PATITAPABAN MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE approval of the Governing Body of Debendra Satpathy Memorial College, Gyanavihar, Dhenkanal on 26.4.2008 by the Regional Director of Education, who is the prescribed authority, which has been annexed to the Writ Petition as Annexure -10, is under challenge in the present Writ Petition. The above named college is a private unaided recognized one. The +2 Branch of the said college was established in the year 1991. It is claimed by the Petitioner that the educational agency, which is the Governing Body of the college, of which the Petitioner was the Secretary of the committee of management, made necessary application for registration of the committee under the Societies - Registration Act, 1860 & the said society was registered on 27.11.1991. On making proper application for permission to establish +2 as well as +3 streams, the prescribed authority granted permission in respect of +2 wing vide notification dated 24.9.1994 from the academic session 1993 -94. Thereafter, temporary recognition in respect of +2 wing was granted from 1994 -95 which was extended from time to time & finally permanent recognition was granted from the academic session 2003 -04. The Council of Higher Secondary Education accorded affiliation in respect of the +2 wing of the college on 17.11.1994. The Governing Body was constituted to manage the day to day affairs of the college in respect of the +2 Arts stream in the year 1991 & was approved by the competent authority by an office order for a period of three years in which the Petitioner was the Secretary. Prior to expiry of the term of the Governing Body, the out -going Governing Body passed a resolution nominating one Prasanna Kumar Sahoo as the President & the Petitioner as the Secretary of the Governing Body for the second time which was duly reconstituted & approved by the prescribed authority on 15.3.1999. Again before expiry of the period of the said Governing Body, upon a resolution, it was reconstituted in conformity with he amendment in Orissa Education (Establishment, Recognition & Management of Private Junior Colleges/Higher Secondary Schools) Rules, 1991 (for short, 'the Rules, 1991'). The present Petitioner was nominated as a member of the reconstituted Governing Body & was also elected as the President of the said Governing Body which was approved by the Regional Director on 4.1.2002. The Petitioner claims to have donated more than Rs. 1.00 lakh to the college & was taken as the Member in the category of donor. It has been alleged that the Opp. Party No. 12 after being elected as Member of Parliament from Dhenkanal Constituency, due to hostile attitude towards the Petitioner on account of political alignment, pressurized the authorities for which, without following any procedure, a decision was taken to dissolve the Governing Body of the college & an order was passed superseding the Governing Body on 18.6.2004. In the very same letter, the Sub -Collector, Sadar, Dhenkanal was appointed as the Special Officer to manage the affairs of the college. Taking advantage of the situation, the Opp. Party No. 12 managed to submit a proposal through the Sub -Collector vide his letter dated 24.12.2004 before the Opp. Party No. 3 the Regional Director of Education for reconstitution of the Governing Body. The Petitioner contended that the proposal purported to have been submitted by the Sub -Collector in the capacity of Special Officer is not in conformity with the Rule, which provides detail procedure, as to how a proposal is to be submitted &, therefore, the so -called proposal was without authority of law. However, the proposal got approval from the Director, who approved the same arbitrarily, without due application of mind & ignoring the provisions under Rules 23 & 25 of the Rules, 1991. The reconstitution of the said Governing Body on 19.3.2005 has been challenged by the Petitioner in W.P.(C) No. 5292 of 2006 before this Court which is stated to be subjudice. It is further alleged that the Opp. Party No. 3 in response to the notice issued by this Court in the aforesaid Writ Petition clearly admitted that the Petitioner is the only donor member of the college. At this juncture, a proposal was submitted by the so -called Governing Body, constitution of which is the subject -matter of challenge in W.P.(C) No. 5292 of 2006 at the instance of Opp. Party No. 12. Having come to know about such action, the Petitioner sought for information under the R.T.I. Act & learnt that the Opp. Party No. 3 without proper scrutiny of the documents & without making any enquiry whatsoever approved the Governing Body in his letter dated 26.4.2008 which is impugned in the present Writ Petition. The said approval of the Governing Body under Annexure -10 has been challenged by the Petitioner on various grounds as mentioned in paragraph -24 of the Writ Petition.

(2.) SEPARATE counter affidavits have been filed by the Opp. Party No. 3 as well as Opp. Party Nos. 6, 12 & 13 respectively. In both the counter affidavits, the locus standi of the Petitioner has been questioned & the allegations made by the Petitioner have been denied. The Opp. Party No. 3 has stated that it is a fact that the Sub -Collector, Sadar, Dhenkanal -cum -Special Officer submitted a proposal vide his letter dated 24.12.2004 before the prescribed authority to reconstitute the Governing Body & the prescribed authority with proper verification, application of mind & in consonance with the Rules, 1991, as amended in 2001, approved the Governing Body by his Order Dated 19.3.2005. The Opp. Parties 6, 12 & 13, while denying the allegations made in the Writ Petition & challenging the locus standi of the Petitioner, have supported the approval of the Governing Body, inter alia, stating that the earlier approval dated 19.3.2005 of the reconstitution of the Governing Body as per the proposal submitted by the Sub -Collector which was made on 19.3.2005 has not been challenged by the Petitioner & without challenging the said order of reconstitution dated 19.3.2005, the subsequent order of approval dated 26.4.2008 cannot be questioned by the Petitioner.

(3.) MR . Routray, Learned senior Counsel appearing for the Petitioner vehemently urged that in the case of Kishori Mohan Mohapatra and Ors. (supra), this Court has clearly laid down as follows: