Naren Palai vs State of Orissa and Others

P.K. Mohanty, J.—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.

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.

Opposite party Nos. 1 and 2 in their counter affidavit have admitted the position that "Governing Body of Barapada School of Engineering and Technology" was registered under the Societies Registration Act, 1860 on 6.8.1992 and is currently managing one Diploma Institution with the name of Barapada School of Engineering and Technology and one engineering college with the name of Bhadrak Institute of Engineering and Technology which have been duly approved by the All India Council of Technical Education (in short ''AICTE'') and the Government of Orissa. According to opposite party Nos. 1 and 2, as per the guidelines prescribed by the AICTE, each technical institution shall have a Governing Body constituted to look after the affairs of the Institution. Consequent upon the Judgment of the Apex Court in the case of Islamic Academy of Education v. State of Karnatak, the AICTE has issued interim guidelines for constitution of Governing Body of Technical Institutions and according to the said interim regulations, technical institutions are free to constitute their Governing Body. However, it has been stated that from the Bye-laws of the Society, it appears that the local M.L.A. of Bhadrak is the Ex-officio Chairman of the Governing Body and, therefore, the Principal of the Institution is duty bound to convene the Governing Body and take appropriate decision as per the Bye-laws. Since all the financial and administrative powers are vested with the society, the alleged financial irregularity committed by the present Chairmen is to be placed in the meeting of the society to take appropriate action and , as such, opposite party Nos. 1 and 2 have no role to play in the matter. It has been further submitted that 34 private engineering colleges and 14 private Diploma Institutions are similarly run on self-financing by different Societies/Trusts and in fact opposite party Nos. 1 and 2 have no role to play in the administrative and financial management of those institutions.

Opposite party Nos. 4 and 6 in their counter affidavit have denied the allegations and claim made in the writ petition. They have also questioned the maintainability of the writ petition under Articles 226 and 227 of the Constitution as well as locus standi of the petitioner to challenge the constitution of the Governing Body of private unaided technical institution. The allegations regarding mis-utilisation or misappropriation of funds have been stoutly denied. According to these opposite parties, the actions are justified and in terms of the Rules of the Society. With regard to reconstitution of the Governing Body, opposite party Nos. 4 and 6 have stated that the Governing Body has been constituted as per the AICTE guidelines and has already received the approval of the AICTE and, as such, it is not available to be reconstituted. It is, however, stated that in terms of the Bye-laws of the Society, the first members of the Board of Governors shall be 13 with local M.L.A. as the ex-officio President for a period of five years only. On a reading of Clauses 9 and 12 together it would be clear, that the ex-officio members of the first Board shall automatically cease on termination of their office after a period of five years. The first Governing Body constituted on 6.8.1992 has ceased after expiry of five years and the Governing Body has been reconstituted properly in accordance with the Bye-laws from time to time.

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 and Another Vs. State of Orissa and Others, and Orissa Engineering College Employees'' Union and Others and Kamini Kanta Patnaik Vs. State of Orissa and Others, 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 Foundation and Others Vs. State of Karnataka and Others, 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. Kasilingam and others Vs. P.S.G. College of Technology and others, ; State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, 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.

(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.

In view of the pleadings of the parties and the submissions made at the Bar during hearing, the core questions that fall for consideration are:

(a) Whether the writ petition in the present form at the instance of the petitioner is maintainable, the Registered Society, namely, "Governing Body of Barapada School of Engineering and Technology, Barapada" having not been impleaded as a party?

(b) Whether the writ petition against opp. party No. 4 "Bhadrak Institute of Engineering and Technology" is maintainable in law and the said opp. party is amenable to the writ jurisdiction?

(c) Whether the Governing Body of a private, unaided technical and professional Institute like that of opposite party No. 4 is to be constituted in accordance with the provisions of the Orissa Education Act, the Biju Pattnaik University of Technology Act and All India Council of Technical Education Act and the Regulations made thereunder, in view of the decisions of the Apex Court, more particularly the decision in TMA Pai''s case?

(d) Whether the allegations of the petitioner as regards the mismanagement, misappropriation or otherwise against opposite party No. 6, the President of the Governing Body of opposite party No. 4 Institute, can be considered in a writ jurisdiction in face of the disputes raised on facts by the opposite parties 4 and 6 ?

