The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.15532 of 2018 Madhab Chandra Mallick …. Petitioner Mr. S.S. Das, Sr. Advocate Along with Mr. P.K. Ghose, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA Mr. A.R. Mohanty, Advocate (Respondent No. 4) Ms. S. Sahoo, Advocate (Respondent No. 5) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 06.04.2024 Order No 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S.S. Das, learned Sr. Counsel appearing for the Petitioner along with Mr. P.K. Ghose, Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State-Opp. Parties, Mr. A.R. Mohanty, learned counsel appearing for Opp. Party No. 4 and Ms. S. Sahoo, learned counsel appearing for Opp. Party No. 5. 3. The present writ petition has been filed inter alia challenging the order dtd.11.07.2018 so passed by the Director, Higher Education- Opp. Party No. 2 under Annexure-5. Vide the said order Opp. Party No. 2 while considering and disposing the appeal filed by the Opp. Party No. 5 in terms of the order passed by this Court in W.P.(C) // 2 // No. 235 of 2013, directed the Governing Body to allow Opp. Party No. 5 to resume her duty with immediate effect. 4. Learned Sr. Counsel for the Petitioner contended that with a claim that Opp. Party No. 5 was appointed as against the post of Lecturer in Odia in the College of Opp. Party No. 4 on 10.08.1993 and with the allegation that she was prevented from discharging her duty without mentioning any specific date and even year, she approached this Court by filing OJC No. 7051 of 1998. This Court vide order dtd.04.05.2015 permitted Opp. Party No. 5 to withdraw the writ petition with liberty to approach the appellate authority. The order so passed by this Court on 04.05.2015 is reproduced hereunder:-
Legal Reasoning
“After some arguments learned counsel for the petitioner seeks permission to withdraw the writ petition with liberty to approach before the appellate authority. Prayer is allowed.
Decision
Accordingly, the writ petition is dismissed as withdrawn with the liberty aforesaid.” 4.1. Learned Sr. Counsel for the Petitioner contended that basing on the liberty so granted by this Court on 04.05.2015, Opp. Party No. 5 made an application in the shape of appeal before Opp. Party No. 2 on 23.07.2015 inter alia with the following prayer:- “Under the above circumstances, it is humble prayed that the Appeal may be allowed: And To give direction be issued to the Governing Body and principal to allow the petitioner to discharge her duty as Page 2 of 13 // 3 // a lecturer in odia where she has been appointed prior to 10.8.1993 And Any other order/orders or direction/directions be issued so as to give complete relief to the petitioner; And for this act of kindness, the petitioner shall as in duty bound ever pray.” 4.2. Learned Sr. Counsel appearing for the Petitioner contended that the College in question got the required permission to establish the same in terms of the provisions contained under Sec. 5 of the Odisha Education Act, 1969 only vide order dtd.09.05.2005 of the Regional Director of Education under Annexure-2 and subsequently College got temporary recognition w.e.f. Academic Session 2005- 06 for Upashastri and Shastri course vide Office order dtd.29.07.2005 under Annexure-3 series. It is contended that claim of Private Opp. Party No. 5 that she was appointed on 10.08.1993 is not sustainable as the College in question was not in existence as it got permission only in the year 2005 as found from Annexure-2 and the temporary recognition on 29.07.2005 as found from Annexure-3 series w.e.f. the academic session 2005-06. It is also contended that since Opp. Party No. 5 was so prevented from discharging her duty prior to the College being given temporary recognition, Opp. Party No. 2 in view of the stipulation contained in the circular issued by the Department on 27.03.1983 cannot be held as the appellate authority and he should not have entertained the appeal. 4.3. It is also contended that while filing the appeal before the Director pursuant to the liberty granted by this Court on 23.07.2015, Opp. Party No. 5 never enclosed the order of appointment if any issued in her favour showing the date of her Page 3 of 13 // 4 // appointment on 10.08.1993. Not only that no joining letter was also enclosed to the memo of appeal indicating the date of joining. But in absence of any joining letter and order of appointment so provided by Opp. Party No. 5, Director, Higher Education – Opp. Party No. 2 while allowing the claim vide the impugned order held that Opp. Party No. 5 was appointed on 10.08.1993 and directed the Governing Body to allow her to discharge the duty. It is contended that since no order of appointment was ever produced by the Petitioner or by the Governing Body on its appearance, the finding of the Director that Opp. Party No. 5 was appointed on 10.08.1993 and she was prevented from discharging her duty cannot be held legal and justified. 