Orissa High Court
Sarat Kumar Mohanty vs State Of Odisha And Others on 18 July, 2017
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA; CUTTACK
W.P.(C) Nos.5366 & 4717 of 2013 and 17642 of 2009
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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In W.P.(C) No 5366/2013
Sarat Kumar Mohanty ... Petitioner
Versus
State of Odisha and others.
... Opposite Party
For Petitioner : M/s. S.P.Nath & S. Rout
For opposite party No.1 to 3 : Addl. Government Advocate
For opposite party No.10 : M/s. S.N.Jena.
For opposite party No.12 : M/s. A.Mohapatra,
B.N.Swarnakar and Md.
Riaz.
For opposite party Nos.11, : M/s. A.P.Bose,
13 and 14. N.Hota,S.S.Routray,
Mr.V.Kar, D.J.Sahoo,
S.C.Dash and R.B.Das.
In W.P.(C) No 4717/2013
Satyabhusan Sahu & another ... Petitioners
Versus
State of Odisha and others ... Opposite Parties
2
For Petitioners : M/s. Bhudhadev Routray(Sr.Advocate),
D.Routray, P.K.Sahoo,
R.P.Dalai, S.Das, S.Jena,
S.K.Nath & S.Rout.
For opposite party
Nos. 1 to 3 : Addl. Government Advocate.
For Caveater : M/s. Dilip Kumar Sahu, A.Pradhan,
J.K.Swain & S.Mohapatra.
In W.P.(C) No 17642/2009
Sarat Kumar Mohanty ... Petitioner
Versus
State of Odisha and others. ... Opposite Parties
For Petitioner : M/s.J.K.Rath & D.N.Rath,
For opposite party nos.1 to 3 : Addl. Government Advocate.
For opposite party Nos.5 & 6 : M/s.S.N.Sharma & D.Pati.
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of judgment: 18.7.2017
S.K.Mishra,J. This judgment arises out of three writ petitions bearing
W.P.(C) Nos.5366 and 4717/2013 and W.P.(C) No.17642/2009.
2. In W.P.(C) No.5366/2013, the petitioner-Sarat Kumar Mohanty,
being a Member of the Education Agency (a body registered under the
Society Registration Act) (hereinafter referred to as the "Society" for
brevity), namely, Sri Sri Nrusinghanath Ayurveda College and Research
3
Institute, Paikmal in the district of Bargarh (hereinafter referred to as "The
College") has filed this writ petition challenging the Resolution No.1089
dated 13.1.2005 of the Health and Family Welfare Department in framing
the guideline regarding constitution of the Governing Body of Ayurvedic
Medical Colleges of the State, the subsequent orders of the Government
dated 19.2.2013 and 2.3.2013 in constituting the Governing Body of The
College on the ground of clear violation of the bye-laws of the society as
well as contrary to law laid down by this Court. In the alternative the
petitioner has prayed that even for the sake of consideration it is held that
the Resolution dated 13.1.2005 is a valid one, the consequential action of
the Government in constituting the Governing Body vide letter dated
2.3.2013is also contrary to the aforementioned resolution passed by the Government and not in accordance with the directions given by this Court in the earlier writ petition. Therefore, the petitioner prays to quash Annexures-14 and 16, i.e. the two orders passed by the Government of Odisha and calls upon the opposite parties to show cause why the impugned resolution of the Government dated 13.1.2005, under Annexure- 2, should not be quashed.
3. In W.P.(C) No.4717/2013, Satyabhusan Sahu in the capacity of the President of the Governing Body of Sri Sri Nrusinghanath Ayurveda College and Research Institute in the district of Bargarh has filed this writ petition challenging the action of the Director, Ayush, Odisha, thereby giving direction to the Principal of The College to submit proposals for constitution of the Governing Body as per the resolution dated 13.1.2005 even though no decision has been taken by the Government of Odisha, 4 opposite party no.1 in terms of the direction of this Court in the earlier writ petition being W.P.(C) No.16801/2009 disposed of on 16.7.2012.
