Orissa High Court
Banamali Moharana vs State Of Orissa And Others on 22 August, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C). No. 1468 of 2008, W.P.(C) No. 10106 of 2009,
W.P.(C) No.16856 of 2007,
W.P.(C) No. 26005 of 2013 and F.A.O. No. 495 of 2007
An application under Articles 226 and 227 of the Constitution of India.
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In W.P.(C). No. 1468 of 2008
Banamali Moharana ......... Petitioner
-versus-
State of Orissa and others ......... Opposite Parties
.
For Petitioner : M/s. J.K. Rath (Sr.Adv.), S.N. Rath &
P.K. Rout.
For Opposite Party Nos.1-4 : Mr. B.P. Tripathy, Standing Counsel.
For Opposite Party No.5 : M/s. S.K. Das, R.N. Mishra-II &
S.K. Mishra.
For Intervenor : M/s. B. Routray (Sr.Adv.), B.B. Routray,
S.Das, R.P. Dalei, S. Jena,
D.K. Mohapatra & P.K. Sahoo.
For intervenor : M/s. J. Pattnaik (Sr.Adv),B. Mohanty,
T.K. Pattnaik, A. Pattnaik, Soma
Pattnaik, R.P. Ray, M.S.Rizyi &
B.S. Raiguru.
In W.P.(C). No. 10106 of 2009
Bhagaban Rout ......... Petitioner
-versus-
Basant Kumar Panda & ......... Opposite Parties
others
For Petitioner : M/s. S.K. Das, R.N. Mishra-II &
S.K. Mishra.
For Opp. Party No.1 : M/s. J.K. Rath (Sr.Adv), D.N. Rath,
S.N. Rath & P.K. Rout.
For Opp.Party nos.3-5 : Mr. B.P. Tripathy, Standing Counsel
2
In W.P.(C). No. 16856 of 2007
Bhagaban Rout ......... Petitioner
-versus-
State of Orissa & others ......... Opposite Parties
For Petitioner : M/s. S.K. Das, R.N. Mishra-II &
S.K. Mishra.
For Opp. Party Nos.1-4 : Mr. B.P. Tripathy, Standing Counsel
In W.P.(C). No. 26005 of 2013
Bhagaban Rout ......... Petitioner
-versus-
State of Orissa & ......... Opposite Parties
others
For Petitioner : M/s. S.K. Das & S.K. Mishra.
For Opp. Party Nos.1-4 : Mr. B.P. Tripathy, Standing Counsel
For Opp.Party No.6 : M/s. J.K. Rath (Sr.Adv), D.N. Rath,
S.N. Rath & P.K. Rout.
In F.A.O. No. 495 of 2007
Basant Kumar Panda ......... Appellant
-versus-
Director, Elementary ......... Respondents
Education & others
For Appellant :
M/s. J.K. Rath (Sr.Adv.), D.N. Rath,
S.N. Rath & P.K. Rout.
For Respondent Nos.1-3 : Mr. B.P. Tripathy, Standing Counsel.
For Intervenor : M/s. S.K. Das, R.N. Mishra-II &
S.K. Mishra.
_____________________
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 07.08.2014 | Date of judgment : 22.08.2014
Dr. B.R.Sarangi, J.Petitioner-Banamali Maharana in W.P.(C) No.1468 of 2008 claiming to be the President of the Managing Committee of the 3 Maa Adiasuni M.E. School challenges the order passed by the Inspector of Schools, Balasore Circle, Balasore-opposite party no.3, reinstating Bhagban Rout-opposite party No.5 who was appointed as Headmaster of the said School and was removed from service on the ground of negligence in duty.
2. Maa Adiasuni U.P. School was established by the people of the locality from out of their own contribution and started functioning from the Session 1992-93 by obtaining permission from educational authorities in accordance with Section-5 of the Orissa Education Act and, as such, permission was granted on 25.01.1994 from the academic session 1993-94. The Managing Committee applied for recognition under Section 6 of the Orissa Education Act which was granted, vide order No.12240 dated 20.07.1996, from the academic session 1995-96 which was valid till 31.07.1996 for a period of 11 days only and after 1995-96 academic session, i.e. after 31.07.1996, no recognition was granted, as a consequence whereof the institution continued as unrecognized, unaided and purely a private educational institution. In the meantime Orissa Education(Establishment, Recognition and Management of Private Upper Primary Schools) Rules, 1991 (hereinafter referred to 1991 Rules) came into force with effect from 18.12.1991. According to the provision contained in the 1991 Rules, an institution is eligible to come under the fold of recognition if it fulfills the conditions prescribed under Schedule-I of 4 the Rules which, inter alia, stipulates in Clause-9 that one Trained Graduate Headmaster and one I.A/I.Sc. with C.T. Training teacher is required. It is also mentioned that one of the teachers shall be a Science student at least up to Higher Secondary (+2) intermediate level. Till the commencement of 1991 Rules, Bhagaban Rout, B.A. B.Ed. as the Headmaster and Gajendra Prasad Nayak B.A.(C.T.) as the Assistant Teacher were continuing in the School having no recognition. At this stage Bhagban Rout-opposite party no.5 remained unauthorizedly absent from duty and therefore, the Managing Committee of the School terminated his services and appointed Basanta Kumar Panda, B.A. B.Ed. having +2 Sc. qualification at Higher Secondary/Intermediate stage as the Headmaster of the institution. Gajendra Prasad Nayak, B.A. (C.T) was continuing as the Assistant Teacher along with him.
