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Sri Anand Rath, Director of Public Instruction Vs. (Higher Education) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 132 of 1982
Judge
Reported in1984(I)OLR159
ActsOrissa Education (Management of the Private Colleges) Rules, 1979 - Rule 5; Constitution of India - Articles 226 and 227
AppellantSri Anand Rath, Director of Public Instruction
Respondent(Higher Education) and ors.
Appellant AdvocateS.C. Das and B.K. Patnaik
Respondent AdvocateAddl. Standing Counsel (for O.P. No. 1), ;S.K. Das, B.B. Rath, R.N. Acharya, P.K. Bhuyan, M. Misra and B.P. Moharana, (for opposite party No. 4), S.C. Mohapatra, B.K. Mohapatra, M.R. Mohanty, B.C. Moh
DispositionApplication allowed
Cases ReferredState of Uttar Pradesh v. Mohammed Nooh
Excerpt:
.....of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the..........e.) orissa substituting the membership of the petitioner by that of the opposite party no. 4 as a vice-chancellor's nominee in the governing body of the khetrabasi dayananda anglo vedic college, nirakarpur which is an aided educational institution governed by the orissa education act and the rules framed thereunder.2. after the orissa education (management of the private colleges) rules, 1979 came into force on 10-12-1979, the old governing body ceased to exist and a new governing body was to be constituted under rule 3 (4) of the said rules by sro no. 891/80 dated 28-8-1980. the college is to have 15 members in the governing body in the maximum including the vice chancellor's nominee. the petitioner was nominated by the vice-chancellor of utkal university as his nominee by letter no......
Judgment:

P.K. Mohanti, J.

1. The writ application is directed against an order dated 24-] 2-1981 passed by the Director of Public Instruction (H. E.) Orissa substituting the membership of the petitioner by that of the opposite party No. 4 as a Vice-Chancellor's nominee in the Governing Body of the Khetrabasi Dayananda Anglo Vedic College, Nirakarpur which is an aided Educational Institution governed by the Orissa Education Act and the rules framed thereunder.

2. After the Orissa Education (management of the private Colleges) Rules, 1979 came into force on 10-12-1979, the old Governing Body ceased to exist and a new Governing Body was to be constituted under Rule 3 (4) of the said rules by SRO No. 891/80 dated 28-8-1980. The College is to have 15 members in the Governing Body in the maximum including the Vice Chancellor's nominee. The petitioner was nominated by the Vice-Chancellor of Utkal University as his nominee by letter No. 3749/81 dated 7-2-1981 (Annexure-1) and he was included as a member of the Governing Body as per office order No. 82761 dated 6-5-81 issued by the Director of Public Instruction (H. E) Orissa Vide Annexure--2. On 4-11-1981, the petitioner received a letter from the Development Officer of the Utkal University informing him that the aforesaid letter No. 3749/81 dated 7-2-1981 issued to him to act as Vice-Chancellor's nominee to the Governing Body of the College had been cancelled by Annexure--3. On 24-12-1981 the Director of Public Instruction (H. E) Orissa passed the impugned order substituting opposite party No. 4 Balaram Dash in place of the petitioner as the Vice-Chancellor's nominee to the Governing Body. This order was communicated to the petitioner on 2nd January 1982 as per Annexure-6. The validity of the order is challenged by the petitioner on the ground of con-compliance with the provisions of rule-5 of the aforesaid rules. It is contended that the principles of natural justice as embodied in Rule 5 (1) of the aforesaid rules not having been complied with, the impugned order is without jurisdiction and void.

3. The stand taken by the Vice-Chancellor (O. P. No. 2) is that he cancelled the nomination of the petitioner to avoid some controversy in the College Governing Body and nominated opposite party No. 4 Balaram Dash who is an Advocate and a resident of the locality. It is contended that the petitioner being a nominee no reason was necessary to be indicated to him before cancellation of his nomination.

4. Opposite party No. 4 Balaram Dash has filed counter contending that the writ application is not maintainable in law as the petitioner has not preferred any appeal against the impugned order and that there has been no violation of any rules or the principles of natural justice in passing the impugned order.

5. The Governing Body of the College (Opposite party No. 3) in the counter affidavit had stated that it had no role to play in the matter of substitution of the petitioner by opposite party No. 3 and it had no knowledge about what prompted the authorities to cancel the nomination of the petitioner.

6. The question that arises for consideration is whether the order in Annexure-6 passed by the Director of Public Instruction substituting opposite party No. 4 in place, of the petitioner is in violation of Rule 5 (1) of the aforesaid rules.

