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Judgment
S.N.Prasad,J.
1.This writ petition is for quashing the direction issued by the opposite party no.1 to the opposite party no.4-Sub-Collector,Cuttack vide memo No.4249
dated 15.2.2018 to function as the President of the Governing Body of the college in question from the date of issuance of the notification until further
order.
2.The case of the petitioner is that the College in question which has been established in the year 1989, started functioning from the session 1989-90,
affiliated to the Council of Higher Secondary Education,Orissa having +2 course, subsequently +3 wing of the college was granted permission by the
order of the Director, Higher Education,Orissa vide order No.57056 dated 14.11.1994.The college(+3 wing) was granted temporary recognition in
accordance with Section 6 of the Orissa Education Act communicated by the Deputy Director(NGC-I),Orissa vide order dated 22.2.1996, the
competent authority extended the provisional affiliation for +3 degree for the session 1994-95 vide order dated 15.12.1994.As per the provisions of
Section 7 of the Orissa Education Act, the Governing Body of the college was approved by the competent authority so as to discharge its duty as
provided under the provisions of the Orissa Education Act and Rules made there under.The Governing Body has been constituted under the provisions
of Rule 21 of the Odisha Education (Establishment, Recognition and Management of Private Colleges) Rules,1991, hereinafter referred to as the Rule
1991 and while functioning, the college in question has become aided and in view of the changed circumstances the Governing Body is to be
reconstituted under the provisions of Rule 25 in the manner provided therein and until the Governing Body of aided college has been reconstituted by
the Director in accordance with the rules, the existing Governing Body of the college shall continue to function. Further case of the petitioner is that
the college in question has been given status of an aided educational institution vide notification dated 15.2.2018, on the very same day the Sub-
Collector,Cuttack has been empowered to act as the President of the Governing Body from the date of issuance of the said notification until further
orders. Learned senior counsel appearing for the petitioner submits that the college in question has not given time to constitute Governing Body in the
light of the Rule 25 of the Rule 1991 and on the very same day the impugned order has been passed to the effect that the Sub-Collector, Cuttack will
function as the President of the Governing Body, hence the authorities have acted arbitrarily, unreasonably and contrary to the statutory provision.He
submits that the requirement of law is that the moment the college in questionis declared as an aided educational institution the Governing Body is to
be constituted in the manner provided therein which shall be communicated by the Secretary of the Governing Body to the Director.The Director, on
receipt of intimation from the Secretary, may either approve the list or suggest changes, with reasons within thirty days from the date of its receipt,
provided that ifno communication is received from the director in this regard within thirty days, it shall be deemed to have been approved.Learned
senior counsel representing the petitioner further reliesupon the provisions of Rule 26 of the Rule 1991wherein it has been stated that until the
Governing Body of an aided college has been reconstituted by the Director in accordance with these Rules, the existing Governing Body of the college
shall continue to function, provided that the Secretary of the existing Governing Body shall cease to hold the office as such and theprincipal of the
college in his ex-officio capacity shall become the Secretary of the Governing Body and shall discharge all the functions of the Secretary, provided
further that the outgoing secretary shall continue to be a member of the Governing Body until its reconstitution. According to him, opportunity to
constitute a Governing Body has not been provided by conferring powerupon the Sub-Collector,Cuttack to function as President that too without taking
any decision in this regard and by virtue of the communication, decision has been taken which is nothingbut non-application of mind.
Per contra, Mr. B.P.Tripathy, learned Additional Government Advocate representing the opposite party-State submits that so far as legal position is
concerned, there is no dispute about that but he has fairly submits that the writ petition may be disposed of by directing the Government to nominate
President in terms of the provisions of Rule 25(1) of the Rule 1991 and to constitute Governing Body within specific period with direction upon the
Director to approve it as per the provisions of law made in the Rule,1991.
Having heard learned counsel for the parties and after appreciation of the rival submissions, this Court thinks it proper to have discussion with
regard to some legal position as per the applicability of the provisions of the Rule 1991 and from its perusal it is evident that the provisions of the Rule
1991 has been enacted for establishment, recognition and management of private colleges withpermission to be granted by the Director under the
provisions of Rule 7 and recognition is to be given by the Director under the provisions of Rule 12 subject to fulfillment of certain conditions as
provided under the provision of Rule 17, however if the terms and conditions having been fulfilled, temporary recognition can also be given under the
provisions of Rule 15. Under Chapter-V, the provisions of constitution of the Governing Bodyhas been referred whereby and where under the
provisions of Rule 21 Governing Body is to be constituted for management and affairs of the college under sub-rule(2) which shall consists of fifteen
members as follows:
“(a) (i)two members from the teaching staff of the college duly elected by them out of whom one shall be a woman and in the event no woman
member is available, the membership shall remain vacant till a woman is posted as a teaching staff;
(ii) one member from the non-teaching staff of the college duly elected by them.
