The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 6917 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Swarnalata Dei …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. T. Pattanayak (Advocate) For Opp. Parties : Mr. M.K. Balabantaray, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 09.08.2024 & Date of Judgment: 09.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. T. Pattanayak, leaned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Pursuant to the order passed by this Court on 05.08.2024, Sri Santosh Kumar Rout, D.E.O., Cuttack appeared in Person and fairly contended // 2 // that by the time D.E.O., Cuttack was appointed as Special Officer, OSAP High School, Cuttack vide letter dt.24.07.2018 under Annexure- 2, there was no approved Managing Committee of the School in question. But on the face of such continuance of the approved Managing Committee, D.E.O., Cuttack was appointed as the Special Officer vide letter issued by the Opp. Party No. 2 on 24.07.2018 under Annexure-10 and while acting as Special Officer of the School in terms of Annexure-10, proceeding vide Memorandum dtd.17.09.2021 under Annexure-14 was initiated by Opp. Party No. 4 in his capacity as Special Officer. 4. Petitioner has filed the present writ petition inter alia with the following prayer:- “It is, therefore, most humbly prayed that this Hon’ble Court may be graciously pleased to admit this writ petition, issue Rule NISI by calling upon the Opposite Parties as letter dtd.24.07.2018 under Annexure-10 and the proceeding dated 17.09.2021 under Annexure-14 shall not be quashed as illegal, arbitrary, without jurisdiction and contrary to law. impugned to why the And issue any further direction/s, order/s or writ/s as would be deemed fit and proper in the circumstances of the case. And for the said act of kindness, the petitioner shall as in duty bound ever pray.” 4.1. It is the case of the Petitioner that Petitioner while continuing as a Trained Graduate Asst. Teacher in Odisha Police High School, Tulsipur, Cuttack, she was promoted and posted as Headmaster in OSAP High School, Cuttack vide order dtd.21.08.2017 of Opp. Party No. 3. In terms of the said order Petitioner joined as Headmaster in OSAP High School, 6th Bn., Cuttack on 11.09.2017. Page 2 of 21 // 3 // 4.2. It is contended that while continuing as such, Petitioner as the Headmaster of the School called a meeting of the all the staffs on 17.01.2018 and asked all the staff to submit their original documents pertaining to their appointment, approval and educational certificates as their personal files are not available in the office. 4.3. It is contended that subsequently Opp. Party No. 4 vide letter dtd.19.03.2018 under Annexure-3 asked the Petitioner to submit various documents pertaining to 3 teachers of the school, whose documents the Petitioner had asked to be produced vide his letter dtd.17.01.2018. 4.4. It is contended that on receipt of the letter dtd.19.03.2018 Petitioner vide letter dtd.24.03.2018 under Annexure-4 intimated that documents as required are available in the personal file of the concerned teachers maintained in his office and requested for an extensive enquiry at the level of Opp. Party No. 4.
Legal Reasoning
Officer, Cuttack appeared before this Court in person. 4. It is contented by both of them that the School-in question has no approved Managing Committee and in absence of any approved Managing Committee, in terms of the order issued by Director Secondary Education on 25.01.2019, the D.E.O., Cuttack is acting as the Special Officer of the Managing Committee and is authorized to exercise all the powers and functions of the Managing Committee of the School in question. 5. It is further contended that in that capacity, the D.E.O., Cuttack has initiated the proceeding against the Petitioner vide Memorandum dated 17.09.2021 under Annexure-14. 6. Ms. S. Pattanaik, learned counsel for the Petitioner is directed to produce the document showing that as on 17.09.2021 there was approved Managing Committee of the School. 