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Judgment
N.K. Das, J.—This is a petition under Articles 226 and 227 of the Constitution of India for quashing the Governing Body approved by Government for Atala Behari College, Basudevpur.
The Petitioners constituted the Governing Body of the College approved by opposite party No. 1 for a period of 3 years with effect from the session 1972-73. Their term expired on 31-5-1975, but before expiry of the term, pursuant to Annexure-2, a letter from the Under Secretary to Government to the Director of Public Instruction (Higher Education), Orissa a copy of which was sent to the Principal of A.B. College, Basudevpur, for necessary action, the Secretary of the College submitted a panel" of names for constitution of the Governing Body to the Director of Public Instruction for the purpose of being recommended to the Government for approval (Annexure-3 dated 14-5-1975). This letter was accompanied by a resolution passed in the ordinary meeting of the Governing Body of the College held on 4-5-1975 (Annexure-3/ A) and a panel of names was suggested for reconstitution of the Governing Body (Annexure-3/B dated 14-5-1975). Instead of approving the penal of names suggested by the Secretary of the College, Government constituted the Governing Body for a period of 3 years with effect from 1-6-1975 by a different set of persons and communicated the same to the Director of Public Instruction by a letter dated 18-8-1975 (Annexure-6). Copies of this letter were forwarded to the President and the Principal of the College for information. In the meantime the Director of Public Instruction by his letter dated 9-7-1975 to the Secretary of the College (Annexure-5) permitted the outgoing Governing Body to continue to act as a caretaker, Governing Body dealing purely with routine matters until the constitution of the new Governing Body.
The Petitioners contend that a succeeding Governing Body after expiry of the Tenure of a previous Governing Body has to be constituted by election held by the members of the outgoing Governing Body, and is not to be reconstituted by the Government as has been done in the present case. Therefore, neither the State Government (opposite party No. 1) nor the Director of Public Instruction (opposite party No. 2) has any authority under law to select and appoint members of the succeeding Governing Body who were never elected by the outgoing Governing Body. The only power to reconstitute the Governing Body is vested in them u/s 11 of the Orissa Education Act (Orissa Act 15 of 1969) (hereinafter called the Act). Preexisting conditions for exercise of power u/s 11 of the Act are wanting and the impugned Annexure-6 cannot be held as valid even under the said provision of law. It is further contended that according to Rule 130 and other relevant rules of the Orissa Education Code a Governing Body before expiry of its term has to elect members to constitute the new Governing Body and propose the names of the newly elected members to the Government for its approval. When in the instant case the outgoing Body had elected members for the succeeding Governing Body and suggested their names to the Government for approval, there was no authority in the Government to ignore the panel of names suggested by the outgoing Governing Body and constitute one consisting of persons who were not elected by the outgoing Governing Body. Further if the Government desired to make a change in the election of the succeeding Governing Body it must assign reasons for the same, because such an order of the Government is appealable. Therefore, Annexure-6 as a whole is without authority and is liable to be quashed. Petitioner No. 2 and others originally created a college trust in 1963 and acquired various properties in the name of the Governing Body. Petitioner No. 2 was one of the original authors of the trust with a substantial contribution to perpetuate the name of his deceased father. Also his brother made a substantial contribution. The Governing Body was registered under the Societies Registration Act. Thus, the members of the Governing Body are trustees of the institution and Government has no authority to go against the recommendation of the outgoing Governing Body for constitution of new Governing Body. The Petitioners, therefore, claim for quashing Annexure-6, the latter of Government constituting Governing Body of the College for three years with effect from 1-6-1975. According to Petitioners, the Governing Body of a College is a perpetual body. The Petitioner having registered the Body under the Societies Registration Act are a perpetual body and the Government is bound to approve the persons elected by them to constitute the Governing Body. It is also contended that Article 285 of the Orissa Education Code was being followed previously in the matter of constitution of Governing Body of the College, and so the Government having not approved the persons elected by Petitioner has failed to act according to law. Counter-affidavits have been filed separately, one by opposite parties Nos. 1 and 2 and another by opposite party No. 3. Their contention is that the panel of names recommended by the Petitioners was not acceptable to Government as it contained the name of the Secretary as a life member and when two representatives of the staff were to be recommended, only one name was sent. The outgoing Governing Body committed a lot of irregularities and even though Article 131 of the Orissa Education Code requires that the rules of business of the Governing Body is to be approved by the Director of Public Instruction, no such rules of business was ever submitted to the Director for approval in the meanwhile, in a public meeting, the affairs of the College were discussed and a panel of names was also suggested to Government. Government took into consideration the entirety of the situation and, for the welfare of the institution and the students, approved the names sent as per the resolution of the meeting exercising its powers under Article 130 of the Orissa Education Code. There was never any supersession of the existing Governing Body. The Petitioners had a right of appeal and hiving not exercised the same, the writ petition is not maintainable. It is further asserted that the Petitioners have no subsisting right and, as such, the writ petition is not maintainable.
