Application under Articles 226 & 227 of Constitution of India. AFR Santibrata Panda … v. State of Odisha & Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 13566 of 2007 Application under Articles 226 & 227 of Constitution of India. AFR Santibrata Panda …… Petitioner --------------- - Versus - State of Odisha & Others ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : Mr. Budhadeb Routray, Sr. Advocate with M/s. S. Das, K. Mohanty, R.P. Dalai, K. Jena, S.K. Samal, P. Mohanty, S.P. Nath, S.D. Routray and B. Behera, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate Mr. J.K. Rath, Sr. Advocate with M/s. S.K. Mishra, P.K. Rout, D.N. Rath, A.K. Saa, Advocates [For O.P. No.5] Mr. G.N. Pattanaik, Adv. (for O.P. No.4) _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 17th January, 2025 SASHIKANTA MISHRA, J. The petitioner in the present writ application seeks to challenge the order dated 08.10.2007 W.P.(C) No. 13566 of 2007 Page 1 of 16 passed by the Inspector of Schools, Balasore Circle directing reinstatement of opposite party No. 5 as Classical Teacher and declaring the petitioner’s appointment as such as invalid. The petitioner also seeks to quash the inquiry report dated 16.05.2005 of the Special Secretary, School and Mass Education Department. 2. The facts of the case, briefly stated, are that the present opposite party No.5 was appointed as a Classical Teacher in Kumari (B.C.) High School, Kumari in the district of Balasore on 10.07.1987. While working as such, because of her long unauthorised absence, the Managing Committee terminated her services in 1995 after issuing a show cause notice and conducting due inquiry. After termination of the service of opposite party No.5, the petitioner was appointed as Classical Teacher on 28.02.1997 in the said vacancy. In
Facts
the meantime, the opposite party No.5 challenged the action of the Management before the Director of Secondary Education by filing an appeal. The appeal came to be dismissed on 27.05.1997 confirming the order of termination passed by the Management. Opposite party No.5 challenged W.P.(C) No. 13566 of 2007 Page 2 of 16
Legal Reasoning
the order of dismissal of appeal before this Court in OJC No.
Decision
10540 of 1997, which was disposed of granting liberty to her to submit representation before the appropriate authority. Accordingly, a fresh inquiry was conducted by the Special Secretary to the Government in Department of School and Mass Education which concluded that the termination of opposite party No.5 was unjustified. Basing on such report, the Inspector of Schools, vide order dated 08.10.2007 directed reinstatement of opposite party No.5 and also declared appointment of the petitioner as invalid. 3. The petitioner challenged said order initially before this Court in the present writ application but the same was dismissed by order dated 15.07.2009 by holding that he had no cause of action. The petitioner moved the Supreme Court in Civil Appeal No. 6905 of 2011 against such dismissal of the writ application. The Supreme Court, by order dated 14.05.2015 set aside the order passed by this Court and remanded the matter for fresh adjudication. According to the petitioner, the Director as appellate authority had dismissed the appeal preferred by the opposite party No.5 way back on W.P.(C) No. 13566 of 2007 Page 3 of 16 27.05.1997 after considering all relevant facts including the inquiry conducted by the then Assistant Inspector of Schools. Therefore, the Inspector of Schools being a subordinate officer had no authority to review or override the decision of the Director. That apart, the Special Secretary’s inquiry was also unauthorised and conducted without notice to the petitioner or the Managing Committee. It is also stated that the termination of the opposite party No.5 was legally justified and the petitioner was appointed in the termination vacancy after following due procedure. 4. The case of the opposite party No.5 is that she was appointed as Classical Teacher on 10.07.1987. Because of her illness, she could not attend the duties in the School from 15.11.1991 to 26.11.1991. Subsequently, after recovering from illness, she submitted her joining report on 27.11.1991 along with leave application but the same was not received by the Headmaster or the Secretary of the Managing Committee. As such, she sent her joining report along with her leave application and Medical Certificate to the Inspector of Schools, Balasore Circle by registered post on W.P.(C) No. 13566 of 2007 Page 4 of 16 26.12.1991. Thereafter, she submitted several representations to the Inspector of Schools ventilating her grievance but no action was taken. Further, she was not paid her monthly salary from November, 1991 and suddenly she was prevented from signing on the attendance register with effect from 26.12.1991. The Inspector of Schools, by order dated 18.11.1992 directed the Secretary of the Managing Committee to allow her to sign on the attendance register and accordingly, the Managing Committee allowed her to sign as such. Again, the opposite party No.5 fell ill from 21.10.1992 to 07.11.1992 and accordingly, she remained on leave by submitting appropriate application with medical certificate but the Secretary of the Managing Committee refused to receive the leave application but due to intervention of the Inspector of School, the leave period was also regularised. Again from 29.03.1993 to 24.06.1993, the opposite party No.5 being in an advanced stage of pregnancy availed maternity leave for the said period. But after completion of the period of leave, when she went to the school, she was not allowed to sign on the attendance register. She again W.P.