(c) local member of Legislative Assembly or his/her nominee;
(d) Local Member of Parliament or his/her nominee;
(e) One person to be nominated by the Vi-Chancellor of the University having jurisdiction over the college who shall be a woman;
(f) One person to be nominated by the Director, Higher Education who shall be a woman;
(g) Five persons to be nominated by the concerned Educational Agency out of whom one shall be donor who donates more than fifty thousand rupees
or in absence of such a donor, a person who is interested in the field of Education, one shall belong to Scheduled Castes or Scheduled Tribes
community, one shall belong to minority community and two shall be women; and
(h) The Principal or the teacher in charge of the Principal of the College shall be an ex-officio member;
(i) Senior most teacher of the college shall be the Member-Secretary to the Governing Body.â€
Under the provisions of Rule 22 of the Rule 1991 the Governing Body constituted under provisions of Rule 21 has to be approved by the Director
subject to certain conditions laid down therein.Under the provisions of the Rule 23 initiation for reconstitution of the Governing Body is to be taken
before ninety days prior to the date of expiry of the term of a Governing Body as per the provisions of Rule 21 and under the provisions of Rule 24
reconstituted Governing Body is to be approved.Thus, provisions of Rules 21 to 23 certain conditions have been given for recognition and approval of
the Governing Body for approval and management of the college i.e. before aided by the Government.Rule 24 speaks regarding approval of the
reconstituted Governing Body of the aided educational college in question is being given declaration of an aided educational institution in exercise of
power conferred under Rule 3(b) of the Orissa Education Act,1969 andRule 7 of the Odisha(Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant-in-Aid Order,2008.Rule 25 provides that as soon as the College becomes an aided College, the Governing Body of the
college shall be reconstituted in the following manner:
(i) a person interested in the field of education who may be nominated by the Government or, in the absence of such nomination, the
Collector/Additional District Magistrate/Sub-Collector of concerned District/Sub-division in which the college is situated shall be the President.
(ii) The Principal or the teacher in charge of the Principal of the college shall be a member, who shall be the ex-officio Secretary.
(iii) Two senior most teachers of the college shall be members, of whom, one shall be a woman and on the event no woman member is available, the
membership shall remain vacant till a woman teacher is posted.
(iv) One member shall be elected by and from among the non-teaching staff;
(v) Local Member of Legislative Assembly of his/her nominee shall be a member.
(vi) The Chairman/Chairperson of Panchayat Samiti/Urban Local Body having the local jurisdiction over the college, as the case may be, shall be a
member.
(vii) One person shall be nominated by the local Member of Parliament as member.
(viii) One person shall be nominated by the Vice-Chancellor of the University having jurisdiction, who shall be a woman.
(ix) One person shall be nominated as member by the Director, Higher Education, who shall be a workman.
(x) Five persons shall be nominated by the President referred to in clause(i) shall be members, of whom, one shall be donor who donates more than
fifty thousand rupees or in absence of a donor a person having interest in field of education, one person shall be belonging to the Scheduled Castes or
Scheduled Tribes community, one person shall be belonging to the minority community and two shall be women.†Sub-rule(2) of Rule 25 provides
that the constitution of the Governing Body and any change in the membership shall be intimated by the Secretary of the Governing Body to the
Director.SubRule(3) stipulates that the Director, on receipt of the intimation from the Secretary, may either approve the list or suggest changes, with
reasons within thirty days from the date of its receipt, Provided that if no communication is received from the Director in this regard within a period of
thirty days, it shall be deemed to have been approved, Provided further that change, if any, suggested by the Director shall be considered by the
President of the Governing Body who shall resubmit the list either accepting the change or not, to the Director, within fifteen days from the date of
receipt of the communication, after which the Director shall approve the same, Provided also that no meeting of the Governing Body convened during
the intervening period (from the date of intimation till the date of ratification) by the Director, shall be invalid for the reason of any vacancy in the
membership or any defect in the constitution of the Governing Body. Rule 26 provides duty of the outgoing Secretary of a Governing Body which
stipulates that until the Governing Body of an aided College has been reconstituted by the Director in accordance with these Rules, the existing
Governing Body of the college shall continue to function, Provided, however, that as soon as the colleges becomes an aided college, the Secretary of
the existing governing Body shall cease to hold the office as such and the Principal of the college in his ex-officio capacity shall become the Secretary
of the Governing Body and shall discharge all the functions of the Secretary, Provided further that the outgoing Secretary shall continue to be a
member of the Governing Body until its reconstitution.
