The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.39349 of 2023 Basanta Kumar Jena …. Petitioner Mr. S.K. Das, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. P.K. Panda, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 22.01.2025 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the letter dtd.22.11.2023 so issued by the Government-Opposite Party No.1 under Annexure-8. Vide the said communication, Opposite Party No.1 contrary to the provisions contained under the amended Rule, 25 of the Odisha Education (Establishment, Recognition and Management of Private Upper Primary Schools) Rules, 1991 nominated Opposite Party No.5 to act as the President of the Governing Body of the Petitioner’s College. 4. It is contended that Rule-25 of the amended Rules reads as follows:- “25. (1) Notwithstanding anything contained in these rules, as soon as the college becomes an aided college, the Governing Body of the college shall be reconstituted in the following manner: - i. subject to the provisions of clauses (ii), (iii) and (iv), the Government may sou-motu or on the recommendation of the Collector, nominate the President and in absence of such // 2 // nomination, the Collector or Additional District Magistrate or Sub-Collector of the concerned district or Sub-division in which the college is situated, shall be the President; ii. the Collector may recommend a panel of three names to the Government, out of which one may be nominated by the Government as President; iii. a person shall not be qualified for nomination as President unless he,- a. is a graduate from a recognised university; b. is an eminent academician or an educationalist or a retired Government officer of the State Government or Central Government; c. is between forty – five and sixty – seven years of age; iv. the person nominated as president under clause (i) shall cease to hold office of the President, if any, of other educational institutions if he holds the office of the President under such nomination; v. the person holding the office of the president of any Governing Body of any aided college prior to commencement of the Odisha Education (Establishment, Recognition and Management of Private Colleges) (Amendment) Rules, 2020 shall cease to hold office on completion of seventy years of age; vi. the Principal or the teacher-in-charge of the Principal of the College shall be a member, who shall be the ex-officio Secretary; vii. two senior most teachers of the college shall be members, of whom, one shall be a woman, if available; viii. one person from non-teaching staff of the college shall be a member; ix. six persons shall be nominated jointly by the President and the ex-officio Secretary, shall be members, of whom, - a. one shall belong to Scheduled Castes or Scheduled Tribes community; b. one shall be a land donor, or in absence of such land donor, one shall belong to a minority community; c. two shall be woman, and d. two shall be from the parents of the enrolled students, living in the same locality where the college is situated, out of which, one shall be a woman. x. a person shall not be qualified for nomination under clause (ix) as member unless he, - Page 2 of 6 // 3 // a. is a graduate from a recognised University except in colleges located in scheduled areas and in case of Scheduled Caste and Scheduled Tribe as well as land donor members for colleges located in non-scheduled areas; and b. is between thirty and seventy years of age. (2) The Constitution of the Governing Body or any change in the membership including President shall be intimated by the Secretary of the Governing Body with the approval of the President to the Regional Director of Education within thirty days of such constitution or change. (3) The Regional Director of Education shall give direction to the President to take appropriate action for constitution of the Governing Body in accordance with the provisions of sub-rule (1) within sixty days, when improper Constitution of Governing Body is noticed failing which action under clause (b) of sub- section (1) of section 6-B of the Act shall be taken”. 4.1. Placing reliance on the aforesaid amended rules, learned counsel for the Petitioner contended that in terms of the said provision, Collector, Jajpur –Opposite Party No.4 vide his letter dtd.03.10.2023 recommended the name of the present Petitioner along with two others for being nominated as the President of the Governing Body of the College-in-question. But on the face of such nomination made by the Collector under Annexure-7 and without following the provisions contained under the amended Rules, 25, vide the impugned letter dtd.22.11.2023 under Annexure-8, Opposite Party No.1 nominated Sub-Collector, Jajpur-Opposite Party No.5 to be the President of the Governing Body of the College. 4.2. It is contended that since in terms of the amended Rule 25, recommendation was made by the Collector vide letter dtd.03.10.2023 under Annexure-7, recommending three (3) names, out of those three names, one should have Page 3 of 6 // 4 // been nominated as the President of the Governing Body or in alternate Opposite Party No.1 should have send back the same if not acceptable to the Government with reason. But on the face of such recommendation, nomination of Opposite Party No.5 to act as the President of the Governing Body so made vide the impugned communication dtd.22.11.2023 is not sustainable in the eye of law. 4.3. It is accordingly contended that the impugned communication nominating Opposite Party No.5 to act as the President of the Governing Body requires interference of this Court.
Legal Reasoning
5. Mr. P.K. Panda, learned Addl. Standing Counsel for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party Nos.1 and 2 relying on the self-same provisions contained under the amended Rules, 25. 5.1. Learned Addl. Standing Counsel for the State contended that in view of the provisions contained under Rule-25(1), on the face of such nomination being made by the Collector, Government has the power to suo-motu recommend the Collector or Addl. District Magistrate or Sub-Collector to act as the President of the Governing Body. 5.2. It is contended that on the face of the provisions contained under Rule-25(1), which is an overriding provision, Government in exercise of that overriding Page 4 of 6 // 5 // provision has issued the letter under Annexure-8 by nominating Opposite Party No.5 to act as the President of the Governing Body. It is accordingly contended that Opposite Party No.5 has been rightly nominated and it requires no interference of this Court. 6. Having heard learned counsel appearing for the Parties and considering the submissions made and after going through the amended provisions so contained under Rule-25 of the aforesaid 1991 Rules, it is the view of this Court that such suo-motu power can be exercised by the Government-Opposite Party No.1, if no nomination is made by the Collector of the District. Since in the instant case, recommendation is made by the Collector vide letter dtd.03.10.2023 under Annexure-7, recommending 3 (three) names including the name of the Petitioner, on the face of such recommendation, Government cannot exercise the suo-motu power in terms of the provisions contained under Rule-25 (1) of the Rules. If the recommendation made by the Collector is not acceptable to the Government then due communication be made in that regard with reason for such non-acceptance. But since no document has been enclosed to the counter affidavit showing rejection of the recommendation made by the Collector under Annexure-7, suo-motu power exercised by the Government in terms of Rule-25(1) is not permissible. 6.1. Therefore, this Court is inclined to quash the nomination of Opposite Party No.5 to act as the President of Page 5 of 6 // 6 // the Governing Body of the College in question so made vide letter dtd.22.11.2023 under Annexure-8. While quashing the same, this Court directs Opposite Party No.1 to take a decision on the recommendation made under Annexure-7 in accordance with law, if not already taken, in which this Court expresses no opinion. 7.
Decision
Accordingly, the Writ Petition stands disposed of. Subrat (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jan-2025 13:23:19 Page 6 of 6