Before considering the questions raised by the parties, it is worthwhile to note that the following facts are admitted:
Atala Behari College is a private institution recognised by and receives grant-in-aid from Government and is governed by the Orissa Education Act and the Orissa Education Code (hereinafter described as the Code). This College is affiliated to Utkal University and is also Governed by the Utkal University Act (Orissa Act 20 of 1966) (hereinafter described as the University Act) and the Statutes made under the said Act. The term of the Governing Body of the College constituted under Annexure-1 expired on 31-5-1975 and thereafter, at the request of the said Governing Body, it was allowed to continue to act as a caretaker Governing Body dealing purely with routine matter until a new Governing Body was constituted - vide Annexure-5.
Mr. R. Mohanty, the learned Counsel for the Petitioner, contends that, (1) public have no connection with the institution and the suggestion made by the public cannot be the basis of formation of the Governing Body; (2) Article 130 of the Code does not authorise Government to impose a body on the institution; (3) the Act and the Rules do not empower to create a body, and when Government creates such a body, Section 11 of the Act comes into operation; and (4) the grounds, on which Government has not approved the Governing Body, are without any basis.
There is no dispute about the fact that the term of the Governing Body constituted and approved under Annexure-1 expired on 31-5-1975 and intimation was sent to the College for proposal for the succeeding Governing Body and, in pursuance of that letter, a panel of names was sent. It is contended on behalf of the Petitioners that by virtue of Article 286 of the Orissa Education Code, the Petitioners have a right to elect and Government has to approve the same Article 286 of the Code comes u/s v. which relates to recognised high schools. This Article is also subject to the provisions mentioned in Article 285 which relates to model rules. Under Clause (4) of Article 286, it is provided that the members of the committee shall elect from among themselves a President and a Secretary or they may appoint one of the ex-officio members to be the President or Secretary. Under Clause (7) of that Article, it is also provided that the term of office of ordinary members shall not exceed three years and, as nearly as possible, one-third of the ordinary members shall vacate office every year and if necessary, to secure this, a sufficient number of those who have held office for less than three years and more than one year shall be balloted out. There is no dispute about the fact that this procedure was not being followed by Government or by the Petitioners in constituting the Governing Body of the College. Moreover, this Article is applicable only in cases of high schools, bur not colleges. In Article 306 of the Code, it has been provided that the rules for the constitution and term of office of managing committees contained in Article 286 of the Code should be adopted by the managing committees of aided schools subject to such modifications as the Director may approve. This Article has clarified that Article 286 is applicable only to schools.
It may be mentioned here that the provisions of the Orissa Education Code would be deemed to be Rules under the Orissa Education Act, so far as they are not inconsistent with the provisions of the Act or constitution vide Section 27(4). Sub-rule (7) of Rule 286 which provides for balloting out one-third of the members is inconsistent with the Statute as stated above. Moreover, Sub-rule (4) of Rule 286 which also provides for election of President and Secretary from amongst the members of the managing committee has never been followed by the Petitioners. These circumstances lend assurance to the contention that Rule 286 of the Code is not applicable to constitution of the Governing Body of a college.
Provision for constitution of Body of colleges has been made u/s 7 of the Act read with Article 130 of the Code. u/s 7(2) of the Act, a managing committee or Governing Body constituted after the commencement of the 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.
Article 130 of the Code provides that every aided college must be governed by a body whose constitution has been approved by Government. Admittedly, the outgoing Governing Body was approved for three years (vide Annexure-1) which is subsequent to the period when the Act came into operation.
According to Section 22 of the Utkal University Act, the statutes may provide for the constitution and functions of governing bodies of colleges. Statute 227 provides as follows:
Every college admitted to the privileges of the University shall have a Governing Body to be constituted in the manner hereinafter specified:
(1) The Governing Body shall have a total membership including the President and the Secretary, of not less than 9 and not more than 15.
