The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 19539 of 2023 Padma Charan Sahu …. Petitioner Mr. D. N. Rath, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA Mr. S.K. Swain, Advocate (Opp. Party No. 3) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 08.12.2023 Order No 12. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. D.N. Rath, learned counsel for the Petitioner, Mr. S.K. Samal, learned Addl. Govt. Advocate and Mr. S.K. Swain, learned counsel appearing for the Opp. Party No. 3. 3. The present writ petition has been filed inter alia challenging the communication issued by the Opp. Party No. 3 on 08.09.2023 under Annexure-5. 4. Learned counsel for the Petitioner contended that considering the status of the Petitioner, he was appointed as Principal-in-Charge of the College vide communication dtd.19.04.2022 under Annexure-6. It is contended that while so continuing, Opp. Party No. 3 without any reason and basis issued the impugned communication on 08.09.2023 with a request on the Govt. to remove the Petitioner // 2 // from the post of Principal-in-Charge and for appointment of a new Principal-in-Charge in place of the Petitioner as per the existing guideline so issued by the Govt. on 10.10.2022 under Annexure-8. 4.1. Learned counsel for the Petitioner contended that in view of the decision rendered by this Court on 11.05.2023 in the case of Dr. Premalata Rout Vs. State of Odisha & Ors., this Court has already directed the Govt. to frame a common cadre of the lecturers continuing in Aided Colleges in accordance with the provisions contained under Sec. 10(C) of the Odisha Education Act and Rule 8(3) of the 1974 Rules. This Court while directing so, has also passed an order that till constitution of the common cadre, the interim arrangement made by the State with regard to appointment of Principal-in-Charge in different Aided Colleges shall continue. 4.2. It is contended by Mr. Rath that on the face of the order passed by this Court in its Judgment dtd.11.05.2023, request made by Opp. Party No. 3 in his letter dtd.08.05.2023 under Annexure-8 does not deserve any consideration by the State. Not only that in view of the specific order passed by this Court in the Judgment in the case of Dr. Premalata Rout, Govt. is not permitted to take a decision on the request made by the Governing Body under Annexure-8. It is also contended that in the meantime Opp. Party No. 3 is no more continuing as President of the Governing Body and Sub-Collector, Angul has been allowed to discharge the duties of President of the Governing Body of the College vide order dtd.16.09.2023. It is accordingly contended that Opp. Party No. 3 has no vested right to issue the impugned communication under Annexure-8. 4.3. Learned counsel for the Petitioner also contended that basing on the order passed by this Court in W.P.(C) No. 230 of 2022 so Page 2 of 5 // 3 // confirmed vide order dtd.28.09.2022 in W.A. No. 1020 of 2022, no fresh guideline has been issued by the Govt. Opp. Party NO. 1 for appointment of Principal-in-Charge in Aided Colleges and the said fact is also apparent in the letter issued on 10.10.2022 under Anenxure-7. But Opp. Party No. 3 prior to issuance of a fresh guideline as reflected in Annexure-7 made the impugned request under Annexure-8. 5. Even though sufficient opportunity was given to the learned State Counsel, but no counter affidavit has been filed by the State. However, Mr. Swain, learned counsel appearing for the Opp. Party No. 3 contended that after appointment of the Petitioner as Principal-in-Charge vide order under Annexure-6, in view of the order passed by this Court in W.P.(C) No. 230 of 2022 so confirmed by the Writ Appellate Court in its order dtd.28.09.2022 in W.A. No. 1020 of 2022, Govt. issued the office order on 10.10.2022 under Annexure-7. It is contended that in terms of the office order issued by the Govt. under Annexure-7, Opp. Party No. 3 issued the impugned letter under Annexure-8 with a prayer to remove the Petitioner as Principal-in-Charge of the College and to appoint some other eligible lecturers from out of the list enclosed to Annexure-8. It is contended that since as per the Judgment passed by this Court in W.P.(C) No. 230 of 2022, Petitioner is not eligible to continue as Principal-in-Charge, Opp. Party No. 3 made the request under Annexure-8. It is also contended that the Judgment passed by this Court in W.P.(C) No. 12606 of 2023 is a Judgment in personem and not a Judgment in rem. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioner was appointed as Principal-in-Charge of the Page 3 of 5 // 4 // College vide communication dtd.19.04.2022 under Annexure-6. This Court after going through the office order dtd.10.10.2022 under Annexure-7, finds that in terms of the order passed by this Court in W.P.(C) No. 230 of 2022, so confirmed in W.A. No. 1020 of 2022, Govt. has not yet framed any further guideline to be followed with regard to appointment of Principal-in-Charge in Aided Colleges. The communication dtd.10.10.2022 so issued under Annexure-7 reads as follows:- “Hon’ble High Court vide order dated 11.07.2022 passed in W.P.(C) No. 230 of 2022 (kamalakanta Das- Vrs - State of Odisha and other) had quashed this Department guideline issued vide order No. 27964 dated 31.08.2020 for fixation of seniority of Teachers of Non-Government Aided Colleges for the purpose of appointment of Principal in Non- Government Aided College afresh by into consideration of date of entry into service as the basis for seniority. It has also been directed to come out with fresh guidelines accommodating the Principle of Seniority as enunciated by the Supreme Court of India which is an intergral part of our service jurisprudence. taking Again, Hon’ble High Court vide their order dated 28.09.2022 passed in W.A. No. 1020 of 2022 have clarified that the impugned judgment of the learned Singh Judge dated 11.07.2022 passed in W.P.(C) No. 230 of 2022 will be confined to Categories-C to F and will not apply to Categories-A, B and G as mentioned in the guidelines dated 31.08.2020. As per the direction of the Hon’ble High Court, a fresh guideline accommodating the principle of seniority as enunciated by the Supreme Court of India is under process for compliance of orders of the Hon’ble High Court order in WPC no 230 of 2020 and Writ Appeal No. 1020 of 2022. Hence, it has been decided that the Principal-in-charge of the Non-Govt. Aided colleges who have already been posted by virtue of any court’s order as on date should not be disturbed unless, contrary to that order, the aggrieved party produces an order from the Hon’ble Court confirming his/her claim for the post.” Page 4 of 5 // 5 // 6.1. It is found that in letter dtd.10.10.2022, Govt. has clearly indicated that it is in process to issue a fresh guideline in terms of the order passed in W.P.(C) No. 230 of 2022. As per the considered view of this Court in absence of a fresh guideline, Opp. Party No. 3 was not competent to issue the impugned communication under Annexure-8 and the request made therein is completely premature. Not only that in view of the Judgment passed by this Court in the case of Dr. Premalata Rout on 11.05.2023, no Principal-in-Charge can be appointed till formation of the common cadre as directed. This Court in its Judgment has already held that the interim arrangement so made shall continue till formation of the common cadre. In view of such position, this Court finds the action of the Opp. Party No. 3 in issuing Annexure-8 is not sustainable in the eye of law. Therefore, this Court is inclined to quash the communication dtd.08.05.2023 under Annexure-8. While quashing Annexure-8, this Court allows the writ petition to that extent. (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: 12-Dec-2023 10:50:12 Page 5 of 5