Orissa High Court
Managing Committee Of Biswanath Dev ... vs State Of Orissa And Others on 10 February, 2017
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No. 2493 of 2016
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Managing Committee of Biswanath Dev
High School, Jagannathpur, represented
through its Secretary
Shri Bichitrananda Panda ...... Petitioner
-Versus-
State of Orissa and others ...... Opp. Parties.
For Petitioner : M/s. K.K.Swain, P.N.Mohanty and
B.Jena, advocates.
For Opp. Parties : Mr.B.Rout, learned Standing
Counsel for the Department of School
and Mass Education.
PRESENT:
THE HONOURABLE SHRI JUSTICE D.Dash
Date of hearing - 03.01.2017 : Date of judgment -10.02.2017
The petitioner has filed this writ application challenging the
order 4.1.2016 passed by the opp.party no.2, Director, Secondary
Education, Odisha refusing to grant recognition to the school from the
academic session 2013-14 on the ground stated therein.
It is pertinent to mention here that the petitioner had earlier
approached this Court in the matter by filing a writ application numbered
2
as W.P.(C) No. 10439 of 2013. By order dated 13.12.2013, this Court
considering the submission of the parties had disposed of the writ
application with a direction to consider the application filed by the
petitioner for review of the order of refusal of grant of recognition passed on
10.102013 and for appropriate order by giving opportunity to the petitioner
and for its disposal accordingly.
The present order under Annexure-11 has been passed upon
that review application. But one important aspect has to be noted that
when this Court in W.P.(C) No. 10439 of 2013 had directed for
consideration of the application filed by the petitioner in the matter of grant
of recognition for reviewing the earlier order dated 10.10.2013, the present
order on the said review application has been passed by the Director.
The Director being asked by the High Power Committee
constituted under section 6 (4) of Odisha Education Act, 1969 (hereinafter
called as 'the Act') has assumed the jurisdiction in passing the order.
For proper appreciation of the matter, the order in question is
noted herein below:-
"While disposing of the W.P.(C) No. 10439/2013 filed by the
Managing Committee of Biswanath Dev High School,
Jagannathpur, Pipili under Dist. Puri, the Hon'ble High Court,
Odisha vide their Order dtd. 13.12.2013 have directed that,
review application filed against the order of refusal to grant
recognition dtd. 10.10.2013 in Annexure-3 which is pending,
be considered and pass appropriate order within six weeks
from the date of production of certified copy of this order after
giving opportunity to the petitioner.
In response to the above order of the
Hon'ble High Court, Odisha, the name of the Biswanath Dev
3
High School, Jagannathpur, Pipili, was placed before the
High Power Committee in its meeting held on 22.04.2014.
The High Power Committee authorized the Director,
Secondary Education, Odisha to give opportunity to the said
School as per direction of the Hon'ble Court and dispose of the
case.
As per decision of the High Power Committee, the
District Education Officer, Puri was asked to submit a detailed
report along with supporting documents in favour of
Biswanath Dev High School, Jagannathpur, Pipili for
consideration regarding grant of recognition of Class-VIII. The
District Education Officer, Puri has submitted the document
like Land records and staff position of the said School. The
Educational Agency was also given an opportunity for hearing.
From the land documents of the said School it is found that,
the said School does not possess valid title over its land
measuring Ac.3.00 Dec. as specified in Rule-15(b) of the Orissa
Education (E.R.M.P.H.S.) Rules, 1991.
After careful consideration, for successful
implementation of RTE Act and Rastriya Madhyamik Sikshya
Abhiyan Programme, Government in School and Mass
Education Department vide Resolution No. 14219/SME dtd.
21.06.2013have decided that, the issuance of permission and recognition of Schools will be discontinued and NOC will be granted to the Schools, who comply with the RTE/RMSA norms.
Since Class-VIII comes under RTE Act, the NOC of Class-VIII will be issued by the Director, Elementary Education.
In view of the above mentioned facts, the review application filed by the petitioner against the order dtd. 10.10.2013 of refusal to grant recognition has no merits no consideration, thus hereby is rejected. Accordingly, the order of the Hon'ble High Court, Odisha passed in W.P.(C) No. 10439/2013 is disposed of."
By the above order, the earlier order of refusal to give recognition has not been interfered with. This time the refusal has been on two grounds which are (i) that the petitioner's school does not possess valid title over its land measuring Ac.3.00 as specified in Rule 15(b) of the Odisha Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 and (ii) the circular of the State Govt. dated 4 21.6.2013 discontinuing the practice of issuance of permission and recognition of Schools and instead granting no objection certificate in compliance of RTE/RAMSA (Rastriya Madhyamik Sikhya Abhijan) norms.
2. The petitioner's case is that land measuring Ac.2.96 decimals has already been recorded in the name of the school. It is stated that land of 26 decimals although has been purchased yet not mutated in the name of the school. So, it is stated that the conclusion of the opp.party no. 2 that the school has no title over the land in question is factually incorrect and in oppostion to the documents filed under Annexures-12 and 13 series. Thus it is stated that there has been compliance of Rule 15(b) of the Management Rules and therefore, the order is said to be without basis.