7. As requested by Ms. Pattnaik, learned counsel for the Petitioner, list this matter in the week commencing 26th of June, 2023. Page 14 of 21 // 15 // 8. Personal appearance of the Ex and present D.E.O, Cuttack is dispensed with for the time being.” 01.07.2024 “2. Heard learned counsel appearing for the Parties. 3. Mr. Pattanayak, learned counsel appearing for the Petitioner contended that by the time Opp. Party No. 3 was appointed as a Special Officer vide order dtd.24.07.2018 under Annexure-10, since the School in question was having a validly constituted approved managing committee, Opp. Party No. 3 could not have been appointed as Special Officer. 4. Not only that while in Para 6 of the counter, a stand was taken by the DEO that as on 31.07.2018 there was no approved managing committee of the School in question, but while initiating the proceeding vide memorandum dtd.17.09.2021 under Annexure-14, the self-same DEO has relied on the proceeding of the managing committee dtd.31.07.2018. 5. In view of such stand taken in Para 6 of the counter vis-à-vis Annexure-3 to the memorandum, learned Addl. Govt. Advocate is directed to file an affidavit as to whether by the time Opp. Party No. 3 was appointed as Special Officer vide order dtd.24.07.2018, the school was having a Managing Committee. 6. Mr. Pattanayak is also directed to implead the Managing Committee of the School as Party to the writ petition by filing appropriate application in that regard. 7. As requested, list this matter on 8th July, 2024.” 05.08.2024 “2. Heard learned counsel for the Parties. Page 15 of 21 // 16 // 3. Pursuant to the order dt.01.07.2024, two (2) separate affidavits filed by the District Education Officer, Cuttack in Court be kept on record. 4. Considering the stand taken in Para-7-A of the affidavit dt.09.07.2024 and stand taken in Para-4 of the affidavit of 12.07.2024, this Court directs Opp. Party No.3 to appear in person before this Court on 09.08.2024 and satisfy as to under which provision, Financial and Administrative Head was appointed in the School in question who has issued Annexure-F/4 to the affidavit dt.12.07.2024. Opp. Party No.3 is also further directed to satisfy this Court as to how on the face of the stand taken in Para-6 of the counter affidavit and Para-7-A of the affidavit dt.09.07.2024, while initiating the proceeding on 17.09.2021 under Annexure-14, proceeding of the Managing Committee dt.31.07.2018 has been relied on. 5. List this matter on 09.08.2024. Free copy of this order be provided to Mr. M.K. Balabantaray, learned Addl. Govt. Advocate for compliance.” 5.3. Pursuant to the order passed by this Court on 05.08.2024, learned Addl. Govt. Advocate produced the instruction provided by Opp. Party No. 4 vide his letter No. 10871 dtd.08.08.2024. Basing on such instruction and the stand taken in the counter affidavit and further affidavits filed, learned Addl. Govt. Advocate contended that taking into account the allegations lodged against the Petitioner, pursuant to the letter issued by the Directorate of Secondary Education on 08.04.2021, the proceeding in question was initiated against the Petitioner vide Memorandum dtd.17.09.2021 in exercise of the power conferred under Rule 22 of the Odisha Education (Recruitment & Page 16 of 21 // 17 // Conditions of Service of teachers & members of the Staff of Aided Educational Institution) Rules, 1974. 5.4. After such initiation of the proceeding and for smooth functioning of the School, Opp. Party No. 2 withdrew the administrative and financial power of the Petitioner and decided to delegate the same to the next senior most and suitable teacher of the School vide letter dtd.16.09.2019. But subsequently, Smt. Abhijita Bhaskar, OES-II, Headmaster of Municipal High School, Bidanasi, Cuttack was authorized to exercise the administrative and financial power of the School, while allowing the Petitioner to continue as the academic head of the School. It is also decided that all service matters will be rooted through Smt. Abhijita Bhaskar vide Director Order No. 6882 dtd.02.03.2021. 