Disposed

Educational Agency of Kalinga v. State of Odisha

Orissa HC16 Mar 2017WP(C)/17529/2016

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the deferment of permission for opening a residential college. The Court held the deferment effectively refused permission for the current session and dismissed the petition as no appeal was filed and the matter was pending for the next session.

What did the court decide?

The writ petition was disposed of; the opposite party was directed to consider the application for the 2017-18 session on all merits before the academic session begins.

Educational Agency of Kalinga Vs State of Odisha — Education and Admissions | Orissa HC (2017)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No. 17529 of 2016

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In the matter of an application under Article – 227 of the Constitution of India.

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………

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Educational Agency of Kalinga Residential College, Tarapur		……. Petitioner.
	VERSUS
State of Orissa & another		……. Opp. Parties.
For petitioner	::::	M/s. K.K. Swain, P.N. Mohanty, B. Jena, K.Swain, J.R. Khuntia, advs..
For opp.parties	::::	Mr. B. Senapati, Addl. Govt. Advocate.
PRESENT :	………

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THE HON’BLE MR. JUSTICE D.DASH

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------------------------------------------------------------------------------------------Date of hearing : 28.02.2017 : Date of judgment : 16.03.2017 -------------------------------------------------------------------------------------------

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This writ application has been filed by the petitionerEducational Agency for quashment of the decision of the High Power Committee constituted by the State Government under sub section (5) of section 6 of the Odisha Education Act, 1969 (hereinafter called as ‘the Act’) under Annexure-2 whereby the matter of grant of permission for opening of +2 Science Residential College from the Session 2016-17 has been as ‘deferred’. It has been further prayed that a direction be given to the opposite party no.1 to take a positive decision relating to

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the same in terms of the provisions as laid down in section 5 of the Act.

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The petitioner-Educational Agency being desirous of opening one +2 Science Residential College had made an application under section 5 of the Act in the prescribed form on 09.06.2016 annexing relevant documents as so prescribed. The inspection thereafter being made, necessary report had been prepared. The matter then being placed before the High Power Committee in its meeting dated 16.07.2016 finally the consideration over the said application has been deferred.

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It is stated that as all the conditions enumerated in section 5 of the Act read with the provision of Orissa Education (Establishment, Recognition and Management of Private Junior Colleges/Higher Secondary Schools) Rules, 1991 ( herein after called as the Rules) stand fulfilled, such deferment of the decision is impermissible. Thus it is attacked as to be not in consonance with the provision of law holding the field. It is further contended that the High Power Committee has to take a positive decision in the matter in either granting or refusing the permission but not by way of such deferment of consideration in the matter. This has been taken as the first ground of attack to the said order of deferment of consideration of the prayer of the petitioner for opening +2 Science Residential College.

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It is further stated that when the petitioner-Educational Agency has fulfilled all the criterias as mandated under the law, the deferment as has been made by the High Power Committee is without any justification.

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Heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. B. Senapati learned Additional Government Advocate.

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The opposite party no.1 in the counter has averred that the opposite party no.2, the prescribed authority had submitted the inspection report in not recommending the case of the petitioner’s institution favouring the said permission as prayed for. So, the matter being placed before the High Power Committee, the consideration has been deferred asking the opposite party no.2 to make further scrutiny of the proposal. It has also been pleaded that the very purpose of deferment of consideration of the proposal instead of straightway accepting the report of the opposite party no.2 in the negative is rather to better examine the matter so as to find out existence of any such ground if so available to overrule the non-recommendation by the opposite party no.2. It is also stated that basing upon the grievance petition dated 25.07.2016 filed by the petitioner, the opposite party no.2 has been asked to furnish a report and on receipt of said report, it would be placed before the High Power Committee for consideration of the proposal in taking a final decision.

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It is pertinent to state that Sub- section 1 to 10 of

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section 5 of the Act provide the details relating to the permission for establishment of educational institution. The procedures to be followed for the purpose have been prescribed in the Rules.

