Judgment:
ORDER
1. Heard Shri B. Mohanty-(1) for petitioners, the learned Addl. Government Advocate for opp. party Nos. 1 to 4, Shri N. K. Nayak for opp. party No. 5 and Shri M.R. Panda for opp. party No. 6.
2. The managing committee of Mahardapalsa Panchayat High School and its Secretary have filed this writ application assailing the order of the Director, Secondary Education dated 30-8-1S93 (Annexure-4) granting permission in favour of opp. parties 5 and 6 for establishment of High Schools within the Mahardapalsa Grampanchayat of Joshipur Block in the district of Mayurbhanj.
3. Though several grounds of challenge have been stated in the writ application. Shri Mohanty has concentrated on the submission that opp. party No. 5-school had not submitted any application in the prescribed form seeking permission and had not fulfilled the requirements of Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules. 1991 (for short, 'the Rules'). His further contention is that no order has been communicated to the petitioners on their application seeking permission for establishing a high school.
4. No counter affidavit has been filed on behalf of opp. parties 1 to 4. However, the learned Addl. Government Advocate, on instruction from the Director of Secondary Education, submits that all the applications i.e. of petitioners as also of opp. parties 6 and 6 were simultaneously considered as required under Rule 7 of the Rules and on consideration of the same the order as per Annexure-4 has been passed. He fairly states that no specific order of rejection of petitioners' application has been passed. According to him, grant of permission to opp. party Nos. 5 and 6 amounts to rejection of the petitioners' application and therefore satisfies the statutory requirement, The leared counsel appearing for opp. parties 5 and 6 have supported the order of the Director (Annexure-4) on merits.
5. The order rejecting an application for permission is appealable Under Section 5 (7) of the Orissa Education Act. The said section lays down 'any applicant aggrieved by an order of the prescribed authority refusing to accord permission may, within one month from the date of receipt of such order, prefer an appeal before the State Government whose decision thereon shall be final'. Apparently the order referred to in the order of refusal of permission. Therefore, the statutory mandate is that the prescribed authority is to pass an order of refusal of the application. In the present case, as noted earlier, no such order has been passed.
Alternatively, accepting the contention of the learned Addl. Government Advocate that the grant of permission to opp. parties 5 and 6 amounts to rejection of petitioners' application in view of simultaneous consideration of all the applications, the impugned order (Annexure-4) does not satisfy the* requirement of Rule 7. the said rule provides, inter alia, 'applications in respect of one Gram Panchayat or urban area shall be considered together and if the Director is satisfied that there is need for opening a High School in the area to meet its educational needs, he shall make an order under Sub-section (4) of Section 5 granting permission in favour of any one of the applicants who in the judgment of the Director is likely to best serve the educational needs of the area.'
On a fair reading of the rule it is clear that the Director should record a finding that on consideration of all the applications he is satisfied that the particular applicant, in his judgment, is best suited to serve the educational needs of the area. The impugned order (Annexure-4) does not show any such finding of the Director. It is not the contention of the learned Addl. Government Advocate that any other order was passed by the Director.
6. Therefore, viewing the case from any angle the impugned ordar as per Annexure-4 is unsustainable. Accordingly, the said order is quashed. It is ordered that the Director, Secondary Education wilt consider the applications of the petitioners and the opp. parties 5 and 6 together after giving opportunity of hearing to the parties and dispose of the matter afresh in accordance with the rules. The exercise shall be completed within two months from the date of receipt of intimation of this order If students have been admitted by the opp. parties 5 and 6 in pursuance of the Director's order as per Annexure-4 the classes may continue subject to the fresh order to be passed by the Director.
7. The writ application is disposed of on the terms aforesaid. This order be communicated to the Director, Secondary Education. Orissa (opp. party No. 2) forthwith. Requisites will be filed by tomorrow.