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Case Number

O.J.C No. 1055 of 1978

Advocates

G.Rath

Judges

Hon'ble Mr. Justice Prafulla Kishore Mohanti

Acts

section 11(1) of the Orissa Education Act, 1969 (hereinafter referred to as the Act),
SECTION 11 ORISSA EDUCATION ACT 1969
section 25(4) of the Madras Village Panchayats Act, 1950

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Smart Summary

Concise Analytical Summary of the Opinion (R.N. Misra, J.)

Factual and Procedural Background

The petitioners are members of the Managing Committee of Rajanagar High School, an aided educational institution. By a notice dated 16-11-1977 the Additional Director of Public Instruction (Schools) required the managing committee members to show cause why the Committee should not be superseded under section 11(1) of the Orissa Education Act, 1969. After the show-cause proceeding, on 25-7-1978 the Additional Director superseded the Managing Committee and appointed the Inspector of Schools, Cuttack-III Circle, as Special Officer to exercise the powers and functions of the Committee until reconstitution. The petitioners challenged both the initiation of the proceeding and the order of supersession on the ground that the Additional Director of Public Instruction lacked jurisdiction under the Act to initiate or pass such an order. The opposite parties filed a common counter-affidavit supporting the supersession order.

Legal Issues Presented

Whether, in the circumstances described (including the State Government having kept the post of Director of Public Instruction (Schools) in abeyance), the Additional Director of Public Instruction (Schools) had jurisdiction under section 11 of the Orissa Education Act, 1969, to initiate proceedings for and order the supersession of the Managing Committee.
Whether a post kept in abeyance by Government is to be treated as a "vacancy" within the meaning of Explanation (2) to section 11, thereby permitting the exercise of the Director's powers by another officer by Government notification.
Whether the notifications cited by the opposite parties (including the notification dated 7-6-1977 and the subsequent notification dated 28-3-1978) validly conferred jurisdiction on the Additional Director (or other officers) to exercise the Director's powers under section 11.

Arguments of the Parties

Petitioners' Arguments

The State Government had kept the post of Director of Public Instruction (Schools) in abeyance (relying on a Government order dated 21-11-1974), which means the post was not a "vacancy" but a suspended/post in dormancy; consequently Explanation (2) to section 11 did not apply.
Because the post was kept in abeyance, it was not open to the State Government to treat the situation as a vacancy and to make the notification (Annexure-5 dated 7-6-1977) conferring powers on the Additional Director of Public Instruction to exercise the Director's powers under section 11.

Opposite Parties' Arguments

The opposite parties relied on Government notifications (including the 7-6-1977 notification and the 28-3-1978 notification) to contend that the impugned supersession was within the jurisdiction of the Additional Director (or the officer specified by the notification) under section 11.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Additional District Panchayat Officer, Tirunelveli v. S. Venkatarama Iyer, 1960 U.M.L.J. 75 (Madras High Court)	Distinction between "vacancy" and "abeyance": "vacancy" denotes an unoccupied post available to be filled; "abeyance" denotes a post in suspension/dormant with no present intention to fill it.	The Court relied on the reasoning in this decision to conclude that a post kept in abeyance is not a live vacancy and therefore does not fall within the scope of Explanation (2) to section 11; accordingly, the notification purporting to transfer the Director's powers to the Additional Director could not be invoked to validate the impugned suprecession.

Court's Reasoning and Analysis

The court began by setting out the relevant provisions of section 11 of the Orissa Education Act, 1969, including Explanation (1) and Explanation (2). Explanation (2) provides that in the event of a vacancy in the office of Director of Public Instruction the powers and functions of the Director shall be exercised by such other officer as the State Government may notify.

The court examined the factual matrix and the Government instruments: it noted that a Government order dated 21-11-1974 had kept the post of Director of Public Instruction (Schools) in abeyance, and that a notification of 7-6-1977 (Annexure-5) purported to direct that in the event of a vacancy the Additional Director should exercise the Director's powers. A later Government notification dated 28-3-1978 altered the allocation of powers in the event of a vacancy.

Because the term "vacancy" is not defined in the statute, the court adopted its ordinary meaning from authoritative dictionaries (Shorter Oxford English Dictionary and Anderson's Dictionary of Law), and applied the principle from the Madras High Court decision in Additional District Panchayat Officer v. S. Venkatarama Iyer. That decision instructs a clear distinction: a vacancy is an unoccupied post available to be filled, whereas abeyance denotes a post in suspension or dormancy where there is no intention at present to fill it.