As regards the next ground it is stated that the resolution dated 21.6.2013 cannot override the relevant rules contained in Odisha Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991 as also the statutory provision contained in section 6 of Act which speak of grant of recognition as a must for a High School already established getting permission so as to continue to function as such. Even accepting the position for the sake of argument, it is claimed by the petitioner that such resolution has to be prospective in its application and under no circumstance it can have retrospective operation. It is stated that the petitioner's school having already been established much prior to the issuance of resolution and it having received the permission in the year 5 2009 as required under law, the above resolution cannot be made applicable in so far as the petitioner's school is concerned and therefore, the procedure as stated in the resolution dated 21.6.2013 is not applicable for the petitioner's school but for the schools coming to establish on and from that date and thereafter.
It is further stated that opp.party no. 2 has granted recognition to one Mohanlal Girls High School, Kanpur from the academic session 2015-16, although the school had got the permission in the year 2010, that is subsequent to the grant of permission to the petitioner's school. The order is annexed as Annexure-14. Thus, it is stated that even after issuance of resolution dated 21.6.2013, since recognition has been granted to the school for the academic session 2015-16 by virtue of order dated 6.1.2016, there remains no justification in not granting the recognition to the petitioner's school. The action is therefore attacked as not only arbitrary but also discriminatory.
3. Opp.party no. 2 in the counter at para-5 has stated that the High Power Committee held on 9.7.2013 has refused to grant the recognition in favour of the petitioner's school on the grounds as (a) distance not as per RMSA norms; (b) shortage of Trained Teachers; (c) valid title over the land.
4. While considering the review application on further verification of the documents in detail, it is said that the petitioner's school does not 6 possess valid title over the land which is the condition stipulated in Rule 15(b) of Odisha Education Establishment, Recognition and Management of Private High School Rules, 1991. It is next stated that while going to consider the implementation of the RTE Act and Rastriya Madhyamik Sikshya Abhijan Programme as resolved by the State, the practice of issuance of permission and recognition of the petitioner's school having been discontinued; now no objection certificate would be granted to comply RTE/RMSA norms. Although it is not stated in clear terms that the grant of permission and recognition as required under the provision of law in force do no more stand as the requirements, yet it is stated that such has been the resolution after consideration of the matter of implementation of provisions of RTE Act and Rastriya Madhyamik Sikshya Abhijan Programme in the State. It is however stated that the said Mohanlal Girls High School, Kanpur has been granted with the recognition in compliance of the order of this Court in W.P.(C) No. 22081 of 2015 and consequent upon the decision of High Power Committee in its meeting dated 2.4.2015. It is also stated that as required under clause-f of section-2 under the RTE Act, the provision relating to the NOC upto Class-VIII has to be dealt by the Director, Elementary Education, Odisha.
5. Heard Mr. K.K.Swain, learned counsel for the petitioner and Mr. B.Rout, learned Standing Counsel for the Department of School and Mass Education.
7
I have carefully gone through the annexures which would be referred to as and when the need would so arise and more particularly, the earlier order of HPC as also the subsequent order of Director.
6. The order which has now been called in question and sought to be quashed is the order that has been passed on the review application.
In fact review is provided in section 6(10) of the Act. The order being passed by the Committee constituted under sub-section (4) of section 6 of the Act, obviously the review power remains with that very committee. The provision of section 6(10) is very clear that in such an event, the Committee after calling for such information and causing such further enquiry as may be necessary and after giving an opportunity of being heard to the petitioner shall take decision and dispose of the petition.
In fact that's what was the order of this Court in the earlier writ application. With all these, if we view the procedure adopted in this case, the same is found to be not only contrary to the statutory provision but also the order of this Court. The Committee is not permitted to delegate its statutory power to the Director, the prescribed authority under the Act assigned with different duty at different stages in the matter, to finally dispose of the matter and that's what has been done here in this case. It is the trite law that unless authorized by the statutory provision, the authority empowered to do an act cannot delegate its function in favour of another. That apart what statutory provision speaks the disposal of the 8 review application by the authority which had passed the order and then direction of this being in consonance with the same, its not permissible for the authority to ask another authority to dispose of the petition acting as its substitute and supplant its decision.
On this lone ground the order dated 4.1.2006 under Annexure-1 passed by the Director (O.P.no.2) is liable to be quashed being without jurisdiction and as such nonest in the eye of law.
For the aforesaid, the order dated 4.1.2016 passed by the opp.party no.2, Director, Secondary Education, Odisha is quashed. Consequently, it is directed that the review application be considered on its own merit afresh further taking into account the prevailing state of affairs as well as position and dispose of the same in accordance with law scrupulously following the provisions of section 6(10) of the Act.
7. The writ application is accordingly disposed of.
No order as to cost.
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D.Dash, J.
Orissa High Court, Cuttack, Dated 10th February, 2017/AKS