The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17230 of 2023 Governing Body of Baliapala College of Physical Education, Balasore …. Petitioner Mr. J.K. Rath, Sr. Advocate along with Mr. D.N. Rath, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 29.01.2024 Order No 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the
Legal Reasoning
Petitioner along with Mr. D.N. Rath and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. Rejoinder affidavit filed in Court be kept in record. 3. At the outset learned Sr. Counsel contended that even though against order dtd.18.10.2022 so passed by this Court in W.P.(C) No. 10310 of 2014, Writ Appeal No. 1528 of 2022 has been filed, but Petitioner will not press the writ appeal, if this Court will interfere with the order passed by the Govt. on 12.05.2023, which is impugned in the present writ petition. // 2 // 4. Learned Sr. Counsel appearing for the Petitioner contended that the Governing Body of the Petitioner’s institution so approved on 30.12.2013 under Annexure-6 when was dissolved with passing of an order by Opp. Party No. 1 on 31.05.2014, the matter was challenged before this Court in W.P.(C) No. 10310 of 2014. This Court vide order dtd.05.06.2014 under Annexure-10 when stayed the operation of order dtd.31.05.2014, Opp. Party No. 1 in compliance of the order dtd.05.06.2014 passed the following order on 09.06.2014 under Annexure-11:- “In continuation of the Memos referred above, I am directed to send herewith a copy of the Order No. 2 dtd.05.06.2014 of Hon’ble High Court of Odisha in W.P.(C) No. 10310 of 2014 and Order No. 03 dtd.05.06.2014 in misc case No. 9312 of 2014 in the matter of reconstitution of the Governing Body of Baliapal College of Physical Education, Baliapal for information and immediate necessary action. As directed by Hon’ble High Court, the Governing Body reconstituted vide Sports & Youth Services Department Order dated 31.05.2014 is hereby stayed and the Governing Body constituted vide Order No. 14062/SYS dtd.30.12.2013 will continue to function with full authority till further orders of Hon’ble High Court.” 4.1. Learned Sr. Counsel contended that in view of the order passed by this Court on 09.06.2014 under Annexure-11, Governing Body constituted and approved on 30.12.2013 continued to function as the Governing Body of the College till Writ Petition No. 10310 of
Decision
2014 was disposed of by this Court vide a common order passed on 18.10.2022 under Annexure-9. This Court in its order dtd.18.10.2022 while dealing with Petitioner’s claim issued the Page 2 of 8 // 3 // following direction, more fully indicated in Para 28 of the said order:- “In the light of above discussions, and guided by the precedents narrated hereinabove, this Court directs the prescribed authority to constitute a fresh Governing Body if the same has not already been done by taking into consideration the term of each member and the length of such term while they were the member of the Governing Body and such an arrangement must be in accordance with Section-7 read with Rules 25 and 26 of the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules,1991. The competent authority is directed to exercise due caution while considering the eligibility of the members who were a part of the Governing Body in the previous terms.” 4.2. It is contended that in view of the order passed by the Govt. on 09.06.2014 under Annexure-11 and disposal of the writ petition by this Court on 18.10.2022, Governing Body approved on 30.12.2013 was functioning as on the date of disposal of the writ petition in question. Even after disposal of the writ petition, no order was passed by Opp. Party No. 1, recalling order dt.09.06.2014. Therefore, in view of the provisions contained under Rule 23 of the Odisha Education (Establishment, Recognition & Management of Private Colleges) Rules, 1991, Governing Body approved on 30.12.2013 and allowed to continue in terms of the order at Annexure-11, was the Governing Body by the time the writ petition was disposed of by this Court on 18.10.2022 and President of the Governing Body is competent to submit the proposal along with names for approval of the reconstituted Governing Body with Page 3 of 8 // 4 // passing of the required resolution. Therefore, in view of the provisions contained under Rule 23 of the aforesaid Rules, it is only the President of the Governing Body, who is competent to submit the proposal proposing the names with regard to reconstitution of Governing Body and for its approval. 4.3. But on the face of the order passed by this Court on 18.10.2022 coupled with the order passed by the Govt. on 09.06.2014 under Annexure-11, Opp. Party No. 1 passed the impugned order on 12.05.2023 under Annexure-1 by allowing ADM, Balasore to function as the President of the Governing Body and dissolving the Governing Body approved on 30.12.2013 under Annexure-6. While allowing Opp. Party No. 3 to act as President of the Governing Body, Opp. Party No. 3 was directed to submit the proposal for reconstitution of the Governing Body as per 1991 Rules. It is contended that since as on the date of disposal of the writ petition on 18.10.2022, the Governing Body approved on 30.12.2013 was functioning in terms of the order passed by the Govt. on 09.06.2014, the same Governing Body is to submit the proposal proposing the names for reconstitution of the Governing Body in terms of Rule 23 of the 1991 Rules. It is accordingly contended that the direction issued by the Govt. under Annexure-1 by appointing ADM, Balasore to function as the President of the Governing Body and thereafter to submit the proposal for reconstitution of the Governing Body within a period of 90 days is not sustainable in the eye of law. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand contended that the order approving the constitution of the Page 4 of 8 // 5 // Governing Body of the College on 30.12.2013 was dissolved by the Govt.-Opp. Party No. 1 vide order dtd.31.05.2014. The said order though was challenged by the Petitioner in W.P.