JUDGMENT
J.P. Mishra, J.
1. All the aforesaid Writ Applications have arisen out of mal-administration in the Satyasai Engineering College, Balasore, which is a private unaided institution. In O.J.C. No. 11935/2001, the petitioner being a trustee of the institution has sought for a direction for constituting the Governing Body and not to allow the Managing Trustee (O.P. No. 6) or his agents to cause any disturbance in the administration. The Managing Trustee Padmalochan Panda also filed W.P.(C) Nos. 355/ 2002 and 6403/2002 praying to quash the order of the AICTE putting the institution into “No Admission Category” and also it has been prayed to issue a Writ of mandamus compelling the AICTE for extension of approval for the year 2002-2003 and to appoint him (Padmalochan Panda) as a receiver for complying the requirement of the AICTE. The students of 3rd year of the institution also filed W.P.(C) No. 1061 of 2002 with a prayer to allow counseling for the academic year 2002-2003. The N.G.O. filed OJC No. 12959/2001 to allow the Managing Trustee Padmalochan Panda to manage the affairs of the College.
2. The factual position of the case is that Satyasai Education Trust was settled and the same was registered on 28.8.1998 as a charitable trust nomenclating the same as ‘Satyasai Education Trust” with the trustees, namely, Padmalochan Panda, Kuntala Kumari Panda, Saroj Kumar Balabantaray and Smt. Kanak Balabantaray (Petitioners in OJC No. 12959/2001). The Engineering College is a technical institution and was approved under Anenxure-1 for the academic session 1999-2000 by the AICTE in various faculties. The State of Orissa in Industries Department granted concurrence on 21.11.98 (Annexure-2) and the Utkal University granted no objection certificate on 16.12.1998 (Annexure-3). After bifurcation, Fakir Mohan University also gave concurrence by the communication dated 29.4.2000. The AICTE also granted approval for the academic session 2001-02 in respect of the courses. According to the Resolution dated 17.12.1998 (Annexure-5), one Jajnabaraha Mohanty-Opp. Party No. 8 was appointed as Administrator of the College according to the terms of the registered Trust Deed in Clause 3(c). In the meantime, the AICTE submitted the guidelines (Annexure-6) for constitution of Governing Bodies of Private Technical Educational Institutions and the proposed Governing Body members of Satyasai Engineering College were nominated and the respective authorities mentioned therein were also asked to nominate the members as per the guidelines (Annexures-7 & 8). According to the Provisions of the Trust Deed in Clause 4(h), a Joint Current Account bearing No. 1349 was opened in the Central Cooperative Bank, Balasore in the name of the petitioners Saroj Kumar Balabantaray and Sri Padmalochan Panda and the same was operated accordingly. Recently, another account was also opened in the state Bank of India, Industrial Estate Branch, Balasore.
3. When the matters stood thus, it came to light that besides the aforesaid two accounts, Padmalochan Panda had opened different Savings Bank Accounts and fixed deposits in different branches at various places including the Central Cooperative Bank, Balasore utilizing the name of the trust. Sri Padmalochan Panda also deposited the money in Housing Development Financial Corporation amounting Rs. 99.50 lacs. The aforesaid unauthorized accounts could be known on receipt of the letter dated 18.8.2001 from HDFC, Bhubaneswar when Sri Padmalochan Panda wanted a premature withdrawal of Rs. 17.5 lacs from the said account. The telegram (Annexure-9) was issued by the HDFC to the institution. As the balance sheet at that time was showing 33 lacs loss as on 31.3.2001 of the institution and Shri Panda had an account of Rs. 99.50 lacs in the name of the institution in some other account, finger was raised at Padmalochan Panda for misappropriation etc. Further, as the request to admit the son of Padmalochan Panda, namely, Bhanu in the college for the session 2000-01 was refused by the Administrator Jajnabaraha Mohanty on the ground that his son had not taken mathematics as a subject, Shri Panda declared one Bismaya Kumar Mohanty to be the Administrator without proper authority. According to the petitioner-Saroj Kumar Balabantaray, unless Shri Padmalochan Panda is restrained from interfering with the administration and other management of the College he shall be misappropriating the money of the institution further. Therefore, Saroj Kumar Balabantaray filed OJC No. 11935/2001 with a prayer to constitute the Governing Body along with other prayers.
