NAREN PALAI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The writ petitioner has prayed for issuance of a writ of mandamus or any other appropriate writ directing the opposite parties to allow him as the ex -officio President to reconstitute the Governing Body of the Institute 'Bhadrak Institute of Engineering and Technology, Bhadrak' in accordance with law and direct the opposite parties 1 and 2 to take over the management of the Bhadrak Institute of Engineering and Technology, Barapada by appointing an officer as the management in -charge till formation of a valid Governing Body under the Chairmanship of the petitioner. The petitioner further has prayed for a direction to opposite party Nos. 1 and 2 to take immediate action for recovery of the amount in terms of the audit report from time to time and fix up the responsibility against the erstwhile President of the Governing Body and recover the amounts as found by the audit party.

(2.) THE petitioner's case in brief without unnecessary details is that 'Barapada school of Engineering and Technology' hereinafter called as ' the Institute' is managed by a society registered under the Societies Registration Act which was registered in the name of 'Governing Body of Barapada School of Engineering and Technology'. The petitioner claims that in terms of Bye -laws of the society which has been annexed as Annexure -2, the management of the affairs of the Institute is vested with the Board of Governors consisting of 13 members including the local M.L.A. as the ex - officio President of the Board. Clause (9) of the Bye -laws provided that when an Ex -Officio member of the society or the Board ceases to hold the office, his membership shall terminate automatically. Clause 11 of the Bye -laws provides that the members other than the M.L.A, M.P., Sub -Collector and Principal of the society of the Board shall cease to be such members on the expiry of five years from the date of his appointment or nomination unless discontinued earlier but shall be eligible for reappointment or renomination, as the case may be. The term of the Governing Body in which Shri Prafulla Kumar Samal -opposite party No. 6, who was the local M.L.A. and the then Minister of Labour and Employment was the Ex -officio President of the Institute expired after completion of five years on 6.8.1997 in terms of Clause 11 and after the petitioner was elected as M.L.A of Bhadrak Assembly Constituency and assumed office as such he addressed a letter to the Principle -cum -Ex -officio Secretary of the Board of Governors of the Institute requesting him to induct him as the member of Board of Governors and take immediate steps for the purpose of reconstitution of the Governing Body. The principal in his letter dated 11.6.2004 intimated the petitioner that he will be inducted as a member of the society in the coming meeting of the Board which was to be held very soon. However, since no action was taken by the Principal, taking advantage of the fact that the Governing Body has not been reconstituted, opposite party No. 6 joined hands with the Principal and projecting himself to be the Chairman -cum -President of the Governing Body misappropriated huge funds and committed several irregularities including misappropriation of funds which was detected during audit of the year 2002, It is claimed that the petitioner could know that opposite party No. 6 has taken huge amounts of about Rs. 10.18,803.00 on the plea of liaison office expenses which is unauthorized and illegal. The petitioner further alleges that for unauthorized occupation of M.L.A. quarters, the institute has paid huge amounts towards arrear licence fees which were outstanding against Shri Samal, opposite party No. 6. The petitioner, therefore, has filed the present writ petition with the aforesaid prayers.