4. In W.P.(C) No.17642/2009, which was filed at an earlier point of time, the aforesaid Sarat Kumar Mohanty in his capacity as a Member of The College has prayed to declare Annexure-7 to be invalid and inoperative in the eye of law on the ground that the same is contrary to the direction of this Hon'ble Court passed in W.P.(C) No.14580 of 2007 and W.P.(C) No.16706/2007 disposed of on 20.12.2007 but also in violation of the principle of natural justice inasmuch as the same is contrary to the procedure relating to constitution of Governing Body. Hence the petitioner has filed this writ petition with a prayer to quash the said order dtd.22.10.2009.
5. It is borne out from the records that the Government framed guideline for constitution of Governing Bodies of Government and private Ayurvedic and Homeopathic Colleges as per Annexure-2. On 03.11.2007 the Government in the Department of Health and Family Welfare, opposite party no.1, constituted the Governing Body of The College as per Annexure-6. A writ petition was filed by Sarat Kumar Mohanty relating to the constitution of the Governing Body of private aided Ayurvedic College which was registered as W.P.(C) No.16706 of 2007. That writ petition was disposed of on 20.12.2007. It is apposite on the part of this Court to take note of the exact order passed by a Bench of this Court in W.P.(C) No.16706/2007 which reads as follows:
"20.12.2007. Heard.
2. The constitution of a Governing Body of Sri Sri Nrusinghanath Ayurveda College and Research Institute 5 in the district of Bargarh by order dtd.3.11.2007 passed by the Under Secretary to Government of Orissa, Health and Family Welfare Department is assailed in this writ petition. According to learned counsel for the petitioner constitution of the said Government Body is not in accordance with law inasmuch as the aforesaid authority has not taken into consideration the recommendation made by the Principal of the College. It is also alleged that two of the members, i.e. Pandit Parma Chandra Sahu and Dr. Gopal Krushna Mishra were no more in service. Thus, the constitution of Government Body including them as members was not justified. The third ground of attack with regard to the constitution is that though in consonance with Clause- 9, five members were to be nominated by the NGO which started the College from among the persons of the local area interested in the Ayurvedic education and illegally the clause "in consolidation with the College"
had been added though the said clause was no available in the guidelines prescribed by the Government for constitution of Governing Body. It is also stated in the said clause that in "in case of any problem for members to be nominated from NGO the persons having interest in Ayurvedic in local can be nominated in G.B." it is not there in the guidelines.
3. All these submissions are repudiated by learned counsel for the State. It is stated that the Governing Body has been constituted in accordance with law.
4. I have heard learned counsel for the parties at length and perused the materials available on record. There is no dispute from the Board that five members which are required to be nominated by the concerned NGO have not been taken as members of the G.B. This fact is disputes with regard to some of the clauses, which had been introduced later and the said clause is not available in the guideline.
5. In view of the aforesaid facts, this Court feels that ends of justice and equity will be better served if the Secretary, Health and Family Welfare Department calls for the file, affords an opportunity of hearing to the petitioner and passes a reasoned order raiding constitution the Government Body, and directs accordingly. The entire exercise shall be completed within a period of three months from the date of communication of this order, if there will be no impediment. The order Annexure-4 shall not be given 6 effect to until a decision is taken by the aforesaid authority.
Sd/-
A.S. Naidu,J."
6. After passing of such order, opposite party no.1 concluded that the Resolution dated 13.1.2005 as well as the order dated 3.11.2007 may be re-examined by the Government. Till that date the order dated 3.11.2007 must be kept in abeyance. The order of opposite party no.1 is at Annexure-
7. On 22.10.2009 the Government, allegedly, without taking any decision pursuant to the direction of this Court approved the Governing Body of The College which was constituted vide G.O. No.30976/H dtd.3.11.2007 by lifting the order keeping it in abeyance of order dated 22.8.2008 passed by opposite party no.1.
7. The Governing Body of the College along with another Member challenged the aforesaid order dt.22.10.2009 before this Court, which was registered as W.P.(C) No.16801/2009. The said writ petition was disposed of on 26.7.2012. It is appropriate to take note of the entire order, so that the contentions raised by the counsel for the petitioner can be properly appreciated.
"26.7.2012. The Governing Body of Sri Sri Nrusinghanath Ayurdeva College and Research Institute through its Secretary and President has filed this writ petition with a prayer to quash the orders dated 3.11.2007 and 22.10.2009 passed by the Principal Secretary, Health & Family Welfare Department- opposite party no.1.