(C) No. 10310 of 2014, but this Court while disposing the matter vide order dtd.18.10.2022, did not interfere with the said order and dispose of the matter with certain observation and direction. It is contended that in terms of the direction so issued by this Court in its order dtd.18.10.2022 for the purpose of the reconstitution of the Governing Body, the order under Annexure-1 was passed by appointing ADM, Balasore to function as the President of the Governing Body of the College and to submit the proposal for reconstitution of the Governing Body in terms of 1991 Rules. Not only that vide the said order, the Governing Body approved on 30.12.2013, so dissolved vide order dt.31.05.2014, was confirmed. It is accordingly contended that the order under Annexure-1 having been issued in compliance to order dt.18.10.2022 of this Court, the same is not to be interfered with. 6. To the submission made by learned State Counsel, learned Sr. Counsel appearing for the Petitioner contended that the order passed by the Opp. Party No. 1 on 31.05.2014 in dissolving the Governing Body so approved on 30.12.2013, was allowed to continue with full authority till further orders of this Court vide order dtd.09.06.2014 under Annexure-11. The said status continued after disposal of the writ petition in W.P.(C) No. 10310 of 2014 by this Court on 18.10.2022. Therefore, in view of the provisions contained under Rule 23 of the 1991 Rules, the Governing Body so approved on 30.12.2013 under Annexure-6 should have been permitted to send the proposal by making the resolution to that Page 5 of 8 // 6 // effect. Only vide order dtd.12.05.2023 the Governing Body approved on 30.12.2013 though was treated to have been dissolved in terms of the earlier order passed on 31.05.2014, but the order passed by the Opp. Party No. 1 on 09.06.2014 under Annexure-11 was never recalled or modified. It is accordingly contended that in view of the order of approval issued on 30.12.2013 under Annexure-6 and order dtd.09.06.2014 passed under Annexure-11, the Governing Body so approved on 30.12.2013 is competent to submit the proposal through the outgoing President. But Opp. Party No. 1 without allowing the outgoing Governing Body to comply the requirement of Rule 23 of the Rules appointed Opp. Party No. 3 to act as President of the Governing Body vide the impugned order dtd.12.05.2023 under Annexure-1 and allowing him to submit the proposal in terms of Rule 23 of the 1991 Rules. 7. Heard learned counsel appearing for the Parties. Perused the materials available on record. This Court finds that the Governing Body of the Petitioner’s College was approved by the Govt. vide order dtd.30.12.2013 under Annexure-6. The said approval when was withdrawn by dissolving the Governing Body vide order dtd.31.05.2014 under Annexure-7, the matter was challenged before this Court in W.P.(C) No. 10310 of 2014. This Court vide order dtd.05.06.2014 while issuing notice of the matter passed an interim order staying the operation of order dtd.31.05.2014. Pursuant to the order passed by this Court on 05.06.2014, Govt.-Opp. Party No. 1 passed a fresh order on 09.06.2014 under Annexure-11 by allowing the Governing Body so approved on 30.12.2013 to continue with full authority till further orders of this Court. Page 6 of 8 // 7 // 7.1. The writ petition filed in W.P.(C) No. 10310 of 2014 was ultimately disposed of by this Court vide order dtd.18.10.2022 under Annexure-9. This Court while disposing the writ petition issued direction on the prescribed authority to constitute a fresh Governing Body, if the same has not already been done taking into consideration the term of each member and the length of such term while they were the members of the Governing Body and such an arrangement must be in accordance with Section 7 r.w. Rule 25 & 26 of 1991 Rules. 7.2. In view of the order passed on 09.06.2014 under Annexure-11, the Governing Body, which was constituted and approved on 30.12.2013 since was functioning as on the date of disposal of the writ petition by this Court on 18.10.2022, in view of the provisions contained Rule 23 of 1991 Rules, it is to be treated as the outgoing Governing Body in the eye of law and it is competent to submit the names along with proposal for reconstitution of the Governing Body and its approval by Opp. Party No. 2. Since as on the date of disposal of the writ petition on 18.10.2022, the Governing Body approved on 30.12.2013 was functioning as the Governing Body, it is only competent to submit the proposal for reconstitution of the Governing Body in terms of the provisions contained under Rule 23 of the 1991 Rules. The order passed on 09.06.2014 was also never modified or withdrawn even after disposal of the earlier writ petition on 18.10.2022 till the impugned order was passed on 12.05.2023. 7.3. In view of the aforesaid analysis, this Court is inclined to interfere with the impugned order dtd.12.05.2023 so passed by the Page 7 of 8 // 8 // Opp. Party No. 1 under Annexure-1. While interfering with the same, this Court quash the order dtd.12.05.2023. While quashing the same, this Court directs the Petitioner to take step for submission of the proposal through the President of the Governing Body so approved on 30.12.2013 by following the provisions contained under Rule 23 of the 1991 Rules. However, in order to expedite the matter, this Court directs the Petitioner to pass a resolution and submit the proposal through the President of the Governing Body so approved on 30.12.2013 within a period of four (4) weeks from the date of receipt of this order. On receipt of the proposal, the same shall be considered by Opp. Party No. 2 in terms of the provisions contained under Rule 23 to 26 of the 1991 Rules as well as the order passed by this Court on 18.10.2022 in W.P.(C) No. 10310 of 2014 and approve the Governing Body of the College, within a period of 4(four) weeks from the date of receipt of the proposal. However, it is observed that if Petitioner will fail to submit the proposal for reconstitution of the Governing Body within the period as indicated by this Court, the order passed on 12.05.2023 will automatically be revived. 8. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Feb-2024 18:59:08 Page 8 of 8