Kshetramohan Mohanty vs State of Orissa and Others

S.K. Ray, J.—Narua Mangalpur High School, within the jurisdiction of police station of Salapur, in an aided school within the meaning of Article 304 of the Orissa Education Code (hereinafter referred to as the ''Code''). It is governed by a managing committee. Since 1967, the Petitioner is being elected as a member of the managing committee of the school from time to time.

Article 306 of the Code extends application of Article 286 thereof to the constitution and term of office of the managing committee in respect of aided schools. According to Article 286 of the Code the members of the committee are to elect from amongst themselves a Secretary of the committee. Article 309 of the Code provides that the election of the Secretary of the committee is subject to the approval of the Inspector or Inspectors, as the case may be. As will appear from Article 287 of the Code the office of the Secretary of the managing committee is an important one and he is vested with various functions and duties.

The Petitioner, whose term of appointment expired on 9-12-1975, was re-elected as a member of the managing committee in its meeting held on 14-12-1975. In the said meeting, he was also appointed as Secretary of the managing committee. By Annexure-1 dated 1-2-1976 opposite party No. 2, Inspector of Schools, approved election of the Petitioner as a member of the committee and also as its Secretary with effect from 9-12-1975.

Opposite party No. 2 received some allegations against the Petitioner from the local public challenging the propriety and legality of his actions as Secretary. On receipt of such complaints the opposite party No. 2 withdrew his approval by Annexure-6. It is this Annexure-6 which is being sought to be quashed in this writ application. Relevant portion of Annexure-6 is extracted herein below:

From

The Inspector of Schools, Cuttack-I Circle, Cuttack

To

The Secretary, Narua Mangalpur High School. No. 4372 dated the 18th March, 1975.

Sub: Approval of re-election of Sri K.M. Mohanty as member and secretary of the school.

Ref: This office letter No. 1178, dated 2-2-1976.

Sir,

Approval to the re-election of Sri Kshetra Mohan Mohanty as member and secretary of Narua Mangalpur High School accorded vide this office letter No. 1178, dt. 2-2-1976 is hereby withdrawn pending enquiry into the allegations filed against Sri Kshetra Mohan Mohanty.

Yours faithfully, Sd. R.K. Mohanty 18-3-1976 Inspector of Schools

Opposite party No. 2 justifies withdrawal of his prior approval in the following words:

... The authority who has the power to accord approval has also the power to withdraw the same.

The learned Counsel for the opposite parties supplies the legal basis for such justification placing reliance on Section 22 of the Orissa General Clauses Act, 1937 (hereinafter referred to as the Act) which runs as follows:

Power to make to include power to, add to amend, very or rescind orders, rules or by-laws where, by any Orissa Act, a power to make or issue notifications, orders, schemes, rules, by-laws or forms is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, very or rescined any notifications, orders, schemes, rules, by-laws or forms so made or issued.

Emphasis is laid on the expression ''order'' occurring in this section. It is contended on behalf of the opposite parties that according of approval to the election of the Petitioner as Secretary of the committee as required under Article 309 of the Code amounts to an ''order'' within the meaning of that section of the Act. The Inspector of Schools (O.P. No. 2), therefore, by virtue of this section has power to recall his earlier order of approval.

The learned Counsel for the Petitioner, however, contends, firstly, that the ''order'' occurring in Section 22 of the Act does not embrace administrative, judicial or quasi-judicial larders, but means only an order of legislative nature made in exercise of powers of a kind .of subordinate legislation conferred expressly by an enactment, and secondly, that if any right accrues to any person consequent upon action taken pursuant to such an order, it is no longer open to be varied, amended or rescinded. The question for determination, therefore, is what is the nature of ''orders'' envisaged in Section 22 of the Act and whether the order of the Inspector of Schools as per Annexure-1 is an order within the meaning of Section 22 of the Act and could be cancelled.