On an application made by the Managing Committee, the Director, Elementary Education-opposite party No.2 accorded recognition of the institution, communicated vide Memo No.11544 dated 13.07.1998 with effect from 1998-99 session onwards. In the recognition order, the appointments of the Headmaster and name of the Assistant Teacher, namely Basanta Kumar Panda and Gajendra Prasad Nayak respectively were duly approved. It is further stated that the said recognition order indicated that for violation of the amended provisions of the Orissa Education Act made in the year 5 1994 and Rules framed thereunder, recognition granted to the institution would be treated as withdrawn.
3. The institution was declared to be an aided one within the meaning of Section-3(b) of the Orissa Education Act vide notification No.14363 dated 15.07.2006 under the provisions of Grant-in-Order 2004. The name of the petitioner's institution was shown at Sl. No.642 with Basanta Kumar Panda as the Headmaster and Gajendra Prasad Nayak as the Assistant Teacher. The Managing Committee of the School was duly approved by the competent authority and communicated by the District Inspector of Schools- opposite party No.4, vide letter No.2056 dated 24.04.2007, requiring the Sub-Collector, Balasore for nomination of President. The Sub- Collector, Balasore in his letter No.6195 dated 14.08.2007 nominated the President of different Upper Primary Schools functioning under his jurisdiction including the Maa Adiasuni Upper Primary School which was shown at Sl. No.20, and communicated the same to the District Inspector of Schools-opposite party No.4 nominating the petitioner as President of the Managing Committee of the said School.
4. Bhagaban Rout who was appointed as Headmaster who was removed from service at the stage when the School in question was an unaided, unrecognized and completely a private educational institution had preferred an appeal before the Inspector of Schools- opposite party No.3 as per the Government instruction dated 6 27.03.1983 which was made for Private Recognized Educational Institutions and had also filed a writ application bearing OJC No.7077 of 1997 praying for a direction to the Inspector of Schools to pass an order as the appellate authority as per circular dated 27.03.1983, which was disposed of vide order dated 18.06.1997 directing the Inspector of Schools to dispose of the appeal within eight weeks from the date of communication of the order. The Inspector of Schools on receipt of such communication of the order of this Court, took up hearing of the case and passed an order rejecting the claim of Bhagaban Rout as the appeal was not maintainable the Institution being an unrecognized, unaided Educational Institution when his services were terminated. Challenging the said order, Bhagaban Rout filed another writ application bearing OJC No.1506 of 1998 and this Court vide order dated 02.07.2007 while quashing the order passed by the Inspector of Schools, remanded the matter to the Inspector of Schools directing him to provide opportunity of hearing to Shri Rout as well as the Managing Committee, consider the enquiry report and pass the order in accordance with law within a period of two months from the date of receipt of this order provided Shri Rout co-operated for early disposal of the case. The order of this Court was also duly communicated to opposite party No.3 and after following due procedure of law vide order dated 01.11.2007 opposite party no.3 allowed the claim of Bhagaban Rout and directed his reinstatement in 7 the School which is impugned in the present application vide Annexure-9.
5. Mr. J.K. Rath, learned Senior Counsel appearing for the petition strenuously urged that on the basis of the Government Instruction vide letter No.1358(2) dated 27.02.1983 of the Government of Orissa Education and Y.S. Department basing upon which appeal was preferred, had no application and as such jurisdiction of the authorities mentioned under the circular to function as appellate authority was for the recognized institutions and not for unrecognized institutions. When this fact came to the notice of the Inspector of Schools, he passed the impugned order having no competence.