(C) No. 13566 of 2007 Page 5 of 16 approached the Inspector of Schools by letter dated 06.07.1993. The Inspector of Schools, vide letter dated 25.10.1994 directed the headmaster of the school to remain present along with other members of the staff in course of an inquiry to be conducted in the matter. The Assistant Inspector of Schools conducted an inquiry on 31.10.1994 and submitted appropriate report. The opposite party No.5 claims to have continued to discharge her duties by attending her classes regularly and by signing the attendance register till 04.01.1995. However, on 05.01.1995, the headmaster of the school prevented her to attend examination duty and to sign the attendance register. When she protested, she was driven out from the school with the help of a peon. She met the Inspector of Schools and submitted her grievance, but no action was taken. Accordingly, she filed an appeal before the Director, Secondary Education. In the meantime, the petitioner, who happens to be the son of the President of the Managing Committee, was appointed as Classical Teacher in place of the opposite party No.5 with effect from 01.03.1997. W.P.(C) No. 13566 of 2007 Page 6 of 16 5. The Director without taking into consideration the materials available or record and basing on an ex-parte inquiry report of the Assistant Inspector of Schools and without giving any opportunity to the opposite party No.5 rejected the appeal by order dated 16.05.2005. The opposite party No.5 therefore, submitted a representation to the Government to conduct further enquiry into the matter. Accordingly, two responsible officers of the Government being the Special Secretary and the Inspector of Schools conducted a spot inquiry by going through the documents available in the school and also questioned the villagers and ex-teachers present at the relevant time. Basing on such inquiry, they submitted a report, wherein it was clearly indicated that the opposite party No.5 was wrongfully terminated from service without following due procedure. In the meantime, the opposite party No.5 had approached this Court in OJC No.10540 of 1997 challenging the order passed by the Director. Said writ application was disposed of by order dated 16.08.2007 granting her liberty to move representation before the appropriate authorities under the Government on the W.P.(C) No. 13566 of 2007 Page 7 of 16 basis of the inquiry report. Pursuant to such order, the opposite party No.5 submitted representation on 18.09.2007 before the Inspector of Schools, Balasore Circle. By order dated 08.10.2007, the Inspector of Schools after considering the inquiry report allowed the representation by directing the Managing Committee to allow the opposite party No.5 to work as Classical Teacher by disallowing the petitioner to work in that school. According to the opposite party No.5, she was prevented from discharging her duties with effect from 04.01.1995 which amounts to termination of her service, but the same being violative of the principles of natural justice, the appeal filed by her should have been allowed by the Director. However, the Director was swayed away by the statement of a senior clerk attached to the office of the Inspector of Schools and therefore, the appeal was rejected. In any case, the action of the Managing Committee in refusing employment to the opposite party No.5 was actuated by malafides, inasmuch as the petitioner, who happens to be the son of the then President of the Managing Committee, was appointed in place of the opposite party No.5 and in W.P.(C) No. 13566 of 2007 Page 8 of 16 order to do so, the opposite party No.5 was wrongfully deprived of employment. It is further stated that the matter was enquired into by two responsible officers of the Government, who found that there was no valid reason to terminate the services of the opposite party No.5 and moreover, proper procedure had not been followed. Therefore, the impugned order was passed directing the Managing Committee to take back opposite party No.5 into employment by disallowing the petitioner to work as Classical Teacher. It is also stated that the petitioner has no valid right to continue in employment. 6. The stand of the State Government is that the Managing Committee of the School terminated the services of the opposite party No.5 without following due procedure. Further, the Managing Committee without being aware of Government Rules and norms prescribed for aided/unaided Educational Institutions engaged the petitioner in the post held by the opposite party No.5 with effect from 10.07.1987. The petitioner was appointed without following any procedural method regulating the service conditions under W.P.(C) No. 13566 of 2007 Page 9 of 16 the above category of schools and therefore, no right is conferred upon him. Moreover, an inquiry was conducted jointly by the Special Secretary and the Inspector of Schools on the basis of school records. It was established in course of inquiry that the action of the Managing Committee in terminating the services of opposite party No.5 was illegal and in contravention of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. The inquiring authority also suggested both the parties to settle the problem amicably after discussion. 7. Heard Mr. Budhadev Routray, learned Senior Counsel with Mr. J. Biswal, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State; and Mr. J.K. Rath, learned Senior Counsel with Mr. A.K. Saa, learned counsel for the opposite party No.5. 8. Mr. Routray would argue that once the Director being the appellate authority had dismissed the appeal preferred by the opposite party No.5 after considering all the W.P.(C) No. 13566 of 2007 Page 10 of 16 relevant facts including the inquiry conducted by the Assistant Inspector of Schools, the Inspector of Schools lacked authority to pass any order overriding the order passed by the appellate authority, which almost amounts to reviewing the order passed by higher authority. According to Mr. Routray, this is impermissible in law. Mr. Routray further argues that the inquiry conducted by the Special Secretary was without any legal basis and conducted without notice to the petitioner or the Managing Committee. 