7. The relevant rule is in the following terms :-'5. Term of office of the members of the Governing Body :-

1. The term of office of the members of the Governing Body other than ex-officio member, shall be three years and no member other than an ex-officio member or one nominated by the Charitable Trust, shall be nominated for more than two consecutive terms.

Provided that the Director on his own notice except in case of a Charitable Trust, or on receipt of proposal from the Vice-Chancellor or the Administrator, as the case may be, of the University the President of the Governing Body or from the Charitable Trust, as the case may be, if considers it so expedient in the interest of Institution may substitute any of the nominated members at any time prior to the expiry of the term of such members. When, however, any substitution of membership is initiated by the director, he shall initiate in writing the reasons for doing so to the VieeChancellor or the Administrator of the University or the President of the Governing Body, as the case may be, inviting his suggestions within a reasonable time If the Vice-Chancellor or the Administrator of the University or the President of the Governing Body does not furnish the suggest ions, so required, within the time, or differs from the proposal so initiated, the Director may, after considering the suggestions, if any, pass necessary orders. When it is proposed to substitute any nominated members the members so proposed to be so substituted may be given a reasonable time to represent against the proposed action. On receipt of such representation on the matter may be duly considered by the Director who may either reject or grant the representation.xx xx xx xx'

(Rest omitted as unnecessary)

On a reading of the first proviso to the rules it becomes quite clear that whenever it is proposed to substitute any nominated member, the member to be so substituted, will be given a reasonable time to represent against the proposed action and that on receipt of such representation the Director shall consider, the same and pass appropriate orders. The object behind the rule is to give an apportunity to the member to be substituted to explain his stand with regard to the proposed substitution of membership. In the instant case, the requirement of the rule has admittedly not been complied with. On receipt of the proposal from the Vice-Chancellor, the Director proceeded to pass orders substituting opposite party No. 4 in place of the petitioner without giving an opportunity to the latter of making a representation against the proposed action. Apparently the order passed by the Director was in violation of the rules. It is contended on behalf of opposite party No. 4 that the question of giving opportunity of making representation arises only when the Director on his own motion takes steps for substitution. It is accordingly urged that as the Director passed the orders for substitution of membership on receipt of proposal from the Vice-Chancellor was not required to give an opportunity to the petitioner to make a representation. We are unable to accede to such contention. On the plain language of the proviso to Rule-5 (1), it is clear that the members to be substituted will be given a reasonable time to represent when substitution of membership is initiated on receipt of proposal from the Vice-Chancellor or the Administrator of the Univesity. The petitioner having not been given an opportunity of making a representation the order of the Director is contrary to rules and liable to be quashed.

8. Rule 6(1) of the aforesaid rules provides for an appeal against the order of the Director made under sub-rule (1) of the Rule 5. It is contended on behalf of opposite party No. 4 that an efficacious remedy being available under the rules and the petitioner not having availed of the same, this writ application is not maintainable. No doubt, ordinarily the High Court will require the petitioner to have recourse to his ordinary remedies, but where there is violation of principles of natural justice the High Court would certainly not hesitate to issue a writ of certiorari. The fact of there being another specific legal remedy, such as a right of appeal, is not conclusive against issuing a writ of certiorari where the legality complained of is based upon the breach of principles of natural justice, in the case of State of Uttar Pradesh v. Mohammed Nooh ; A. I. R. 1958 S. C 86, their Lordships held as follows ;-

'XXX. But this rule requiring the examination of statutory remedies before the writ will be granted is a rule of police convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued inspite of the fact that the aggrieved party had other adequate legal remedies.

xx xx xx xxXXX If an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rule of natural justice and all accepted rule of procedure and which offends the superior court's sense of fair play the Superior Court may, we think quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it confirmed whether fact was a nullity for reasons aforementioned.

9. In the instant case the principles of natural justice as embodied in sub-Rule (1) or Rule 5 were admittedly not following by the Director in making the impugned order. The petitioner has indicated in his writ petition the reasons for invoking the extraordinary jurisdiction of this court. The impugned order is not only violative of the principles of natural justice but was made in total disregard of Rule 5 (1) of the aforesaid rules. We are satisfied that this is a fit case for invoking our extraordinary jurisdiction to quash the impugned order.

10. In the result the writ application is allowed and the order of the Director of Public Instruction (H. E.), Orissa substituting opposite party No. 4 in place of the petitioner as a Vice-Chancellor's nominee in the Governing Body of the K. D. A. V. College, Nirakarpur is quashed a writ of certiorari be issued accordingly. We make no order as to costs.

P.C. Misra, J.

11. I agree.


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