The grievance of the writ petitioner, in short, is that he has been elected as M.L.A. of Bhadrak Constituency and assumed his office with effect from 13.5.2004 and as such he is entitled to be Ex-officio President of the Governing Body of Bhadrak Institute of Engineering and Technology, in view of the provisions of the Bye-laws of the Registered Society namely "Governing Body of Barapada School of Engineering and Technology, Barapada" but the Principal of Opposite party No. 4 has taken no steps to induct him as such and invite him to the meetings. The petitioner stakes his claim to the Membership of the Society as its ex-officio President since according to him, the local M.L.A. has to be the ex-officio Member of the Board of Governors/Governing Body of "Barapada School of Engineering and Technology, Barapada" in the district of Balasore now in the district of Bhadrak, in terms of Clauses 9 and 11 of the Bye-Laws of the society annexed as Annexures 1 and 2 respectively to the writ petition. The Certificate of Registration of the Society the Memorandum of Association and Bye-laws have been annexed as Annexures 1 and 2 respectively to the writ petition. The Society admittedly was registered for managing the School of Engineering and Technology, Barapada, which was conducting diploma Courses in Engineering and was continuing since 1982 much prior to the date of registration. Opposite party No. 6, Shri Prafulla Kumar Samal, the then local M.L.A. and Minister of Labour and Employment, Government of Orissa was described as the ex-officio President of the Governing Body constituted with 13 members. According to the petitioner, said opp. party No. 6 was re-elected as M.L.A, for next term in the year 1995 and he somehow managed to continue as the President of the Governing Body and mismanaged the Institution and its funds. The All India Council of Technical Education in its letter, a copy of which is Annexure-3, accorded approval for establishment of Bhadrak Institute of Engineering and Technology, Bhadrak to conduct the Degree courses in Technical Engineering, Electronics Telecommunication Engineering and Computer Science and Engineering with an approved strength of 180 seats. However, the petitioner undisputedly claims membership and Presidentship of the registered Society i.e., Governing Body of Barapada School of Engineering and Technology. The society, on being registered as such under the Societies Registration Act, 1860, acquired the status of a legal entity apart from the members constituting it and it can sue and be sued in terms of the provision of Section 6 thereof. The petitioner admittedly is not a member of the society, which has been defined u/s 15 of the Act to mean a person, who having been admitted therein according to the Rules and regulations thereof, shall have paid a subscription or shall have signed the roll or list of the members thereof. Similarly, the Governing Body has been defined u/s 16 of the Act to mean that the Governing Body of the Society shall be the Governors, Council, Directors, Committee, Trustees, or other Body to whom by the Rules and regulations of the Society the management of its affairs is entrusted. The society, which has been established for a particular purpose or purposes, if feels that it is advisable to alter, extend, or abide any such purpose to or for other purposes within the meaning of this Act, the Governing Body of the Society is to submit the proposition of the members of the society in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the society, but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the Governing Body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three fifth of the members delivered in person or by proxy, and confirmed by the votes of three-fifth of the members present at a second special meeting convened by the Governing Body at an interval of one month after the former meeting, in view of Section 12 of the Act. The petitioner in paragraph-7 of the writ petition has submitted that in year 1997, the Governing Body purported to have passed a resolution, wherein the name of the Institute was changed from "Barapada School of Engineering and Technology" to "Bhadrak Institute of Engineering and Technology". But, however, nothing has been brought on record by the petitioner or any of the parties that the name of the Society has been changed and such change has been recorded in the register maintained by me Registrar of Societies and such changes have been reflected in the certificate of Registration altering the name. Rather the petitioner relies on Annexures 1 and 2, the certificate of Registration and the Bye-laws of the Society named "Governing Body of Barapada School of Engineering and Technology". In absence of any material to show that the name of the Society has been so changed in accordance with the provisions of the Society Registration Act, it cannot be accepted that the name of the Governing Body stood changed from "Governing Body of Barapada School of Engineering and Technology" to that of "Governing Body of Bhadrak Institute of Engineering and Technology". In any view of the matter, the petitioner having not impleaded the registered Society to which he seeks membership or Presidentship as a party, the writ petition is beyond the judicial review and no relief can be granted in absence of the registered Society which is a necessary party. The petitioner''s prayer to constitute the Governing Body of the Society in accordance with the Bye-laws of the Society thus cannot be entertained in law.

