The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 19898 of 2011 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Rameshwar Prasad Mishra ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : M/s. K.P.Mishra, Sr. Advocate, with S.K.Hota, Advocate For Opp. Party : Mr. A.R.Dash, Additional Government Advocate for the State. Mr. H.S.Mishra, learned counsel appearing for the College Management _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. I.A.No. 2340 of 2024 JUDGMENT 19th July, 2024 This is an application for intervention filed by Mr. Debasis Das for being arrayed as Opposite Party in the writ application. This application has been filed on the Page 1 of 13
Legal Reasoning
this Court in W.P.(C). No. 11663 of 2008 this Court had referred to the observations of the Director in the order in question and held as follows: “In the concluding portion of the order the Director observed that without prejudice to the claim or claims of others, Sri Rameswar Prasad Mishra should be reinstated as Lecturer in Physics. Thus, no prejudice whatsoever would be caused to Sri Debasis Das or any other person. In view of the aforesaid discussions W.P.(C) No. 9601 of 2006 is disposed of. Mr. Rameswar Prasad Mishra has filed W.P.(C).No. 11663 of 2008 to implement the order of the Director. In view of disposal of W.P.(C) No. 9601 of 2006, this Court finds that there is no impediment in implementing the order dated 16.06.2006 passed by the Director. This Court therefore, dispose of the writ petition during the authorities to implement the order passed by the Director as expeditiously as possible.” In view of such clear observations, the right of Mr. Debasis Das remains protected and the petitioner’s case would have no bearing on it. This Court finds therefore, Page 2 of 13 no reason to allow the petition for intervention which is therefore, dismissed. Sashikanta Mishra, Judge W.P.(C) No. 19898 of 2011 The petitioner has filed this writ application with the following prayer: “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that this Hon’ble Court may graciously be pleased to:- (i) quash the impugned order of termination, dated 11.04.2011 under Annexure-12 and thereby direct the Opp. Party No.3 to issue appointment order in confirmity of this Hon’ble Court's direction passed in W.P.(C) No. 11663/2008 read with the order of dismissal of the Review petition; and (ii) further be pleased to impose heavy cost on the Opp. Party No.3 for harassment and mental agony inflicted to the present petitioner; (iii) Pass such other order(s) or issue direction (s) as may be deemed fit and proper in the bonafide interest of justice; And for which act of kindness, the petitioner as in duty bound, shall ever pray. 2. The facts of the case, briefly stated, are that pursuant to an advertisement issued on 21.06.1994 by the Principal, Ispat College, Rourkela (Opposite Party No.3) inviting applications for appointment of lecturers in Page 3 of 13 different colleges, the petitioner applied and on being found suitable was appointed as Lecturer in Physics. Surprisingly, by order dated 10.02.1996, it was stated that the services of the part-time lecturers so engaged, including that of the petitioner, was no longer required by the management. Further, an attempt was made for fresh selection of the same post in the year 1997. As such, the petitioner approached this Court in OJC No. 9966 of 1997. A Division Bench of this Court, by order dated 12.05.2005 disposed of the writ application referring to an earlier judgment passed in OJC No. 7777 of 1995 with further direction to the Director to consider the petitioner’s representation in light of the said judgment if found to be applicable to the facts and circumstances of the case. Accordingly, the petitioner submitted a representation to the Director, who after hearing both parties and perusing all the relevant documents passed order on 19.06.2006 directing the reinstatement of the petitioner against the first post. The order of the Director was however, not complied with despite repeated Page 4 of 13 requests made by the petitioner. The management challenged the order of the Director before this Court in W.P.(C) No. 9601 of 2006 and justified its inaction in complying with the said order on the ground of pendency of the writ application. This Court in an interlocutory application filed by the petitioner passed an order on 17.06.2008, making it clear that pendency of the writ application shall not stand in the way of implementing the impugned order. Inspite of such order and submission of further representation by the petitioner, no action was taken by the Opposite Party authorities. The petitioner therefore, filed another writ application being W.P.(C) No. 11663 of 2008 to take appropriate action against the Governing body. Both the writ applications
Arguments
ground that the service of Mr. Das has been approved under the grant-in-aid order 2009. Therefore, if any order is passed in favour of the petitioner, the same may cause prejudice to him. 2. After going through the averments made in the application and on hearing learned counsel for the intervener, this Court finds that in the order passed by
Decision
were heard together and disposed of by a common order passed on 01.07.2009 by observing as follows: “10. After going through the order passed. We find that the Director has taken into consideration all the facts and circumstances discussed the inter se submissions made by the parties and given a finding on facts. The order does not suffer from any infirmity or irregularity and needs no interference under Writ jurisdiction.” Page 5 of 13 Still then the order was not compiled with for which the petitioner filed a contempt application being CONTC No. 2675 of 2009. The College Management on the other hand, filed review applications being Review petition Nos. 249 and 254 of 2009. Both the review applications were dismissed by a common judgment passed on 11.01.2001. The Governing body thereafter allowed the petitioner to join on 11.04.2011. Surprisingly, on 21.04.2011 the services of the petitioner were again terminated w.e.f. 21.04.2011. Challenging such action, the petitioner has approached this Court in the present writ application. 3. Despite repeated opportunities no counter was filed by any of the Opposite Parties. Learned counsel for the Opposite Party No.3 (College) however, preferred to make oral submissions. 