Application under Articles 226 & 227 of Constitution of India. --------------- Governing Body of v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 5725 of 2014 Application under Articles 226 & 227 of Constitution of India. --------------- Governing Body of Kishore Pallai Science College and another .…… Petitioners - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Sameer Ku. Das, S.K. Mishra & P.K. Behera, Advocates. For Opp. Parties : Mr. J.K. Rath, Senior Advocate
Legal Reasoning
with Mr. D.N. Rath, S.N. Rath & P.K. Rout, Advocates. _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 12th March, 2024 SASHIKANTA MISHRA, J. The petitioners have approached this Court seeking the following relief: “Under the above circumstances, it is therefore humbly prayed that this Hon’ble Court be graciously pleased to quash the order dated 28.02.2014 under Annexure-6 as it is illegal and without jurisdiction and authority; Page 1 of 8 And/or pass any other appropriate writ/writs, order/orders and direction/directions in fitness of the case; And for this act of kindness as in duty bound the petitioners shall ever pray. 2. Petitioner No.1 is the Governing Body and the petitioner No.2 is Principal in Charge-cum-Secretary of Kishore Pallai Science College, Langaleswar in the district of Ganjam. Said College is an aided educational institution within the meaning of Section 3(b) of the Odisha Education Act, 1969 having been brought under the Block Grant Scheme w.e.f. 20.01.2009 as per the provisions of the Grant-in-Aid Order, 2008. The opposite party No.3 was appointed as Lecturer in Odia in the College on 07.07.1992 and joined as such on 09.07.1992. He was allowed to function as Principal- in-Charge of the College by the Governing Body. During his incumbency as Principal-in-Charge he allegedly committed serious financial and administrative irregularities for which the Governing Body took a decision not to allow him to function as such. By letter dated 20.12.2008, the Secretary directed him to handover charge of the Principal to the senior most Lecturer of the College, namely, Smt. Namita Dash (petitioner No.2). The opposite party No.3, instead of Page 2 of 8 complying with such instructions remained unauthorisedly absent. It is alleged that he did not report for duty w.e.f. 24.12.2008. He approached the Director of Higher Education, Odisha by submitting a complaint regarding alleged non- acceptance of his joining report dated 02.09.2013 by the Management on return from his leave. By order dated 22.10.2013, the Director, observing that the College was an aided educational institution, held that he had no jurisdiction to adjudicate the matter on the face of Government Order dated 27.03.1983. The complaint was disposed of observing that the complainant may seek alternative remedy before the appropriate forum. 3. The opposite party No.3 appears to have preferred an appeal, being Appeal No. 28/2013 before the State Education Tribunal, wherein notice was issued to the Management to appear. While the appeal was pending, the opposite party No.3 surprisingly approached the Director again. The Director vide order dated 28.02.2014, copy of which is enclosed as Annexure-6, took note of the contentions raised by the opposite party No.3 and directed grant of the benefit of Page 3 of 8 continuity of service with notional annual increment without arrear component of salary for the entire period of absence in duty up to 28.12.2014 and to allow him to join the College as lecturer in Odia forthwith. The Principal and the President of the Governing Body were requested to allow the opposite party No.3 to join and perform his duties. The aforesaid order of the Director is impugned in the present writ application. 4. Heard Mr. S.K. Das, learned counsel for the petitioner and Mr. A.R. Dash, learned Addl. Government Advocate for the State. Mr. J.K. Rath, learned Senior Counsel appearing along with Mr. D.N. Rath, learned counsel appearing for opposite party No.3 submits that he has no instructions from his client in this matter. Since this is a case of the year 2014 and only a question of law is involved, this Court does not deem it prudent to issue fresh notice to the opposite party No.3 but proceeds to dispose of the writ application leaving it open to the opposite party No.3 to seek variance of this order, if so advised in future. Page 4 of 8 5. In course of hearing, Mr. S.K. Das, learned counsel for the petitioner produces a copy of the order passed by the learned Tribunal in Appeal Case No. 28/2013 filed by the present opposite party No.3. By the said order dated 21.10.2022, the appeal was dismissed for non-prosecution. It is stated at the bar that said order of the Tribunal has not been challenged before the higher forum. It is further submitted by Mr. Das that the Director, Higher Education could not have entertained the second complaint filed by the opposite