Now let us consider questions (b) and (c), as to whether the writ petition as against opposite party No. 4, Bhadrak Institute of Engineering and Technology is maintainable in law in the facts and circumstances of the case and whether the Governing Body of the Institute is to be constituted according to the provisions of Orissa Education Act, the Biju Pattnaik University of Technology Act and All India Council of Technical Education Act. Shri B. Routray, Learned Senior Counsel for the petitioner referring to Section 3(d) and Section 3(f) of the Orissa Education Act submits that admittedly opposite party No. 4 is an educational Institution imparting instruction in higher general education leading to a degree conferred by the University and, as such, includes Institution imparting technical and professional education. It is submitted that words "any institution imparting technical and professional education" were incorporated into the definition byway of amendment vide Orissa Act 13 of 1994, which came into force with effect from 2.4.1994 and, as such, Section 3(f) of the Act read with Section 3(s) includes courses of study in Engineering/technology, Architecture, Mining, Fine arts, Law, Management etc. It is contended that in view of Section 7 read Section 27 of the Act and the specific provision of Orissa Education (Establishment, Recognition and Management of private colleges) Rules, the Governing Body of the College has to be constituted in accordance with the provisions of the Orissa Education Act and Rules framed thereunder as well as the AICTE guidelines. It is therefore the contention of Shri Routray that the Governing Body of the opposite party No. 4- Institution has to be constituted in accordance with law and since it has not been constituted in terms of the provision of law, the so-called Governing Body is non-existing in the eye of law and as such opposite parties and 2 should take over the management from the Governing Body. The Learned Counsel has referred to the Judgments of this Court in Sanjaya Memorial Institute of Technology and Another Vs. State of Orissa and Others, and Orissa Engineering College Employees'' Union and Others and Kamini Kanta Patnaik Vs. State of Orissa and Others, to contend that both the AICTE and the Orissa Education Act can co-exist and both the Acts must be allowed to operate in its own field. The Learned Counsel referring to the case of Orissa Engineering College (supra) submitted that a Division Bench of this Court has held that the provisions contained in the Orissa Education Act shall be applicable to the Orissa Engineering College since AICTE Act as well as the Orissa Act (as amended) can co-exist and there in no repugnancy.

Shri Bijan Ray, Learned Senior Advocate, however, submitted that in view of the judgment in T.M.A. Pai''s Case (supra) the direction of the B.P.U.T. dt. 28.2.2003 (Annexure-J/4) and the interim regulation issued by the A.I.C.T.E. consequent upon T.M.A. Pai''s case, the Governing Body is to be constituted by the management itself without interference either from the State Government, the University or the A.I.C.T.E Learned Counsel has referred to the judgment of the Apex Court in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, to contend that a private institution imparting professional education without any Government aid has the right to constitute its own governing body for which qualification may be prescribed by the State or concerned University, but they cannot have any control over such governing body. The Governing Body having been constituted by the Management Keeping in view the Interim Regulation of the AICTE, re-constitution of the same as claimed by the petitioner is misconceived.

The decisions referred to by the Learned Senior Counsel for the petitioner in support of his contention that the Orissa Education Act is applicable to the facts of the petitioner''s case with regard to constitution and/or reconstitution of the Governing Body have no application to the present case and, as such, the contention has to be rejected. The Court, in Sanjay Memorial Institute of Technology and Orissa Engineering College case (supra) were considering the applicability of the Orissa Education Act to the professional institutions like the Engineering Colleges in the context of Section 3(d) read with Section 3(f) and (s) of the Orissa Education Act. Section 3(d) of the Orissa Education Act defines a college to mean an educational institution imparting instructions in higher general education leading to any degree conferred by any of the Universities established under the Orissa Universities Act (Act 5 of 1989) since admittedly the colleges in question were affiliated to the Universities under the Orissa Universities Act. The Court further on examination of Section 7 of the Act read with Orissa Education (Establishment, Recognition and Management of private Colleges) Rules, 1991 regarding constitution of the Governing Body and its approval had held that the provisions contained in the Orissa Education Act shall be applicable to the colleges since the regulation of the AICTE as well as the Orissa Education Act can Co-exist and there is no repugnancy. Nothing has been brought, i.e. Bhadrak Institute of Engineering and Technology which was originally affiliated to Utkal University and has since been transferred and stood affiliated to the Biju Patnaik University of Technology after its creation under the Biju Patnaik University of Technology Act, 2002 is governed under the definition of Section 3(d) by necessary amendment to include also the Universities established under the Biju Patnaik University of Technology Act, 2002. It is relevant to note that the Orissa education (Establishment, Recognition and Management of private Colleges) Rules, 1991 framed u/s 27 of the Orissa Education Act is applicable to the private colleges as defined u/s 3(d) of the Orissa Education Act and, as such, unless Section 3(d) is amended to include also an educational institution imparting instruction in higher general education leading to any degree conferred by any University established under the Biju Patnaik University of Technology Act, 2002, the same shall have no application. The decisions referred to supra otherwise shall have no application in view of the law laid down by the Apex Court in T.M.A. Pai''s case (supra).