4.4. It is contended that after the College got permission and recognition, Petitioner was appointed vide order dtd.23.03.2011 as against the post of Lecturer in Odia, where he joined on 30.03.2011 under Annexure-4 series. It is also contended that even though the appeal was disposed of in the year 2018, but the Petitioner was never impleaded as a Party to the proceeding before the Director as by the time the appeal was decided, Petitioner was very much in service as against the post of Lecturer in Odia with his date of joining on 30.03.2011. 4.5. Learned Sr. Counsel appearing for the Petitioner also contended that claim of the Petitioner to get the benefit of Grant-in- Aid was also allowed on contest by the State Education Tribunal (in short Tribunal) in GIA Case No. 76 of 2020 vide Judgment dtd.18.07.2023. But in view of the interim order passed by this Court on 04.09.2023, benefit of the said order is yet to be extended in favour of the Petitioner. Page 4 of 13 // 5 // 4.6. Making all these submissions, learned Sr. Counsel appearing for the Petitioner contended that impugned order is not sustainable in the eye of law as the same was passed without having any document showing the date of appointment of Private Opp. Party No. 5 as 10.08.1993 by the College in question and the said appointment, if any was also made prior to the College got permission and recognition. 4.7. It is also contended that while in the writ petition filed by Opp. Party No. 5 in OJC No. 7051 of 1998, a specific stand was taken by Opp. Party No. 5 that she was not having any order of appointment having been issued by the Governing Body of the College, but in the counter so filed in the present matter, Opp. Party No. 5 has enclosed the order of appointment issued by the Governing Body on 10.08.1993. It is contended that in view of the decision of the Hon’ble Apex Court so reported in (2011) 7 SCC 69 (Amar Singh Vs. Union of India & Ors.), Opp. Party No. 5 cannot take such contrary stand. The view of the Hon’ble Apex Court as reflected in Para 50 of the said Judgment is reproduced hereunder:- “50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.” 5. Ms. S. Sahoo, learned counsel appearing for Opp. Party No. 5 on the other hand contended that the present Petitioner has no locus standi to challenge the order so passed by Opp. Party No. 2 as Opp. Party No. 5 basing on the prevailing yardstick was appointed on 10.08.1993 as against the post of Lecturer in Odia. When Opp. Party No. 5 was prevented from discharging her duty by the Page 5 of 13 // 6 // Governing Body, she approached this Court in OJC No. 7051 of 1998 and pursuant to the liberty granted by this Court in its order dtd.04.05.2015, she filed the appeal before Opp. Party No. 2 on 23.07.2015. Opp. Party No. 2 as the appellate authority after hearing Opp. Party No. 5 and the stand taken by the Governing Body before him, came to a finding that Opp. Party No. 5 was appointed as against the post of Lecturer in Odia on 10.08.1993 and since she was prevented from discharging her duty, direction was issued to the Governing Body to allow Opp. Party No. 5 to discharge her duty as against the post of Lecturer in Odia. But in view of the interim order passed by this Court on 30.08.2018, she is unable to get the benefit of the same. 5.1. In support of the stand that the Petitioner has no locus standi to challenge the order, learned counsel appearing for Opp. Party No. 5 relied on a decision of the Hon’ble Apex Court passed in the case of Swapna Mohanty Vs. State of Odisha & Ors., (2018) 17 SCC 621. Hon’ble Apex Court in Para 7 & 8 of the said order has held as follows:- “7. The other point which was found in favour of Respondent 4 by the High Court is that there is violation of the principles of natural justice which resulted in the order dated 3-12-2008 in GIA Case No. 120 of 2006 being void. This is for the reason that the appellant did not implead Respondent 4 in the said case. The subject-matter of GIA Case No. 120 of 2006 filed by the appellant was approval of her appointment against the 1st post of Lecturer in English in the College. There is no doubt about the order of termination of the services of the appellant being set aside. The said order became final when the appeal filed by the Government was rejected by the High Court. There is no dispute that the appellant was holding the 1st post of Lecturer in English in the College on the date of termination of her services. It was only after the termination of the services of the appellant, Respondent 4 was appointed to the 1st post of Lecturer in English in the resultant vacancy. The natural consequence of the Page 6 of 13 // 7 // order of termination being set aside is that the appellant has to be appointed to the 1st post of Lecturer in English in the College. There is no doubt that only one post of Lecturer in English out of the two occupied by the appellant and Respondent 4 is admitted to grant-in-aid. The request of the appellant was consequential to the order dated 21-2-2006 by which she was directed to be reinstated in the 1st post of Lecturer in English. Respondent 4 is not a necessary party either to proceedings pertaining to the