It appears from the record that the petitioners have earlier approached this Court in WP(C) No.16706 of 2007 which was disposed of on 20.12.2007 with a direction to opposite party no.1 to call for the file, afford an opportunity of hearing to the petitioner and pass a reasoned order regarding constitution of the Governing Body within a period of three months from the date of communication of the order. It was further observed in the said order that the order in Anneuxre-7
4 shall not be given effect to until a decision is taken by the aforesaid authority.
As per the direction of this Court the opposite party no.1 heard the parties and observed that retrospective applicability of the grant-in-aid however, needs to be examined afresh by the Government as the private college, while availing grant-in- aid prior to the Resolution dated 13.01.2005 under various development schemes, was not in a position to foresee the conditions attached to the grant-in-aid in terms of constitution of Governing Body in a particular manner. An issue also needs to be examined by the Government is that if the past grants are to be made applicable for reconstitution of the Government body under Para-(C)-2 instead of para(C)-2. On the issue of technical deviations of order dated 3.11.2007 with the Resolution dated 13.01.2005 of the Government in Health & Family Welfare Department, it is seen from order dated 3.11.2007 constituting the Governing Body of the institute in question that certain clauses such as 'desirable to be nominated by the concerned NGO in consultation with the Collector' and 'In case any problem for members to be nominated from NGOs, persons having interest in Ayurvedic in local area can be nominated to G.B. are not to be found in the original Resolution dated 13.01.2005. Besides, the petitioners are challenging that some names of the faculty as members should not have been inserted as the services of those faculty members have already been terminated and therefore should not have been recommended by the Director, Indian Medicines & Homeopathy to the Government may also require due modification. On the above conclusion he has concluded that the Governing Body of the Institution is constituted by order dated 3.11.2007 shall be kept in abeyance and the Government may resolve the above issue.
While the matter stood thus, the impugned order dated 22.10.2009 was passed by the Government in their Health & Family Welfare Department which reveals that the Government has not taken into consideration the issue and lifted the earlier order of kept in abeyance of the constitution of the Governing Body passed on 22.8.2008.
Since the Government did not consider the matter as directed by this Court in WP(C) No.s16706 of 2007, this Court sets aside the impugned order passed on 22.10.2007 vide Annexure-10 and directs the Government to re-examine the matter as passed vide order dated 16.8.2008 of the Commissioner-cum-Secretary to Govt. Health & Family Welfare Department and take step afresh in view of the order passed in W.P.(C) No.16706 of 2007.
Accordingly, the writ petition stands disposed of.
Sd/-
S. Panda,J."8
8. In pursuant to the directions given by the Court, opposite party no.1 again reconsidered the matter, under Annexure-14, and took a decision that they shall follow the Government guidelines and shall form the Governing Body under Para-(C)2 as per Government Resolution dtd.13.1.2005.
9. Having extensively heard by learned counsel for the parties, this Court formulates three essential questions to be determined in this case:-
a. Whether the Resolution of the Government dated 13.1.2005 is illegal and whether such issue can be raised in a third or fourth litigation, the same having been not- pressed before this Court on earlier occasions. In other words will it be hit by provisions of Section 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code" for brevity).
b. Whether the College situated at Paikamal is receiving grant-in-aid or any kind of monetary aid from the Government for running of the College, as a result of which the Government has control over the functioning of the same ? If not what is the course upon to the Court ?
c. Whether there has been any violation of the order passed by this Court as argued by the learned counsel for the petitioner?
10. It is apparent from the order passed by Hon'ble Shri Justice A.S.Naidu in the first writ petition that three important questions were raised. They are as follows:-
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i. Whether constitution of the said Governing Body by the Government is in accordance with law inasmuch as the aforesaid authority has not taken into consideration the recommendation made by the Principal of the College.
ii. Whether two members of the Governing Body were no more in service. Hence constitution of Governing Body including them as Members was not justified.
iii. Whether the constitution of Governing Body is in accordance with the regulation, but there is a violation of the same in the sense that Clause-9 has not been given proper effect to by incorporating that five members of the local area interested in Ayurvedic education should be selected in consultation of the College.
11. Having taken into consideration all these aspect, this Court in the aforesaid case has directed that opposite party no.1 should call for the file, afford an opportunity of hearing to the petitioners and pass a reasoned regarding constitution of the Governing Body. In pursuant thereto Annexure-7 has been passed by then Commissioner-cum-Secretary, Health and Family Welfare Department on 22.8.2008.