Pursuant to notice issued by this Court, opposite party Nos.1 to 4 entered appearance and filed counter affidavit and Mr. B.P. Tripathy, learned Standing Counsel for the School and Mass Education Department has supported the stand taken by the Inspector of Schools. Paragraph-5 of the counter affidavit reads as follows:
"xxx It is not in dispute that the Managing Committee was approved by opposite party no.4 vide Annexure-5 to the writ application and the petitioner was approved as the President of the Managing Committee in pursuance of the recommendations made by the Sub-Collector, Balasore vide Annexure-6 to the writ application."
6. Mr. S.K. Das, learned counsel for opposite party No.5 has raised the question of maintainability of the writ petition stating that opposite party No.5 is not competent to challenge the order under 8 Annexure-9 because neither he has yet been approved as President nor is there any approved Managing Committee functioning in the School authorizing him to challenge such order. It is further urged that as per the provisions containing in the 1991 Rules, as amended from time to time, it is only the Secretary who can represent the Managing Committee or make legal correspondence or file cases on its behalf. The power of the President as stipulated under Rule-33 never authorizes or empowers the President to exercise any such power on behalf of the Managing Committee. In addition to that it is further urged that on perusal of the cause-title, the Managing Committee of the School does not appear to be the petitioner and Banamali Moharana, who claims to be the President of the said Managing Committee was not competent to file this application. Therefore, in absence of any authorization or any legal right, the prayer made therein cannot be entertained by this Court, more so when it is not filed by the Managing Committee.
It is further urged that under Annexure-5, the letter of the Inspector of Schools, Balasore dated 24.04.2007, names were submitted to the Sub-Collector, Balasore for nomination of the President. Under Annexure-6 the Sub-Collector, Balasore nominated Banamali Maharana to continue as President of the Managing Committee of Maa Adiasuni U.P.(M.E.) School but no document or order of approval is forthcoming pursuant to Annexures-5 and 6. The 9 prescribed authority, namely, the Director, Elementary Education, as per the provisions, has not approved the Managing Committee. Therefore, in absence of approval order of such nomination of the petitioner as the President, the claim made by the petitioner to the post of President of the Managing Committee is a nullity in the eye of law. Therefore, the petitioner is incompetent to assail the order passed by the District Inspector of Schools having no jurisdiction or authority to file such case on behalf of the Managing Committee. Therefore, he seeks dismissal of the writ petition at the behest of the petitioner.
It is also argued that as per the provisions contained in Orissa Education Act, the term of the Managing Committee is three years, but assuming the approval order dated 14.08.2007 under Annexure-6 as valid, the term of the so-called Managing Committee has already been over since 14.08.2010. Therefore, on completion of three years the petitioner has no locus standi to challenge the order passed by the District Inspector of Schools vide Annexure-9.
On merits, it is argued that the institution in question is a recognized institution and has received temporary recognition pursuant to office order No. 12240 dated 20.07.1996 of the Director of Secondary Education, Orissa and such recognition was accorded from the academic session 1995-96 i.e. up to 31.07.1996 and taking advantage of this office order under Annexure-2, the petitioner wants 10 to make out a case that the institution was not a recognized institution beyond 31.07.1996 and since the termination of opposite party no.5 was made in December, 1996, the appeal was not maintainable before the District Inspector of Schools.
It is further argued that the institution received recognition pursuant to the provisions of Section-6 of the Orissa Education Act wherein a stipulation has also been made for grant of temporary recognition. Section 6(9) of the Act clearly states that temporary recognition can be granted for a period of one year at a time not exceeding 7 years in aggregate. Rule-16 of the 1991 Rules also provides for grant of temporary recognition for a period of one year. Therefore, the order of recognition dated 20.07.1996 is to be construed to be a temporary recognition for the period up to 20.06.1997. It is also urged that since the impugned order Annexure- 9 was passed in consonance with the order passed by this Court, this Court should not interfere with the same.
7. In course of hearing Mr. S.K. Das, learned counsel for opposite party no.5 raised a preliminary objection with regard to maintainability of the writ petition at the behest of Banamali Maharana who claims to be the President of Maa Adiasuni U.P.(M.E.) School which has been recorded in order dated 20.06.2014 to which Mr. J.K. Rath, learned Sr. Counsel appearing for the petitioner took time to satisfy this Court with regard to the preliminary objection 11 raised by the learned counsel for opposite party no.5. On 01.07.2014 an affidavit has been filed incorporating some new documents stating that the Managing Committee had appointed Basant Kumar Panda as Headmaster of the School.
