the Governing Body or the Managing Committee during the intervening period: Provided that the State Government may reconstitute the Governing Body or the Managing Committee, as the case may be, not withstanding that the term of such Governing Body or Managing Committee has not expired on such reconstitution, the existing Managing committee or Governing Body, as the case may be, shall stand dissolved.” Rules 25 and 26 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991, which are also relevant for the purpose of answering the question raised in this case, read thus:- “25. Governing Body of Aided Colleges – (1) Notwithstanding anything contained in these Rules as soon as the College becomes an aided College, the Governing Body of the college shall be reconstituted in the following manner: (i) a person interested in that field of education who may be nominated by the government or, in the absence of such nomination, the Collector/Additional District Magistrate/ Sub Collector or concerned District/Sub-division in which the College is situated shall be the President; (ii) the Principal or the teacher I charge of the Principal of the college shall be a member, who shall be the ex-officio Secretary. (iii) two senior most teachers of the College shall be members, of whom, one shall be woman and on the event no woman member is available, the membership shall remain vacant till a woman teacher is posted. (iv) one member shall be elected by, and from among the non-teaching staff; (v) local Member or Legislative Assembly of his/her nominee shall be a member; (vi) the Chairman/Chairperson of Panchayat Samiti/Urban Local Body having the local jurisdiction over the College, as the case may be, shall be a member; (vii) one person shall be nominated by the local Member of Parliament as member; (viii) one person shall be nominated by the Vic- Chancellor of the University having jurisdiction, who shall be a woman; (ix) one person shall be nominated as member by the Director, Higher Education, who shall be a woman; (x) five persons shall be nominated by the President referred to in clause (i), shall be members, of whom, one shall be Donor who donates more than fifty thousand rupees or in absence of a Donor of a person having interested in field of education, one person shall be belonging to the Scheduled Castes or Scheduled Tribes community, one person shall be belonging to the minority community and two shall be women. (2) The Constitution of the Governing Body and any change in the membership shall be intimated by the Secretary of the Governing Body to the Director. (2) The Constitution of the Governing Body and any change in the membership shall be intimated by the Secretary of the Governing Body to the Director. (3) The Director, on receipt of the intimate from the Secretary may either approve the list or suggest changes, with reasons within thirty days from the date of its receipt: Provided that if no communication is received from the Director in this regard within a period of thirty days, it shall be deemed to have been approved: Provided further that change, if any, suggested by the Director shall be considered by the President of the Governing Body who shall re-submit the list either accepting the change or not, to the Director, within fifteen days from the date of receipt of the Communication, after which the Director shall approve the same. Provided also that no meeting of the Governing Body convened during the intervening period (from the date of intimation till the date of ratification) by the Director, shall be invalid for the reason of any vacancy in the membership or any defect in the constitution of the Governing Body. “26. Duty of the outgoing Secretary of a Governing body – Until the Governing Body of the aided College has been reconstituted by the Director in accordance with these Rules, the existing Governing Body of the College shall continue to function. Provided, however: that as soon as the College becomes an aided college, the Secretary of the existing Governing Body shall cease to hold the office as such and the Principal of the college in his ex officio capacity shall become the Secretary of the Governing Body and shall discharge all the functions of the Secretary: Provide further that the outgoing Secretary shall continue to be a member of the Governing Body until its reconstitution.” 8. Sub-section (4) of Section 7 of the Odisha Education Act, 1969, as extracted hereinabove, fixed a time limit for functioning of the governing body. Meaning thereby, the governing body shall continue in Office for a term of three years from the date of its approval by the prescribed authority. The “prescribed authority” has been defined under Section 3(m)(m-1) to mean, the authority to be notified by the State Government from time to time in the official Gazette. Meaning thereby, the governing body shall continue in Office for a term of three years from the date of its approval by the prescribed authority. The “prescribed authority” has been defined under Section 3(m)(m-1) to mean, the authority to be notified by the State Government from time to time in the official Gazette. In the present case, the Director has been notified as the prescribed authority, on whose approval the governing body is constituted/re-constituted in accordance with the Rules. Under Rule-25 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991 (in short “Rules, 1991”) the governing body is to be constituted. Under Rule-26, the duty of the outgoing Secretary of the governing body has been mentioned. Until the governing body of the aided College has been reconstituted by the Director in accordance with the Rules, the existing governing body of the College shall continue to function, provided however, that as soon as the College becomes an aided college, the Secretary of the existing Governing Body shall cease to hold the office as such and the Principal of the college in his ex officio capacity shall become the Secretary of the Governing Body and shall discharge all the functions of the Secretary, provided further that the outgoing Secretary shall continue to be a member of the governing body until its reconstitution. 