(2) It shall include (i) the Principal of the College, (ii) two members of the teaching staff, and, (iii) one member nominated by the Vice-Chancellor.
(3) The tenure of office of the members of the Governing Body, excepting that of the Principal shall be 3 years.
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It is not disputed that this college has been admitted to the privileges of the University and that the provisions of Statute 227 are applicable to this institution. Provisions, stated above, are clear that the life of a governing body should be for three years only, excepting that of the Principal and the governing body before it starts to Junction, has to be approved by Government; and the governing body should also constitute the ex officio members as provided in Statute 227. In view of the aforesaid provisions which are admittedly applicable to this institution, the term of the Petitioners who constituted the outgoing governing body expired on 31-5-1975. As would appear from Annexures-4 and 5, they requested Government to allow them to continue as caretaker Governing Body till the new governing body would be constituted and Government allowed them to continue as such with powers to deal only with the routine works. It would thus appear that the life of the governing body had already expired and the members of that governing body no more continued.
Statute 227 does not permit life-membership and thus it is against the statutory provision to have a member or Secretary, as would appear from the election made by the Petitioners (Annexures-3 and 3/A), as a life member of the governing body.
The case of the Petitioners is that they are the trustees of the institution and they have registered themselves under the Societies Registration Act and they rely on Annexure-9 to show that in 1963 the Registrar of Societies, Orissa, acting under the Societies Registration Act (Act 21 of 1860), registered the institution and, as such, the properties of the institution vested in the governing body and they should continue as members of the governing body, or only their nominees can act as members of the governing body. Under provisions of the Orissa Act 22 of 1967 (Orissa Governing Bodies of Non-Government Colleges (Validation and Extension of Term of Office) Act, the term of office of all governing bodies of non-Government colleges was restricted. By virtue of Section 3(b) of the said Act, all governing bodies which were holding office immediately prior to the first day of January 1967 were to cease to hold office with effect from 1st January 1968 at the latest. By virtue of the aforesaid provisions, any governing body which was functioning ceased to exist with effect from 1-1-1968. Even if the Petitioners claim, on the strength of being a registered body, to act as members of the governing body, whatever powers they had in respect of management of the institution ceased from 1-1-1963 under statutory provisions. The Orissa Education Act came into operation from October 1969 and thereafter the institution is governed by the provisions of the Act. It has already been stated above that virtue of Section 7 of the Act read with Article 130 of the Code, the governing body has to be constituted and has to function with prior approval of Government. Therefore, the Petitioners cannot claim the right of management on the ground of being a registered body under the Societies Registration Act. The University Statutes also put restrictions which cannot be violated in the constitution of the governing body and the Petitioners cannot go against it on the ground that they formed a registered body.
Neither Government, nor the Petitioners can act against the provisions of the Act, the Code and the University Statutes. The case of the Petitioner is that government was previously following the principles laid down in Article 286 of the Code and was asking for proposals from the outgoing governing body. We have already held that Article 286 of the Code does not apply to colleges and that provision is only for the schools. It is also not disputed that the detailed provisions laid down in that Article were also not being followed at any timely Government, or even by the Petitioners. Only because on prior occasions Government asked for a panel of names, that does not establish that Government was following Article 286.
Article 131 of the Code provides that rules of business of the governing body of aided colleges should be submitted to the Director for approval. It is asserted in the counter affidavits that the rules of business have never been sent to the Director of Public Instruction for approval. Reliance is placed by the opposite parties 1 and 2 on annexure-7 that on 14-11-1971 the Director of Public Instruction wrote to the Secretary to send immediately the rules of business of the Governing body for approval, and by Annexure-11 on 17-4-1972 again the Director wrote to the Secretary for sending the rules of business for approval. From Annexure-3 dated 14-5-1975, it appears that the rules of business of the college had not been sent for approval. The Petitioners rely on Annexure-8, a letter said to have been sent on 11-12-1971 which shows that the rules of business were sent to the Director for approval, but it has been asserted by the Director in the counter-affidavit that no such rules of bus mess were ever sent for his approval. This fact also finds support from Annexure-3. It is not disputed that the college has no rules of business duly approved by the Director of Public Instruction as provided under Article 131 of the Code. This dearly establishes that there is no valid rule of the college for any nomination by the outgoing governing body for formation of the succeeding governing body. Section 28 of the Act provides that the provisions contained in that Act shall be in addition to the law regarding University education in force. Article 105 of the Code also provides that every college must be under the management of governing body and must be conducted in accordance with the regulations of the Department and the University. Section 7 of the Act read with Articles 105 and 130 of the Code along with Statute 227, are provisions according to which the Governing body of a college is to be constituted. As held aforesaid, there is no valid approved rule of the college for the constitution of governing body. Therefore, in absence of such rules, Government can by exercising its executive powers under Article 162 read with List II of the Constitution of India, constitute a governing body. Expiry of the term of the governing body of the Petitioners is not by any executive order, but by operation of law and thereafter the constitution of the governing body is to be made by exercise of the executive powers as provided in the Act, the Code and the Statutes.
