Dr. Abhisek Upadhyay vs State Of Odisha & Others

R.K. Pattanaik, J

Instant writ petition is filed by the petitioner challenging the election process of Odisha Government College Teachers’ Association (hereinafter referred to as ‘the OGCTA’) pursuant to the decision and exercise undertaken vide Annexures-1 to 4 as vitiated and beyond jurisdiction and for not being in consonance with its Constitution and on such other grounds stated therein.

As pleaded on record, the OGCTA is a Service Association of all the teachers of Government Colleges duly recognized by the Home Department, Government of Odisha vide Memo No.9610 dated 18th October, 1946 and the petitioner is a Junior Lecturer of English in BJB Autonomous College, Bhubaneswar and Ex-Treasurer of the OGCTA as well as a Presidential candidate in the election of the Association held in 2025. It is further pleaded that the Election Commission has not been constituted in terms of Clause 9(b) of the Constitution of the OGCTA, inasmuch as, the tenure of the previous Central Council expired on 23rd August, 2022. According to the petitioner, the OGCTA’s Constitution prescribes only one mode/procedure for formation of Election Commission by a decision of the outgoing Central Council and no other body except the Government being the Authority.

2.1. The case of the petitioner is that in gross violation of the Constitution of the OGCTA, the Ex-General Secretary of the Association issued letter dated 2nd April, 2025 under Annexure-1 for a meeting of the Association, which is beyond his authority, whereafter the election notification was issued by the Chairman, Election Commission, OGCTA, but such notification did not reveal the manner and the Authority by which, the Commission was formed and therefore, the very formation of the Commission is illegal, arbitrary and beyond jurisdiction. It is also pleaded that in violation of the provisions of the Constitution, the Election Commission, instead of appointing the Presiding Officers as per Clause 9(d)(iv) thereof invited recommendations from the Principals of the colleges which is again without authority and it has vitiated the process of election, inasmuch as, two of the Principals were contestants for the post of President, which seriously compromised a free and fair polling in their colleges/units for the fact that they are the Heads of their institutions and possessed control and influence over the employees of the colleges and in such a scenario, there was a chance of pressure on the employees to vote for them in the election and despite a complaint registered, no steps were taken by the Election Commission, on the contrary, in violation of Clause 9(d)(iv) of the Constitution recommendations were invited even including the two Principals who contested the election and therefore, the election is vitiated and hence, it shall have to be so declared and set aside.

Opposite party No.2 filed the counter affidavit with a preliminary objection on maintainability of the writ petition. It is pleaded therein that no relief is sought for against the State, hence, the writ petition cannot be maintained and that apart, the petitioner participated in the election initiated pursuant to Annexures-1 to 4 and not only that, he fielded himself against the post of President of the Association and was defeated and therefore, cannot question the election process as it is hit by doctrine of waiver and acquiescence. As regards the merits, it is further pleaded that the OGCTA is a Service Association and it has received the approval of the Government and though it has a Constitution framed, but the same has not been updated since its inception to keep it relevant with the changes and that, the last election was held in 2019, wherein, the elected members were notified vide Annexure-6 to the writ petition, however, the fact remains, the aforesaid election could be materialized only after the General Body meeting was held being organized by a college unit in absence of the Central Council of the OGCTA whose tenure in office, like the last elected body of 2020, had expired on 28th December, 2016 and in the very manner, in absence of an Election Commission constituted under Clause 9(b) of the Constitution, the election in 2019 was initiated and therein, the petitioner participated and was elected as against the post of Treasurer of the Association as evident from Annexure-3 and in support of the final result dated 19th February, 2020 as at Annexure-A/2 series is referred to. According to opposite party No.2, the Election Commission shall be either nominated or constituted by the outgoing Central Council as per Clause 9(b) of the Constitution of the OGCTA, but it is silent if, for certain reasons, the Election Commission could not be formed and when the petitioner himself was a part of the Central Council during that time, it was a duty cast upon him to initiate an exercise to constitute the Election Commission before the tenure was over, but instead of discharging any such responsibility, he assailed the election process managed by opposite party No.5 and Bhadrak Unit of the OGCTA to convene a General Body meeting and to announce the election schedule by opposite party No.2 and despite being aware of the aforesaid developments, the election process is questioned. It is claimed that the General Body of the OGCTA was called by opposite party No.5 and a meeting was held on 28th April, 2025 and it nominated opposite party No.2 as Chairman of the Election Commission with opposite party Nos.3 and 4 as its members as per the Constitution to facilitate the smooth conduct of election and in pursuance of such decision, the Election Commission duly intimated the Government in Higher Education Department about the election of the OGCTA and that on 3rd July, 2025, the election notification was issued, in response to which the petitioner filed his nomination and contested against the post of President and actively participated in the campaign process and the polling, which was concluded on 4th September, 2025 and when, he was certain about his imminent defeat after receiving inputs from all the units and zones, filed the writ petition, moreover, the result was finally published and he was defeated by one of the contestants, who polled 575 votes as against 492 received by him. With the above facts pleaded by opposite party No.2, the challenges to the election process at the behest of the petitioner has been opposed and not only that, the very maintainability of the writ petition on the ground that it is just a private Association not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India.

