The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10045 of 2012 And W.P.(C) No.12150 of 2012 (Applications under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.10045 of 2012 Abhina Kumar Swain … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioners : Mr.Sameer Ku. Das Advocate -versus- For Opposite Party Nos.1 to 3 : Mr. B.P.Tripathy, A.G.A. For Opp.Party No.4 Advocate. : Mr.M.K.Mohanty, In W.P.(C) No.12150 of 2012 Alekh Prasad Nayak … Petitioner -versus- Page 1 of 11 State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode:
Legal Reasoning
For Petitioners : Mr.Manoj Kumar Mohanty Advocate -versus- For Opposite Party Nos.1 to 3 : Mr. B.P.Tripathy, A.G.A. For Opp.Party No.4: Mr. D.K.Mohapatra, Advocate. For Opp.Party No.5: Mr. Sameer Ku. Das, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 10.5.2023. Sashikanta Mishra,J. Common questions of law and fact are involved in both the Writ Petitions. Thus, both were heard together and are being disposed of by this common judgment. W.P.(C) Nos.10045 & 12150 of 2012 Page 2 of 11 2. The Petitioner (Abhina Kumar Swain) has filed W.P.(C) No.10045/2012 with the following prayer; that to quash <Under the above circumstances, it is this therefore humbly prayed Hon’ble Court; may be graciously pleased the order dated 25.5.2012 under Annexure-14 of the Opp. Party No.2, and further be pleased to direct the Director to accord the approval the recommendation of the Governing Body dtd.26.4.2012 under Annexure-13 and allow the Petitioner to Principal-in-charge-cum- continue as Secretary of the College.= 3. The Petitioner (Alekh Prasad Nayak) has filed W.P.(C) No.10045/2012 with the following prayer; <The Petitioner most respectfully prays that the Hon’ble Court may be graciously pleased to allow the Writ Petition, issue of a writ or direction in the nature of certiorari or any other appropriate writ or direction quashing the approval of service of Opp.Party No.5 as a lecturer in Political Science of Sapaneswar college, Barhapur vide office order No.15307 dated 9.4.2012 of the Director of Higher Education, Odisha under Anhnexure-12 and further issue a writ or direction in the nature of mandamus or any other appropriate writ or direction to the Opp. Parties 1 to 4 to remove Opp.Party No.5 from service and pass such other or further order or orders as are deemed just and proper.= W.P.(C) Nos.10045 & 12150 of 2012 Page 3 of 11 4. Hereafter for convenience, the Petitioner in W.P.(C) No.10045/2012 shall be referred to by his name, Abhina Kumar Swain and the Petitioner in W.P.(C) No.12150/2012 shall be referred to by his name, Alekh Prasad Nayak. 5. The factual dispute involved in both the Writ Petitions lies in a narrow compass. Abhina Kumar Swain claims to have been appointed as Lecturer in Political Science (1st Post) in Sapaneswar College, Barhapur in the district of Kendrapara by order dated 25th April, 1993 pursuant to which he joined on 3rd May, 1993. Alekh Prasad Nayak was appointed as Lecturer in Odia (Ist Post) in the said College as per order dated 15th May, 1993 pursuant to which he joined on 22nd May, 1993. Abhina Kumar Swain was allowed to continue as Principal-in-charge of the College from the very beginning purportedly on the ground of being the senior most Lecturer of the College. The College was W.P.(C) Nos.10045 & 12150 of 2012 Page 4 of 11 notified for payment of block grant by the State Government and accordingly the staff members were granted the benefit w.e.f. 20th January, 2009. By order dated 9th April, 2012, the Government nominated the Sub-Collector as the President of the Government Body of the College and directed him to place the name of the senior most approved staff for approval as Principal-in-charge-cum-Secretary of the College. As such the Sub-Collector, Kendrapara by his letter dated 26th April, 2012 placed the name of Abhina Kumar Swain for the above purpose as he was the senior most approved teaching staff. However, by letter dated 25th May, 2012, the Sub-Collector was informed by the Office of the Director that the deemed date of joining of Lecturers of the College is found to be 1st June, 1993 in view of first temporary recognition and first temporary affiliation and that Abhina Kumar Swain is not the senior most teaching staff as per the deemed date of joining. W.P.(C) Nos.10045 & 12150 of 2012 Page 5 of 11 6. According to Abhina Kumar Swain, there being no concept of deemed date of joining and he being the first appointee of the College way back in the year 1993, has to be treated as the senior most teaching staff. 7. Alekh Prasad Nayak, on the other hand, contends that Abhina Kumar Swain was initially appointed in Nalinikanta Mahavidyalaya at Chandi Bounsamula in the district of Kendrapara as Lecturer in Political Science by resolution of the Managing committee of the said College on 24th August, 1992. He joined on 27th August, 1992. While continuing as such, Abhina Kumar Swain tendered resignation on 13th January, 1994. As such, the question of his joining in Sapaneswar Mahavidyalaya on 3rd May, 1993 does not arise. It is further alleged that Abhina Kumar Swain has resorted to fraud and misrepresentation of records and documents with ulterior motive. 