Orissa High Court
Tarini Thakurani Vidyapitha Keonjhar vs State Of Odisha And Others on 2 January, 2017
Equivalent citations: AIR 2017 (NOC) 263 (ORI.)
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) NO. 23057 OF 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
.........
Tarini Thakurani Vidyapitha,Keonjhar ....... Petitioner
VERSUS
State of Odisha & others ....... Opp. parties.
For Petitioner :::: M/s. S.K.Samal, S.P.Nath,
advocates.
For Opposite Parties :::: Mr. B.Rout,
Standing Counsel for the
S. & M.E. Department,
Mr. S.S.Rao, advocate.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing :: 26.10.2016 : Date of judgment : 02.01.2017
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The petitioner-school through its Headmaster has filed this
writ application for quashment of an order dated 05.08.2015 under
Annexure-7 issued by the opposite party no.3 in withdrawing the
recognition granted in favour of the petitioners-school under
Annexures 2 and 3 series by issuance of writ in the nature of
certiorari or any other writ, and for further direction to the opposite
parties to restore the recognition granted in favour of the petitioner-
school treating it as the recognized school for all purposes and allowing
the students to appear in the Annual H.S.C. Examination, 2016.
// 2 //
2. The petitioner-school got the permission under sub section
4 of section 5 of the Orissa Education Act (in short called as "the Act")
from the State Government for its establishment as per order dated
26.09.1993. It next got the recognition under sub section 8 of section 6 of the Orissa Education Act. The petitioner-school thereafter as required got recognition from the Board of Secondary Education (opposite party no.3) for allowing the students to appear in the Annual H.S.C. Examination conducted by the Board. This state of affairs continued up till the first quarter of the year, 2015.
When the matter stood thus on 23.04.2015 the District Education Officer (opposite party no.4) called for an explanation from the Secretary of the managing committee of the school styling it to be one under section 6-A(1)(2) of the Act, making some allegations as regards non-fulfillment of certain conditions and accordingly the managing committee was directed to file the written statement if any within a period of seven days from the date of receipt of said letter indicating therein that if in pursuance of receipt of said letter no such response comes, action as deemed fit would be so taken as per law. However, it appears that on the very next day i.e. 24.04.2015, the opposite party no.4 submitted a report to the opposite party no.3 recommending for withdrawal of the recognition which had been earlier granted and continuing as such for as such a long period in favour of the petitioner- school, which is at Annexure-8. In the meantime, the managing committee having received the letter of the opposite party // 3 // no.4 on 02.05.2015 submitted the compliance report under explanation (Annexure-6) dated 07.05.2015 in pursuance of letter dated 02.05.2015 as aforementioned. Then they waited for further communication in the matter.
At this juncture, on 05.08.2015 the opposite party no.3 in view of the recommendation of the opposite party no.4 as aforesaid in exercise of power purported to be one under section 6 (1) of the Act withdrew the recognition standing in favour of the petitioner-school. This has led the petitioner-school to file the present writ application praying before the Court for quashment of the above order passed by the opposite party no.3 regarding withdrawal of the recognition and for other consequential directions/actions to follow.
3. I have heard Mr. B.Routray, learned Senior Counsel for the petitioner-school, Mr. B.Rout, learned Standing Counsel for the School and Mass Education Department, Odisha and Mr. S.S.Rao, learned counsel for the opposite party no.3.
The averments of the writ application with all the annexures, counter and the rejoinder have been gone through.
4. The first ground of challenge to the order of opposite party no.3 dated 05.08.2015 under Annexure-7 are that the same is without jurisdiction in as much as power under section 6(B) (stated in the order as Rule-6(B) of the Act) to be without jurisdiction being beyond the power of the opposite party no.3 as not conferred to withdraw the // 4 // recognition as stated. The second ground is that the opposite party no.4 being not the prescribed authority in terms of section 6(B) of the Act, the recommendation even without awaiting the explanation from the petitioner school as called for is not only violative of the provision of law but also the principle of natural justice.
The counter to the above by opposite party no.3, whose order is the subject matter of this writ application, is that the withdrawal of recognition as under Annexure-7 is for one year only and therefore when the petitioner school can make an application afresh to get it by obtaining no objection certificate from the State Government in the department of school and Mass Education and when by the said order, permission has already been granted to genuine students who have taken admission to appear in nearby school in the examination for the year 2016-17, there remains no further grievance as of now to be redressed herein this writ application.
5. For better appreciation, the same is reproduced herein below:-
"xxx xxx xxx.
7. The provision of section 6(B) in sub-
section 1 lays down the grounds upon which the recognition accorded under the Act may be withdrawn and sub section 6 says that where the prescribed authority is satisfied on his own information or otherwise that circumstances exists for taking action // 5 // for withdrawal of recognition of any educational institution, he shall make an enquiry or cause an enquiry to be made into the grounds on which the recognition as proposed to be withdrawn giving opportunity to the management of making representation within a period of 30 days against the proposed action and shall furnish his report and recommendation to the committee constituted under sub section 4 of section 6. The prescribed authority has been notified by the notification dated 20.07.1991 to be the Director of Secondary Education. It has further been provided in sub section 3 of section 6-B of the Act that the committee after considering record, report and recommendation of the prescribed authority and affording opportunity to the management of being heard, may pass an order either withdrawing as a whole or in part the recognition granted to the institution. This order is appealable as provided in sub section 5 of the said section."
6. Now Chapter 9 of the Board of Secondary Education Regulation deals with recognition of the institution by the Board. Clause 14 of Chapter 9 reads that the Director or any two members of the Board may being forward a proposal for depriving a school either in whole or in part of its recognition. The recognition and grant committee thereafter shall consider the proposal after affording the management authorities of the school all reasonable facilities for said objection to the proposal and transmit a copy of its proceeding including a copy of a representation which may be made by the managing authority to the // 6 // Board and then the Board shall consider the proposal and decide as it thinks fit which would be final.
7. In the case in hand, neither the prescribed authority has submitted any report in terms of sub-section 2 of section 6(B) of the Act to the committee nor a decision has been taken by the committee for withdrawal of recognition of the school for consideration of the Board to decide. Here in the case, the District Education Officer, the opposite party no. 4 has sent his recommendation to opposite party no.3 for taking necessary action for withdrawal of recognition when admittedly opposite party no.4 is not prescribed authority under the Act either to recommend to opposite party no.3 or to take any decision himself for withdrawal of recognition. However it is seen that opposite party no.3 has acted upon that report of opposite party no.4. Thus the order is without jurisdiction.
8. In the instant case as is seen even the provision as contained under Clause 10 of Chapter 9 of the Board's regulation have not been complied with before passing the order under Anneuxre-7. It is admitted in the counter by opposite party no.4 that before expiry of the period given to the management of the petitioner school to submit the explanation if any in the matter, the recommendation has been so made for withdrawal of recognition to opposite party no.4 and accordingly the President of the Board simply basing upon such recommendation of opposite party no.4 has gone to pass the order under Annexuer-7. In view of the aforesaid discussion, the order // 7 // under Annexure-7 is held to be unsustainable in the eye of law having not been so passed by the authority concerned in adherence to the mandatory provisions of law which have not been followed right from the beginning till end.
In the result, the writ application is allowed and order under Annexure-7 is hereby quashed. In view of above, the petitioner- school has to be treated to have been continuing as having the recognition as before standing entitled to all such facilities and benefits as provided in law. It is however made clear that the authority if so feels the need may proceed in the matter for a decision in that regard in accordance with law.
No order as to cost is passed in the facts and
circumstances of the case.
..........................
D. Dash, J.
Orissa High Court, Cuttack
Dated, the 02nd day of January, 2017/ Narayan.