termination of services of the appellant or the consequential proceedings arising therefrom. A person whose presence before a forum may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceedings. [See: Udit Narain Singh Singh Malpaharia v. Board Malpaharia v. Board of Revenue, AIR 1963 SC 786]. of Revenue [Udit Narain the Tribunal being 8. As GIA Case No. 120 of 2006 emanates from a dispute pertaining to the termination of services of the appellant and the only dispute before the grant of consequential benefits, we are of the considered opinion that Respondent 4 was not a necessary party. We are aware of the fact that as a consequence of appointment of the appellant in the 1st post of Lecturer in English, Respondent 4 has to be relegated back to his original post i.e. 2nd post of English. But, as stated earlier, that is a natural consequence of the order of termination of the services of the appellant being set aside.” 5.2. Ms. Sahoo accordingly contended that the challenge made to the impugned order is not entertainable at the instance of the Petitioner and Opp. Party No. 2 has rightly allowed the claim vide order dtd.11.07.2018 under Annexure-5 and it requires no interference. 6. Mr. A.R. Mohanty, learned counsel appearing for Opp. Party No. 4 on the other hand made his submission basing on the stand taken in the counter affidavit. The stand taken by the Governing Body in Para 6 & 8 of the counter affidavit is reproduced hereunder:- Page 7 of 13 // 8 // “06. That in reply to the averments stated in paragraph 6 it is submitted that the petitioner although was appointed on 30.03.2011 as a lecturer in Odia but at that time much prior to his appointment another lecturer namely Harekrushna Swain was continuing in the post of Odia which is the only post as per the sanctioned yard stick. It is further submitted that the name of the petitioner has never been recommended for grant under GIA Order 2009. 08. That in reply to the averments stated in paragraph- 9 of the writ application it is submitted that as per records available the OP No. 5 has been appointed as a part of time lecturer and was continuing for some period.” 7. Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State on the other hand made his submission basing on the materials available on record. It is contended that since the College got the permission to open Shastri & Upashastri course only in the year 2005 and recognition was granted w.e.f. the Academic Session 2005-06 vide order dtd.29.07.2005 under Annexure-3 series, appointment of Opp. Party No. 5 could not have been made on 10.08.1993 as the College was not in existence by the time Opp. Party No. 5 was so appointed. 7.1. It is also contended that since the College got recognition only in the year 2005 and Opp. Party No. 5 as alleged was prevented from discharging duty in the year 1998, as per the stipulation contained in the cirular dt.27.03.1983, Opp. Party No. 2 cannot be held as the appellate authority. In terms of the provisions contained in circular dtd.27.03.1983 so issued by the Govt. in the erstwhile Education & Youth Services Department, it has been clearly indicated that employees of Unaided Recognized Private Page 8 of 13 // 9 // Educational Institution can file the appeal against the alleged action of the Governing Body or Managing Committee in preventing an employee from discharging his/her duty. Since the College was recognized in the year 2005 and Opp. Party No. 5 was prevented from discharging her duty in the year 1998, the appeal itself was not maintainable before Opp. Party No. 2. It is also contended that this Court while permitting Opp. Party No. 5 to prefer an appeal in OJC No. 7051 of 1998, never opined that the appeal will lie to the Director, Higher Education - Opp. Party No. 2 and this Court only observed that Opp. Party No. 5 is at liberty to file an appeal before the appellate authority. 7.2. Learned Addl. Govt. Advocate also contended that even though in GIA Case No. 76 of 2020 the Tribunal has allowed the claim of the Petitioner for getting the benefit of Grant-in-aid under GIA Order, 2009, but in view of the stipulation contained in the amended provision under GIA Order, 2009, Petitioner is not eligible to get the benefit of Grant-in-aid under GIA Order, 2009. The stipulation contained in the amended provision is reproduced hereunder:- “Provided that any person employed in the teaching and non- teaching post after the 1st June, 2008 shall not be eligible to be covered under this Order.” 7.3. It is accordingly contended that Opp. Party No. 2 though is not the appellate authority in view of the stipulation contained in circular dtd.27.03.1983, Opp. Party No. 2 should not have entertained the appeal and decide the same in anybody’s favour. It is also contended that Opp. Party No. 5 while preferring the appeal pursuant to the liberty, never enclosed the order of appointment if Page 9 of 13 // 10 // any so issued in her favour on 10.08.1983 nor the Governing Body in its appearance on 26.04.2018 while filing the written notes, also indicated anything about the date of appointment of Opp. Party No. 5 as 10.08.1993. The written notes submitted by the Principal of the College before the Director in Appeal Case No. 08 of 2015 is reproduced hereunder:- “WRITTEN NOTE OF SUBMISSION BY THE PRINCIPAL 1/C, SARASWATI SANSKRIT MAHILA MOHAVIDYALAYA, BARTI, DIST-JAGATSINGHPUR 1. That I am acting as the Principal I/C of the college since 01.03.18 after retirement of Sri Harekrushna Swain on 28.02.2018. 