Section 22 of the Act occurs under the heading ''provisions as to Orders, Rules, etc. made under Enactments''. ''Enactment'' has been defined in Section 2(13) of that Act as "shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal Code and shall also include any provision contained in any Act or in any such Regulation as aforesaid". Section 2(37) of the Act defines ''Regulation'' as ''shall'' mean a Regulation made by the Governor under paragraph 5 of the Fifth Schedule to the Constitution and shall include a Regulation made under Government of India Act, 1953, or a Regulation made by the President under Article 243 of the Constitution". ''Orissa Act'' has been defined in Section 2(31) as "shall mean an Act made by the Provincial Legislature of the Governor of Orissa under the Government of India Act, 1935 ; or by the Legislature of State of Orissa under the Constitution". The definition of ''enactment'' includes any provision contained in any Act, and in any Regulation, though the character of both is legislative. The group of Sections 21 to 25 under the aforesaid heading brings out this distinction between these two definitions using ''Orissa Act'' in some sections and ''Enactment'' in Section 25.

Section 22 of the Act has already been extracted. Reading that section by itself or in the context of other sections under the aforesaid heading, it is manifest that the power to make or issue orders spoken of in the said section must be expressly conferred by an Act made by the Provincial Legislature or Governor of Orissa under the Government of India Act, 1935 or by the Legislature of the State of Orissa under the Constitution, not by an ''enactment'' which is different from ''Orissa Act'' as defined. Thus, the orders passed in exercise of powers so conferred would be legislative in nature and not judicial or administrative or executive.

The view finds support in the case of Bhola Pd. Singh Vs. Prof. U.A. Goswami and Others, . The question in this case was whether the Chancellor has power to review his own order passed u/s 8(4) as amended in 1961 of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act. The post of Principal of Rajendra College fell vacant. The Governing Body decided to fin it up by promotion and so resolving invited applications from qualified teachers. The Petitioner was appointed Principal by resolution of the Governing Body. The appointment of the Petitioner as Principal was forwarded to the University of Bihar for approval. The Syndicate by a resolution approved the Petitioner''s appointment. The Respondent No. 1 moved the Governing Body to reconsider its decision in the matter of appointment of a Principal to the College but failed. He then sent a memorandum to the Vice. Chancellor to the same effect and that was rejected and the order of rejection of the Vice-chancellor was communicated to him. Subsequently, Respondent No. 1 again made a representation to the Vice-Chancellor for re-consideration of his case. That was also rejected. Then Respondent No. 1 made a representation to the Chancellor which was ultimately rejected and the rejection order was communicated to the representationist. Later on the Chancellor reviewed his previous order and cancelled it and passed an order annulling the resolution of the syndicate approving the appointment of the Petitioner as Principal.

Section 8(4) of the Bihar State Universities Act provided that the Chancellor may, by order in writing, annul any proceeding of the University which is not in conformity with this Act, statutes, ordinances or resolutions and that before he makes any such order, he shall call upon the University to show cause and consider its objections, if any.

Section 24 of the Bihar and Orissa General Clauses Act is almost identical with Section 22 of the Orissa General Clauses Act. Considering the question whether the Chancellor could rescind his order u/s 8(4) of the Bihar State Universities Act, their Lordships said:

Sections 23 to 27 of the Bihar and Orissa General Clauses Act correspond respectively to Sections 20 to 24 of the General Clauses Act (Central Act 10 of 1897) and are under the heading ''provisions as to orders, Rules, etc., made under Enactments''. Reading Section 24, by itself or in the context of the other sections under the said heading, it is clear that the power to make or issue orders spoken of in the said section is of a legislative nature and not of a judicial nature as the order passed u/s 2(4) of the Act is. The expression ''to make or issue orders has got to be read ejusdem generis and, when so read it is manifest that the ''orders'' spoken of in Section 24 of the Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act, to wit, the various Control Orders made under the Defence of India Act within the meaning of Section 21 of the Central Act. The power u/s 8(4) of the Act is exercisable ''by order in writing'', but is not a power ''to make an order'' within the meaning of the said provision of the Bihar and Orissa General Clauses Act. If that were not so, all authorities and Courts will derive their power to add to, amend, vary or rescind any order-judicial, quasi-judicial or administrative-of the like nature at any time or any number of times they chose to exercise it.

Section 22 of the Act makes it further clear that power to vary, or rescind any order must be exercised in the like manner and subject to like sanction and conditions, if any. If circumstances existing at the time of making the initial order sought to be varied or rescinded have later by the time the order is sought to be amended, varied or rescinded, then such power to amend or rescind or vary cannot be exercised. Thus, if by the order originally made a right has accrued to some person, then it cannot be unilaterally altered so as to have the effect of divesting that person of that right. This view finds support in the following decisions.

