Orissa High Court
Pratap Kishore Misra vs State Of Orissa And Ors. on 21 August, 1987
Equivalent citations: AIR1988ORI273, AIR 1988 ORISSA 273, (1987) 2 ORISSA LR 645
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. The purported withdrawal of recognition of one Rebati Sanskrit Vidyalaya, a Sanskrit Tol and an aided school, has necessitated the filing of this petition for quashing of the same. The petitioner is the Secretary of the managing committee of the school. The facts, so far as relevant and undisputed, are that the school was founded in 1928 by the grandfather of the petitioner named after his mother and is affiliated to Shri Jagannath Sanskrit Vishvavidyalaya. The Government in the Education Department communicated a letter of 10-6-83 to the Director of Secondary Education, Orissa, opposite party No. 2, accepting the latter's proposal for de-recognition of the school and stating that the Tol was de-recognised with effect from 1-6-1982.
2. Assailing such decision of the State Government, Dr. S. C. Dash, learned counsel appearing for the petitioner, has urged the order to be without jurisdiction as being not contemplated under any statute; the principles of natural justice having not been followed inasmuch as no notice to show cause has been issued before such a decision was taken; the order being violative of the provisions of the Orissa Education (Establishment and Recognition of Private High Schools) Rules, 1979 (for brevity 'the Rules') having not complied with the required procedure under the rules if at all such rules are held applicable; and that the order is also mala fide having been passed upon a report of the opposite party No. 4 whose mala fide conduct had been established in a departmental enquiry. A counter-affidavit has been filed by opposite parties 1 to 3 disputing such contentions and explaining that the order of de-recognition has been passed since there was no managing committee of the school; the school did not have a building of its own; the teachers were not present at the time of inspection, and hence it was recommended for abolition. A rejoinder affidavit has been filed by the petitioner refuting such assertions in the counter-affidavit and bringing out from the inspection report of the Administrative Officer (Schools) in the office of the D.P.L the motivated actions of opposite party No. 4 as found by him and also showing from the inspection report of another Assistant Superintendent of 21st March 83 (Annexure-5) the non-mention of anything regarding the school being not housed in a building as also from another inspection report of 3-5-80 (Annexure-7) that the managing committee had provided a house for the institution and that the house of the institution should be repaired soon. It is the further case of the petitioner that the building of the school had been ravaged by the flood of 1980 and was completely damaged by the cyclone of June and thereafter again by the flood in Sept., 82. A new building was under construction which had been delayedon account of Government grant being misplaced at the disposal of the B.D.O. Patkura instead of B.D.O., Marshaghai. The communication from the Panchayat Samiti, Marshaghai of 8-7-83 to the petitioner intimating about the fact of misplacing of the fund and the fact that the building was nearing completion has been annexed as Annexure-10. It is thus claimed that the action taken was without any material on record.
3. A preliminary point has been raised by the learned Additional Standing Counsel questioning the locus standi of the petitioner to present the petitioa It has been urged that since the managing committee of the school has not been reconstituted in accordance with the Orissa Education (Management of Private Schools) Rules, 1980 as amended, the managing committee is a defunct one and hence the petitioner has no competence to maintain the petition. It is urged that the managing committee having been approved on 8-9-75, it could not have a term of more than three years and at any rate could not continue beyond 15-11-81 in accordance with the provisions of Rule 12 of the Orissa Education (Management of Private Schools) Rules, 1980 which came into force on 15-11-80. In support of his contention, reliance has been placed on ILR (1979) 1 Cut 504 (Managing Committee of the Kelikadamba High School v. State of Orissa), where in supersession of managing committee had been challenged by some persons who were found not to be members of the managing committee at the relevant time. The objection however is without force. The decision has no application to the facts of the case apart from the question whether the petitioner was continuing as the Secretary of the managing committee or not. It is undoubtedly true that the petitioner is not only a resident of the area but also a person vitally interested as being one who is a member of the founder's family and is also a person with whom admittedly correspondences had been carried on by the educational authorities from time to time acknowledging him as the Secretary of the school. A school, as has been held in (1987) 2 Orissa LR 6 (Krushna Chandra Sahu v. Director of Public Instruction), is a public institution discharging public duties catering to the needs of the public and hence while in case of supersession of a managing committee the public at large may not be said to have an interest justifying invoking the extraordinary jurisdiction under Article 226 of the Constitution at their instance, yet when the issue is one of abolition of the school altogether, the same consideration would not weigh and a member of the locality would be a person interested and capable of maintaining the petition before this court. He would be a person vitally interested in continuance of the school in his locality and his such interest cannot be defeated on a preconceived notion of an archaic concept relating to locus standi. No objection is available to be raised after the pronouncement of the Supreme Court in AIR 1983 SC 130 (D.S. Nakara v. Union of India) wherein an objection raised as to the maintainability of a petition at the instance of a co-operative society formed for ventilating public grievances and espousing the cause of some retired pensioners was negatived. Dealing with the question, the Court held as follows : --
"Locus standi of third petitioner was questioned. Petitioner No. 3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-profit and voluntary organisation. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial process, costly and protracted, and, therefore, approached petitioner No. 3 which espoused their cause. Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 : AIR 1982 SC 149 at p. 194, rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus standi is unquestionable. But it is a point of academic importance because locus standi of petitioners Nos. 1 and 2 was never questioned."