Applying that distinction, the court concluded that where Government had directed that the post be kept in abeyance, there was no "live" vacancy. Explanation (2) refers to situations where an existing post is unmanned and therefore can be filled; it does not encompass a post that has been put in abeyance and is not available to be filled without first resurrecting it from dormancy.

Because the post was in abeyance, the court held that the Government could not validly rely on Explanation (2) to notify another officer (in this case the Additional Director) to exercise the Director's powers under section 11. As a consequence, the Additional Director had no jurisdiction to initiate or to pass the order of supersession of the Managing Committee.

The court also noted that an amendment (Orissa Act 31 of 1978) had been made to section 11, but that amendment was prospective and therefore could not support the opposite parties' position regarding the earlier action.

Holding and Implications

Final Disposition: The writ application is allowed and the impugned order of supersession and the entire proceeding are quashed.

Consequences for the parties:

The Managing Committee of Rajanagar High School shall be deemed to be in office and is entitled to exercise its functions in accordance with law.
There shall be no order as to costs.

The opinion's holding is limited to the validity of the attempted exercise of the Director's powers when the post had been kept in abeyance; the court did not purport to set a wider precedent beyond the application of the statutory text and the established distinction between "vacancy" and "abeyance" as applied to the facts of this case.

Other procedural notes in the opinion: P.K. Mohanti, J. agreed with R.N. Misra, J. The concluding line records "Appeal allowed."

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Ramachandra Misra And Another v. Additional Director Of Public Instruction (Schools) And Another Opp. Parties.

R.N Misra, J.:— Petitioners ate members of the Managing Committee of the Rajanagar High School which is an aided educational institution. By notice dated 16-11-1977 (Annexure-1), the Additional Director of Public Instruction (Schools) called upon the members of the Managing Committee to show cause as to why the said Committee may not be superseded and reconstituted as provided under section 11(1) of the Orissa Education Act, 1969 (hereinafter referred to as the ‘Act’), After cause was shown, on 25-7-1978, the Additional Director superseded the Managing Committee and put the Inspector of Schools. Cuttack-III Circle as Special Officer to exercise the powers and functions of the Committee in respect of the School till reconstitution of the Managing Committee. The initiation of the proceeding and the order of supersession are assailed in this proceeding on the ground that the Additional Director of Public Instruction has no jurisdiction under the Act to initiate the same or make the impugned order.

2. In a common counter affidavit, the opposite parties have supported the order.

3. As far as relevant, section 11 of the Act provides :—

(1) Without prejudice to the provisions contained in any other law for the time being in force, whenever it appears to the Director of Public Instruction that the managing committee …… of any educational institution has neglected or failed to perform any of the duties imposed by or under this Act or the rules made thereunder he may after giving the managing committee….. a reasonable opportunity for showing cause against the proposed action and after considering the cause, if any, shown, supresede the managing committee………

4. (2) Upon supersession of the managing committee…, the Director of Public Instruction shall, as soon as possible thereafter, reconstitute the managing committee………

(3) ………….

(4) During the period intervening the supersession and reconstitution of the managing committee…….. the powers and functions of the managing committee……… shall be exercised by such person or persons as the Director of Public Instruction may appoint in that behalf.

(5) The managing committee may, if it is aggrieved by the order of supersession made under this section, prefer an appeal to the State Government within thirty days from the date of the order.

Explanation - (1) The expression ‘Director of Public Instruction’ shall mean the Director of Public Instruction (Higher Education) in the case of colleges and the Director of Public Instruction (Schools) in the case of schools.

(2) In the event of vacancy in any of the offices specified in clause (1), the powers and functions of the Director of Public Instruction shall be exercised and performed by such other officer of the Directorate of Public Instruction, not below the rank of a joint Director as the State Government may by notification, specify in this behalf.”

5. Petitioners allege, relying upon the order of the State Government dated 21-11-1974 that the post of Director of Public Instruction (Schools) has been kept in abeyance for the time being and the post of a Joint Director of Public Instruction was created. Government made a notification on 7th of June, 1977, vide Annexure. 5 to the following effect:

“In exercise of the powers conferred by clause (2) of the Explanation to section 11 of the Orissa Education Act, 1969 (Orissa Act 15 of 1969) and in supersession of Government Notification No. 3034 EYS dated the 20th January, 1976, the State Government do hereby direct that in the event of a vacancy in the office of the Director of Public Instruction, the Additional Director of Public Instruction shall exercise the powers and functions of the said Director under the said section of the said Act.”