4. Heard Mr.K.P.Mishra, learned Senior counsel with Mr. S.K.Hota for the petitioner, Mr. A.R.Dash, learned Additional Government Advocate for the State and Mr. H.S.Mishra learned counsel appearing for the college management. Page 6 of 13 5. Learned Senior counsel, Mr. K.P.Mishra would submit that the impugned order reeks of clear malafides and vindictive attitude of the college management to somehow violate the repeated orders passed by this Court. He further submits that the petitioner has been fighting the litigation since 1996 and despite having obtained orders in his favour, has been subjected to further harassment by the college management. Moreover, the original advertisement never mentioned that the engagement would be on a part-time basis and therefore, treating the petitioner as such is entirely contrary to law. Mr.Mishra concludes his arguments by submitting that exemplary cost should be imposed on the college authorities for willfully violating the orders of this Court and in subjecting the petitioner to undue harassment, humiliation and discrimination. 6. Mr. A.R.Dash, learned State counsel would submit that the order passed by the Director way back on 19.06.2006 has not been altered or set aside. On the contrary, said order has been confirmed by the judgment Page 7 of 13 of this Court passed in the writ applications as well as the review applications. There is thus no other option available for the management than to comply with the same. 7. Mr. H.S. Mishra, learned counsel appearing for the college Management would submit that the engagement of the petitioner was purely temporary and on need basis. He was therefore, appointed as a part-time lecturer to meet the exigencies of the situation. There being no further need, the management rightly terminated his services. According to Mr.Mishra, the management cannot be forced to appoint a person without having any need for his services. 8. The facts of the case are undisputed. The advertisement published on 21.06.1994, does not mention anything as regards the nature of engagement of lecturers. It is however stated at the bar that the petitioner was appointed on part-time basis. It has not been demonstrated by the counsel appearing for the college management as to under which provision of law Page 8 of 13 such part-time engagement is permissible. Be that as it may, the matter having been referred to the Director, he found that the petitioner was denied natural justice and that he stood on a better footing from all aspects as compared to the petitioner in OJC No. 7777 of 1995 (Bijaya Kumar Pradhan) whose case was referred to by this Court in the order passed in OJC No. 9966 of 1996 filed by the petitioner. Noting such facts, the Director issued the following directions “Therefore, without prejudice to the claim or claims of others, the Principal-cum-Secretary, Ispat College, Rourkela, Opp. Party-4 is directed to reinstate Sri Rameswar Prasad Mishra as Lecturer in Physics within one month from the issuance of this order” This order has remained non-complied with along with the plea that on 11.04.2011 the petitioner has joined. In the meantime, the order was passed by this Court holding that there is no impediment in implementing the order of the Director (order dated 01.07.2009 in W.P.(C) No. 9601 of 2006 and 11663 of 2008). This was followed by dismissal of the applications for review. Thus, there is Page 9 of 13 considerable force in the submission of learned Senior counsel Mr. Mishra and the State counsel Mr. Dash that there is no other option for the management than to comply with the order. It is not disputed that the orders of this Court as referred above have never been challenged in the higher forum. 9. What is surprising to note is, in an apparent show of compliance, the College Management reinstated the petitioner but only to disengage him after about 10 days of his joining. The termination letter, copy of which is enclosed as Annexure-12 cites the reason as “consequent upon the closure of all the classes for the sessions 2010- 11”. This action raises the question as to whether it is permissible to treat the petitioner as a part-time lecturer. The answer can only be in negative firstly, for the reason that there is no provision in the Odisha Education Act or Rules framed thereunder permitting such engagement and secondly, the Director after taking note of all relevant facts had directed the management to “reinstate” the petitioner in his post. This Court has also concurred with Page 10 of 13 the said order more than once. Even assuming for the moment that the petitioner can be treated as a part-time appointee, then also the manner in which he was reinstated and again thrown out of employment within ten days tells its own story about the intention of the management. This is nothing but making a show of compliance of the order passed by this Court. As per the sequence of facts as narrated above, this compliance, according to the considered view of this Court is no compliance. 10. At this stage, this Court is constrained to observe that the order passed by this Court not having been interfered with by the higher forum has to be complied with in letter and spirit. This is the rule of law which forms the bedrock of our Constitutional philosophy as has been held by the Constitution Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab1 wherein it was observed that “the term “Rule of Law” prolongs the undisputed supremacy of law and envisages 1 AIR 1982 SC 1325 Page 11 of 13 state of things in which everyone respects the law and the law has to be followed by everyone collectively, individually by the citizens and as well as by the State. The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features.” 11. Such being the sanctity attached to rule of law, it would not be permissible to act in utter disregard to it or make an attempt to circumvent the direction of this Court by adopting any kind of subterfuge. As already stated, the management has only made a show of compliance. It is reiterated that law has to be observed not only in letter but also in spirit. Here is a case of a person running from pillar to post to secure his livelihood, which is otherwise guaranteed under Article 21 of the Constitution, only for his bonafide attempts to be rebuffed by the clever machinations adopted by the College Management. The impugned order therefore, cannot be countenanced in law in any manner whatsoever. Page 12 of 13 12. For the foregoing reasons therefore, this Court holds that the action of the College Management in terminating the services of the petitioner by treating him as a part- time lecturer cannot be sustained in the eye of law. 13. Resultantly, the writ application is allowed, the impugned order under Annexure-12 is hereby quashed. The Opposite Party No.3 is directed to issue order of appointment in favour of the petitioner on regular basis without any further delay and in any case not later than two months from the date of production of certified copy of this order by the petitioner. ……..………………….. Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 22-Jul-2024 11:09:43 Page 13 of 13