9. Admittedly, in the present case, the governing body was constituted on 04.08.1997, the tenure of which was for a period of three years, which expired on 03.08.2000. Therefore, under Sub-section (6) of Section -7, the prescribed authority, namely, the Director was to allow the governing body, whose term expired under Sub-Section (4), to continue the Office till a new governing body is reconstituted. Therefore, the continuance of the existing governing body till reconstitution is made, shall be allowed by the prescribed authority by an express permission, but not automatically, otherwise the provisions contain in sub-section (6) of Section 7 will become nugatory. If no such express permission is granted to the existing governing body to function till reconstitution of the new governing body, then with expiry of the 3 years period, automatically the governing body becomes functus officio. If no such express permission is granted to the existing governing body to function till reconstitution of the new governing body, then with expiry of the 3 years period, automatically the governing body becomes functus officio. In absence of any order to be passed by the prescribed authority, allowing the existing governing body to continue till reconstitution, it cannot at all be said that automatically the old governing body has to continue till the new governing body is reconstituted. Rule 26 of the Rules, 1991 also contains that until the governing body of an aided college has been reconstituted by the Director in accordance with the rules, the existing governing body of the college shall continue to function, but that continuance is subject to prescribed authority allowing such governing body to continue in Office till new governing body is reconstituted and such allowing has to be done by an express permission but not automatically. If there is no express permission allowing the outgoing governing body to function, then continuance of such governing body and managing the affairs of the institution is without any authority of law. 10. Similar question had come up for consideration before this Court in Governing Body of Bahanaga College v. State of Orissa & others, 2014 (II) ILR- CUT-178. In that case, the services of the opposite party no.3 were terminated by the governing body, but the governing body was approved by the Director on 17.10.1997, wherein the opposite party no.3 in the said case was also approved as member of the staff representative. The governing body and its Secretary, whose term had already been over, could not have taken any action against opposite party no.3. Therefore, when the illegal action of termination was taken place on 15.07.2008, after expiry of the tenure of the governing body, as such, there was no governing body in the College. The said termination, being set aside, was challenged before this Court in the aforesaid case. But this Court, while deciding the matter, observed in paragraph-9 and 10 of the aforesaid judgment as follows:- “9. Admittedly, it appears that the opposite party no.3 was appointed against the First post of Lecturer in History in Bahanaga College, Bahanaga, in the district of Balasore by following due procedure of selection by the Governing Body of the College, which is the appointing authority under the provisions of Act and Rules governing the field. Admittedly, it appears that the opposite party no.3 was appointed against the First post of Lecturer in History in Bahanaga College, Bahanaga, in the district of Balasore by following due procedure of selection by the Governing Body of the College, which is the appointing authority under the provisions of Act and Rules governing the field. The then Secretary appointed one Sri Surendra Kumar Das who happens to be his bother as against the 2nd post of Lecturer in History even though the same was not permissible as per the workload prescribed at the relevant point of time. In order to facilitate the said Sri Surendra Kumar Das to continue in the First post of Lecturer in History to receive grant-in-aid, the then Secretary took such step against the opposite party no.3 for his termination. The term of the Governing Body, which was constituted on 27.10.1997, has expired on 26.10.2000 after completion of three years. After expiry of the term of the Governing Body, the outgoing Governing Body continued to function and manage the affairs of the College without any authority of law. 10. On perusal of Section 7(5) and Section 7(6) of the Orissa Education Act, it appears that after expiry of the term of the existing Governing Body, the Governing Body shall be continued in accordance with Rules for carrying out the provisions of this Section as amended by the Orissa Education (Amendment) Act, 1989 within a period of one year from the date of commencement of the said Rules and every such existing Managing Committee or Governing Body shall cease to continue in office on and from the date on which it is so reconstituted. Therefore, applying the ratio decided by this Court in FAO No. 133 of 2005 disposed of on 07.01.2010, it is stated by the date of termination of the service of opposite party no.3, the outgoing Governing Body was in Management, the Governing Body not being reconstituted, the order of termination is wholly and fully justified. This contention cannot hold good in view of the fact that it is admitted case that there is no approved Governing Body continuing at the relevant point of time after expiry of the period of reconstitution and the petitioner-Governing Body was allowed to function in conformity with the provisions of law. This contention cannot hold good in view of the fact that it is admitted case that there is no approved Governing Body continuing at the relevant point of time after expiry of the period of reconstitution and the petitioner-Governing Body was allowed to function in conformity with the provisions of law. Therefore this Court is of the view that the reliance placed on the order dt.07.01.2010 passed in FAO No. 133 of 2005 is based on its own facts and circumstances of that case and the same is not applicable to the present context.” 11. Applying the said principle to the present context, it appears that the governing body of the instant case was approved by the Director of Higher Education on 04.08.1997 and, on expiry of three years period, its tenure was over on 03.08.2000. The present writ application was filed on 21.12.2001, when the governing body was not in existence and its tenure had already been expired. But subsequently, the governing was reconstituted on 26.03.2002. Therefore, prior to the reconstitution of the governing body, the present writ application was filed. Thereby, at the instance of a nonexistent governing body, the present writ application has been filed. In such circumstances, this Court is of the considered opinion that the petitioner, who is a non-existent governing body, is not competent and had no authority to take a decision and participate in the proceeding by filing the instant writ application and, as such, at its instance, the writ application is not maintainable. 12. Since this Court holds that at the instance of the present petitioner the writ application is not maintainable, this Court now refrains from going into the merits of the writ petition, which thus stands dismissed as not maintainable. There shall be no order as to costs. Petition dismissed.