Judgment:
Phukan, C.J.
1. This is a strange case in which the writ petitioner, who was the Secretary of the Governing Body of Harispur Baladev Mahavidyataya at Borikina in the district of Jagatsinghpur, and whose name has been approved as the President of the reconstituted Governing Body, on being dissatisfied with the same, has challenged in this writ petition the notification reconstituting the Governing Body by the Director of Higher Education, Orissa, O.P. No. 2, communicated by office order dated 12-8-1997 by the Deputy Director of +2 Education vide Annexure-5.
2. According to the petitioner, the above order was issued in complete disregard to Rule 25 of the Orissa Education (Establishment, Recognition and Management of Private Junior Colleges/ Higher Secondary Schools) Rules, 1991 (hereinafter called the 'Rules'). It is stated in the writ petition that a resolution was passed on 1-9-1996 by the Governing Body vide Annexure-2 in which it was decided to give notice to all concerned/members to remain present in the meeting to pass a further resolution regarding constitution of the new Governing Body. Accordingly, the meeting was held on 14-9-1996 and as required by the Rules, a resolution was adopted vide Annexure-3 to constitute the new Governing Body with one Sanjay Kumar Mohanty as the President and the present petitioner Krushna Chandra Baral as the Secretary. The said resolution was submitted to the Director who in complete disregard to the above Rule has constituted a new Governing Body vide Annexure-5.
3. A counter-affidavit has been filed on behalf of O.P. No. 3, who is now the Secretary of the Governing Body which was approved by the Director vide Annexure-5. It is stated therein that O.P. No. 3 was a member in the outgoing Governing Body, and the petitioner's name has been approved as the President of the reconstituted Governing Body. It has been further stated that the present petitioner has no authority to file the writ petition on behalf of the Governing Body of the College as no decision has been taken either by the outgoing or the reconstituted Governing Body of the College to challenge the reconstitution of the Governing Body by the Director vide Annexure-5. It has been further averred that when the present petitioner was the Secretary, he acted in a high-handed manner and misappropriated about Rs. 10 lakhs collected by way of tution fee and donations and in order to avoid the alleged misappropriation, the petitioner wants to continue as the Secretary of the Governing Body, although his name has been approved as the President. It has also been alleged that the documents annexed as Annexurcs 2, 3 and 4 to the writpetition are not genuine ones and that no meeting was held, as alleged by the petitioner. Regarding Annexure-3 to the writ petition, it has been stated that except the signature of the present petitioner, the signatures of all other members including that of Dr. P. K. Konungo were the forged signatures.
4. The petitioner has filed an additional affidavit wherein he has drawn attention of the Court to Rule 25 of the Rules in respect of the powers of the Director. A rejoinder has also been filed on behalf of opposite parly No. 3.
5. The limited question for consideration in this writ petition is whether the Governing body of the College was constituted in accordance with Rule 25 of the Rules, which is as follows:--
'25. Reconstitution of the Governing Body--(1) Not less than ninety days prior to the date of expiry of the term of a Governing Body a resolution shall be made in a meeting of the Governing Body nominating five to seven members in accordance with Clause (c) of Sub-rule (2) of Rule 23 from among themselves or other persons in the local areas interested in the field of education to the members of the Governing body to succeed it on the expiry of its term and to be its President and Secretary;
Provided that where a Charitable Trust had established the College, the Trust shall nominate the above persons to be members, President and Secretary of the Governing Body.
Provided further that no person shall be Secretary for more than two terms and no person shall be a member of the Governing Body for more than two consccutive terms except ex officio members, donors and those nominated by a Charitable Trust in case of such Trustestablished the institution;
Provided also that if the outgoing Governing Body or the Charitable Trust does not pass a resolution nominating members, the Director shall be competent to reconstitute the Governing Body.
(2) The outgoing President shall then furnish the Director for his approval the names of the proposed Governing Body members along with other details including the name of two representatives to be elected by the teachers and the name of the Principal of the Junior College/ Higher Secondary School along with the name of the persons to be the President and the Secretary.
(3) The Director shall be competent to substitute any name in the proposed Governing Body to bring it in conformity with the provision of these Rules or with a view to improve the efficiency of the management of the institution :
Provided that he shall consult the outgoing Governing Body in the matter before making any such substitutions.