12. In the second writ petition, the petitioners challenged the formation of the Governing Body on the ground that opposite party no.1 has observed that there is need for fresh examination by the Government regarding applicability of the Resolution dated 13.1.2005 to the College. The writ petition was also disposed of by questioning certain clauses like desirability to be nominated by the concerned NGO in consultation with 10 the Collector and in case any problem for members to be nominated from NGOs, persons having interest in Ayurveda in local area can be nominated to G.Bs are not to be found in the original Resolution dated 13.1.2005.
13. Thus, it is clear that on the first two occasions when the matter came before this Court, the petitioners did not raise the question of non- applicability of Annexure-2 i.e. the Resolution of opposite party no.1 on 13.1.2005. Additionally though such a ground might have been taken in the writ petition, but the Courts have not granted the relief.
14. It is seen that Section 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code" for brevity) provides for resjudicata. It lays down that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit for the suit in which such issue has been subsequently raised, and has been heard and decided by such Court. In Explanation-V to the said Section, it is further provided that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused. So even if any pleadings are available in the earlier writ petitions regarding the legality of Annexure-7 then also the Court has not granted any order in their favour on two earlier occasions, the same issue cannot be reagitated in this writ petition. Even otherwise if for the purpose consideration, it is taken that pleas were not raised by the petitioners in the earlier writ petitions, then also under Rule 2, Order 2 of the Code shall exclude the 11 petitioners from claiming the relief on the ground of relinquishment of portion of their claim. Thus, this aspect of the case is decided accordingly and it is held that this Court shall not entertain any plea regarding the illegality of Annexure-2.
15. The second question that has been framed by this Court in this writ petition is grant-in-aid. It is borne out from the record that the Management of the College has been receiving amounts from, the State Government and upto 2002-03 they have received Rs.44,35,000/-. Thus, it is receiving grants from the Government of Orissa in the Health and Family Welfare Department. It is borne out from the record that Annexure-2 has been issued on 13.1.2005 by opposite party no.1 in the form of resolution regarding questions of framing separate rule for constitution of Governing Bodies of the Management and Private Ayurvedic and Homeopathic College to issue uniform bodies in each College and their duties and functions to look into the Management of respective Colleges. After careful consideration, Government have been pleased to frame the guidelines regarding constitution of Governing Bodies and their duties and functions in respect of Government and Private Ayurvedic and Homeopathic College in the State.
16. It was contended emphatically by Mr. B.Routray, learned Senior counsel appearing for the petitioners, that opposite party no.1, while considering the matter in hand on directions given by this Court in the first writ petition, has taken into consideration that the contention of the petitioners that grant-in-aid has a specific meaning within the Orissa Education Act, 1969 is not acceptable as the Resolution dt.13.1.2005 12 clearly mentions that it is grant-in-aid in relation to any scheme of the State Government/Central Government that makes Para-(C) 2 applicable to the constitution of the Governing Body of the College. As the Resolution dated 13.1.2005 uses the verb availed in Para-(C) 2, it may mean that the grant-in-aid availed in the past from the State Government/Central Government under any scheme should qualify the College for constitution of its Governing Body under this clause instead of clause (C) 1 of the Resolution dt.13.1.2005. Learned Commissioner was of the view that this retrospective applicability of the grant-in-aid however needs to be reexamined by the Government. Hence he kept the notification in constituting the Governing Body in abeyance.
17. By virtue of Amendment Act 13 of 1994, Section 7-C was amended and the concept of grant-in-aid was introduced in the Odisha Education Act. It is apparent from the statement of objects and reasons of Orissa Act 13 of 1994 that it was enacted with an aim to maximize the number of High Schools, Higher Secondary Schools and Colleges and to ensure private educational institutions conform to certain basis minimum infrastructural and academic standards and for meeting the essential educational institution would be required to fulfil in order to be eligible for recognition.
