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Ramachandra Misra and anr. Vs. Addl. Director of Public Instruction (Schools) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1055 of 1978
Judge
Reported inAIR1979Ori141; 47(1979)CLT306
ActsOrissa Education Act, 1969 - Sections 11(1); Orissa Education (Amendment) Act, 1978
AppellantRamachandra Misra and anr.
RespondentAddl. Director of Public Instruction (Schools) and anr.
Appellant AdvocateG. Rath, Adv.
Respondent AdvocateGovt. Adv.
DispositionPetition allowed
Cases ReferredTirunelveli v. S. Venkatarama Iyer
Excerpt:
.....ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. as far as relevant, section 11 of the act provides :(1) without prejudice to the provisions contained in any other law for the time being in force, whenever it appears to the director of public instruction that the managing committee of any educational institution has neglected or failed to perform any of the duties imposed by or under this act or the rules made thereunder he may after giving the managing committee. learned government advocate does not dispute the position that the post bad been directed to be kept in abeyance......aided educational institution. by notice dated 16-11-77 (annexure-1), the additional director of public instruction (schools) called upon the members of the managing committee to show cause as to why the said committee may not be superseded and reconstituted as provided under section 11(1) of the orissa education act, 1969 (hereinafter referred to as the 'act'). after cause was shown, on 25-7-1978, the additional director superseded the managing committee and put the inspector of schools, cuttack-iii circle as special officer to exercise the powers and functions of the committee in respect of the school till re-constitution of the managing committee. the initiation of the proceeding and the order of supersession are assailed in this proceeding on the ground that the additional director.....
Judgment:

R.N. Misra, J.

1. Petitioners are members of the Managing Committee of the Rajanagar High School which is an aided educational institution. By notice dated 16-11-77 (Annexure-1), the Additional Director of Public Instruction (Schools) called upon the members of the Managing Committee to show cause as to why the said Committee may not be superseded and reconstituted as provided under Section 11(1) of the Orissa Education Act, 1969 (hereinafter referred to as the 'Act'). After cause was shown, on 25-7-1978, the Additional Director superseded the Managing Committee and put the Inspector of Schools, Cuttack-III Circle as Special Officer to exercise the powers and functions of the Committee in respect of the School till re-constitution of the Managing Committee. The initiation of the proceeding and the order of supersession are assailed in this proceeding on the ground that the Additional Director of Public Instruction has no jurisdiction under the Act to initiate the same or make the impugned order.

2. In a common counter affidavit, the opposite parties have supported the order.

3. As far as relevant, Section 11 of the Act provides :--

'(1) Without prejudice to the provisions contained in any other law for the time being in force, whenever it appears to the Director of Public Instruction that the managing committee of any educational institution has neglected or failed to perform any of the duties imposed by or under this Act or the rules made thereunder he may after giving the managing committee..... a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, shown, supersede the managing committee.....

(2) Upon supersession of the managing committee..... the Director of Public Instruction shall, as soon as possible thereafter, reconstitute the managing committee .

(3) .....

(4) During the period intervening the supersession and reconstitution of the managing committee..... the powers and functions of the managing committee ..... shall be exercised by such person or persons as the Director of Public Instruction may appoint in that behalf.

(5) The managing committee ..... may, if it is aggrieved by the order of supersession made under this section, prefer an appeal to the State Government within thirty days from the date of the order.

Explanation -- (1) The expression 'Director of Public Instruction' shall mean the Director of Public Instruction (Higher Education) in the case of colleges and the Director of Public Instruction (Schools) in the case of schools.

(2) In the event of vacancy in any of the offices specified in Clause (1), the powers and functions of the Director of Public Instruction shall be exercised and performed by such other officer of the Directorate of Public Instruction not below the rank of a Joint Director as the State Government may by notification, specify in this behalf.'

Petitioners allege, relying upon the order of the State Government dated 21-11-1974 that the post of Director of Public Instruction (Schools) has been kept in abeyance for the time being and the post of a Joint Director of Public Instruction was created. Government made a notification on 7th of June, 1977, vide Annexure-5 to the following effect:--

'In exercise of the powers conferred by a. (2) of the Explanation to Section 11 of the Orissa Education Act, 1969 (Orissa Act 15 of 1969) and in supersession of Government Notification No. 3034 EYS dated the 20th Jan, 1976, the State Government do hereby direct that in the event of a vacancy in the office of the Director of Public Instruction, the Additional Director of Public Instruction shall exercise the powers and functions of the said Director under the said section of the said Act.'