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Rule 4 speaks that the application seeking permission for establishment of the institution in the particular year, has to be made in between 1^st day of October to 30^th day of November for the year immediately preceding the particular year . The proviso however empowers the State Government to take a decision in the matter of receipt of the application after the date in a particular year by assigning good and sufficient reason in which case the extension if so made would be for all. Sub rule (2) next provides the form in which such application for permission is to be made; sub rule (3) provides the prescribed fees when sub rule (4) prescribes the consequential action to be taken by the Director on receipt of such application. Rule-5 further prescribes the documents to accompany the application, when Rule-6 describes the contents of the application.

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We are here concerned with the Rule 7 Sub-Rule 1 of said

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Rule says that the Director after scrutinizing the application, may make such enquiry as may be deemed necessary and on being satisfied that there is need for establishing the College or Higher Secondary School in any particular area, he shall after obtaining prior

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concurrence of the Government grant the permission for opening of new institution in favour of the applicant, who in his opinion is likely to best serve the education needs of that area. Sub rule (2) of rule 7 provides as to what have to be specified by the Director while granting permission in the order.

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A bare reading of the relevant provisions of section 5 of the

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Act and the above said rules, makes it clear that the permission is sought for establishing a new institution for carrying out a particular course from a particular academic session, and therefore, keeping that in mind, the rule mandates that the application has to be received between 1^st day of October to 30^th day of November. The very purpose is obvious that the consequential action prescribed in the Rules in that event can be taken up early and the final decision so taken would be communicated to the applicant well ahead of beginning of the academic session for it to go ahead in accordance with the same after complying any such other requirements as per law. However, no specific provision is there in the Act that when the matter is placed before the High Power Committee, that they may direct for further inquiry and verification and defer the matter. But in case of deferment as has been made it is not practically feasible for the educational agency to open the institution from that very academic session. The deferment in the given situation in other words leads to non-

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grant/refusal of permission for opening of the institution in that academic session. The consideration of the said proposal in the next meeting thus means not for consideration of the proposal for the academic session as applied for but for the next academic session which has to be on the basis of further report upon satisfaction as regards the conditions laid down in the provision of the Act. This position becomes more clear if we look to the relevant provisions of the Act which provide in sub-section -9 of section -5 that in case of grant of permission, the Agency has to report about its functioning forthwith and in any case not later them forty five days from the date on which the institution starts functioning further it is there in sub-section -10 of section -5 of the Act that where there is failure to function as stipulated in sub section-9, the permission shall lapse and only for good and sufficient reason the prescribed authority may extend the date from which the institution shall start functioning for such period not exceeding beyond the first day of the following academic year.

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Therefore, in my considered view the deferment of consideration of the matter relating to grant of permission for opening the institution carrying out the particular educational course from a particular academic session amounts to refusal for that particular academic session as applied for unless of course the deferment is till a date fixed well ahead of beginning of that academic session. The order thus in my

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considered view is squarely appealable as provided in sub

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section (8) of section 5 of the Act. Be that as it may, no such appeal having been filed in this case and that remedy having not been availed of when the matter of grant of permission for opening of +2 Science residential college by the petitioner-Educational Agency is still pending, which obviously means for its consideration for the next academic session 2017-18; the prayer of the petitioner to quash very order under Annexure-2 does no more survive. It is more so when it is seen that the petitioner even after knowing the decision has represented for its reconsideration and based upon that further report has been called for which is awaited for being placed before the High Power Committee for decision. Where in the meanwhile on account of lapse of time, the situation is this that we are at the mid of the academic session, 2016-17.

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In view of all the aforesaid and in the above state of affairs, this writ application is thus disposed of with the observation that the opposite party no.1 would do well to consider the said application of the petitioner-Education Agency for opening +2 Science Residential College from academic session, 2017-18 taking into account the representation of the petitioner and the report as called for on that basis as also on the basis of any further report if so deemed necessary

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so as to take a decision thereof in accordance with law well ahead of

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the commencement of academic session, 2017-18.

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No order as to cost.

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D. Dash, J.

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Orissa High Court, Cuttack, Dated, the 16^th day of March, 2017/Routray

Educational Agency of Kalinga v. State of Odisha

Case brief

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Educational Agency of Kalinga v. State of Odisha

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