Heard the petitioner, Mr. Sahoo, learned ASC for the State and Mr. Mohanty, learned counsel for opposite party No.2.

In response to the counter affidavit of opposite party No.2, the petitioner filed rejoinder dated 10th November, 2025. It is pleaded therein that the writ petition is maintainable as the OGCTA is recognized by the Government in Home Department which exercises superintendence over all the Service Association in the State and even issues direction to the Associations to conduct election. It is pleaded further that the State is bound to ensure election to the OGCTA as per Constitution/By-laws and to accomplish it, the Government in Home Department have issued directions to the Service Associations to conduct election in time vide Annexure-15 and therefore, this Court is vested with the powers to issue a writ of mandamus to opposite party No.1 to direct the OGCTA to conduct election as per Clause 9 of the Constitution.

5.1. A case law in Dr. Pabitra Mohan Mallik Vrs. State of Odisha and others in W.P.(C) No.4012 of 2022 is cited by the petitioner to plead that the writ jurisdiction is amenable challenging the legality of the election process. On the plea of waiver and acquiescence, the petitioner relies on decision of the Apex Court in Kishna Rai (Dead) through LRs & others Vrs. Banaras Hindu University through Registrar & others 2022 LiveLaw (SC) 553 and pleads further that when the action is contrary to law, the principles of estoppel, waiver or acquiescence cannot be invoked to validate an illegality. In absence of the elected office bearers, it is also pleaded that the writ petition is not bad for non-joinder of necessary parties as alleged by opposite party No.2. Lastly, it is pleaded that the election shall have to be conducted in accordance with the Constitution and since the Central Council could not nominate/constitute the Election Commission within the time frame prescribed, any other body cannot usurp the authority of the Council and take a decision towards formation of the Election Commission and that apart, permission was sought for by opposite party No.2 to conduct the election, in response to which, the Government of Odisha in Home Department sought the considered views of the Administrative Department by letter dated 19th August, 2025 vide Annexure-20. The pleading is that on any such grounds advanced by opposite party No.2, the election process cannot be validated as the Election Commission was not formed in the manner prescribed under the Constitution.

5.2. The petitioner reiterates the plea that the election having not been conducted as per the Constitution, the entire process is vitiated. Even though the petitioner was one of the contestants to the post of President in the election, it is contended that the doctrine of estoppel and acquiescence cannot override the law as held by the Apex Court in Krishna Rai (supra). Referring to a decision of Bombay High Court in R.S. Madireddy and another Vrs. Union of India and others 2022 OnLine Bom 2657, it is contended by the petitioner that this Court has powers to issue a writ of mandamus, as therein, it has been concluded that a writ could be issued to an Authority within the meaning of State under Article 12 of the Constitution of India as well as an Authority within the confines of Article 226 of the Constitution of India and by judicial pronouncements, law has developed over a period of time that a writ or order or direction under Article 226 of the Constitution of India can also lie against a ‘person’, even though, it is not a statutory body, if it performs a public function or discharges a public duty or owes a statutory duty to the party aggrieved. So, the contention is that the writ petition is maintainable and the election process shall have to be set aside for the reason that it has not been conducted in accordance with the provisions of the Constitution.

Recorded the submission of Mr. Sahoo, learned ASC for the State.

According to Mr. Mohanty, learned counsel for opposite party No.2, the writ petition is not maintainable for the fact that the petitioner was one among the contestants and he wholeheartedly participated in the election and only after having realized that his defeat is definite, he has knocked the doors of this Court. When the election process was never challenged earlier by the petitioner, according to Mr. Mohanty, learned counsel, he is estopped to question the same after the election is concluded. In support of the above contention, Mr. Mohanty, learned counsel referred to a decision of the Apex Court in Manish Kumar Shahi Vrs. State of Bihar and others (2010) 12 SCC 576. By citing one more decision in St. Mary’s Education Society and another Vrs. Rajendra Prasad Bhargava and others (2022) 8 SCR 301, it is contended that the writ petition is not maintainable. It is finally contended that the election has been held according to the Constitution and the process initiated with the approval of the Government and when the result has been published, it should not be intervened, all the more when, the subject matter is not amenable to the writ jurisdiction.