The decision applies to the facts of the case without qualification and hence the objection raised must be negatived.
4. Before considering the question of validity of de-recognition, a submission raised by Dr. Dash may also be disposed of. Even though mala fides have been pleaded against opposite party No. 4 and he has been personally made a party, yet since no return has been filed in this court by opposite party No. 4 personally denying such imputations, it has been submitted that the allegations of mala fide must be held to have been established and that on such finding the action of the authorities should be set aside. It is true that no reply has been filed by opposite party No. 4 denying the allegations made against him and in a way the enquiry report in Annexure-4 also furnishes some foundation for the allegations. But, however, we do not wish to record any opinion on the same since the decision in the case does not rest upon it. Opposite parties 1 to 3 have not placed any reliance on the report of opposite party No. 4 for the purported action and instead have stated that action has been taken on the other independent report of the Assistant Superintendent of Sanskrit Studies, Thus, even if opposite party No. 4 might have nourished certain bias against the petitioner, yet the same having not been conducive to the ultimate action taken, any pronouncement regarding such fact is not called for.
5. Next may be examined as to the authority of Government to order de-recognition of the school. It has been strenuously contended by Mr. M.R. Mohanty, learned Addl. Standing Counsel that in effect the de-recognition is by the D.P.I. and not by the Government and that the D.P.I, while passing the order had only sought for the concurrence of the Government even though such concurrence was not necessary. Thus, according to him, the order of withdrawal of recognition is that of opposite party No. 2 and the communication in Annexure-9 of the Government to the D.P.I. is merely a surplusage, a superfluous act Perusing Annexure-C, however, we are not inclined to agree with the submission. Annexure-9 may be extracted:
"XX XX XX I am directed to invite a reference to Directorate letter No. 2363 dt. 9-5-83 on the subject mentioned above and to say that Govt. have been pleased to accept your proposal for de-recognition of the Revati S anskrit Tol, Karilo-patna, Cuttack and the said Tol is derecognised with effect 1-6-82.
XX XX Xx"
A plain reading of the above unmistakably shows that the Government accepted the proposal of de-recognition of the Tol and directed that the Tol was de-recognised with effect from 1-5-82, On its own wordings, opposite party No. 2 merely had put up a proposal, but the final acceptance was only that of the Government making it more specific by emphatically adding that the Tol was de-recognised from a specified date. The proposal of opposite party No. 2 materialised in the order in Annexure-9.
6. Admittedly, Rebati Sanskrit Tol is an existing educational institution as contemplated under the Act. It has been asserted by the petitioner and not refuted by the opposite parties that the Tol had been found in the year 1928 and was both recognised and aided prior to the commencement of the Act. It is thus an existing educational institution as defined under Section 3(f) which stipulates that any aided, recognised or Government educational institution established before the commencement of the Act and continuing as such at the commencement is an existing educational institution. The Tol being an existing educational institution would, under Section 4(4) of the Act, be deemed to have been established in accordance with the Act, which means that there is a statutory recognition to the establishment and continuance of the school giving it the status of an incorporation under the Act. There thus must be some sanctioned authority to direct a de-recognition of the school. The learned Additional Standing Counsel, however, has not been able to lay his hands upon any provision of the Act or any Rules framed thereunder or under the Education Code for de-recognition of the school. It is for such reason that the learned Addl. Standing Counsel wanted to contend that the order of de-recognition has been passed by the D.P.I. who under the 1979 Rules is authorised to withdraw recognition of a high school. Even though the learned Addl. Standing Counsel as also Dr. Dash both conceded that the 1979 Rules apply to Sanskrit Tols, though for different purposes, yet on a closer scrutiny it is found that the Rules have no application. While it was argued on behalf of the State that the D.P.I. is the authority to grant and withdraw recognition under the 1979 Rules and the Director has so acted, it was urged by Dr. Dash as an alternate argument that even the provisions of those Rules regarding withdrawal of recognition had not been followed. The rule is expressly one dealing with the establishment and recognition of private high schools. It has been contended by Dr. Dash placing reliance on (1978) 46 Cut LT 365 : (AIR 1979 NOC 56) (Bhikshyakari Bisoi v. State of Orissa) that a Sanskrit Tol is a school and that the Superintendent of Sanskrit Studies is the Inspector so far as such schools are concerned. A reference to the decision shows that while it undoubtedly decided a Sanskrit Tol to be a school, yet it has nowhere held that Sanskrit Tol is a high school. A reference to the Orissa Education Code which has received