Sub-rule (1) of Rule 25 is clear inasmuch as ninety days prior to the date of expiry of the term of the Governing Body, a resolution has to be passed in a meeting of the Governing Body nominating five to seven members in accordance with Clause (c) of Sub-rule (2) of Rule 23 from among themselves or other persons in the local area interested in the field of education to be the members of the Governing Body to succeed the outgoing Governing Body on the expiry of its term. From a reading of Sub-rules (1) and (2) together, it is clear that it is the responsibility of the President of the outgoing Governing Body to furnish to the Director for his approval the names of the members of the proposed Governing Body and for this purpose, no lime limit is fixed. According to Sub-rule (3), the Director is competent to substitute any name in the proposed Governing Body to bring it in conformity with the provisions of the Rules or with a view to improve the efficiency of the management of the institution, but the Director shall consult the outgoing Governing Body in the matter before making any such substitution.
Therefore, the function of the outgoing Governing Body is to pass a resolution regarding the proposed Governing Body and it is the duty of its President to send the resolution to the Director for his approval and the Director may approve the proposed Governing Body or with a view to improve the efficiency of the management of the institution may substitute any name in the proposed Governing Body, but he shall consult the outgoing Governing Body in the matter before making any such substitution.
6. It is the settled law that 'consultation' means effective consultation. We may in this connection refer to the decision of the Apex Court in the State of Assam v. Ranga Muhammad, AIR 1967 SC 903, wherein it was held that (at page 907) :
'..... Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Coun is entitled to the highest regard.'
This decision was rendered by the Apex Court while considering Articles 233, 235 and 234 of the Constitution of India. In a later decision in Chandramouleshwar Prasad v. Patna High Court, AIR 1970 SC 370, the Apex Court while considering Article 223 of the Constitution held that (at page 375) :
'..... Consultation with the High Court under Article 233 is not an empty formality. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or oihers and discuss and examine the relative merits of their views.....'
7. Coming to the case in hand, we find from the relevant file produced by the learned Addl. Government Advocate that the President of the outgoing Governing Body under his signature had submitted names of the proposed Governing Body members for approval of the Director and the Director has approved the same in toto. As before the Director there was no other proposal except the proposal submitted by the outgoing President of the Governing Body under Sub-rule (2) of Rule 25 of the Rules, it was not necessary on the pan of the Director to consult the outgoing Governing Body.
8. According to the writ petitioner, a receipt was obtained on 2-12-1996 from the Despatcher of the Directorate vide Annexure-4 in token of receipt of forwarding letter No. 298 dated 28-11-1996 along with copy of the Governing Body resolution containing the names of the members of the Governing Body. At a cursory glance at Annexurc-P/3 to the counter-affidavit filed on behalf of O. P, No. 3, we find that the signature in Annexure-4 is of one Ohza, who was an employee of the college. From Annexure A/3 to the counter-affidavit filed on behalf of O.P. No. 3, we also find that letter No. 298 dated 4-1-1997 was a letter received by the Council of Higher Secondary Education, Orissa. Therefore, Annexure-4 has to be ignored.
9. On behalf of the petitioner, two original registers have been produced before us -- one is the Proceeding Book containing the resolutions of the Governing Body and the other is the Atttendance Register of the Governing Body of the college. From the attendance register, we find that there were as many as 21 persons present in the meeting held on 14-9-1996 and, therefore, some persons who were not members of the Governing Body were present in the meeting. In the Proceeding Book, on the same day a resolution was passed accepting some persons as office bearers and members of the Governing Body. As some outsiders were present in the meeting, it cannot be said to be the resolution of the Governing Body in terms of Rule 25 of the Rules. Therefore, we have to ignore the said resolution.
10. In the counter-affidavit filed on behalf of the petitioner, it has been alleged that the resolution sent by the outgoing President to the Director is much after the expiry of the term of the outgoing Governing Body. As we have already held that the earlier resolution dated 14-9-1996 passed by the outgoing Governing Body was not a valid resolution, the action of the Director cannot be faulted in the absence of anything on record that prior to the proposal of the outgoing President dated 14-7-1997, there was any resolution passed by the outgoing Governing Body. Hence, the stand taken by the petitioner in the further affidavit is rejected.
11. We are not expressing any opinion on the role of the present petitioner as the Secretary of the Governing Body so far as the alleged defalcation and also mismanagement of the institution are concerned. It is, however, for the Director to make an enquiry and take appropriate action in the matter.
12. From the record produced before us by the learned Addl. Government Advocate, it is very clear that the Director has purely acted on the proposal submitted by the outgoing President of the Governing Body and, therefore, the same is in accordance with Rule 25 of the Rules. We are, therefore, not inclined to interfere in the action of the Director in approving the Governing Body of the college.
13. In the result, the writ petition is dismissed and the stay order stands vacated. No costs.
P.K. Tripathy, J.
14. I agree.