5.5. With regard to the stand taken in the Memorandum dt.17.09.2021 in relying on the proceeding of the Managing Committee dt.31.07.2018, learned Addl. Govt. Advocate contended that the same has been clarified in Para 7(b) & (c) of the affidavit dtd.09.07.2024. Para 7(b) & (c) of the affidavit dtd.09.07.2024 reads as follows:- “7. b. That though the meeting on dated 31.07.2018 was convened without approval of the deponent the proceedings of the same was forwarded to this deponent on the letter of the Commandant, SAG, 6th OSAP Battalion, Cuttack vide memo no 7107 dated 03.08.2018. c. That it revealed from the said Report that the petitioner herself was a signatory to the said meeting where the high handed action of the petitioner herself was discussed. It was lastly viewed in (para-4) that if she will continue in the school the education process of the school will be hampered day to day as she is not willing to continue in the school as Head Mistress. Therefore the same was relied on as document for the proposed charges as shown in SI No-2 in Annexure III (memo of Evidence) of the Page 17 of 21 // 18 // memorandum dated 17.09.2021 as in Annexure-14 for submission of written statement for defence.” 5.6. Learned Addl. Govt. Advocate basing on the stand taken in the counter affidavit and the stand taken in various affidavits filed pursuant to the order passed by this Court on 01.07.2024 and 05.08.2024, contended that since Petitioner was involved in various irregularities, basing on the direction issued by Opp. Party No. 2 vide letter dtd.08.04.2021, the proceeding in question was initiated vide Memorandum dtd.17.09.2021. But prior to such initiation of the proceeding basing on the letter issued on 16.09.2019, administrative and financial power of the Petitioner was withdrawn and it was decided to delegate the same to the next senior and suitable teacher. But the said direction contained in letter dtd.16.09.2019 was modified vide order dtd.02.03.2021, whereby Smt. Abhijita Bhaskar, Headmaster, Municipal High School, Bidanasi, Cuttack was authorized to exercise the administrative and financial power of the School and in that capacity letter dtd.11.07.2024 was issued by Smt. Abhijita Bhaskar so enclosed to additional affidavit dtd.12.07.2024. It is accordingly contended that not only Opp. Party No. 4 was rightly appointed as Special Officer of OSAP High School vide letter dtd.24.07.2018, but also the proceeding has been rightly initiated vide Memorandum dtd.17.09.2021. But in view of the pendency of the matter before this Court, no progress has been made to the proceeding in question. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was appointed as Headmaster in OSAP High School, 6th Battalion, Cuttack vide office order dtd.21.08.2017, where she joined on 11.09.2017. As found from the record Petitioner while so continuing, Opp. Party No. 4 Page 18 of 21 // 19 // was appointed as the Special Officer vide letter dtd.24.07.2018 under Annexure-10. 6.1. Subsequently, pending initiation of the proceeding Petitioner though was placed under suspension vide office order dtd.11.02.2019, but the said order was withdrawn vide order dtd.26.02.2019 under Annexure-12 series. In spite of such withdrawal of the order dt.11.02.2019 vide letter issued on 16.09.2019, administrative and financial power of the Petitioner was withdrawn and it was decided to delegate the same to the next senior and suitable teacher. But vide office order dtd.02.03.2021 one Smt. Abhijita Bhaskar, Headmaster, Municipal High School, Cuttack was authorized to exercise the administrative and financial power of the School and Petitioner was only allowed to continue as the academic head of the School. 6.2. As found from the record and the stand taken in the affidavit as well as the instruction provided by Opp. Party No. 4 vide letter dtd.08.08.2024, the proceeding was initiated against the Petitioner vide Memorandum dtd.17.09.2021 in his capacity as the Special Officer of the School and basing on the letter issued by Opp. Party No. 2 on 08.04.2021. But in view of the categorical statement made by Opp. Party No. 4 on his personal appearance today that as on 24.07.2018 there was an approved Managing Committee of the School in question, as per the considered view of this Court, during subsistence of such approved Managing Committee, Opp. Party No. 4 could not have been appointed as the Special Officer vide letter dtd.24.07.2018 under Annexure-10. 