(3.) SHRI B. Routray, Learned Senior Counsel for the writ petitioner, submits that under the provisions of Sections 3(d), (f) and (m -1) read with Sections 7 and 27 of Orissa Education Act, the term of the Governing Body is three years and it has to be reconstituted in accordance with law after expiry of three years. It is submitted that the Governing Body of the College has not been constituted/reconstituted in accordance with the provisions of the Orissa Education Act and the Rules framed thereunder and since the Orissa Education Act and Rules framed thereunder are squarely applicable to the O.P. No. 4 - Institute, it is required to be constituted/reconstituted in accordance with the said provisions. Learned Counsel has referred to the decisions in Sanjaya Memorial Institute of Technology v. State of Orissa 1993 (II) OLR 435 and Orissa Engineering College v. State of Orissa 2002 (II) OLR 78 in support of his contention that the provisions contained in the Orissa Education Act shall be applicable to the Technical Colleges since the AICTE Act as well as the Orissa Act as amended, can co -exist and there is no repugnancy. It is further submitted that the AICTE Regulation 1994 is no more in force after 17.6.2003 when the Interim Regulations of the AICTE was published in the Gazette dated 20.3.2003 after the Judgment of the Apex Court in T.M.A. Pai Case, AIR 2003 SC 355. The interim regulation clearly stipulates that the State Government as well as the concerned University can prescribe the qualification of governing Body members and in such view the stand taken by opposite party Nos. 4 and 6 that the Governing Body has been constituted as per the AICTE guidelines is without any force. Submission is made that a bare perusal of the Judgment of the Apex Court in T.M.A. Pai case would indicate that for constitution of the Governing Body in respect of private institutions, the State Goverment can prescribed qualification and in any event, the State Government is not prohibited from framing statutory Rules for constitution of the Managing Committee and Governing Body of technical institutions as has been done in the Orissa Education Act and the Rules framed thereunder. Alternatively, it has been contended that even assuming that the last Governing Body of the College was constituted on 11.5.2000, although such Governing Body is a self -styled Governing Body and has never got the approval of any statutory authority, the term of the said Governing Body being three years, its. term expired since 11.5.2003 and has no existence thereafter. Learned Counsel in the context of the stand taken by opposite party Nos. 4 and 6 with regard to tenability of the writ petition is absence of the Society being impleaded as a party submits that no relief having been claimed against the Society as it is, the Society is not a necessary party. Shri Bijan Ray, Learned Senior Counsel for opposite party Nos. 4 and 6, submits that the Society having not been impleaded as a party, the issue relating to constitution of Governing Body of B.I.E.T. as raised in the writ petition is beyond Judicial review. The Governing Body being a registered Society, the society is not amenable to writ Jurisdiction and, as such, the writ petition is liable to be rejected. Sri Ray submits that 'the first members' occurring in the Bye -laws on a plain reading would only mean that the local M.L.A. was the ex -officio President of the first Board of Governors and in any event the same do not constitute a condition, stipulation or term of the Bye -laws. Successive elections of Chairman ex facie would lead to the conclusion that the Bye -laws never stipulated the local M.L.A. to be the Ex -officio President save and except the first Governing Body. It is submitted that even Mr. Biren Palei, the then local M.L.A. only continued as a member when Shri P. K. Samal was the Chairman in the Governing Body constituted in the year 2000. Similarly Shri Jagannath Rout was the Chairman in 1997 Governing Body when Shri P. K. Samal was the existing M.L.A. In reply to the contention of the Learned Counsel for the petitioner that the provisions of the Orissa Education Act and the Rules framed thereunder are applicable to the petitioner's Institution and, as such, the Governing Body is to be reconstituted in accordance therewith, Shri Ray submits that in view of the decisions of the Apex Court in the cases of P. Kasiligam, : AIR1995SC1395 State of Tamil Nadu v. Adhiamman : (1995)4SCC104 and the decision in T.M.A. Pai case, the Central Statute has to prevail and more so when the Apex Court in categorical terms has laid down that the autonomy of private managed Institution has to be respected without interference by the bureaucracy or the Goverment in its administration, the Orissa Education Act and the Rules framed thereunder will have no application. Shri Ray also has referred to the interim policy regulation, 2003 of AICTE after the Judgment of the Apex Court in T.M.A. Pai case and submitted that in view of the Apex Court Judgment, the AICTE has laid down that it will not insist on any nomination in the Governing Body of any private unaided institution, the affiliating University/ State Government shall impose minimum condition of affiliation such as prescription of qualification of Governing Body members in order to ensure academic excellence and such condition shall be subject to scrutiny by AICTE and that the private unaided institution will have a right to constitute its own Governing Body for which only qualification may be prescribed by the State or the concerned University. 