Statutory provisions have been made according to which Government can exercise its control in respect of management of educational institutions. Section 7 of the Act has been enacted for prior approval of the governing body before it starts to function. For this purpose, provisions have been made in the Act on several matters relating to the management of the institution. Sections 5 and 6 of the Act relate to recognition of the institution, considerations for such recognition and effects of non-recognition. Section 7 provides that the governing body should be subject to approval of Government. Section 8 imposes duty on the governing body to send list of properties of the institution every year to the Government by a particular time. Section 9 puts embargo on the power to alienation of properties of the institution. Sections 10 and 10/A provide conditions of service of teachers of the institution and Section 11 empowers the Director for supersession and reconstitution of the governing body. Sections 12, 13 and 14 prescribe manners how accounts of the institution are to be maintained and audited, power of inspection and restriction in the matter of discontinuance of the institution. Thus, statutory provisions have been made for proper management of educational institutions.
It is contended by Petitioners that the last sentence in Rule 130 of the Code mentions about elections of governing body and, therefore, it would be presumed that election outgoing body is intended thereby. In view of the reasonings already given by us, this contention has no force. Moreover, if it would have been a case where the rules of business of the institution have been approved by the Director as provided in Rule 131 of the Code and those rules of business provide for election (as approved by Government), then only the question of election would arise; otherwise not.
The learned Advocate-General relies on Katra Educational Society Vs. State of Uttar Pradesh and Others, ., wherein it has been held:
The State in a democratic set up is vitally interested in securing a healthy system of imparting education for its coming generation of citizens, and if the management is recalcitrant and declines to afford facilities for enforcement of the provisions enacted for the interests of the students, a provision authorising the State Government to enter upon the management through its Authorised Controller cannot be regarded as unreasonable. xx xx The property continues to remain the Property of the institution; unless the right of management o� the recalcitrant managers is taken away temporarily to secure compliance with the provisions of the Act. Temporary deprivation of management to secure compliance with the provisions of the Education Act does not amount to deprivation of property of the educational institution.
In that case, under the Intermediate Education Act a scheme of administration was enforced which among other matters provided for the constitution of committee of management to conduct the affairs of the institution. In pursuance of that Act, a scheme was asked from a school which was being managed by a society, registered under the Societies Registration Act. The society, thereupon, presented a petition under Article 226 of the Constitution of India for quashing the orders asking for the scheme. The Supreme Court rejected such a prayer holding as stated above. Whatever rights the Petitioners have acquired in the properties of the institution being a registered body under the Societies Registration Act, those rights are not affected. Only the right of management has been restricted by statutory provisions.
The Petitioners rely on Brundaban Chandra Mohanty v. D.I. of Schools 1971 (1) C.W.R. 453. and Lakshman Mohapatra v. State of Orissa 1911 (1) C.W.R. 219. The facts and circumstances of these two cases are different from the facts and circumstances of the present case. Both these decisions relate to schools. As we have already stated above, the provision in the Education Code relating to schools is not applicable to colleges as there are different sections in the Orissa Education Code which have force of rules. The case of Lakshman Mohapatra related to Section 11 of the Act and Article 41 of the Code. This was relating to supersession of the managing committee of a school. So also the case of Brundaban Chandra Mohanty. Petitioners also rely on University of Calcutta v. Khagendranath Sen 79 C.W.N. 762. This was a case of supersession of validly existing governing body which is different from the facts of the instant case. In that case the University dissolved the governing body on the ground of mismanagement and appointed another temporary body and it was held that by virtue of the Calcutta University Act and Statutes, notice should have been given to the members of the, governing body which was dissolved. In the present case, there is no question of dissolution of the existing governing body.
In view of aforesaid analysis, we hold that Government had the power and jurisdiction to constitute the governing body of the college as per Annexure-6.