6.3. Even though such a letter was issued by Opp. Party No. 3 basing on the permission granted in the relevant file so enclosed to the counter, Page 19 of 21 // 20 // but since as on 24.07.2018 there was an approved Managing Committee, there was no occasion on the part of Opp. Party No. 2 to issue such a direction for appointment of Opp. Party No. 4 as Special Officer and the said action of the Opp. Party No. 2 is contrary to the provisions contained under Sec. 7-A (3) of the Act. 6.4. Not only that in spite of several opportunities being given by this Court with passing of order in that regard, Opp. Party No. 4 failed to provide the order of approval, showing approval of the Managing Committee of the School in question at different point of time in order to justify the appointment of Opp. Party No. 4 as Special Officer vide letter dtd.24.07.2018 under Annexure-10. In the alternate, Opp. Party No. 4 while appearing in Person fairly admitted that there was an approved Managing Committee of the School as on 24.07.2018. 6.5. In view of such categorical assertion made by Opp. Party No. 4, this Court is of the view that Opp. Party No. 4 could not have been appointed as Special Officer of the School vide letter dtd.24.07.2018 of Opp. Party No. 3 under Annexure-10 in exercise of the power conferred under Sec. 7-A(3) of the Act. 6.6. Since the very appointment of Opp. Party No. 4 as Special Officer of the School vide letter dtd.24.07.2018 is not in accordance with law, consequential action taken by the said Opp. Party No. 4 in his capacity as Special Officer while initiating the proceeding vide Memorandum dtd.17.09.2021 is also not sustainable in the eye of law in view of the decision of the Hon’ble Apex Court in the case of Kalabharati Advertising and Devendra Kumar as cited supra. Page 20 of 21 // 21 // 6.7. It is also the view of this Court that vide order dtd.11.02.2019 and pending initiation of the proceeding, Petitioner though was placed under suspension, but the said order was withdrawn vide order dtd.26.02.2019 of Opp. Party No. 4 under Annexure-12 series. 6.8. In view of such withdrawal of the order dtd.11.02.2019, no further action could have been taken against the Petitioner basing on the direction issued by Opp. Party No. 2; more particularly vide letter dtd.16.09.2019 and order dtd.02.03.2021. Therefore, in view of the aforesaid analysis and the stand taken by Opp. Party No. 4 that as on 24.07.2018 there was an approved Managing Committee of the School, appointment of Opp. Party No. 4 vide letter dtd.24.07.2018 under Annexure-10 and the initiation of the proceeding by the self-same Opp. Party No. 4 in his capacity as Special Officer of the School vide Memorandum dtd.17.09.2021 under Annexure-14 as per the considered view of this Court are not sustainable in the eye of law. 6.9. Therefore, this Court is inclined to quash the appointment of Opp. Party No. 4 as Special Officer of the School vide letter dtd.24.07.2018 under Annexure-10 and consequential initiation of the proceeding by Opp. Party No. 4 vide Memorandum dtd.17.09.2021 under Annexure- 14. While quashing the letter dtd.24.07.2018 under Annexure-10, and the proceeding dtd.17.09.2021 under Annexure-14, this Court allows
Arguments
4.5. It is contended that while the matter stood thus, the concerned three (3) teachers jointly represented to the Commandant, OSAP 6th Bn., Cuttack-Opp. Party No. 6 alleging non-fixation of their pay under ORSP Rules, 2017. Opp. Party No. 6 on receipt of the said complaint, referred the matter to the D.G. of Police vide letter dtd.23.05.2018. On receipt of letter dtd.23.05.2018, Asst. Inspector General of Police, Headquarters vide letter dtd.21.06.2018 called upon the Petitioner to submit a detailed report along with the reasons under which pay of the aforesaid three (3) teachers has not been fixed under ORSP Rules, 2017 by 26.06.2018. In response to letter dtd.21.06.2018 Petitioner submitted a detailed report indicating the reasons with regard to non-fixation of Page 3 of 21 // 4 // the pay of the concerned 3 teachers vide letter dtd.25.06.2018 under Annexure-6. 