4. Padmalochan Panda and his wife Kuntala Kumari Panda filed counter claiming Sri Panda to be the Chairman of Satyasai Engineering College. He claimed removal of Jajnabaraha Mohanty to be legal in accordance with the Resolution of the Trust. He also made counter allegation of misappropriation against Sri Saroj Kumar Balabantaray in connivance with his sister Kuntala Kumari Balabantaray and Jajnabaraha Mohanty. According to the averment, since Balabantaray was misappropriating the College funds; he called a meeting of the Trust Board on 1.9.2001 (Anenxure-A/6). He also found defalcation of Rs. 19,26,547/- by Shri Balabantaray. FIR was lodged under Annexure-B/6. Accordingly, he was discharged from the trustee. However, he admitted that he has been injuncted in Title Suit No. 1577/2001 (Misc. Case No. 355/2001) by the Civil Judge, Junior Division, Balasore on 11.9.2001 to take part in the administration of the College and the said suit is pending which was filed by Jajnabaraha Mohanty. He admitted that the Vigilance and Income Tax authorities have attached two accounts of the Trust on 3.9.2001 and 11.9.2001 by order of Assistant Commissioner of Income Tax, Cuttack. In reply to his son’s admission, he has submitted that his son is reading in B.C.A. in IMAGE, Bhubaneswar for the last two years and his admission in the Satyasai Engineering College does not arise. He has also mentioned that one Asoka Kumar Mishra is continuing as Principal of the College. He has alleged misappropriation against the Special Officer appointed by the Court.
5. We may mention here that vide our order dated 11.9.2001 the Collector, Balasore or his authorized officer was appointed as an Administrator/Special Officer for administration of the College. Further, after due consultation with the parties vide our interim order dated 12.8.2004 a Governing Body had been constituted with the members Padmalochan Panda, Managing Trustee for Satyasai Education Trust, Saroj Kumar Balabantaray, Trustee, Prafulla Kumar Mohanty, IAS (Retd.), Sri A.K. Panda, Chief Engineer (Electrical) (Retd.) and A.D.M., Balasore who is the Chairman of the Governing Body appointed earlier as Administrator. So the College is now under the administration of the aforesaid Governing Body members.
6. The Principal Secretary, Industries and Director Technical Education and Industrial Training (O.P. Nos. 1 & 2) have filed counter with the averments that as per the guidelines issued by the AICTE, the Governing Body of the Private Institutions shall be consisting of at least 11 members who shall be as follows :
1. Chairperson : to be nominated by the Registered Society/ Trust managing the institution.
2-5. to be nominated by the Registered Society/Trust managing the institution (4 members).
6. Regional Officer of the concerned Regional Office of All India Council for Technical Education Ex-Officio member.
7. An industrialist/technologist/educationist from the Region to be nominated by the concerned Regional Committee as nominee of AICTE.
8. Nominee of the Affiliating Body i.e., from the University/ State Board of Technical Education as the case may be.
9. Nominee of the State Government-Director of Technical Education or Secretary, State Council of Technical Education, as the case may be (Ex-Officio).
10. An industrialist/technologist/educationalist from the Region nominated by the State or Central Government, as the case may be.