8. Heard Mr. S.K.Das, learned counsel for the Petitioner(Abhina Kumar Swain), Mr. M.K.Mohanty, W.P.(C) Nos.10045 & 12150 of 2012 Page 6 of 11 learned counsel for the Petitioner (Alekh Prasad Nayak), Mr. B.P.Tripathy learned Addl. Government Advocate and Mr. D.K.Mohapatra, learned counsel appearing for the Nalinikanta Mahavidyalaya (Opposite Party No.4 in W.P.(C) No.12150/2012). 9. Extensive arguments have been made by learned counsel for the Parties. Mr. Sameer Kumar Das has argued that there is no concept of deemed date of joining of staff under the Odisha Education Act or Rules and therefore, the order under Annexure-14 to W.P.(C) No.10045/2012 is entirely bad in law. Abhina Kumar Swain having joined on 3rd May, 1993 is senior to Alekh Prasad Nayak and has always been treated as such at all quarters. Neither his appointment nor approval was ever challenged at any point of time. As regards the allegations made by Alekh Prasad Nayak, Mr. Das would contend that the same are based on forged and fabricated documents which should not be taken into consideration. W.P.(C) Nos.10045 & 12150 of 2012 Page 7 of 11 10. Mr. M.K.Mohanty, on the other hand, has argued that the fact that Abhina Kumar Swain was initially appointed in Nalinikanta Mahavidyalaya is well evident from the documents furnished by the Principal of the said College under the R.T.I. Act, which have been enclosed as Annexure-15 to the rejoinder affidavit filed by Alekh Prasad Nayak in W.P.(C) No.12150/2012. A bare perusal of the said documents, which include copy of Form 8A9 submitted by the College to the Director, Higher Education for Notification as an Aided Educational Institution on 25th March, 2009 would clearly reveal that Abhina Kumar Swain had joined in the said Institution on 27th August, 1993 and resigned on 13th January, 1994. 11. Having regard to the rival contentions noted above, it becomes evident that the present lis involves seriously disputed questions of fact relating to the so- called appointment and resignation of Abhina Kumar Swain in and from Nalinikanta Mahavidyalaya. It has been contended that the documents relied upon in W.P.(C) Nos.10045 & 12150 of 2012 Page 8 of 11 such regard are forged and fabricated, but then this Court finds that in an appeal being F.A.O. No.306/2011 filed by Bailochan Rout (a staff of Nalinikanta Mahavidyalaya) against the judgment of the State Education Tribunal, a Coordinate Bench of this Court in its judgment delivered on 10th February, 2017 held inter alia, under paragraph-11 as follows; <In addition to this, one Abhina Kumar Swain is found to be the predecessor of Respondent No.4 as is seen from the staff position submitted by the appointment of Respondent No.4 on on 27.8.1993, 13.1.1994.= the College prior resigned he to Of course, the co-ordinate Bench was not specifically seized with the question of appointment and resignation of Abhina Kumar Swain, but fact remains that his appointment in the Nalinikanta Mahavidyalaya was duly noted in the judgment basing on the facts placed before it. Therefore, it cannot be straight away said that the stand taken by Alekh Prasad Nayak as regards appointment of Abhina W.P.(C) Nos.10045 & 12150 of 2012 Page 9 of 11 Kumar Swain in Nalinikanta Mahavidyalaya and his resignation there from has no legs to stand. 12. This is a matter that needs further and deeper scrutiny by the concerned authority on the basis of examination of all relevant records and documents etc. This Court is therefore, of the considered view that the Director, Higher Education should conduct an inquiry in the matter to determine the actual date of joining of Abhina Kumar Swain in Sapaneswar College. In such view of the matter, the question of legality or otherwise of the impugned order in Annexure-14 in W.P.(C) No.10045/2012 vis-(cid:224)-vis inter se seniority of the parties, becomes redundant at this stage. 13. For the foregoing reasons therefore, the Writ
Decision
Petitions are disposed of with direction to the Director, Higher Education, Odisha to conduct an inquiry to determine the actual date of joining of Abhina Kumar Swain in Sapaneswar College, Barhapur in the district of Kendrapara on the basis of relevant documents and records and after granting due opportunity of hearing W.P.(C) Nos.10045 & 12150 of 2012 Page 10 of 11 to all necessary parties. Such inquiry should be completed within a period of two months from today. 14. Till such time, status quo with regard to the post of Principal-in-charge of Sapaneswar College shall be maintained. ………..…….……………. Sashikanta Mishra, Judge ASHOK KUMAR BEHERA Digitally signed by ASHOK KUMAR BEHERA Date: 2023.05.10 21:06:05 +05'30' Ashok Kumar Behera W.P.(C) Nos.10045 & 12150 of 2012 Page 11 of 11 W.P.(C) Nos.10045 & 12150 of 2012 Page 12 of 11 W.P.(C) Nos.10045 & 12150 of 2012 Page 13 of 11