MANAGING COMMITTEE TALABASTA HIGH SCHOOL Vs. STATE

JUDGEMENT

(1.) The question raised in these writ petitions, is that whether S. 7 of the Orissa Education Act (hereinafter referred to as the 'Act) after its amendment by Act 16 of 1991, and the provisions of the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules 1991 (hereinafter referred to as "the 1991 Rules") do not affect the reconstitution of the existing Managing Committees of High Schools existing at the commencement of those rules in accordance with the Orissa Education (Management of Private Schools) Rules, 1980 (hereinafter referred to as '1980 Rules') and that whether the right of those Managing Committees either to continue in office or to send nominations for their reconstitution is saved by Rule 34 of the 1991 Rules which provides that notwithstanding the repeal of the 1980 Rules any order made; action taken or things done under the provisions of the rules repealed shall be deemed to have been made, taken or done under the new Rules. As a corollary, it is contended that new managing committees are to be reconsituted on the nomination submitted by the outgoing managing committees and that those committees cannot be constituted of the persons as provided for under Rule 18 of the 1991 Rules. On such premises, mandamus is sought for to quash annexures-3 and 4 of OJC No.963/92, the first being a letter from the Inspector of Schools, Cuttack I Circle of 6-1-92 to the Sub-Collector of Sadar, Cuttack, Athagarh and Banki requesting them to pass orders nominating either the Tahasildars or the Additional Tahasildars to be the exofficio member as well as the. President of the Managing Committees of aided High Schools of each Tahasil, and the second being a letter from the Tahasildar, Banki on 9-1-92 to the Headmaster, Talabasta High School, Talabasta whose managing committee is the petitioner in the case, directing him to meet him in connection with Annexure-3 with relevant informations about the existing managing Committee of the institution and the name of the highest donor of the school. In O.J.C. No. 1195/92 where the outgoing managing committee had already nominated on 20-5-91 new members for the purpose of reconstitution, the claim is that the Inspector having not refused the approval of the nominated members, they would be deemed to have assumed office on 1-12-91 and mandamus is sought for to quash Annexures2 and 3 (presumably mistake for Annexures-3 and 5). Annexure-3 is a communication from the Deputy Secretary to Government on 30-12-91 to the Directors of Higher Education, Secondary Education and Elementary Education of Orissa bringing to their notice the amendment to the Orissa Education Act in 1991 and the framing of the new rules and urging that steps be taken on top priority basis be reconstitute the managing committees in accordance with the new Rules. Annexures 4 and 5 are the identical letters as Annexures 3 and 4 in OJC No.963/92 with the difference that Annexure-5 is addressed by the same Tahasildar to the Headmaster of Uttarkulat Bidyapitha Bendalo whose managing committee is the petitioner in the case. In O.J.C. 1599/92, the facts are similar to O.J.C. No. 1195/92 with the averments that the managing committee as nominated by the outgoing managing committee assumed office on I8-12 91 in absence of any response from the Inspector of Schools to the nominations and seeking quashing of Annexures 2, 3, 4, 6 and 7; Annexure-2 being the identical letters Annexure-3 in OJC No. 1195 of 1992; Annexure-3 being the same letter as Annexure-3 to OJC No.963/91; Annexure-4 being a letter dated 4-2-92 from the Govt. addressed to the Director, Secondary Education, Orissa and others regarding implementation of the rules relating to establishment, recognition and management of the aided educational institutions; Annexure-6 being an office order of the Inspector of Schools, Cuttack I Circle purporting to approve the managing committee of Samarapur Grain Panchayat Ucha Bidyalaya on 17-1-92 which order leaves the names of the Tahasildar, the Headmaster, the nominee of the M.L.A. And the nominee of the Panchayat Samiti/NAC/ Municipality block; and Annexure-7 being a notice of 3-4-92; after the Secretary of the newly constituted managing committee regarding meeting of that committee.

(2.) Therissa Education (Amendment) Act, 1991(Act 16 of 1991) referred hereinafter as 'the 1991 Amendment Act' 'amended sub-sec. (4) of S. 7 of the Act reducing the term of the managing committees to three years from five years and introduced sub-sec. (5). The provision of sub-sec. (5), as analysed, made the following provisions :

(3.) iously distinction has been made between purely private high schools and private high schools which become aided providing that on their becoming aided the managing committees are to be reconstituted only in accordance with Rule 28. It would be seen that under R. 28 there is no school of any nomination by any managing committee for the purpose of reconstitution. The Tahasildar or the Additional Tahasildar, nominated by the Sub-Collector becomes the ex-officio President. An exception is provided that in case of a private High School established by a trust, Government has to appoint a nominee of the trust as the President of the managing committee. A question raised that the rule contemplates not the Tahasildars/ Additional Tahasildar but the Sub-Collector to be President shall be discussed later. The two seniormost trained graduate teachers of the school are members by virtue of their seniority. The District Inspector of Schools is a member in ex-officio capacity. The local N.L.A. of the constituency and the Chairman of the Panchayat Samiti or the Municipality/ MAC are to nominate a person each to be the members of the managing committee and the persons so nominated are to enjoy office during the pleasure of the nominator. The President of the managing committee, i.e. the Tahasildar or the Additional Tahasildar is to nominate four persons of the locality interacted in the field of education of which one may be the highest donor if the donation exceeds Rs. 50,000/- (Rupees fifty thousand) and out of the others, one is to be a person of the SC/ ST community and the other a woman. The Headmaster of the school or the teacher-in-charge of Headmaster shall be the Secretary of the school in ex-officio capacity. The managing committee so constituted is to obtain approval of the Inspector who has also the authority to suggest changes within thirty days but if no communication is received from him within thirty days, the managing committee shall be deemed to have been approved. There is a further provision that the changes suggested by the Inspector are to be considered by the President and he shall submit the list within fifteen days of receipt of the communication from the Inspector either accepting the changes suggested or refusing them. After re-submission of the list, the Inspector is bound to approve it. The ex-officio Secretary of the managing committee is the person to give intimation to the Inspector regarding constitution of the managing committee or of any change of its membership. Rule 28 being thus a complete rule regarding schools which become aided and it being in a completely different part, the provisions of R. 27 cannot have any application there.