It is submitted by the learned Standing Counsel that the Educational authorities have also approved the appointment of Basant Kumar Panda as Headmaster of the School and he has received salary components from out of the Grant-in-Aid from the State Government. He stated that the name of the petitioner was approved as the President of the Managing Committee by the competent authority. The institution being an aided educational institution and Basant Kumar Panda having been approved as the Headmaster of the School, has been continuing as the Secretary of the Managing Committee in accordance with the provisions of the 1991 Rules as amended from time to time. The legality and maintainability of the order passed by the District Inspector of Schools under Annexure-9 was decided to be challenged by the Managing Committee before this Court in a writ application authorizing him to file such writ petition. It is also stated that since the order of the District Inspector of School in the dispute raised by Bhagaban Rout-opposite party no.5 pertained to appointment and approval of the Headmaster of the School-Basant Kumar Panda, decision was taken by the Managing Committee authorizing the present petitioner who was the President of such 12 Committee in its 50th meeting held on 11.11.2007 vide resolution in Annexure 1/A, the petitioner has filed this application. Therefore at his behest the writ petition cannot be vitiated and as such, writ petition is well maintainable. To substantiate the same Mr. J.K. Rath, learned Sr. Counsel has relied upon the judgment of this Court in Rourkela Technical Educational Society and others v. Collector- cum-District Magistrate and others passed in W.P.(C) No.13620 of 2009 decided on 17.05.2011 wherein this Court held that any order passed by an authority without jurisdiction shall be a nullity.
8. Mr. J.K. Rath, learned Senior Counsel also filed Misc. Case on 22.07.2014 seeking amendment of the cause title of the writ petition stating inter alia that the Managing Committee in its Resolution dated 11.11.2007 authorized the President Banamali Maharana to file writ petition on behalf of the Managing Committee because the order passed by the Inspector of Schools related to the termination of opposite party no.5 who was appointed as the Headmaster of the School and was terminated by the Managing Committee and in his place Basanta Kumar Panda was appointed as Headmaster. Taking Basanta Kumar Panda as the Headmaster, the School got recognition by the Director, Elementary Education and the institution was also declared as an aided educational institution in accordance with Grant-in-Aid order 2004 and accordingly the employees of the institution including Shri Panda have been receiving 13 their salary component from the State Government as approved employees of the institution. Stating that in paragraph-2 of the writ petition the reasons for filing of the writ petition have already been stated which is as follows;-
"2. That the petitioner Shri Banamali Moharana is an approved President of the Managing Committee constituted by the opposite party no.4 vide letter No.2056 dated 24.04.2007. The deponent has also been authorized by the Managing Committee in its resolution no.51 dated 11.11.2007 to represent the cause of the Managing Committee before this Hon'ble Court and accordingly the present writ application is filed on behalf of the Managing Committee. The members of the Managing Committee are citizen of India and are permanent resident of the State of Orissa. The cause of action of this case also arises within the territorial jurisdiction of this Hon'ble Court. Mr. Rath, seeks amendment of the cause-title of the writ petition to avoid technical objection.
9. Mr. S.K. Das, learned counsel for opposite party no.5 has filed objection stating that the judgment relied upon in Rourkela Technical Educational Society and others (supra) by the petitioner was in a different context and different facts altogether. The ratio decided in that case has no application to the case in hand. It is further stated that law is well settled that when any order is without jurisdiction, the party affected by such order can challenge the same invoking extraordinary jurisdiction of this Court. Referring to paragraph-24 of the aforesaid judgment he has stated that the first part of the finding states that the order impugned was without jurisdiction and the second part shows the person challenging the 14 order would be affected by such order. In the present case the impugned order under Annexure-9 is well within the jurisdiction of the authority concerned, who passed the same. Therefore, the ground of challenge that the order is without jurisdiction is quite unfounded, imaginary, illegal and absurd and baseless. He reiterated that in Annexure-5 it is clearly mentioned that the Managing Committee would be approved after the nomination of the President. Therefore, in absence of approval order from the Director, Elementary Education, Orissa who is the only competent authority to approve the Managing Committee, the claim of the petitioner as President of the Managing Committee is thoroughly misconceived. In order to substantiate his case, Mr. Das, learned counsel for opposite party no.5 has relied upon the cases in M/s. Modi Spinning & Weaving Mills Co. Ltd. And another v. M/s. Ladha Ram & Co., AIR 1977 SC 680, Revajeetu Builders & Developers... v. Narayanaswamy & Sons & Others..., 2009 (II) OLR (SC) 815, Sri Sathya Sai Seva Organization and another v. State of Orissa and others, 2008(II) OLR 432, Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 (V 50 C 118), State of Orissa (in both the appeals) v. 1. Ram Chandra Dev (in C.A. No.293 of 1959) 2. Mohan Prasad Singh Deo (In C.A. No.294 of 1959), AIR 1964 SC 685 (V 51 C 82), Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828 (V 15 53 C 154), Union of India v. Era Educational Trust and another, AIR 2000 SC 1573, Deoraj v. State of Maharashtra and others, AIR 2004 SC 1975 and The State of Orissa v. Madan Gopal Rungta, AIR 39 1952 SC 12.