In the case of Kanta Devi and Another Vs. State of Rajasthan and Others, , the facts were that there was a municipality in the town of Bolaran governed by the Rajasthan Town Municipalities Act and the membership of the Board consisted of eight elected and two nominated members. The election to the Board took place some time before January, 1956 and eight persons were duly elected thereto. Thereafter on 28th January, 1956 the Government of Rajasthan made two nominations in exercise of the power conferred on them by Section 9 of that Act. After that, the District Magistrate fixed 7th of March, 1956 for election of the Chairman of the Board-Before this meeting took place another meeting of the Board was called by the Sub-divisional Magistrate to be held on 1st of March, 1956. In the meantime, another notification was issued by the Government on 24th February, 1956 by which the first notification nominating two persons to the Board was cancelled and two fresh persons were nominated. The question was whether the Government could do so in view of Section 21 of the General Clauses Act, 1897. This Section 21 is equivalent to Section 22 of the Orissa General Clauses Act. Their Lordships held that Section 21 had no application to such a case, because the effect of nomination amounts to appointment to the Board. By such nomination the nominated member acquired the same rights as a member elected u/s 14 thereof. Thus, where by exercise of Section 9 the nominated members acquired rights, such nomination cannot be later varied or rescinded even u/s 16 of the General Clauses Act without recourse to procedure u/s 14 of the Act. This was so, because the situation in which the first nomination was made had altered by the time it was withdrawn and second nomination was made. The change, in the circumstances, was that the first nominated members had acquired certain rights under the Act.

In the case of Lt. Governor of Himachal Pradesh and Another Vs. Avinash Sharma, , the question of application of Section 21 of the General Clauses Act (Central), which is equivalent to Section 22 of the Orissa General Clauses Act, arose. In this case a notification u/s 4 of the Land Acquisition Act was published. It was followed by a composite notification u/s 6 and Sections 17(1) and 4 declaring that the land was acquired for public purpose and that since it was a case of emergency the enquiry u/s 5 of the Land Acquisition Act was dispensed with and that possession of the land would be taken u/s 17 of the Act after expiry of 15 days from the publication of the notice u/s 9(1) of the Act. Then notices u/s 9 of the Land Acquisition Act ''were served and possession was duly taken. Then followed an order of the Government cancelling the aforesaid notifications, one u/s 4 and the other under Sections 6 and 17(1). It was argued in that case by the Solicitor-General that u/s 21 of the General Clauses Act the State had the power to cancel the notification at any time. It was held that the Government may cancel or rescind notifications issued under Sections 4 and 6 of the Land Acquisition Act u/s 21 of the General Clauses Act, but the power u/s 21 cannot be exercised after the lands had statutorily vested in the State Government by reason of possession having been taken pursuant to notification u/s 17(1). After referring to an earlier case State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, , their Lordships said.

It is clearly implicit in the observations that after possession has been taken pursuant to a notification u/s 17(1) the land is vested in the Government, and the notification cannot be cancelled u/s 21 of the General Clauses Act.

This decision shows that the ''notification'' in Section 21 of the Central General Clauses Act refers to a statutory notification issued in exercise of powers conferred by an Act passed by Legislature of a State or passed under an enactment and that such notification could not be rescinded or cancelled if on the strength of such notification and action taken pursuant thereto right had accrued to the Government. This principle will apply with equal force to ''orders'' passed in exercise of powers conferred by an ''Orissa Act''.

