Application under Articles 226 & 227 of Constitution of India. Bhawani Shankar Naik … v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 6309 of 2012 Application under Articles 226 & 227 of Constitution of India. Bhawani Shankar Naik …… Petitioner --------------- - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. D. Routray, P.S. Sahoo, K. Mohanty, S. Das, S. Jena, S.K. Samal, S.P. Nath & J. Biswal, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate M/s. S.S. Pratap & A.K. Senapati, Advocates [for Opp.Party Nos. 4 & 5 ] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 10th September, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court with the following prayer: “It is therefore prayed that this Hon’ble Court may graciously be pleased to :- (i) Admit the writ application; Page 1 of 10 (ii) Call for the records; (iii) Issue Rule nisi calling upon Opp. Parties to show cause as to why the order of the Director dtd. 10.08.2011 under Annexure.3 shall not be quashed; And if the Opp. Parties failed to show cause or show insufficient cause issue a writ in the nature of certiorari in quashing the Order dtd. 10.08.2011 under Annexure. 3. And issue appropriate writ writs/direction/directions directing the Opp. Parties to reinstate the petitioner in his former post i.e. Lecturer in Political Science in Achalika Bastarani Mahavidyalaya, Sanchergaon, At/Po- Sanchergaon, Via Borda, Dist- Kalahandi and to release all consequential service benefits in his favour; iv) And/or pass such other order/orders, direction/ directions as this Hon’ble Court may think fit and proper for the ends of justice; And for this act of kindness, the petitioner shall as in duty bound ever pray. 2. The petitioner claims to have been appointed as Lecturer of Political Science in Anchalika Bastarani Mahvidyalaya, Sanchergaon, Kalahandi by order dated 15.05.1997 of the Secretary of the Governing Body of the institution. It is his further case that while working as such he was prevented from putting his signature on the attendance register in the year 2007, amounting to termination of service. As such, he filed an appeal before the Director, Higher Education on 17.08.2009. Since the Page 2 of 10 appeal was not disposed of, the petitioner approached this Court in W.P.(C) No. 2371 of 2010, which was disposed of by order dated 15.02.2010 directing the Director to dispose of the appeal. The appeal was thereafter heard and ultimately disposed of by order dated 10.08.2011 in rejecting the claim of the petitioner-appellant. Being aggrieved, the petitioner has approached this Court with the above prayer. 3. A preliminary counter affidavit has been filed by the Governing Body of the College (opposite party No.4), inter alia, stating that the petitioner was appointed as Lecturer in Political Science in the College on 15.05.1997 and joined in the said post on 16.05.1997. However, the copy of the appointment order annexed to the writ application is a forged and manufactured one. The actual appointment order issued on 15.05.1997 has been enclosed as Annexure-A/4 series to the counter affidavit. It is further stated that the petitioner had suppressed material facts before the Governing Body at the time of appointment Page 3 of 10 inasmuch as at that time he was elected and continuing as member of the Panchayat Samiti of Mahaling Gram Panchayat under Golamunda Block. Such information was obtained under the RTI Act. Further, the petitioner was unauthorizedly absent for a long period and despite request by the Governing Body, he did not turn up to discharge his duties. He was therefore, served with several show cause notices, which he did not respond to. As such, the Governing Body, vide resolution dated 07.01.2000 unanimously resolved to terminate the services of the petitioner. Subsequently, by an advertisement, one Agasti Sunani was selected and appointed in place of the petitioner on 05.2.2000 and is continuing as such. 4. The petitioner has filed a rejoinder refuting the stand taken in the preliminary counter affidavit by submitting that he was a State Selection Board candidate and admittedly appointed as Lecturer vide appointment order dated 15.05.1997, pursuant to which he joined on 16.05.1997. Subsequently, the Governing Body vide Page 4 of 10 resolution No.5(1) dated 02.08.1997 approved his appointment. It is further stated that two other persons namely, Ranjan Kumar Panda and Keshab Lal Sahoo were also appointed on 15.05.1997 as Lecturer in Odia and History respectively. Their appointments were also approved by the GB vide resolution Nos.5(2) and 5(3) dated 02.08.1997. It is further stated that the petitioner was elected and continuing as member of the Gram Panchayat Samiti at Mahaling Gram Panchayat at the relevant time but a no objection certificate was issued in his favour permitting him to serve as Lecturer in Political Science despite being a member of the Panchayat Samiti. The petitioner further denies the receipt of show cause notices claimed to have been served upon him by the Governing Body. 5.
