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2021 (3) TMI 1415 - HC - Indian LawsSeeking grant of permission and recognition to self-financing courses run by different institutions, including the petitioner-institution, until further orders, as desired by the Minister, Higher Education of Orissa - HELD THAT - In view of the provisions contained under Section 5 of the Act read with the Rules, as mentioned, on receipt of the application along with required documents, the prescribed authority shall scrutinize each of the applications, consider the applications which are found complete in all respects and have been made in conformity with the Act and Rules made thereunder and, thereafter, may make such inquiry as he may deem necessary. He shall make a report in respect of each application with his recommendations which shall be placed before the committee constituted in this behalf by the State Government. As per the provisions of sub-section (6) of Section 5 of the Act, if the committee is satisfied that the educational needs of the local area justify establishment of an educational institution, that the place where the educational institution is proposed to be established is likely to best serve the educational needs of that area, the permission will be granted and the same will be communicated to him who submitted the application. In the case at hand, required procedure, as envisaged under the Act and Rules, was duly followed and accordingly the application submitted by the petitioner was placed before the High Power Committee, which in its meeting held on 18.04.2008 granted necessary permission, as per Annexure-B appended to Annexure-5 to the writ petition, for opening of new 2 science college with 128 seats (English, MIL PCMB) 128 seats each, I.T. Electronics-64 seats each from the session 2008-09 and, as such, the said decision was also communicated vide Annexure-2 on 01.05.2008 to the petitioner for compliance of the conditions therein to run the institution. Though the same was complied with by 26.05.2008 and when the institution was going to be functioning, on 28.05.2008 the order impugned has been issued. Similar question had come up for consideration in GOVERNING BODY OF 2 SCIENCE COLLEGE VERSUS STATE OF ODISHA 2014 (2) TMI 1417 - ORISSA HIGH COURT , wherein this Court held that as per the statute, no other authority has jurisdiction to change the decision of the High Power Committee. Thereby, the other authority has no jurisdiction to pass the order in contra. As it appears, the order in Annexure-6 dated 28.05.2008 has been passed by the Deputy Director, who is not competent to do so. Thereby, the order in question is without jurisdiction. While considering Section 2(2) of the Civil Procedure Code, the definition of decree defined as a decree passed by the Court without jurisdiction is nullity. When defect of jurisdiction is such which cannot be cured by consent or waiver of party, the defence of nullity can be set up whenever such decree is sought to be enforced. This Court is of the considered view that the order so passed by the Deputy Director on 28.05.2008 in Annexure-6 keeping in abeyance the decision taken by the High Power Committee in its meeting held on 18.04.2008 regarding grant of permission and recognition to self-financing courses run by different institutions, including the petitioner-institution until further orders, cannot sustain in the eye of law - Petition allowed.
Issues Involved:
1. Validity of the Deputy Director's order keeping in abeyance the High Power Committee's decision. 2. Jurisdiction of the Deputy Director to issue such an order. 3. Compliance with statutory provisions for granting permission to educational institutions. Detailed Analysis: 1. Validity of the Deputy Director's Order: The petitioner, Director of Vedic Educational Trust, challenged the order dated 28.05.2008 by the Deputy Director, which kept in abeyance the High Power Committee's decision to grant permission and recognition to self-financing courses. The High Power Committee had initially granted permission on 18.04.2008, which was communicated to the petitioner on 01.05.2008. The petitioner complied with all conditions by 26.05.2008, but the Deputy Director's subsequent order halted the process. 2. Jurisdiction of the Deputy Director: The court emphasized that the Deputy Director lacked the jurisdiction to issue the impugned order. According to established legal principles, if a power is vested in a particular authority, only that authority can exercise it. The court cited several precedents, including *Zuari Cement Limited v. Regional Director, Employees’ State Insurance Corporation* and *Nazir Ahmad v. King Emperor*, which reinforce that acts must be done in the prescribed manner or not at all. The Deputy Director's order, influenced by the Minister of Higher Education, was deemed ultra vires and a nullity. 3. Compliance with Statutory Provisions: The court reviewed the compliance with Section 5 of the Orissa Education Act and the Odisha Education (Establishment, Recognition and Management of Private Junior College/Higher Secondary Schools) Rules, 1991. The petitioner had followed all procedural requirements, including submitting necessary documents and fees, and obtaining recommendations from the prescribed authority. The High Power Committee, comprising high dignitaries, had duly granted permission after satisfying itself of the educational needs of the local area. The court reiterated that the High Power Committee's decision should not have been interfered with by any other authority, including the Deputy Director or the Minister of Higher Education. The committee's composition and authority were clearly defined, and any deviation from this procedure was legally untenable. Conclusion: The court concluded that the Deputy Director's order dated 28.05.2008 was without jurisdiction and therefore a nullity. The court quashed the order and directed the opposite parties to implement the High Power Committee's decision communicated on 01.05.2008, in accordance with the provisions of the Orissa Education Act and the relevant rules. The writ petition was allowed without any order as to costs.
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