In the case of Gopi Chand Vs. The Delhi Administration, their Lordships while dealing with Section 19 of the Punjab General Clauses Act observed:

...the said power (to cancel or modify the notification) must inevitably be exercised within the limits of provisions conferring the said power

Narua Mangalpur High School is an existing educational institution as defined in Section 3(f) of the Orissa Education Act, 1969 (hereinafter referred to as the ''Education Act''). Section) 4(1) thereof provides that this institution shall be deemed to have been established in accordance with the Education Act, and according to Sub-section (5) of Section 4, Narua Mangalpur High School shall be subject to the provisions of this Education Act. Section 7 thereof provides that every private educational institution shall have a managing committee or governing body, as the case may be, constituted in accordance with the rules made in that behalf. Sub-section (2) thereof provides that the managing committee constituted after the commencement of the Education Act in respect of any aided educational institution shall, before it starts functioning as such, obtain the approval of the prescribed authority in the prescribed manner. Sub-section (3) provides that the managing committee shall be responsible for the proper management of the institution and shall exercise such powers and perform such functions as may be prescribed. It will appear from Section 11 that a managing committee, unless superseded and reconstituted as provided in Sub-section (1) of Section 11, would run for its normal tenure of three years. Section 27(4) of the Education Act provides that until rules are made under this section, the rules continued in the Code which were in force immediately prior to the coming into force of this Education Act shall, in so far as they are not inconsistent with the provisions of this Education Act or the Constitution, be deemed to be rules made under this Act.

There is no controversy, therefore, that the Code will be applicable so far as they are not inconsistent with the provisions of the Education Act. As will appear from Rule 286 of the Code the managing committee shall consist of ordinary members, a President and a Secretary. The Secretary is invested with large powers, as will be seen from Rule 287 of the Code. Rule 305 lays down that the duly appointed Secretary of the committee will be the corresponding agent of the school recognised by the Government. Rules 308 and 309 provide that the constitution of the managing committee and election of the Secretary of the committee will be subject to the approval of the Inspectress, as the, case may be. The occasion for exercising the power of according or withholding approval arises only after the proposed Secretary is elected and after approval is given to the constitution of managing committee and election of the Secretary the management of the school vests in them. The conception of a managing committee means a body of individuals elected, inclusive of a President and a Secretary. There is no provision in the Education Act to remove only a Secretary or a President of the managing committee, leaving the other members to constitute the committee. That being so, if Rule 309 of the Code is construed as conferring power to remove a Secretary by cancelling approval once given, it would be inconsistent with the provisions of the Education Act and would be ineffective. The Secretary or the President can be removed only by supersession and reconstitution of the managing committee as provided in Section 11 of the Education Act. In the instant case, the managing Committee was constituted when the Education Act was in force. Therefore, though approval of the Inspector was necessary for its constitution and the election of its Secretary, after such approval was accorded, the constitution of the committee became complete with a Secretary and a President and they were vested with various rights. Thus, the conditions at the time of giving approval are that the committee members must elect one of them to be its Secretary and his name shall be put up before'' the Inspector of Schools for approval. Those conditions change after approval is accorded. The person who is elected to be Secretary becomes a full-filedged Secretary vested with various rights after approval is accorded. If the Inspector seeks to cancel his approval at that stage, he would be exercising a power beyond the limits prescribed by Rule 309 of the Code read with the Education Act.

Our concussions from the aforesaid discussions are:

(a) The order envisaged in Section 22 of the Act is of legislative nature and the order of approval passed under Rule 309 of the Code is not an order of that nature. Therefore, it cannot be cancelled by invoking Section 22 of the Act:

(b) As consequent upon the approval order, various rights have accrued to the Secretary, the same cannot be subsequently cancelled, specially, inasmuch as, the power to cancel cannot be exercised within the limits prescribed by Rule 309 of the Code read with the Education Act; and

(c) If Rule 309 of the Code is construed as giving power to the Inspector to cancel approval at any time, it will be invalid being inconsistent with the provisions of the Education Act.

For the aforesaid reasons we have no doubt in our mind that Annexure-6 has been issued without any authority of law and must be quashed.

The learned Government Advocate has cited a number of decisions. In all those decisions, the orders passed are either statutory or legislative in nature, and, where cancellation of such orders have been upheld, it will be seen that power cancellation has been exercised within the limits prescribed by the provisions conferring the power and before any rights have accused to anybody consequent upon action taken pursuant to the original orders. It is, therefore, unnecessary to deal with those cases separately.

In result, this writ application succeeds and Annexure-6 is quashed. The Petitioner shall be entitled to costs assessed at Rs. 50/- (rupees fifty only).

The writ application is allowed with costs.

P.K. Mohanti, J.

I concur.

Writ application allowed.