On 28th of March, 1978, Government made another notification running to the following effect:--

'In exercise of the powers conferred by Clause (2) of the Explanation to Section 11 of the Orissa Education Act, 1969 (Orissa Act 15 of 1969) and in supersession of the Government notification of the Government of Orissa in the Education and Youth Services Department No. 21396 dated 7th June, 1977, the State Government do hereby direct that in the event of a vacancy in the office of the Director of Public Instruction (S) the Director of Public Instruction (Higher Education) shall exercise and perform the powers and functions of the said Director under Section 11 of the said Act,'

The opposite parties have relied upon these notifications in support of then plea that the impugned supersession was an act within the jurisdiction of the Additional Director. Petitioners on the other hand have contended that when the post of the Director of Public Instruction (Schools) was kept in abeyance, it was not a case of a vacancy but it was a case where the filling up the post had been deferred and no person was entitled to be posted as such until there was a revocation of the Government decision of keeping the post in abeyance. Thus, the situation arising out of the post being kept in abeyance was not covered by the second Explanation to Section 11 and it was not open to the State Government to make the notification under Annexure-5 to confer jurisdiction on the Additional Director of Public Instruction to exercise the powers conferred tinder Section 11 of the Act.

4. A Bench of this Court has already held that the joint Director of Public Instruction (Schools) in whose favour power had been conferred by notification in terms of the second Explanation to Section 11 was not competent to exercise the powers of the Director.

5. The term 'vacancy' has not been defined by statute and must accordingly be given the common parlance meaning. According to the Shorter Oxford English Dictionary the following would be the meaning of the term:--

The state or condition of being unoccupied; absence of occupation; an occupied period or interval; the fact or condition of an office or post being, becoming or falling vacant; a Vacant or unoccupied office, post or dignity. A Bench of the Madras High Court in the case of Additional District Panchayat Officer, Tirunelveli v. S. Venkatarama Iyer (1960) 2 Mad LJ 75, was called upon to deal with the moaning of the word 'vacancy' occurring in Section 25 (4) of the Madras Village Panchayats Act, 1950 which provides :--

'Any vacancy in the office of President shall be reported to the election authority, by such person and within such time as may be prescribed, and the election authority shall arrange for the election of the President.' Rajamannar, C.J. spoke for the Court thus:--

' 'Vacant' means inter alia not filled or occupied, devoid of an occupant'. In Anderson's Dictionary of Law we find the following instructive information: 'Vacancy is the state of being empty or unfilled .....An old office is vacated bydeath, resignation or removal An Office newly created is ipso facto vacant at creation.' '

'Abeyance' on the other hand according to the Oxford English Dictionary means 'a state of suspension, dormant condition, a position of being without an owner'. When Government have taken the decision of keeping the post in abeyance, there is no intention in praesenti of filling up the vacancy. There is certainly a difference between a vacancy simpliciter and the post being kept in abeyance. In the case of a vacancy it is available to be filled up at any time in the case of a post kept in abeyance, the post has to be brought into life from the stage of dormancy and then a vacancy created to be filled up. Otherwise put, when the post is kept in abeyance, there is no vacancy because there is no post to be filled up. The creation of the post on permanent basis may not have been recalled, but on account of the direction that the post shall be kept in abeyance, there would not be a live vacancy for being manned. Thus, there is a clear distinction between the post being kept in abeyance and the post being kept vacant. The Explanation (2) under Section 11 of the Act refers to a situation when there is a live post going unmanned thus giving rise to a vacancy, whereas the situation in hand is a case where the post is not live on account of the Government decision to keep if in abeyance. Such a situation would not come within the ambit of the Explanation. Learned Government Advocate does not dispute the position that the post bad been directed to be kept in abeyance. On this conceded position, we are inclined to agree with counsel for the petitioners that the Explanation (2) to Section 11 and the Government notification cannot be called in aid to support the present action of the Additional Director of Public Instruction (Schools). We may note that by Orissa Act 31 of 1978 operative with effect from Oct. 1978, an amendment to Section I I has been brought in, but in view of the conceded position at the Bar that the provisions of the amending Act are prospective, no support can be derived from the amendment by the opposite parties.

6. The net result, therefore, is that the Additional Director of Public Instruction (Schools) had no jurisdiction to initiate the proceeding for supersession nor to pass the order of supersession of the Managing Committee. Since there was no jurisdiction in the public officer, the impugned order must be held to be an act without authority of law and thus liable to be vacated.

7. We would accordingly allow the writ application and quash the entire proceeding. The Managing Committee of the School shall be deemed to be in office and shall be entitled to exercise its functions in accordance with law. The writ application succeeds. There would, however, be no order for costs.

P.K. Mohanti, J.

I agree.


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