11. Principal/Director/Head of the Institution – Member-Secretary (Ex-Officio).
According to them, the Government has requested the respective principal to constitute Governing Body as per the letter issued by the AICTE dated 30.3.98. It has also been mentioned in the counter that consequent to the judgment of the Hon’ble Supreme Court reported in AIR 2002 SCW 4957 (T.M.A. Pai Foundation and Ors. v. State of Karnatak and Ors.), the AICTE also issued an interim policy Regulation vide notification No. F-37-3/Legal(V)/2003, dated 7.3.2003. In the said notification, the model constitution of the Governing Body earlier notified by the AICTE has been overruled. In view of the new notification, the AICTE will not insist on any nomination in the Governing Body of private unaided institutions. The model guidelines also indicate that the private unaided institution will have the right to constitute its own Governing Body for which qualification may be prescribed by the Government or concerned University. Accordingly the State Government is preparing a comprehensive guidelines for constituting the Governing Body in respect of Private Engineering Colleges functioning in the State of Orissa. According to the instruction of the AICTE, the affiliating University/State Government shall impose minimum condition of affiliation, such as, prescription of qualification of Governing Body members in order to ensure academic excellence and the same is under process by the State Government which shall be issued in due course. Prior to the above new notification, the Government in Industry Department had also nominated members vide their letter No. 17749/I, dated 14.8.2001 and directed all the private Engineering Colleges to constitute their Governing Bodies.
7. The AICTE has said in its affidavit that it is guided by the AICTE Act, 1987 and a regulation F/304, dated 31.4.94. It has been prescribed therein to grant approval to the technical institutions subject to fulfilling the prescribed requirements of Regulation 4 which reads thus :
“(a) No new technical institutions or university technical Department shall be started; or
(b) No course or programme shall be introduced in (technical) institution, University including deemed University or University Department, College; or
(c) No technical institutions, Universities or deemed universities or University Departments or College shall continue to admit students for Degree or Diploma Courses or Programmes.
(d) No approved intake capacity of seats shall be increased or void; except with the approval of the Council.
(2) applications for grant of approval under Sub-regulations (1) shall be made by any of the following, namely :
(i) Government institutions, Government Aided Institutions, deemed Universities and University Department or Colleges.
(ii) Registered Societies/Trusts in respect of professional colleges.”
Regulations 6 prescribes for conditions for grant of approval and the same is quoted below :
“3. Conditions for grant of approval : Every application under Sub-regulation (1) of Regulation 4 shall be considered subject to the fulfillment of the following conditions, namely :
(i) The financial position of the applicant shall be sound for investment in developed land and in providing related instrumental and institutional facilities as per the norms and standards laid down by the council from time to time and for meeting the annual recurring expenditure.
(ii) The courses or programmes shall be conducted as per the assessed technical manpower demands.
(iii) The admission shall be made according to the regulations and directions of the council for much admissions in the respective technical institutions or University.
(iv) The tuition and other fees shall be charged within the overall criteria as may be laid down by the Council.
(v) The staff shall be recruited as per the norms and standards specified by the council from time to time.
(vi) The Governing Body in case of private technical institutions shall be as per the norms as specified by the council.
(viii) Any other conditions as may be specified by the council from time to time.”
The aforementioned conditions are to be fulfilled for grant of approval. The AICTE has further stated in the affidavit dated 5.8.2002 (in W.P.(C) No. 355 of 2002) that the reason to bring the institution into ‘No Admission Category” is the report of visiting expert committee representing AICTE. The committee found as follows :
“(i) The college running on temporary site.
(ii) Infrastructure provided on temporary site is in bad condition.
(iii) Computer facilities not installed.
(iv) Equipments provided in the laboratory are inadequate.
(v) Library facilities are awfully inadequate and no qualified librarian is available.
(vi) A.I.C.T.E. pay scales are not implemented.
(vii) Student’s amenities are not available.
(viii) Number of faculty positions at junior, senior level and Supporting Technical Staff is inadequate.”
The AICTE has not disputed the interim policy regulations issued on 7.3.2003 which is reproduced below :
“All India Council for Technical Education
Notification
New Delhi, 7th March 2003
Interim Policy Regulations
*** *** ***
(4) Governing Body of Private Unaided Institutions : Consequent to the Supreme Court Judgment the Model Constitution of Governing Body as notified by AICTE in its approval regulations 1994, stands overruled. The Hon’ble Supreme Court held that a Private Unaided Institution will have right to constitute its own Governing Body for which qualifications may be prescribed by the State or the concerned University.