The election process was initiated with the resolution drawn on 20th February, 2025 as at Annexure-B/2 to the counter of opposite party No.2 and ultimately, the result of the election was published. The question is whether the election to the OGCTA has been held according to the Constitution, a copy of which is at Annexure-5 and if legality thereof may be questioned by the petitioner invoking the writ jurisdiction of this Court? The Constitution of the OGCTA is having the following aim and objectives, such as, (a) to promote and safeguard the interest of the Government college teachers; (b) to co-operate with similar Associations in Orissa and elsewhere for promoting the cause of teachers and education; (c) to co-operate with other Gazetted Officers’ Service Associations of the State to improve service conditions in general; and (d) to co-operate with and offer suggestions to the educational authorities for involving a purposeful education system in the State. On a reading of the Constitution, it is made to understand that the OGCTA is an Association recognized by the Government and it is primarily formed to promote and safeguard interest of the teachers of the Government Colleges and to improve their service conditions and to offer suggestions to the educational authorities for having a purposeful educational system.

On the question of maintainability, the petitioner cited the order of this Court in Dr. Pabitra Mohan Mallik (supra) and it was in relation to an election dispute concerning the Odisha Medical Services Association. According to the Court, a Service Association’s election and its result may be a subject of writ jurisdiction under Article 226 of the Constitution of India but it is generally entertained only under specific and exceptional circumstances. Such a jurisdiction to intervene in an election dispute may be refused if an alternative and equally efficacious remedy is available. If the election process violated the fundamental rights of the members, a writ petition may lie. In case of an election conducted in flagrant violation of the Association’s own By-laws, it could also be a reason to interfere, invoking writ jurisdiction. If the petitioner is having no other remedy or the remedy available is not efficacious, the writ jurisdiction may be invoked. If the electoral process is grossly illegal and not in consonance with the By-laws or rules, an election dispute may be entertained by a writ court, but it is not to be lost sight of the fact that Service Associations and elections to the same even when undertaken under the facilitation of the Government are generally considered private bodies and hence, not directly amenable to writ jurisdiction under Article 226 of the Constitution of India unless it is shown that the Association is discharging a public duty or is created by a statute. The question would be whether the Association performs any public function. While supervision by the Government suggests State’s involvement, but such exercise does not automatically turn a Society or Association into an instrumentality of the State under Article 12 of the Constitution of India or a public authority. If the association is merely a registered society under the Societies Registration Act, it is a private entity and dispute regarding electoral roles, nomination rejections or result of election of any such Associations are considered its internal management. One more aspect is to be kept in mind as to if the Association’s role is restricted to looking after the welfare of its members and does not involve the performance of public function, the writ court would not intervene. Essentially, it has to be considered whether the Associations fulfill the public function criteria. If it performs public function or discharges duties imposed by a statute, it may be a subject to a writ jurisdiction like a Bar Association, which at times held to discharge public duties in some jurisdiction is amenable to jurisdiction of this Court. That apart, if the Association is funded, managed and controlled by the Government, it would fall under Article 12 of the Constitution but such a situation is very rare when it relates to an employee’s Association. So, to say, a service association is generally a private body, however, if it performs a public duty or is managed by the State which has a deep and pervasive control over the same, the same could be considered a public authority amenable to writs and therefore, the crucial aspect is whether the issue concerns a public duty or only a private internal dispute of the Association.

The key factors that determine whether to invoke a writ jurisdiction are as follows: (a) the Association, even though a private body, must discharge the public duties or functions relating to the administration of the colleges; (b) the Association received fund from the Government or governed by the resolutions of the Government and its management includes officials of the Government; (c) the members of the Association are Government employees and governed by the State to fall under Article 12 of the Constitution of India; (d) a mandamus writ can be issued even to a private body if it performs public duty; (e) educational institution receiving fund from the State are authorities within the meaning of the State;(f) writ jurisdiction may be exercised, but it should be sparingly used if the dispute is purely internal to the Association and does not involve statutory violations.