4.6. It is contended that in terms of the letter issued on 19.03.2018, Opp. Party No. 4 though called upon the Petitioner to submit the service book of aforesaid three teachers, but the same could not be submitted due to non-cooperation of the concerned three (3) teachers of the School. 4.7. It is contended that after receipt of the report from the Petitioner under Annexure-6, AIG of Police, Headquarters, vide letter dtd.06.07.2018 intimated Opp. Party No. 6 to ask the previous Headmaster of the School to explain under which circumstances the break period of service of nine (9) nos. of teaching and non-teaching of the School have not been regularized/verified and how their pay has been fixed under 6th revised scale of pay Rules with sanction of increment vide Annexure-7. 4.8. It is contended that on receipt of letter dtd.06.07.2018 under Annexure-7, Petitioner vide letter dtd.27.07.2018 under Annexure-8 sought for a suitable clarification and also transmitted the service book of all the nine (9) teaching and non-teaching staff of the school, which was duly received on 30.07.2018. But in the meantime vide letter dtd.28.07.2018 under Annexure-10, Opp. Party No. 4 was appointed as the Special Officer in order to exercise the power of the Managing Committee with the plea that there is no management in OSAP School, Cuttack. 4.9. Learned counsel for the Petitioner contended that as per the provisions contained under Sec. 7-A(3) of the Odisha Education Act, Page 4 of 21 // 5 // 1969, Opp. Party No. 3 was not competent to appoint Opp. Party No. 4 as Special Officer of OSAP High School, Cuttack. Sec. 7-A(3) of the Act reads as follows:- “(3) During the period intervening the supersession or expiry of the term of a managing committee or governing body, as the case may be, and its reconstitution, the powers and functions of the managing committee or the governing body, as the case may be, shall be exercised by such person or persons as the prescribed authority may appoint.” 4.10. Placing reliance on the aforesaid provision, learned counsel for the Petitioner contended that it is only the Opp. Party No. 2 who is competent to issue any such order allowing Opp. Party No. 4 to act as the Special Officer. Since Opp. Party No. 4 was appointed as the Special Officer vide order issued by Opp. Party No. 3 on 30.07.2018 under Annexure-10, such appointment of Opp. Party No. 4 as Special Officer is not sustainable in the eye of law. In support of his aforesaid submission, learned counsel appearing for the Petitioner relied on the following decisions of the Hon’ble Apex Court:- i. Ramachandra Keshav Adke (Dead) by LRs. & Ors. Vs. Govind Joti Chavare & Ors., (1975) 1 SCC 559 ii. Chandra Kishore Jha Vs. Mahavir Prasad & Ors., (1998) 8 SCC 266 iii. Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179 iv. State of Jharkhand & Ors. Vs. Ambay Cements & Anr., (2005) 1 SCC 368 Page 5 of 21 // 6 // v. Krushna Chandra Sahoo Vs. Bank of India & Ors., 2008 (II) OLR 789 vi. Satish Kumar Ishwardas Gajbhiye @ Satish Kumar Gajbhiye Vs. Union of India & Ors., 2021 (I) ILR-CUT-104 4.11. Hon’ble Apex Court in Para 25 of the Judgment in the case of Ramachandra Keshav Adke has held as follows:- “25. A century ago, in Taylor v. Taylor, Jassel, M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor and later by this Court in several cases, to a magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the Legislature plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." The rule will be attracted with full force in the present case, because non- verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the Legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b).” 4.12. Hon’ble Apex Court in Para 17 of the Judgment in the case of Chandra Kishore Jha has held as follows:- “17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the rules h thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well- settled salutary principle that if a statute provides for a thing to be done in Page 6 of 21 // 7 // a particular manner, then it has to be done in that manner and in no other manner.” 