9. Mr. J.K. Rath, learned Senior Counsel appearing for the opposite party No.5 would argue that the entire objective of the managing committee was to somehow appoint the petitioner in place of the opposite party No.5 as he happened to be the son of the then President of the Managing Committee. Moreover, the refusal of employment to opposite party No. 5, which amounts to termination of her services, was entirely without following the due procedure laid down in law. The inquiry committee formed by two senior officers of the Government, after perusing the records of the school, clearly found that proper procedure had not been followed W.P.(C) No. 13566 of 2007 Page 11 of 16 either in terminating the services of the opposite party No.5 or in appointing the petitioner in her place. As such, the Inspector of Schools rightly held that the termination of opposite party No. 5 is illegal. 10. Mr. Pattnaik, learned State Counsel also makes similar arguments as Mr. Rath noted above. He further submits that the petitioner was appointed in the termination vacancy of opposite party No.5 without following due procedure by the Management. That apart, the termination of opposite party No.5 in the form of refusal of employment was also without following due process of law. 11. I have carefully considered the rival submissions and have also gone through the materials available on record. The facts of the case, as narrated, are not disputed. The opposite party No.5 was appointed as a Classical Teacher in the school way back in the year 1987. She continued as such till 1995 when she claims to have been illegally terminated by way of refusal of employment. There is also no dispute that the petitioner was appointed in the vacancy so caused in the year 1997 and has been continuing as Classical Teacher till W.P.(C) No. 13566 of 2007 Page 12 of 16 date. In the additional affidavit filed by the petitioner it is seen that a certificate has been issued by the headmaster certifying that the petitioner has been performing his duties continuously since 01.03.1997 till date and that his performance is satisfactory. Further his services have been approved by the Government. At the same time, this Court is also conscious of the fact that as per the inquiry conducted by the Special Secretary and the Inspector of Schools jointly, it was revealed that the opposite party No.5 was terminated without following proper procedure of law. The parties have been litigating since 1997. In course of hearing, on a query posed by this Court, learned State Counsel has obtained instructions to the effect that there is a vacancy of Classical Teacher due to retirement of the incumbent in a similar category school i.e. Mohan Charan High School, Aladiha (new aided) under Baliapal Block in the district of Balasore. This is a peculiar case where the petitioner having been appointed against the termination vacancy, has been continuing as such for the last 27 years and his services have been duly approved. If there was any procedural irregularity in his W.P.(C) No. 13566 of 2007 Page 13 of 16 appointment, the same obviously cannot be agitated at this distance of time. Moreover, he cannot be faulted with for the wrong committed by the management at the relevant time. At the same time it must also be borne in mind that the opposite party No. 5 was validly appointed in the year 1987 and continued as such till 1995 when she appears to have been refused employment without following the due procedure. The question is, whether in such peculiar facts and circumstances is it necessary or would it be equitable to implement the order passed by the Inspector of Schools holding the termination of the opposite party No.5 as illegal. It would rather enure to the benefit of all parties if the opposite party No. 5 is restored her position and at the same time the petitioner, who has been discharging his duties satisfactorily for the last 27 years, is also protected. Since there is a vacancy available in a similar school in the very same district, this Court is of the considered view that the opposite party No. 5 or the petitioner can be adjusted in the said vacancy without causing any prejudice to the other person. This Court is conscious of the fact that the impugned W.P.(C) No. 13566 of 2007 Page 14 of 16 order may not require any interference in view of the fact that the Managing Committee did not follow proper procedure while terminating the services of the opposite party No.5 but then, as has already been stated hereinbefore, the petitioner cannot also be blamed for the mistake committed by the Managing Committee and that too, at this distance of time. If the impugned order is to be implemented strictly, it would result in termination of services of the petitioner, which obviously would affect his right to livelihood guaranteed under Article 21 of the Constitution of India. Therefore, taking an overall view of the matter, particularly in the peculiar facts and circumstances of the case and without setting a precedent, this Court holds that ends of justice would be best served if the interests of both the petitioner and opposite party No. 5 are protected. In other words, the petitioner having been appointed subsequently to the opposite party No. 5 can be conveniently adjusted in the aforementioned vacancy while the opposite party No.5 can be reinstated in her former post. W.P.(C) No. 13566 of 2007 Page 15 of 16 12. For the foregoing reasons therefore, the writ petition is disposed of with the following directions: (i) The opposite party No.5 shall be reinstated in her former post as directed by the Inspector of Schools in the impugned order. (ii) The opposite party authorities shall pass necessary orders to appoint the petitioner in any available vacancy in a nearby school by granting him continuity of service. (iii) The impugned order is modified accordingly. ..…..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 17th January, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personsal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Jan-2025 12:26:30 W.P.(C) No. 13566 of 2007 Page 16 of 16