4. (Sic). In view of the pleadings of the parties, the undisputed factual position of the case is that Barapada School of Engineering and Technology, Barapada in the district of Balasore and presently in the district of Bhadrak (hereinafter called as 'B.S.E.T.') was registered under the Societies Registration Act on 6.8.1992 as a Society with the aims and objects of imparting education by establishing a broad -based Technical Institute in the State of Orissa and to provide instruction, practice and research in various branches in Engineering and Technology. Earlier to the registration of the Governing Body, the said School was being managed by a Managing Committee formed by the public and the School got permission from the Director, Technical Education and Training (opp. party No. 2). Shri Prafulla Kumar Samal (opp. party No. 6), who was the local M.L.A. and the then Minister of Labour and Employment, Government of Orissa, was the President of the Governing Body which was constituted with 13 members for a term of five years from the date of constitution thereof. In the meeting of the Society held on 10.3.1997 (Annexure -E/4) under the Chairmanship of opposite party No. 6, a proposal was made for establishment of Bhadrak Institute of Engineering and Technology and it was further resolved to take four additional members to the Governing Body of Bhadrak Institute of Engineering and Technology as well as the members of the Society of B.S.E.T. It was further resolved that Shri Jagannath Rout shall be the Chairman of the Governing Body in place of the local M.L.A. Prafulla Samal and Shri Samal remained as Vice - Chairman of the Governing Body of the proposed college. All India Council of Technical Education, in letter dated 23rd June, 1998, accorded its approval to Bhadrak Institute of Engineering and Technology, Bhadrak for 1998 -99 to conduct Degree courses in Computer Science and Engineering, Electrical Engineering and Electronics and Tele -communication Engineering with a total intake capacity of 180, subject to fulfillment of the conditions laid in Annexure -1 thereto. The Governing Body of Bhadrak Institute of Engineering and Technology was reconstituted on 11.5.200 when opposite party No. 6 was the President and the then M.L.A. Shri Biren Palei was taken in as a member in charge of accounts. The petitioner was elected as M.L.A. of Bhadrak Constituency and assumed office on and from 13.05.2004. The petitioner had written a letter to the Principal of the College to induct him as President. There are allegations of mis -management and misappropriation in the Audit Report against opposite party No. 6. Undisputedly, the Governing Body of Bhadrak Institute of Engineering and Technology has not been registered as a Society under the Societies Registration Act and it is only the Governing Body of B.S.E.T., Barapada has been registered as a Society under the Societies Registration Act. On 11.5.2000, a special meeting of the Governing Body of B.S.E.T. was held with a view to reconstitute the Governing Body as per the AICTE guidelines. The State Government as well as the Biju Patnaik University of Technology (B.P.D.T.) was requested to send their nominees to the Governing Body. B.P.U.T. in its letter dated 28.02.2003 directed the Governing Body of the College to reconstitute the Governing Body as per AICTE guidelines. The AICTE, consequent upon the decision of the Supreme Court in T.M.A. Pai case, issued Interim Regulation dated 17.6.2003. In Clause 10 of the conditions for approval of the College, it was stipulated that consequent upon Judgment of Hon'ble Supreme Court delivered on 31.10.2002 in T.M.A. Pai case, the AICTE had issued Interim Regulations, which has been notified in the Gazette of India on 28th March, 2003 and the provisions contained in the Interim Policy Regulation shall be applicable in the year 2003 -04 in respect of AICTE approved institutions. In the Interim Policy Regulations issued by all India Council of Technical Education, which was published in the Gazette of India Extraordinary Part -III, Section 4, it has been clearly stipulated that in view of the Judgment of the Apex Court, the private unaided Institutions will have right to constitute their own Governing Body, for which qualification may be prescribed by the State as well as the University concerned. It has also been indicated that while AICTE will not insist on any nomination in the Governing Body of Private unaided institutions, the Affiliating University/State Government shall impose minimum condition of affiliation, such as, prescription of qualification for Governing Body members, in order to ensure academic excellence. The conditions so imposed will be subjected to scrutiny by AICTE, wherever necessary, to ensure that the same are not unreasonable restrictions. Ultimately it has been directed that it shall be desirable for the private unaided institutes to induct at least 50% of members of the Governing Body brought from renowned academicians, academic administrators, subject field experts and a professional from industry in order to seek their innovative ideas for continuous improvement in the delivery of teaching learning process. There is no allegation nor has anything been brought on record that the reconstituted Governing Body does not fulfil such conditions.