4.13. Hon’ble Apex Court in Para 20 of the Judgment in the case of Haresh Dayaram Thakur has held as follows:- “20. In the case in hand, as appears from the materials on record, no such procedure as prescribed under Part III of the Act has been followed by the conciliator. The conciliator appears to have held some meetings with the parties in which there was discussion and thereafter drew up the so-called settlement agreement by himself in secrecy and sent the same to the Court in a sealed cover. Naturally the so-called settlement agreement drawn up by the conciliator does not bear the signatures of the parties. As the impugned order shows, the said settlement has been given a status higher than an arbitral award inasmuch as the Court has refused to even entertain any objection against the said settlement agreement reiterating the position that the settlement arrived at by the conciliator will be binding on the parties. The conciliator who is a former Judge of the High Court and the learned Judge who passed the impugned order failed to take note of the provisions of the Act and the clear distinction between an arbitration proceeding and a conciliation proceeding. The learned Judge in passing the impugned order failed to notice the apparent illegalities committed by the conciliator in drawing up the so-called settlement agreement, keeping it secret from the parties and sending it to the Court without obtaining their signatures on the same. The position is well settled that if the statute prescribes a procedure for doing a thing, a thing has to be done according to that procedure. Thus the order passed by the High Court confirming the settlement agreement received from the conciliator is wholly unsupportable.” 4.14. Hon’ble Apex Court in Para 26 of the Judgment in the case of Ambay Cements has held as follows:- “26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the f manner prescribed and not in any other way. It is also settled rule of interpretation that Page 7 of 21 // 8 // where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission therefore, non- compliance with the same must result in cancelling the concession made in favour of the grantee, the respondent herein.” is mandatory, 4.15. This Court in Para 48 of the Judgment in the case of Krushna Chandra Sahoo has held as follows:- “10. When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alterius", meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. (Vide State of Bihar v. J.A.C. Saldanna, AIR 1980 SC 327; Haresh Dayaram Thakur v. State of Maharashtra & Ors., (2000) 6 SCC 179; Prabha Shankar Dubey v. State of Madhya Pradesh, AIR 2004 SC 486, and Indian Banks Association v. Devkala Consultancy Service, AIR 2004 SC 2615).” 4.16. This Court in Para 26 of the Judgment in the case of Satish Kumar Gajbhiye has held as follows:- “26. A proceeding which is not initiated in lawful manner sans the avowed principles of natural justice cannot be a just proceeding and is void ab initio. This writ petition is allowed accordingly. Consequently, the Opposite Parties are directed to confer all the promotions and benefits appurtenant thereto retrospectively to the petitioner vis-a-vis his batch mates within a month from today. No order as to cost.” 4.17. It is contended that after such appointment of Opp. Party No. 4 as Special Officer vide letter dtd.24.07.2018 under Annexure-10, Petitioner was issued with a show-cause by Opp. Party No. 4 on Page 8 of 21 // 9 // 28.07.2018 under Annexure-11. Not only that Opp. Party No. 4 issued another office order purportedly issued on 11.02.2019, wherein Petitioner was placed under suspension pending initiation of the proceeding. Petitioner challenging such order of suspension when approached this Court in W.P.(C) No. 4158 of 2019 and this Court issued notice of the matter vide order dtd.20.02.2019, the order of suspension issued on 11.02.2019 was recalled and Petitioner was allowed to continue as Headmaster of the School in question vide order dtd.26.02.2019 under Annexure-12 series. But in terms of the show- cause issued on 28.07.2018 under Annexure-11, Petitioner submitted the reply on 14.08.2018 vide Annexure-13. 