N.K. Das, J. - (1.)THIS is a petition under Articles 226 and 227 of the Constitution of India for quashing the Governing Body approved by Government for Atala Behari College, Basudevpur.
(2.)THE Petitioners constituted the Governing Body of the College approved by opposite party No. 1 for a period of 3 years with effect from the session 1972 -73. Their term expired on 31 -5 -1975, but before expiry of the term, pursuant to Annexure -2, a letter from the Under Secretary to Government to the Director of Public Instruction (Higher Education), Orissa a copy of which was sent to the Principal of A.B. College, Basudevpur, for necessary action, the Secretary of the College submitted a panel" of names for constitution of the Governing Body to the Director of Public Instruction for the purpose of being recommended to the Government for approval (Annexure -3 dated 14 -5 -1975). This letter was accompanied by a resolution passed in the ordinary meeting of the Governing Body of the College held on 4 -5 -1975 (Annexure -3/ A) and a panel of names was suggested for reconstitution of the Governing Body (Annexure -3/B dated 14 -5 -1975). Instead of approving the penal of names suggested by the Secretary of the College, Government constituted the Governing Body for a period of 3 years with effect from 1 -6 -1975 by a different set of persons and communicated the same to the Director of Public Instruction by a letter dated 18 -8 -1975 (Annexure -6). Copies of this letter were forwarded to the President and the Principal of the College for information. In the meantime the Director of Public Instruction by his letter dated 9 -7 -1975 to the Secretary of the College (Annexure -5) permitted the outgoing Governing Body to continue to act as a caretaker, Governing Body dealing purely with routine matters until the constitution of the new Governing Body.
The Petitioners contend that a succeeding Governing Body after expiry of the Tenure of a previous Governing Body has to be constituted by election held by the members of the outgoing Governing Body, and is not to be reconstituted by the Government as has been done in the present case. Therefore, neither the State Government (opposite party No. 1) nor the Director of Public Instruction (opposite party No. 2) has any authority under law to select and appoint members of the succeeding Governing Body who were never elected by the outgoing Governing Body. The only power to reconstitute the Governing Body is vested in them under Section 11 of the Orissa Education Act (Orissa Act 15 of 1969) (hereinafter called the Act). Preexisting conditions for exercise of power under Section 11 of the Act are wanting and the impugned Annexure -6 cannot be held as valid even under the said provision of law. It is further contended that according to Rule 130 and other relevant rules of the Orissa Education Code a Governing Body before expiry of its term has to elect members to constitute the new Governing Body and propose the names of the newly elected members to the Government for its approval. When in the instant case the outgoing Body had elected members for the succeeding Governing Body and suggested their names to the Government for approval, there was no authority in the Government to ignore the panel of names suggested by the outgoing Governing Body and constitute one consisting of persons who were not elected by the outgoing Governing Body. Further if the Government desired to make a change in the election of the succeeding Governing Body it must assign reasons for the same, because such an order of the Government is appealable. Therefore, Annexure -6 as a whole is without authority and is liable to be quashed. Petitioner No. 2 and others originally created a college trust in 1963 and acquired various properties in the name of the Governing Body. Petitioner No. 2 was one of the original authors of the trust with a substantial contribution to perpetuate the name of his deceased father. Also his brother made a substantial contribution. The Governing Body was registered under the Societies Registration Act. Thus, the members of the Governing Body are trustees of the institution and Government has no authority to go against the recommendation of the outgoing Governing Body for constitution of new Governing Body. The Petitioners, therefore, claim for quashing Annexure -6, the latter of Government constituting Governing Body of the College for three years with effect from 1 -6 -1975. According to Petitioners, the Governing Body of a College is a perpetual body. The Petitioner having registered the Body under the Societies Registration Act are a perpetual body and the Government is bound to approve the persons elected by them to constitute the Governing Body. It is also contended that Article 285 of the Orissa Education Code was being followed previously in the matter of constitution of Governing Body of the College, and so the Government having not approved the persons elected by Petitioner has failed to act according to law. Counter -affidavits have been filed separately, one by opposite parties Nos. 1 and 2 and another by opposite party No. 3. Their contention is that the panel of names recommended by the Petitioners was not acceptable to Government as it contained the name of the Secretary as a life member and when two representatives of the staff were to be recommended, only one name was sent. The outgoing Governing Body committed a lot of irregularities and even though Article 131 of the Orissa Education Code requires that the rules of business of the Governing Body is to be approved by the Director of Public Instruction, no such rules of business was ever submitted to the Director for approval in the meanwhile, in a public meeting, the affairs of the College were discussed and a panel of names was also suggested to Government. Government took into consideration the entirety of the situation and, for the welfare of the institution and the students, approved the names sent as per the resolution of the meeting exercising its powers under Article 130 of the Orissa Education Code. There was never any supersession of the existing Governing Body. The Petitioners had a right of appeal and hiving not exercised the same, the writ petition is not maintainable. It is further asserted that the Petitioners have no subsisting right and, as such, the writ petition is not maintainable.

Before considering the questions raised by the parties, it is worthwhile to note that the following facts are admitted:

Atala Behari College is a private institution recognised by and receives grant -in -aid from Government and is governed by the Orissa Education Act and the Orissa Education Code (hereinafter described as the Code). This College is affiliated to Utkal University and is also Governed by the Utkal University Act (Orissa Act 20 of 1966) (hereinafter described as the University Act) and the Statutes made under the said Act. The term of the Governing Body of the College constituted under Annexure -1 expired on 31 -5 -1975 and thereafter, at the request of the said Governing Body, it was allowed to continue to act as a caretaker Governing Body dealing purely with routine matter until a new Governing Body was constituted - vide Annexure -5.

(3.)MR . R. Mohanty, the learned Counsel for the Petitioner, contends that, (1) public have no connection with the institution and the suggestion made by the public cannot be the basis of formation of the Governing Body; (2) Article 130 of the Code does not authorise Government to impose a body on the institution; (3) the Act and the Rules do not empower to create a body, and when Government creates such a body, Section 11 of the Act comes into operation; and (4) the grounds, on which Government has not approved the Governing Body, are without any basis.