5.Thus, it is evident that so long as new Governing Body of an aided college is not reconstituted the existing Governing Body shall continue to function
and the Principal of the college in his ex-officio capacity shall become the Secretary of the Governing Body and shall discharge all the functions of the
Secretary.The purpose of the Rules 25 and 26 is that Governing Body is to be constituted superseding the earlier Governing Body of the private
college before it be given the status of aided college and the words in Rule 25 is that “as soon as the college becomes an aided college, the
Governing Body of the college shall be reconstituted, there should not be any delay.†It is further evident from the provision of Rule 25(1)(i) that a
person interested in the field of education who may be nominated by the Government or, in the absence of such nomination, the Collector/Additional
District Magistrate/Sub-Collector of concerned District/Sub-Division in which the college is situated shall be the President.Mr. B.P.Tripathy, learned
Additional Government Advocate harping upon the provisions of Rule 25(1)(i) has submitted that in pursuance to the provisions and sub-clause,
Government has delegated the power upon the Sub-Collector,Cuttack to function as President of the Governing Body but this argument is not
acceptable to this Courtfor the reason that prior to coming to the alternative process as provided under the said rule, nomination is to be made by the
Government and it is only in absence of such nomination, the Collector/Sub-Collector can be appointed as the President of the Governing Body but
from the record and the impugned order it is not evident that the statutory authority conferred power upon the Sub-Collector to function as the
President of the Governing Body.The said power can be said to be reasonable if the Government has taken sincere endeavour to nominate the person
in the field of education and it is in absence of such nomination, the district authority can be conferred power to function as President of the Governing
Body, meaning thereby the decision of the competent authority in conferring power upon any district authority will be said to be reasonable in spite of
sincere efforts no person interested in the field of education is available and as such none has been nominated by the Government to function as the
President but the authority, without taking steps in this regard, since there is nothing in the communication impugned, has simply delegated the said
power upon the Sub-Collector,Cuttack without resorting to the power to nominate a person interest in the field of education that too by way of
notification and as such said part of the order by which the Sub- Collector has been conferred power as President, is not sustainable in the eye of law,
hence the same is being quashed.
It is evident from the statutory provision that it is the Government who is to nominate a person interested in the field of education to function as
President of the College and it is only thereafter the Governing Body is to be constituted of an aided college and as such the opposite partyno.1-
Secretary, Higher Education Department, Bhubaneswar is directed to take decision to nominate/appoint to function as President of the Governing
Body of the college in term of the Rule 25(1)(i) of the Rule 1991 within period of two weeks from the date of production of certified copy of this
order.
It is further evident from the statutory provision that in absence of nomination, President of the Governing Body cannot function and it is for this
reason Legislation has taken care by inserting the provision of Rule 26 by inserting the words “until the Governing Body of an aided College has
been reconstituted by the Director in accordance with these Rules, the existing Governing Body of the college shall continue to function†meaning
therebycare has been takento allow the existing Governing Body to function till constitution of the Governing Body of an aided educational college and
as such till its constitution of the Governing Body as provided under Rule 25, the outgoing Governing Body will function. So far as first and second
proviso to Rule 26 is concerned with regard to outgoing Government Body, this Court, after taking into consideration the said provisions, is of the view
that the outgoing Governing Body will cease to function in view of the second proviso to Rule 26, in consequence thereof the Principal of the college in
his ex-officio capacity shall become the Secretary of the Governing Body and shall discharge all the functions of the Secretary in terms of the first
proviso to Rule 26.
Accordingly, the Principal of the College is directed to function as the Secretary of the Governing Body and the Secretary of the Governing Body
will cease to function. The opposite party no.1 is further directed to look into the legal positions and take all sincere endeavours so that the Governing
Body be constituted in terms of the provisions of Rule 25 of the Rule,1991not later than the period as provided under the said Rule. In view thereof,
the writ petition stands disposed of.