It has been decided that while AICTE will not insist of any nomination in the Governing Body of Private Unaided Institutions the Affiliating University/State Government shall impose minimum condition of affiliation, such as, prescription of qualification of governing body members, in order to ensure academic excellence. The conditions so imposed will be subjected to scrutiny by AICTE, wherever necessary, to ensure that the same are not unreasonable restrictions.
It shall be desirable for the Private Unaided Institutions to induct at least 50% of members of the Governing Body drawn from renowned academia, academic administrators, subject field experts and a professional from industry in order to seek their innovative ideas for continuous improvement in the delivery of teaching learning process, matching best practice elsewhere and achieve excellence.
Prof. R.S. Mirjar, Member Secy.,
(No. ADVT-3/4/Extraordinary/162/02)”
8. Mr. Jajnabaraha Mohanty claiming himself to be Opp. Party No. 9 has spoken that the institution is still under his governance being the Administrator appointed by the Trust. He has almost supported the case of the petitioner-Mr. Saroj Kumar Balabantaray and specifically mentioned that the son of Padmalochan Panda had applied for a seat in Satyasai Engineering College for admission for the academic session 2000-01 annexing the application itself wherein Sri Padmalochan Panda has signed so also his son.
9. One Mr. Ashoka Mishra claiming himself to be the Principal has intervened and has thrown venom against the Addl. Dist. Magistrate, Balasore, saying that he is taking unilateral decision in regard to the admission in the College and spending money without consultation with the Principal. He has also stated that there is difficulty in disbursement of salary.
10. The A.D.M., Balasore has filed an affidavit dated 10.11.2003 mentioning therein that he took charge of the institution with 63.60 paise with various liabilities and now the closing balance of the College as per separate cash book and account as on 7.11.2003 is Rs. 67,86,119/-. He has expressed his inability to fulfill the condition of the AICTE for further approval.
11. In W.P.(C) No. 355 of 2002, Padmalochan Panda has prayed to quash the letter of the AICTE putting Satyasai Engineering College in “No Admission Category”. The stand taken by the AICTE is non-fulfillment of the conditions of the report of the expert committee and the same was communicated by the AICTE vide letter dated 4.7.2002 (F No. 750/8-227 ET-99). In W.P.(C) No. 6403 of 2002, Padmalochan Panda prayed to restrain the AICTE from taking coercive action by according sanction of approval. He has also prayed to engage him as the receiver in place of the A.D.M., Balasore. The opp. parties have taken the same stand as in the Writ Application (OJC No. 11935 of 2001).
12. The students in Writ Application No. 1061/2002 have prayed for further approval and counselling. The N.G.O. in Writ Application No. 12959/2001 has prayed to hand over the management to Padmalochan Panda and for its management by the Trust through Managing Trustee Shri Panda.
13. The admitted position is that Satyasai Engineering College, Balasore, is the creation of the registered trust and was functioning till the dispute/suspicion arose due to the intimation by HDFC for premature withdrawal by the Managing Trustee Padmalochan Panda on 18.8.2001. It is also the admitted fact that the College is now under “No Admission Category” and the students who had already taken admission into the institution are continuing. The existence of the order of an injunction passed by the Learned Civil Judge (Sr. Divn.) in a suit filed by Jajnabaraha Mohanty against Padmalochan Panda is in the record directing Sri Panda not to interfere with the administration. Further, the accounts of the College prior to the appointment of the A.D.M. was in mess.
14. Learned Counsel appearing for the petitioner and the opp. parties have contended to interfere for the mal-administration of the College and its finance to save the institution.