Legal Reasoning
Heard Mr. Jagdish Biswal, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State and Mr. S.S. Pratap, learned counsel Page 5 of 10 appearing for the Governing Body of the College (opposite party No.4). 6. Mr. Biswal would submit that the stand taken by the Governing Body before the Director during hearing of the appeal directly contradicts its own stand taken before this Court, as reflected in paragraph-4 of preliminary counter affidavit. In any case, even assuming that the order of appointment enclosed by the Governing Body is the only valid appointment order, the same proves that the petitioner was appointed on 15.05.1997. Therefore, only because the resolution of the Governing Body was passed subsequently, it cannot be held that there was no appointment, as has been wrongly held by the Director. 7. Mr. S.N. Pattnaik, learned Addl. Government Advocate would submit that copy of the appointment order, enclosed as Annexure-1 to the writ application, a copy of which was also produced before the Director was found to be a forged document and therefore, the Director rightly rejected his claim being based on such forged document. Page 6 of 10 8. Mr. S.S. Pratap, learned counsel appearing for the Governing Body would submit that there may not be any dispute as regards the appointment of the petitioner on 15.05.1997 but fact remains that he is guilty of willful suppression of material facts inasmuch as admittedly he was elected as a member of the Panchayat Samiti of Mahaling Gram Panchayat. Therefore, he could not have been appointed as Lecturer in the College and that too by suppressing such information. 9. After hearing learned counsel for the parties and on perusal of the materials available on record including the original file relating to the appeal, this Court finds that the fact that the petitioner was appointed in the College as Lecturer of Political Science on 15.05.1997 is a forgone conclusion inasmuch as in the preliminary counter affidavit filed by the Governing Body, said fact is not only admitted but a copy of the appointment order dated 15.05.1997 and the joining report dated 16.05.1997 have also been enclosed. Therefore, even assuming for the sake Page 7 of 10 of argument that the copy of the appointment order, enclosed to the writ application as Annexure-1, is a manufactured one, the same cannot nullify the fact that the petitioner was actually appointed. This fact does not appear to have been considered by the Director in the proper perspective and simply by holding the document to be a forged one, the claim of the petitioner was rejected. That apart, from the notes of submissions filed by the Governing Body available in the original file produced by the State Counsel it is clear that while questioning the genuineness of the order of appointment dated 15.05.1997 relied upon by the petitioner a specific stand was taken that the petitioner was continuing as Panchayat Samiti member of Mahaling GP at the relevant time, for which he could not have been appointed as a Lecturer. This fact also has not been considered at all by the Director. 10. From what has been held hereinbefore regarding the undisputed factum of appointment of the petitioner, it is more than evident that the order of the Page 8 of 10 Director cannot be sustained in the eye of law for not having attempted to resolve the dispute comprehensively. This Court is conscious of the fact that the matter relates to the year 2011 but then the dispute between the parties being essentially factual in nature, this Court sitting in certiorari writ jurisdiction cannot enter into the factual aspects so as to resolve the controversy. There is thus, no other alternative than to remit the matter to the Director to decide the appeal afresh in a comprehensive manner after taking into consideration all the grounds raised by the parties. 11. The writ petition is therefore, allowed. The impugned order under Annexure-3 passed by the Director is hereby set aside. The matter is remitted to the Director, Higher Education to decide the appeal afresh after granting opportunity of hearing to all necessary parties and to make all endeavor to comprehensively decide the dispute for all times to come. The Director shall also make an endeavor to dispose of the appeal as early as possible, preferably within Page 9 of 10 a period of two months from the date of production of certified copy of this order by the parties. 12. The original file produced by the State Counsel be returned to him. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 10th September, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Sep-2024 18:29:14 Page 10 of 10