4.18. It is contended that without taking a final decision on the show- cause issued under Annexure-11 taking into account the reply, Opp. Party No. 4 in his capacity as the Special Officer initiated the impugned proceeding vide Memorandum dtd.17.09.2021 under Annexure-14. 4.19. Learned counsel for the Petitioner contended that pending initiation of the proceeding Petitioner was placed under suspension vide order dtd.11.02.2019 and the said order of suspension was recalled vide office order dtd.26.02.2019 under Annexure-12 series. In view of such recalling of order dtd.11.02.2019, no proceeding could have been initiated vide Memorandum dt.17.09.2021 under Annexure-14. It is also contended that Petitioner though submitted a detailed reply to the show-cause issued on 28.07.2018, but without taking a final decision on the same, the impugned proceeding was initiated by Opp. Party No. 4 vide Memorandum dtd.17.09.2021 under Annexure-14 in his capacity as the Special Officer so appointed by Opp. Party No. 3 vide letter dtd.24.07.2018 under Annexure-10. Page 9 of 21 // 10 // 4.20. It is contended that since the very appointment of Opp. Party No. 4 as Special Officer vide order dt.24.07.2018 under Annexure-10 is not in accordance with the provisions contained under Sec. 7-A(3) of the Act and such an appointment was made during subsistence of the approved Managing Committee, Opp. Party No. 4 was not competent to initiate the proceeding vide Memorandum dtd.17.09.2021 under Annexure-14 in his capacity as Special Officer. 4.21. It is also contended that Opp. Party No. 4 was so appointed as Special Officer vide letter dtd.24.07.2018 in terms of the provisions contained under Sec. 7-A(3) of the Act and such an appointment was made on the ground that there is no approved Managing Committee functioning at the school as on 24.07.2018. But while initiating the proceeding vide Memorandum dtd.17.09.2021 under Annexure-14, Opp. Party No. 4 relied on the proceeding of the Managing Committee dtd.31.07.2018, so reflected in Annexure-III to the Memorandum. 4.22. It is contended that since Opp. Party No. 4 was appointed as Special Officer on the ground that there is no Managing Committee functioning in the School vide letter dt.24.07.2018, while initiating the proceeding on 17.09.2021 under Annexure-14, Opp. Party No. 4 could not have relied on the proceeding of the Managing Committee dtd.31.07.2018 under Annexure-16. 4.23. Learned counsel for the Petitioner contended that since the very appointment of Opp. Party No. 4 as Special Officer made by Opp. Party No. 3 vide letter dtd.24.07.2018 under Annexure-10, is not in accordance with the provisions contained under Sec. 7-A (3) of the Act and during subsistence of the approved Managing Committee, any further action taken by Opp. Party No. 4 in that capacity with initiation Page 10 of 21 // 11 // of the proceeding on 17.09.2021 under Annexure-14 is also not sustainable in the eye of law. It is contended that if initial action is not in consonance with law, subsequent conduct of the Party cannot sanctify the same. 4.24. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of the Hon’ble Apex Court in the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania & Ors. (2010) 9 SCC 437. Hon’ble Apex Court in Para 20 of the said Judgment has held as follows:- “20. The aforesaid judgments are passed on the application of legal maxim sublato fundamento, cadit opus, which means in case a foundation is removed, the superstructure falls.” 4.25. Reliance was also placed to another decision of the Hon’ble Apex Court rendered in the case of Devendra Kumar Vs. State of Uttaranchal (2013) 9 SCC 363. Hon’ble Apex Court in Para 25 of the said Judgment has held as follows:- “25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide Union of Inida v. Major General Madam Lal Yadav, (1996) 4 SCC 127 and Lily Thomas v. Union of India, (2000) 6 SCC 224.) Nor can a person claim any right arising out of his wrongdoing (jus ex injuria non oritur).” 