15. We are constrained to probe the accounts/collection and the criminal allegations made against each other, which will be interfered by the appropriate authorities in due course of time. The record reveals seizure of the accounts by the Income Tax Authorities. Improvement was achieved by the A.D.M. after being appointed by the Court and the accounts of the college has been raised to Rs. 67 lakhs and odd from Rs. 60.00. Further the application of Shri Benumadhav Panda S/o. Padmalochan Panda for taking admission is also a telling circumstance of animosity growing in the administration leading to the Resolution dated 1.9.2001 passed by Padmalochan Panda, Kuntala Kumari Panda, Rabindra Kumar Panda, Benumadhav Panda and Kishore Das. Out of those members the names of Kishore Das, Benumadhav Panda, and Rabindra Kumar Panda are not appearing in the trust deed registered on 28.8.1998. Since we are not going to probe into the validity of those resolutions and the factual aspect of financial irregularities in the College we are not expressing any opinion on that.
16. We are simply on the resurrection of the institution, which a regular and sincere Governing Body only can pursue. Prima facie it seems that the financial status of the College is in living condition (not dead) after the appointment of the A.D.M., Balasore, as Administrator as per his affidavit dated 10.11.2003.
17. The Expert Committee’s report communicated to the Principal, Satyasai Engineering College, reveals non-fulfillment of the minimum norms and standard as per the stipulation of the Council of which the major deficiencies were that the college was running in a temporary site, infrastructure provided in temporary site is in bad condition, computer facilities not installed, equipment provided in the laboratory are inadequate, library facilities are awfully inadequate and no librarian was available. AICTE pay scale are not implemented, students amenities are not available, faculty position at the junior, senior levels and supporting technical staff are inadequate etc. So fulfillment of the above minimum norms will require a huge finance, which can only be done or taken care of by a sincere Governing Body. We could have directed formation of such Governing Body immediately, but the stand taken by the state Government and the AICTE read with the direction according to the interim policy regulation, is the impediment. The said regulation dated 7.3.2002 notified by the AICTE clearly prescribes the norms of the constitution of Governing Body of Private Unaided Institutions which reads thus :
“(4) Governing Body of Private Unaided Institutions : Consequent to the Supreme Court Judgment the Model Constitution of Governing Body as notified by AICTE in its approval regulations 1994, stands overruled. The Hon’ble Supreme Court held that a Private Unaided Institution will have right to constitute its own Governing Body for which qualifications may be prescribed by the State or the concerned University.
According to the State Government and the Industries Department the said regulation emerged only pursuant to the direction of the Apex Court in TMA Pai’s case (supra) and they are to abide by it. In so many words the State has admitted in its counter date 24.11.2003 filed on 25.11.2003 that they are preparing a comprehensive and harmonious guidelines for constitution of the Governing Body of Private Engineering Colleges and the same shall be issued in due course of time. Therefore, it is ordered that :
“(a) Opp. Party Nos. 1 to 3 (of O.J.C. No. 11935 of 2001) shall expedite the constitution of Governing Body as per the interim policy regulation and complete the process within a period of three months hence.
(b) The interim Governing Body headed by the Chairman, A.D.M., Balasore shall continue till constitution of the new Governing Body as per the notification dated 7.3.2003.
(c) The order of injunction passed in Title Suit No. 1577/ 2001 (Misc. Case No. 355 of 2001) by the Civil Judge, Junior Division shall not operate in respect of Shri Padmalochan Panda so long he remain’s in administration of the college with the Governing Body in terms of the order of this Court. It shall operate immediately if he enters into administration singly.
(d) The Governing Body shall do well in threshing the accounts in the name of the trust or in the name of any of the trustee identifying him to be the Trust Members/managing Trustee by appointing a competent Chartered Accountant allowing the Income Tax Authorities to do their needful duties.
In the result, the Writ Application (OJC No. 11935 of 2001) is allowed only to the above extent. The prayers in other Writ Applications are dismissed.
P.K. Mohanty, J.
18. I agree.