statutory status under Section 27 of the Act completely belies the contention of the Tol being a high school. Article 6 of the Code shows the different types of schools broadly classified into two classes, i.e. (a) schools for general instruction and (b) schools for special instruction. The schools for general instruction are further divided into five classes, i.e. High Schools, Middle English Schools, Middle Schools, Primary Schools (including Upper Primary and Lower Primary Schools, Primary Urdu Schools and Primary Sanskrit Schools) and Basic Schools. The schools for special instruction are divided into ten classes, such as, Arts Schools, training Schools, Engineering Schools, etc. and include "other schools". Article 7 of the Code shows that an institution is regarded as a high school which provides instructions up to the standard of matriculation examination of the University, a Middle English School as providing instructions up to class VII and English as a subject of study and a Middle School as one providing instructions up to class VII where the teaching is through a modern Indian Language and English is not a subject of study. The Tols have been shown to come in the category of "other schools", i.e. as a school for special instruction. High School being one which provides instructions up to the standard of matriculation examination, the Tol in question could never be a high school and hence the 1979 Rules would have no application.
7. It is however contended by, Mr. Mohanty, the learned Addl. Standing Counsel, that even if it be so, yet since the school is an existing educational institution deemed to have been established in accordance with the Act, and Section 4(6) shows that the recognition is accorded by the prescribed authority on behalf of the State Government, it must be taken as if the provisions of the Act for establishment of an educational institution apply to the Tol and that the Government being the authority on whose behalf recognition is granted, it has also the authority to withdraw the recognition. The submission though attractive, yet does not survive except on the surface. The recognition of the institution having been acknowledged under the Act, there must be something in the Act itself to provide for its de-recognition. There is no provision in the statute as to who shall exercise the power of de-recognition and under what conditions, even quite apart from the question as to whether any de-recognition is at all contemplated under the Act. Even if it is said that the provision of recognition under the Act would apply to the existing institutions and that their recognition has to be taken as if it has been granted on behalf of the Government, yet in terms the provision of Section 5 dealing with recognition or Section 6 dealing with the effect of non-recognition cannot be applied to an existing institution like that of the Rebati Sanskrit Tol. Under Section 5, an application for recognition is made within the prescribed period in the prescribed manner to the prescribed authority. There is, however, no prescribed rule regulating the matter of application or grant of recognition so far as a Sanskrit Tol is concerned.
8. The submission made by the learned AddL Standing Counsel thus has no factual basis since there is no functionary designated nor any manner prescribed under any Rules to accord recognition.
9. No support can also be had for the impugned order under Section 22 of the Orissa General Clauses Act, 1937 to contend that the power of recognition being exercisable on behalf of the Government, it would be open for the Government to also withdraw the same. As has been held by the Supreme Court in AIR 1959 SC 609 (Gopi Chand v. Delhi Administration), Section 21 of the General Clauses Act", which corresponds to Section 22 of the Orissa General Clauses Act, embodies only a rule of construction, and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. If a power conferred under any statute is stipulated to be exercised in a prescribed manner, then an order to alter, rescind or modify a notification in exercise of the same power has to be made in the same prescribed manner. Section 4(6) of the Act provides that recognition shall be accorded by the prescribed authority On behalf of the State Government. In effect there having been no prescribed authority so far as Sanskrit Tols are concerned, and at any rate the de-recognition having not been exercised by any prescribed authority in any prescribed manner, the order of de-recognition is one which is beyond the scope of the statute and must necessarily be struck down.
10. In view of such conclusion, it is not necessary to further examine whether the principles of natural justice are violated as no notice to show cause has been issued to the President or the Secretary of the managing committee or whether the issue of such notice was not necessary, as is contended by the learned Addl. Standing Counsel, since the managing committee itself was defunct and the Superintendent of Sanskrit Studies being himself in charge reported for its de-recognition.
11. In the result, the order of de-recognition as contained in the letter, Annexure-9, must be held as one without authority and hence is set aside. The Rebati Sanskrit Vidyalaya(Tol) must be held to have always continued as an existing aided educational institution. The writ petition is allowed with costs. Hearing fee is assessed at Rs. 250/-.
G.B. Patnaik, J.
12. I agree.