4.26. It is contended that since Opp. Party No. 4 was illegally appointed as Special officer of the School in question during continuance of a validly approved Managing Committee and in that capacity Opp. Party No. 4 initiated the proceeding vide Memorandum dt.17.09.2021 under Page 11 of 21 // 12 // Annexure-14, the appointment of Opp. Party No. 4 as Special Officer vide letter dt.24.07.2018 under Annexure-10 and consequential initiation of the proceeding vide Memorandum dt.17.09.2021 under Annexure-14 are not sustainable in the eye of law. 5. Learned Addl. Govt. Advocate placing reliance on the stand taken in the counter affidavit when justified the appointment of Opp. Party No. 4 as Special Officer vide letter issued on 24.07.2018 under Annexure- 10 and the initiation of the proceeding by Opp. Party No. 4 in his capacity as Special Officer vide Memorandum dt.17.09.2021 under Annexure-14, this Court passed the following order on 02.03.2023:- “2. Heard Ms. S. Pattnaik, learned counsel for the Petitioner and Mr. Sangram Jena, learned Standing Counsel appearing for the Opp. Parties. 3. It is contended by Ms. Pattnaik that earlier the Petitioner challenged the order of suspension passed by the District Education Officer, Cuttack in W.P.(C) No. 4158 of 2019 on the ground that the said authority is not competent to issue such an order. When this Court on 20.02.2019 issued notice of the matter, District Education Officer, Cuttack immediately recalled the order of suspension passed by him on 11.02.2019 vide order dtd.26.02.2019. A perusal of the order dtd.26.02.2019 available at Annexure-12 series does not show the reason for withdrawing the order of suspension so passed by the District Education Officer, Cuttack. 4. This Court accordingly directs the District Education Officer, Cuttack to apprise this Court as to the reason for recalling the order dtd.11.02.2019. Such an affidavit shall be filed by 10th March, 2023. 5. As requested, list this matter on 13.03.2023.” 5.1. Pursuant to order dt.02.03.2023 when an affidavit was filed by Opp. Party No. 4, this Court passed the following order on 24.03.2023:- Page 12 of 21 // 13 // “2. Pursuant to the order passed by this Court on 02.03.2023, though an affidavit has been filed by the Opp. Party No. 3, but this Court is not satisfied with the grounds taken in the said affidavit. 3. Mr. S. Jena, learned Standing Counsel accordingly submitted that he may be given an opportunity to obtain positive instruction in the matter. 4. As requested by Mr. S. Jena, learned Standing Counsel, list this matter on 31.03.2023.” 5.2. Considering the stand taken in the affidavits filed by Opp. Party No. 4, the following orders were passed on 18.05.2023, 19.05.2023, 01.07.2024 and 05.08.2024:- 18.05.2023 “2. Heard learned counsel for the parties. 3. Pursuant to the order passed by this Court on 17.05.2023, Mr. Krushna Chandra Nayak, District Education Officer-Cuttack appeared before this Court and contended that the order of suspension earlier passed by the self-same authority was withdrawn by the earlier D.E.O., where no reason has been assigned in the record for withdrawing the same. In view such statement made by the Incumbent-D.E.O, this Court directs personal appearance of Mr. Niranjan Behera, the earlier D.E.O., who had withdrawn the order of suspension without assigning any reason. 4. Mr. Balabantaray, learned Addl. Govt. Advocate is directed to cause presence of Mr. Niranjan Behera, ExD.E.O., Cuttack before this Court tomorrow along with the incumbent D.E.O., Cuttack. 5. As submitted, the incumbent D.E.O., Cuttack is also directed to produce the authorization issued by the Director, Secondary Page 13 of 21 // 14 // Education to initiate the proceeding against the petitioner by tomorrow. 6. List this matter tomorrow (19.05.2023).” 19.05.2023 “2. Heard learned counsel appearing for the Parties. 3. Pursuant to the order passed by this Court on 18.05.2023, Mr. Niranjan Behera and Mr. Krushna Chandra Nayak, the Ex- District Education Officer as well as Present District Education
Decision
the writ petition and dispose of the same . (BIRAJA PRASANNA SATAPATHY) Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2024 16:10:51 Orissa High Court, Cuttack Dated the 9th of August, 2024/Sneha Judge Page 21 of 21