The Apex Court in T.M.A. Pai''s case, while considering the rights under Articles 19 and 26(a) of the Constitution in the context of the rights of the Management of Private Unaided Professional Colleges, has laid down that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and compliance of conditions, if any, requiring admission of small percentage of students belonging to weaker Sections of Society by granting them free seats or scholarships, if not granted by the Government. In any event, a private institution will have the right to constitute its own Governing Body, for which qualification may be prescribed by the State or the concerned University. It will, however, be objectionable if the State retains the power to nominate specific individuals on Governing Bodies. Nomination by the State, which could be on a political basis, will be an inhabiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the authority of the private unaided educational institution. The Apex Court further held that the right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-admission by those in charge of management.

The fixing of a rigid fee structure, dictating the formation and composition for Governing Body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. The A.I.C.T.E. in its interim policy regulation issued in exercise of powers conferred u/s 23 of the All India council for Technical Education Act, 1987 read with Section 10(b), 10(j) and 10(o) of the Act framed the interim regulations, which were notified in the Gazette of India, Extra Ordinary Part-Ill, Section 4. The interim policy regulation has been issued consequent upon Judgment of 11 Judges Bench of Supreme Court in T.M.A. Pai''s case (supra). The regulation regarding Governing Body of private unaided institutions has been contemplated under Clause 4 of the Regulation which reads thus:

Consequent to the Supreme Court Judgment in the Model Constitution of Governing Body as notified by A.I.C.T.E. in it''s approval Regulations 1994 stands overruled. The Hon''ble Supreme Court held that a private unaided institution will have right to constitute its own Governing Body for which qualification may be prescribed by the State or the concerned University.

It has been decided that while A.C.I.T.E. 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 of governing Body members in order to ensure academic excellence. The conditions so imposed will be subjected to scrutiny by A.I.C.T.E. wherever necessary to ensure that the same are not unreasonable restrictions.

It shall be desirable for the private unaided institutes to, induct at least 50% of members of the Governing Body drawn form renowned academia, academic administrators subject field experts and a professionals from industry in order to seek their innovative ideas for continuous improvement in the delivery of teaching Learning process, matching best practice elsewhere and achieve excellence.

In view of the law laid down by the Apex Court in T.M.A. Pai''s case and the provisions of Clause 4 of the Interim Regulation of the AICTE, there cannot be any manner of doubt that the Governing Body of a private unaided professional institution like that of Bhadrak Institute of Engineering and Technology has to be constituted by the Institute itself without any interference either from the State Government, or the University or the AICTE. However, the State Government and the AICTE may only suggest the qualification for its memberships which is yet to come. There is no allegation that any of the members in Governing Body is not qualified in terms of any circular issued either by the Government or the AICTE subsequent to the decision in T.M.A. Pai''s case and the Interim Regulation issued by the AICTE. In such view of the matter, we are of the considered opinion that the Orissa Education Act and the Rules framed thereunder have no application with regard to constitution and/or reconstitution of Governing Body of professional Engineering colleges like that of Bhadrak Institute of Engineering and Technology and we hold accordingly. Private unaided institution itself has the right to constitute its own Governing Body without any intervention of the Government, the concerned University or the AICTE except providing guidelines regarding qualification of its members.

The last question for consideration is with regard to the allegation of the petitioner against opposite party No. 6, the President of Governing Body of opposite party No. 4. The petitioner alleges that opposite party No. 6 has unauthorisedly utilized the college funds for maintenance of a liaison office in his official residence and payment of house rent, expenditure for hire of vehicles and the like more fully described in the audit report. Opposite party Nos. 4 and 6 have denied the allegations and seriously disputed each of the allegations in their counter affidavit. According to opposite party No. 6, none of the expenditures has been without concurrence of the Governing Body inasmuch as each of the expenditures incurred is for the benefit of the Institution. In the writ jurisdiction, we are not inclined to delve into the disputed question of fact to come to a finding whether the amount spent and the infirmities pointed out by the internal audit are just and proper in the interest of the Society itself. However, it is for the management of the Institution itself to scrutinize the matter and take its own decision and not for the writ court to do so, specially when the Institution in question is a private professional Institution, receiving no aid from the Government. However, it is open to the petitioner to take up the matter at the appropriate level as is available to him under law.

In the result, we find no merit in the writ petition and accordingly dismiss the same. However, in the facts and circumstances of the case there shall be no order as to costs.

J.P. Mishra, J.

I agree.