10. In course of hearing this Court made a query whether this Court can proceed with the writ petition both on merit as well as on the question of maintainability. To which learned counsel appearing for the parties have stated to decide the maintainability of the writ petition in view of the amendment application filed by the petitioner which has been recorded vide order dated 25.07.2014. Therefore, this Court proceeds with the matter for deciding on the question of maintainability of the writ petition pursuant to the amendment petition filed by the petitioner bearing Misc. Case No.12096 of 2014 instead of going into the merits of the case on agreement of the counsel for the parties.
Section-7 of the Orissa Education Act, 1969 deals with Managing Committee or Governing Body of the educational institution, Sub-Section-2 of Section-7 reads as follows:
"The Managing Committee or the Governing Body, as the case may be, constituted for any private educational institution, shall obtain the approval of its constitution by the Prescribed Authority, in the prescribed manner failing which the institution shall not be eligible for recognition."
In view of the above provision, approval to the constitution of the Managing Committee by the prescribed authority is 16 the primary requirement. As per the provision contained in Sub- Section(a-1) of Section 3, "prescribed authority" has been defined who has to be notified by the State Government from time to time in the official Gazette. Chapter-V of the 1991 Rules deals with Management and Rules-24, 25, 26, 27 and 28 state about constitution of Managing Committee, report of the D.I. on constitution of the Managing Committee, approval of the Managing Committee, reconstitution of the Managing Committee and approval of the reconstituted Managing Committee respectively. Sub-Rule-1 of Rule- 26 states that the prescribed authority after considering the proposal of the institution and the recommendations of the District Inspector or the Superintendent, as the case may be, shall approve the Managing Committee constituted after making any substitutions if he deems necessary. Under Sub-Rule-2 of Section-26 states that the order of approval shall clearly mention the names of the President, the Secretary and other members of the Committee and the date of approval.
11. In view of Annexures-5 and 6 it appears that though the President of the Managing Committee has been nominated constitution of Managing Committee has not been approved by the prescribed authority. Therefore, any consideration, recommendation made by such authority cannot be construed to be in conformity of with provision of law and as such the reliance placed on Annexures-5 17 and 6 by the learned counsel for the petitioner stating that the Managing Committee has been constituted has no meaning as the same has not been approved by the prescribed authority under law. In absence of any approval of the Managing Committee even if any name has been placed in the report of the D.I. that ipso facto cannot give authority to the petitioner to file the present writ petition. Except resolution of the Managing Committee by way of additional affidavit, no other contemporaneous material has been produced before this Court to indicate the fact that the Managing Committee of the School in question which has been constituted vide Annexures-5 and 6 has already been approved by the prescribed authority in terms of the provisions contained in Orissa Education Act and Rules thereunder.
12. In of the aforesaid facts and circumstances, since the Managing Committee constituted vide Annexures-5 and 6, has not been approved by the prescribed authority in terms of provision of the Orissa Education Act and Rules framed thereunder as no such material has been produced before this Court to substantiate the same, this Court comes to a conclusion that any action taken by the petitioner stating that he was the President of the Managing Committee of the School in question cannot be sustained in the eye of law. 13 The subsequent attempt made by the petitioner to amend the writ petition by filing a Misc. case prescribed in a proper 18 manner has no meaning the Managing Committee so constituted vide Annexures-5 and 6 having not been approved by the prescribed authority. Therefore, reliance by Mr. S.K. Das on the decision cited above is of no assistance, as without a basic foundation the super structure cannot stand.
14. In that view of matter, this Court finds that the Managing Committee of the institution having not been constituted in proper manner getting due approval as such, any action taken by the petitioner cannot sustain. Accordingly, there is no need to adjudicate the writ petition further on the question on merit.
15. In the result, the W.P.(C) No. 1468 of 2008 is being not maintainable at the behest of the petitioner and also the Misc. Cases.
16. With the dismissal of W.P.(C) No. 1468 of 2008, F.A.O. No. 495 of 2007 preferred by Basanta Kumar Panda stands dismissed. The writ petitions i.e. W.P.(C) No. 16856 of 2007, W.P.(C) No.10106 of 2009 and W.P.(C) No. 26005 of 2013 filed by Bhagaban Rout are disposed of accordingly. All interim orders passed in the above cases stand vacated.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 22nd August,2014/Alok