18. Thus, the definition of grant-in-aid appearing in the Orissa Education Act, 1969 is with respect to a particular Government Aid i.e. to be given to the High Schools, Higher Secondary Schools and Colleges, which are privately managed. This definition is not applicable to technical Colleges or Colleges which impart Ayurbeda in its course. Moreover, the 13 Commissioner-cum-Secretary has committed an error on record by considering the retrospective applicability of the grant-in-aid which came into force in the year 1994 whereas Annexure-2 has been issued on 13.1.2005. So there is no retrospective application of the definition of grant in aid. Hence, this Court is of the opinion that the Government has the jurisdiction to formulate the guidelines for formation of Governing Bodies which has received any amount from the State Exchequer. Hence coupled with the aforesaid consideration with the fact that this Court has already come to the conclusion that the illegality of Annexure-2 i.e. the Resolution dated 13.1.2005 cannot be called into question. This Court is of the opinion that the guidelines given in Clause (C) 2 of the aforesaid guideline will be applicable to the case. Moreover in a recent case, this Court has come to the conclusion that there is no distinction between grant-in-aid College and Block Grant College and therefore the Rehabilitation Assistance Scheme is applicable to Colleges receiving Block Grants.
19. It was very emphatically argued by the learned counsel for the petitioners that while disposing of the matter, the opposite parties have not given reasonable opportunity of hearing to the parties, but while considering the matter again after the order dated 26.7.2012 passed by this Court in W.P.(C) No.16801/2009 no opportunity was given to the College or the founding members or members of the Governing Body for hearing. However, this Court takes note of the fact that the Government has acted as per the order passed by this Court in the order passed in the first writ petition, i.e. W.P.(C) No.16706/2007. This Court had directed an 14 opportunity should be given to the petitioners and reason order may be passed. When the second Writ Petition was disposed of by this Court, this Court held that the State Government did not consider the matter as directed by this Court on 20.12.2007 in W.P.(C) No.16706/2007 and therefore quashed the impugned order dated 22.10.2009 vide Annexure-10 and directed to re-examine the matter as passed vide order dated 16.8.2008 of the Commissioner-cum-Secretary to Government, Health and Family Welfare Department and take steps afresh in view of the order passed in W.P.(C) No.16706/2007. Nowhere in the order this Court had directed that the petitioners should be reheard in the matter. Only certain directions were given to the Government to re-examine the matter. So, the contention of the learned counsel for the petitioners that the petitioners were not heard, which is in violation of natural justice is not correct and this Court do not agree with such arguments and finds that there is no violation of principles of natural justice or the order passed by this Court in the second Writ Petition.
20. At the conclusion, Mr. A.P.Bose, learned appearing for some of the opposite parties, draws attention to the Court to Annexure-16, which is an order passed by the Government on 02.3.2013. The said order was to remain in force for three years as per the Government Resolution. Since the Director, Ayush, Odisha, Bhubaneswar has passed an order for constitution of the Governing Body of the College on .2.3.2013, the terms of the said Governing Body expired on 1.3.2015. Hence, these Writ Petitions have become infructuous.
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21. In that view of the matter, this Court is inclined to dismiss these writ petitions. However, it is directed while constituting the Governing Body of the aforesaid College the Government of Odisha, Health and Family Welfare Department, especially the Director, Ayush, Odisha, Bhubaneswar shall keep in mind the Resolution of the Government as enunciated in Para (C)2 issued on 13.1.2005 and reconstitute the General Body. It is also directed that the Director shall follow the Principle enunciated in the Resolution in letter and spirit and as far as clause-8 is concerned, he shall keep in mind that there is no stipulation in the Resolution that the five members to be nominated by the concerned NGO/Trust from among its members or from among the persons in the local areas interested in the field of Ayurvedic/Homeopathic Education, with consultations of the Collector. Hence the authorities while constituting the Governing Body shall not insist on prior consultation with the Collector as far as nominations of such five members are concerned.
22. With such observations, these writ petitions are disposed of. Keeping in view the nature of the litigations, there shall be no order as to costs.
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S.K.Mishra,J Orissa High Court, Cuttack Dated 18th July, 2017/A.K.Behera 16 Sd/-
S.K.Mishra, J True copy . Secretary .
17 Orissa High Court, Cuttack Dated June, 2010/A.K.Behera. 18 Sd/- A.S.Naidu,J. S.C.Parija,J. I agree. Sd/- S.C.Parija,J True Copy Orissa High Court, Cuttack Dated June,2010/A.K.Behera. P.A. 19