The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35478 of 2023 Governing Body of Biju Pattnaik Degree College of Education, Malkangiri …. Petitioner State of Odisha & others -versus-
Legal Reasoning
Mr. P.K. Parhi, Advocate …. Opposite Parties Mr. N. Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 01.11.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased to quash the Government order No.45859/HE dtd:19.10.2023 under Annexure-3 and direct the Opp. Parties not to interfere in the smooth functioning of the approved Governing Body; And/or pass any other appropriate Writ/Writs, order/ orders or direction/directions be issued so as to give complete relief to the petitioner.” Learned counsel for the Petitioner at the outset submitted that 4. being aggrieved by the order dated 19.10.2023 under Annexure-3 to the writ application the Petitioner has approached this Court by filing the present writ application. He further contended that by virtue of the impugned order under Annexure-3, the Commissioner-cum-Secretary to // 2 // Government has passed an order purportedly under Section 7 (a) of the Odisha Education Act thereby dissolving the governing body of the Biju Pattnaik Degree College of Education, Malkangiri. 5. In course of his argument, Mr. Parhi, learned counsel for the Petitioner contended that the present Petitioner was summoned to appear before the Commissioner-cum-Secretary, Opposite Party No.1 pursuant to an order passed in W.P.(C) No.14447 of 2022 disposed of by this Court on 12.05.2023. He further contended that in the aforesaid writ application, the Petitioner had approached this Court alleging the misappropriation of fund by one Nabin Kumar Nayak, who happens to be the Principal of the college. It was also contended that although the order has been passed under Section 7 (a) of the Odisha Education Act, however, the procedure as laid down in Section 7 (a) of the Odisha Education Act has not been followed in the present case. 6. He further contended that no notice under Section 7(a) was issued to the Petitioner before passing the final order by invoking the power under Section 7 (a). He also contended that the prescribed authority under Section 7 (a) is the Regional Director. Whereas in the present case, the order purportedly one under Section 7 (a) has been passed by the Commissioner-cum-Secretary. It was submitted before this Court that the Commissioner-cum-Secretary is the appellate authority as provided under Section 7 (a). Therefore, the statutory right to appeal has also been taken away from the Petitioner as a result of which the Petitioner has been compelled to approach this Court by filing the present writ application. 7. Learned Additional Standing Counsel, on the other hand contended that pursuant to the direction of this Court in the above noted writ application proper notices were issued to the Petitioner. He further submitted that after providing an opportunity of hearing to the Petitioner, the Opposite Party No.1 by invoking jurisdiction under // 3 // Section 7 (a) has passed the impugned order dated 19.10.2023 under Annexure-3. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Party No.1 has not committed any illegality at all. He further contended that in view of the factual as well as legal position, the writ application is not maintainable. 8. This Court on a careful analysis of the factual background as well as the provisions of Odisha Education Act is of the considered view that the impugned order under Annexure-3 reveals that no doubt the Petitioner was provided with an opportunity of hearing before passing the order under Annexure-3, however, the same was in the context of allegation made in W.P.(C) No.14447 of 2022. In the said writ application there was an allegation against one Nabin Kumar Nayak the principal of the College. So far, supersession and reconstitution of the managing committee or governing body of the college is concerned, the authorities are required to follow the provision of Section 7 (a) of the Odisha Education Act mandatorily, diligently and scrupulously. 9. On a careful scrutiny of the impugned order it appears that no such notice for supersession or reconstitution of the governing body has been issued to the Petitioner as provided in Section 7 of the Act. Therefore, it can be safely concluded that the Petitioner was not provided with an opportunity to show-cause in the context of supersession of governing body. Moreover, it is also observed that prescribed authority under Section 7 (a) is the Regional Director, however, the Commissioner-cum-Secretary i.e. Opposite Party No.1 has exercised a jurisdiction under the aforesaid section and passed the impugned order. In the aforesaid factual background this Court is of the considered view that the settled legal position that if the statute provides a thing to be done in a particular manner, it is to be done in the same manner is not at all applied to the facts of the present case. In such view of the matter, this Court is of the considered view that the impugned // 4 // order under Annexure-3 is unsustainable in law. Accordingly, the order under Annexure-3 is hereby quashed. Further, the matter is remanded back to the prescribed authorities to examine the matter in the light of the provisions contained in Section 7 (a) of the Odisha Education Act and in the event, the prescribed authorities is convinced with regard to the ground for supersession and reconstitution of the governing body, then necessary steps be taken by following the procedure as laid down in Section 7 (a) of the Odisha Education Act. 10. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 07-Nov-2023 12:16:26