2. That Sri Harekrushna Swain, Ex- Principal I/C was dealing with all the college related matters. 3. That in connection with the present appeal I have asked the Sri Swain to provide me the relevant documents/papers for prosecution of the matter. 4. That the Ex-Principal did not provide me any documents/papers in the matter except one Xerox copy of one inspection report dt.11.04.94 of Superintendent of Sanskrit Studies, Puri. (copy enclosed) 5. That in the said report the name of the present Appellant has been written in the sl no. 5(4) as part time lecturer.” 7.4. Mr. S. Jena, learned Addl. Govt. Advocate accordingly contended that since no document was ever produced by Opp. Party No. 5 showing her date of appointment as 10.08.1993 with the date of joining, if any, the finding of Opp. Party No. 2 that Opp. Party No. 5 was appointed on 10.08.1993 and she was prevented from Page 10 of 13 // 11 // discharging her duty is not based on fact and such a finding could not have been made by Opp. Party No. 2. 8. Having heard learned counsel appearing for the Parties and considering the materials available before this Court, this Court finds that in terms of the liberty granted by this Court in OJC No. 7051 of 1998, Opp. Party No. 5 though preferred an appeal before Opp. Party No. 2 on 23.07.2015 vide Annexure-C/5 to the counter affidavit filed by Opp. Party No. 5, but this Court after going through the memo of appeal, no where find any order of appointment being enclosed to the memo of appeal nor any joining report showing the date of joining, pursuant to the order of appointment, if any. From the written notes filed by the Principal so available vide Annexure-6/A to the rejoinder filed by the Petitioner, it is also found that the Governing Body while filing the written notes, never produced any document showing the date of appointment of Opp. Party No. 5 as 10.08.1993. 8.1. Therefore, it is the view of this Court that without having any order of appointment produced by Opp. Party No. 5 showing her date of appointment as 10.08.1993, Opp. Party No. 2 could not have come to a conclusion that Opp. Party No. 5 was appointed on 10.08.1993 and while so continuing she was prevented from discharging the duty. It is also found from the record that the present Petitioner though claims to have been appointed on 23.03.2011, but no such order of appointment has also been annexed to the writ petition. In the joining letter enclosed to the writ petition vide Annexure-4 series it has been indicated that basing on the letter issued by the Governing Body on 30.03.2011, Petitioner Page 11 of 13 // 12 // joined as against the post of Lecturer in Odia on the very same date i.e. on 30.03.2011. 8.2. It is also found from the circular issued by the Govt. on 27.03.1983 that the Director will be the appellate authority in respect of an employee of Unaided Recognized Private Educational Institution. But as found from the record the College got recognition only w.e.f. the Academic Session 2005-06 vide order dtd.29.07.2005 under Annexure-3 series and the alleged claim of Opp. Party No. 5 that she was prevented from discharging her duty in the year 1998 is much prior to the College became a recognized Institution. Be that as it may, considering the fact that pursuant to the earlier order passed by this Court, Opp. Party No. 5 has preferred an appeal and that was entertained with passing of the impugned order at Annexure-5, this Court is of the view that the matter requires fresh adjudication by Opp. Party No. 2 by giving due opportunity of hearing to all concerned. 8.3. However, it will be open for Opp. Party No. 2 to decide the question of maintainability of the appeal before him, taking into account the stipulation contained in circular dtd.27.03.1983. If on due consideration of the stipulation contained in circular dtd.27.02.1983 Opp. Party No. 2 will come to a conclusion that he is the appellate authority, then he can take up the appeal and decide the same in accordance with law by giving due opportunity of hearing to all concerned. Such a fresh decision be taken by Opp. Party No. 2 within a period of four (4) months from the date of receipt of this order. Since the matter is pending before this Court from the year 2018 and it was once remitted by the Hon’ble Apex Court, it is expected that Opp. Party No. 2 shall decide the matter Page 12 of 13 // 13 // within the time stipulated by this Court. Consequentially the order dt.11.07.2018, so passed by Opp. Party No. 2 is quashed. 9. The writ petition is accordingly disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Apr-2024 13:32:52 Page 13 of 13