6. On 28th of March, 1978, Government made another notification running to the following effect:—

“In exercise of the powers conferred by clause (2) of the Explanation to section 11 of the Orissa Education Act, 1969 (Orissa Act 15 of 1969) and in supersession of the Government notification of the Government of Orissa in the Education and Youth Services Department No. 21396 dated 7th June, 1977, the State Government do hereby direct that in the event of a vacancy in the office of the Director of Public Instruction (S) the Director of Public Instruction (Higher Education) shall exercise and perform the powers and functions of the said Director under section 11 of the said Act.”

7. The opposite parties have relied upon these notifications in support of their plea that the impugned supersession was an act within the jurisdiction of the Additional Director. Petitioners on the other hand have contended that when the post of the Director of Public Instruction (Schools) was kept in abeyance, it was not a case of a vacancy but it was a case where the filling up the post had been deferred and no person was entitled to be posted as such until there was a revocation of the Government decision of keeping the post in abeyance. Thus, the situation arising out of the post being kept in abeyance was not covered by the second Explanation to section 11 and it was not open to the State Government to make the notification under Annexure-5 to confer jurisdiction on the Additional Director of Public Instruction to exercise the powers conferred under section 11 of the Act.

8. A Bench of this Court has already held that the Joint Director of Public Instruction (Schools) in whose favour power had been conferred by notification in terms of the second Explanation to section 11 was not competent to exercise the powers of the Director.

9. The term ‘vacancy’ has not been defined by statute and must accordingly be given the common parlance meaning. According to the Shorter Oxford English Dictionary the following would be the meaning of the term :—

The state or condition of being unoccupied; absence of occupation; an occupied period or interval; the fact or condition of an office or post being, becoming or falling vacant; a vacant or unoccupied office, post or dignity.

10. A Bench of the Madras High Court in the case of The Additional District Panchayat Officer, Tirunelveli v. S. Venkatarama Iyer . 1960 U.M.L.J 75. was called upon to deal with the meaning of the word ‘Vacancy’ occuring in section 25(4) of the Madras Village Panchayats Act, 1950 which provdes :—

“Any vacancy in the office of President shall be reported to the election authority, by such person and within such time as may be prescribed, and the election authority shall arrange for the election of the President. ”

11. Rajamannar, C.J, spoke for the Court thus:—

“‘Vacant’ means inter alia ‘not filled or occupied, devoid of an occupant’. In Anderson's Dictionary of Law we find the following instructive information:

‘Vacancy is the state of being empty or unfilled An old office is vacated by death, resignation or removal. An office newly created is ipso facto vacant at creation.

“Abeyance” on the other hand according to the Oxford English Dictionary means” a state of suspension, dormant condition, a position of being without an owner”. When Government have taken the decision of keeping the post in abeyance, there is no intention in presenti of filling up the vacancy. There is certainty a difference between a vacancy simpliciter and the post being kept in abeyance. In the case of a vacancy it is available to be filled up at any time; in the case of a post kept in abeyance, the post has to be brought into life from the stage of dormancy and then a vacancy created to be filled up. Otherwise put, when the post is kept in abeyance, there is no vacancy because there is no post to be filled up. The creation of the post on permanent basis may not have been recalled, but on account of the direction that the post shall be kept in abeyance, there would not be a live vacancy for being manned. Thus, there is a clear distinction between the post being kept in abeyance and the post being kept vacant. The Explanation (2) under section 11 of the Act refers to a situation when there is a live post going unmanned thus giving rise to a vacancy, whereas the situation in hand is a case where the post is not live on account of the Government decision to keep it in abeyance. Such a situation would not come within the ambit of the Explanation. Learned Government Advocate does not dispute the position that the post had been directed to be kept in abeyance. On this conceded position, we are inclined to agree with counsel for the petitioners that the Explanation (2) to section 11 and the Government notification cannot be. called in aid to support the present action of the Additional Director of Public Instruction (Schools). We may note that by Orissa Act 31 of 1978 operative with effect from October, 1978, an amendment to section 11 has been brought in, but in view of the conceded position at the Bar that the provisions of the amending Act are prospective, no support can be derived from the amendment by the opposite parties.

12. The net result, therefore, is that the Additional Director of Public Instruction (School) had no jurisdiction to initiate the proceeding for supersession nor to pass the order of supersession of the Managing Committee. Since there was no jurisdiction in the public officer, the impugned order must be held to be an act without authority of law and thus liable to be vacated.

13. We would accordingly allow the writ application and quash the entire proceeding. The Managing Committee of the School shall be deemed to be in office and shall be entitled to exercise its functions in accordance with law. The writ application succeeds. There would, however, be no order for costs.

14. P.K Mohanti, J.:— I agree.

Appeal allowed.

Ramachandra Misra An... v. Additional Director ...