party No.3 as it amounts to reviewing his own order, which is impermissible in law. 6. Mr. A.R. Dash, learned Addl. Government Advocate fairly submits that the institution being an aided educational institution within the meaning of Section 3(b) of the Odisha Education Act, the Director had rightly relegated the opposite party No.3 as per his order dated 20.11.2013 to seek his remedy before the appropriate forum, pursuant to which the opposite party No.3 had approached the State Education Tribunal. It was therefore no longer open to the Director to Page 5 of 8 reopen the matter particularly when the Tribunal was in seisin over it. 7. Having heard learned counsel for the parties and having perused the materials on record, this Court finds that there is no dispute that the institution in question was an aided educational institution w.e.f. 18.05.2011 as per Higher Education Department Notification No. 18985/HE dated 18.05.2011. Therefore, the Director in his order dated 20.11.2011 very rightly held that he had no jurisdiction to entertain the dispute raised by the opposite party No.3. It further appears that pursuant to such order, the opposite party No.3 approached the Tribunal in Appeal Case No. 28/2013. While the appeal was pending, surprisingly, on a motion apparently made by opposite party No.3, the very same Director took up the matter and passed the order impugned in the present writ application directing the Management of the Institution to allow the opposite party No.3 to join and perform his duties as also by regularising the break in his service. This obviously amounts to reviewing his own order and secondly, is Page 6 of 8 without jurisdiction in view of the pendency of the appeal before the Education Tribunal at that time. 8. In the case of Jayaram Bhuyan vs. State of Orissa and others1, a Division Bench of this Court held that unless specific power of review is conferred by the Statute, no authority can exercise such power. The following observations of the Division Bench in the said case are noteworthy. review “11. In that respect, it is appropriate to take note of two more judgments of the Supreme Court in the case of Tikaram v. Mundikota Shikshan Prasarak Mandal and others, A.I.R. 1984 S.C. 1621 and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others, A.I.R. 1987 S.C. 2186. In both the cases the Apex Court has taken consistent view even by referring to the earlier precedent that in the absence of specific power conferred, jurisdiction cannot be exercised by quasi judicial body while discharging the quasi judicial function. In that respect the citations relied on by the Secretary and also by opposite party No.4 Sushama Mohanty are R.R. Verma and others v. The Union of India and others, AIR 1980 S.C. 1461; Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., A.I.R. 1996 S.C. 2592, and Sambhu Prasad v. Kailash Chandra Das and others, 76 (1993) C.L.T. 517 (Full Bench Decision of Orissa High Court). In Verma (supra) point fell for consideration was regarding power of review of the government on administrative side; therefore, that decision is hardly relevant to the issue at hand. In the case of Indian Bank (supra) review of the judgment of the consumer forum was upheld by the Supreme Court on the ground that fraud had been practiced to obtain the earlier order. In the present case at hand no such fact situation is available, therefore, that citation is of 1 2008 (II) OLR 438 Page 7 of 8 relevance. In the case of Sambhu Prasad (supra) it was held that the appellate Court under the House Rent Control Act has no power of review being not conferred under the statute, that ratio also does not in any way improve the case of the opposite party No.4. 12. Thus, on a conspectus of the actual position and the legal position, as noted above, we find that the opposite party No.2 has no power of review while entertaining the appeal under the above quoted order of the government and therefore the power of review exercised by the opposite party No.2 was without jurisdiction and therefore illegal, Such ruling of this Court is sufficient to allow the writ petition filed by the petitioner and the order Annexure-17. However, while in seisin of the matter, we feel it proper to record our opinion on the merit of the grounds stated in the review order.” to quash That apart, the Director could not have entertained the application of the opposite party No.3 when the Tribunal was in seisin over the self-same matter. 9. For the foregoing reasons therefore, this Court is of the concerned view that the impugned order cannot be sustained in the eye of law being without jurisdiction. 10. Resultantly, the writ petition is allowed. The impugned order under Annexure-6 is hereby quashed. …………………………. Sashikanta Mishra, Judge Page 8 of 8 Orissa High Court, Cuttack. The 12th March, 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: 18-Mar-2024 18:15:54