In the case at hand, nothing has been brought to the notice of the Court whether the Association is having any statutory functions. The Court finds that the Association is primarily to look after the welfare of the teachers of the Government colleges and to promote their cause and well-being. In other words, the Constitution is framed to protect the interest of the teachers of the Government colleges and also to offer suggestions to the educational authorities. The Associations are regulated by the Government and considering the Constitution of the OGCTA, as it has a dual responsibility, not only to protect the service conditions of the Government college teachers but also to suggest the educational authorities for evolving a robust education system in the State and therefore to claim that the Association is not amenable to the writ jurisdiction is difficult for the Court to comprehend. The Association is formed having received the recognition of the Government is with a purpose and it is to ensure overall development of the system of education within the State. If the issues related to college teachers are not taken care of, for which Association is in place and with that aim and objective, it has been formed with the recognition of the Government, it shall have an adverse impact on the educational system as they form an integral part of the entire ecosystem, hence, the Court is of the view that the subject matter under consideration is not beyond the amenability of writ jurisdiction but equally of the view that interference should be under exceptional circumstances and not in a routine manner.

The other ground of estoppel, waiver or acquiescence as has been raised by opposite party No.2, this Court is of the view that even though the petitioner lost the election, he has a right to challenge the result of the same. A contestant in Association election, who has lost can challenge the legality of such election, for not being in accordance with its By-law. While a candidate who participated in an election cannot generally challenge it, but simply because he lost is not to automatically prevent him from questioning the result of the same, if the violation is substantial and not in accordance with the rules and regulations. The legal position is that there is no absolute estoppel, for mere participation in an election does not estop a candidate from challenging it especially if the violations are discovered after the election or if the actions are ultra vires and beyond the powers of the Association. If there is substantial compliance of the By-law of the Association, the Court may refuse to intervene, but the interference would arise if the essential provisions of the election laws are violated. In other words, even if a candidate who is a part of an election, he can challenge the same if the entire process was illegal and void. It can well be said that a candidate cannot approbate and reprobate at the same time, but it is not applicable when the election itself is invalid. But conclusion of the Court is that if the By-laws are violated in a way that materially affected the result of the election process, a losing candidate shall have a right to challenge the election and in that case, estoppel shall not apply. Having said that, the Court is in respectful disagreement with the contention of Mr. Mohanty, learned counsel for opposite party No.2 that the petitioner cannot be allowed to challenge the election process when he himself was a candidate and participated therein and never questioned the process of the election, after it was notified. In this regard, the decision in Krishna Rai (supra) may be referred to wherein it has been held that when the law requires something to be done in a particular manner, then it must be accomplished in that manner only and if not so done, it would have no existence in the eyes of the law since estoppel cannot override a law.

In so far as, the intervention of the Court in the election process of the Association is concerned, the Constitution does prescribe a provision vide Clause 9(b) towards formation of an Election Commission, which is to conduct the election and in the instant case, though it has been constituted, but not in the manner stipulated. As per the above provision, the outgoing Central Council is to nominate/constitute the Election Commission, which is to declare the result of the election. The Court finds that the Constitution is silent about the contingencies where the outgoing Central Council failed to form the Election Commission for whatever reasons before expiry of its term. In the present case, the earlier Council did not constitute the Election Commission for reasons not revealed from the record. In fact, the Court is apprised that the previous election was conducted in a similar situation without an Election Commission formed by the outgoing Council and interestingly, the petitioner was a contestant and was elected as the Treasurer. If the term of the Central Council expires and before that, the Election Commission is not constituted, there is no any provision in the Constitution of the OGCTA to deal with the situation. At the time of framing of the Constitution, such a contingency was not conceived of. Furthermore, the Constitution has not received a facelift as no changes have been brought in by amendments and the same still stands in its original form till date as put forth by opposite party No.2, a claim, which has not been disputed by the petitioner. Such election conducted as per the schedule remained unopposed from the side of the Government. Referring to Annexure-20, the contention of the petitioner is that when the Government sought for the considered views of the Higher Education Department to accord permission for conduct of election of the Association, it could not have been held. Again, nothing is on record especially from the State that the election becomes invalid for having been conducted pending receipt of the opinion of the Department of Higher Education. The earlier body election was held in a similar manner and supposedly, the Government did not intervene and it was allowed to function till the expiry of its term. Against the aforesaid backdrop and being alive to the position of law discussed hereinbefore to the effect that even when the dispute of an Association is amenable to the writ jurisdiction, it shall have to be invoked only under exceptional circumstances and not otherwise, the Court is of the conclusion that the election process with the announcement of results calls for no interference.

Accordingly, it is ordered.

In the result, the writ petition stands dismissed.