It is contended on behalf of the Petitioners that by virtue of Annexure-6. Government has constituted another Governing Body which attracts Section 11 of the Act. This contention has, no force. Section 11 relates to supersession of validly existing Governing Body and reconstitution of Governing Body. Had it been a case that the term of the Governing Body constituting the Petitioners did not expire and during that period Government constituted another Governing body by superseding that body, then the provisions of Section 11 would have been attracted. Admittedly the term of the Governing Body as per Annexure-1 had already expired from 31-5-1975 and at the request of the Petitioners, they were continuing as caretaker Governing Body after obtaining permission from the Director of Public Instruction to do only routine works. In the eye of law, their term had already expired and there was no valid Governing- body. Therefore, the provisions of Section 11 of the Act are not attracted, inasmuch as it was not a case of supersession. Thus, we hold that Annexure-6 does not amount to supersession of the Governing Body of the college in question.
It is seriously asserted on behalf of the opposite parties that the term of the Governing Body formed under Annexure-1 had already expired and the Petitioners had no right to challenge the Governing Body constituted under Annexure-6. Though the Petitioners contend that they are seeking relief as trustees, or under the Societies Registration Act, yet in para 16 of the writ petition it is contended that Petitioner No. 2 claims in his capacity as the re-elected member and Secretary of the Governing Body and Petitioners Nos. 3 to 7 on the strength of being members of the Governing Body of 1972 and re-elected by a resolution of the then Governing Body. In view of the findings made above, we hold that the Petitioners have no right to claim as members of the Governing Body constituted in 1972, nor can they have any claim as being re-elected by that Governing Body. The Petitioners, therefore, have no right to challenge Annexure-6.
As we have held that Petitioners have no right to challenge the constitution of the Governing Body, the question of approval of the names suggested in a public meeting looses significance. The Government, after due consideration of all circumstances, the interest of the students interest of proper running the institution and having prima facie materials of mismanagement, has approved a list of members which will be beneficial to the interest of the institution. Otherwise devastating results will follow and the interest of students and the institution will be seriously affected if recognition is withdrawn and grant-in-aid is stopped. By virtue of provisions of the Orissa Education Act, Government has made statutory provisions for exercising its powers relating to better and proper management of educational institutions and according to such statutory powers, Government has acted in exercising its executive powers. Undisputedly, there are no rules as to how this power is to be exercised and so Government acted in exercising its power by executive instructions.
12 In Kasinath Tripathy and Anr. v. State of Orissa and Ors. I.L.R 1976 Cutt 587, it has been held that a person having no legal or personal right, or any property right, cannot invoke the writ jurisdiction of the High Court for issue of a mandamus as no fundamental right is affected in any way. Existence of a right is the foundation of the exercise of writ jurisdiction of the Court under Article 226 of the Constitution.
In Gunanidhi Mohapatra v. The Chairman, N.A.C., Bhubaneswar and Ors. ILR 1976 Cutt 587, it has been held that for the issue of a writ of mandamus the Petitioner has to make out that he has a legal right by virtue of which he is entitled to a particular act being done by the opposite parties or to require that they shall not do a thing which may prejudicially affect his right and for the issue of a writ of certiorari the Petitioner should be a person who is adversely affected by the order sought to be quashed.
As we have already held above, the Petitioners have no right whatsoever to challenge the constitution of the Governing Body made under Annexure-6 relating to the management of the institution and, as such, they have no locus standi to file this petition. It may also be mentioned that the Petitioners no longer continue as members of the Governing Body and Petitioner No. 1, in the cause-title of the petition, has been described as Governing Body of the College represented by the Secretary, Petitioner No. 2. The other Petitioners do not constitute the Governing Body of the college and, as such, it cannot be said that the Governing Body of the college has filed this writ petition and Petitioner No. 2, who is described in the cause-title to be representing Petitioner No. 1, is not entitled to represent as such for filing this writ petition.
It is contended on behalf of the opposite parties that the Petitioners should have gone up in appeal under the proviso to Section 7(2) of the Act and as they have not followed the alternative remedy available, the writ petition is not maintainable. As we have already held, the Petitioners having no locus standi to challenge the constitution of the Governing Body as per Annexure-6, this question does not arise for consideration.
The writ petition has no merit and the same is, accordingly, dismissed. We make no order as to costs.
S.K. Ray, A.C.J.
I agree.