The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C. Nos.2807 of 2022, 7301 of 2015 and 38079 of 2021 In all the above mentioned cases Ramesh Chandra Sahoo …. Petitioner State of Odisha and Ors. …. Opp. Parties -versus- Advocates appeared in the case: For Petitioner : Mr. Sameer Kumar Das, Adv. -versus- For Opp. Parties : Mr. G.R. Mohapatra, AGA (for O.Ps.1 to 4) Mr. Samir Kumar Mishra, Adv. (for O.P.6/ Caveater) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-07.09.2022 DATE OF JUDGMENT:-09.01.2023 Dr. S.K. Panigrahi, J. 1. Since all the above mentioned Writ Petitions have been filed by the same Petitioner, this Court proposed to hear all the Writ Petitions together and pass a common order. 1 of 41 2. In the above Writ Petitions, the Petitioner has made prayer as follows: (i) In W.P.(C) No.2807 of 2022 In this case, the Petitioner has prayed for quashing of the Letter No.2502 dated 19.01.2022 under Annexure- 17 issued by the Opposite Party No.2/ Additional Secretary, Higher Education Department, Government of Odisha, Bhubaneswar and further prayed to restore the Letter dated 17.01.2022 under Annexure-13 and to allow him to continue as Principal-in-charge-cum- Secretary of Maa Hira Nila Degree Mahavidyalaya as before keeping in view the office order dated 11.05.2012 under Annexure-5 issued by the Opposite Party No.3/ Director, Higher Education, Odisha, Bhubaneswar as well as the letter dated 18.01.2022 under Annexure-15 issued by the Opposite Party No.4/ Sub-Collector & SDM, Bhawanipatna respectively within a reasonable time. ii) In W.P.(C) No.38079 of 2021: In this case, the Petitioner has prayed for quashing of the Letter No.40017 dated 04.10.2021 issued by the Opposite Party No.2/ Additional Secretary, Higher Education Department, Government of Odisha, Bhubaneswar, so also the suspension order dated 2 of 41 11.10.2021 issued by the Opposite Party No.4/ Sub- Collector & SDM, Bhawanipatna and the subsequent letter dated 25.11.2021 issued by the Opposite Party No.2/ Additional Secretary, Higher Education Department, Government of Odisha, Bhubaneswar under Annexure-8, 9 and 10 respectively and to allow him to continue as Principal-in-charge-cum-Secretary of Maa Hira Nila Degree Mahavidyalaya as before keeping in view of the office order dated 11.05.2012 under Annexure-5 issued by the Opposite Party No.3/ Director, Higher Education, Odisha, Bhubaneswar within a reasonable time. iii) In W.P.(C) No.7301 of 2015: In this case, the Petitioner has prayed to quash the resolution dated 08.02.2015 under Annexure-6 passed by the Governing Body of the College and the subsequent office order dated 13.04.2015 under Annexure-7 issued by the Opposite Party No.2/ Director of Higher Education, Odisha, Bhubaneswar respectively. He further prayed for a direction to the State/Opposite Parties to allow him to continue as Principal-in-charge-cum-Secretary of Maa Hira Nila Degree Mahavidyalaya, Biswanathpur, Bhawanipatna as before keeping in view the office order dated Page 3 of 41 11.05.2012 under Annexure-4 issued by the Opposite Party No.2/ Director, Higher Education, Odisha, Bhubaneswar. 3. The Petitioner is the Senior most Teaching staff of Maa Hira Nila Degree Mahavidyalaya, Biswanathpur, in the district of Kalahandi. The name of the Petitioner was approved as Principal-in-Charge-cum- Secretary of the said institution vide order dated 11.05.2022 under Annexure-5 issued by the Opposite Party No.3/ Director, Higher Education, Odisha, Bhubaneswar. 4. Grievance of the Petitioner is that vide Letter dated 19.01.2022 under Annexure-17 issued by the Opposite Party No.2/ Additional Secretary to Government of Odisha, Department of Higher Education, earlier letter No.2188 dated 17.01.2022 has been arbitrarily withdrawn without any basis thereby allowing the Opposite Party No.6 as Principal-in-Charge of the College in question which is said to be in clear violation of the order dated 16.04.2015 passed by this Court in W.P.(C) No.7301 of 2015. Hence, the Petitioner is constrained to approach this Court.
Legal Reasoning
I. Facts of the case. 5. The College in question i.e. Maa Hira Nila Degree Mahavidyalaya, Biswanatpur, in the district of Kalahandi was established in the year 1996 and got recognition and 4 of 41 affiliation from the competent authority during the academic session 1996-97. In the meantime, the College in question has already been notified as an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969 by virtue of the Notification issued by the State Government on 04.04.2012 as per the Grant-In-Aid Order, 2008. Therefore, the said College is an aided educational institution. The Governing Body of the College after following due procedure of law issued appointment letter in favour of the Petitioner on 11.05.1996 and pursuant to such appointment letter, the Petitioner joined the said College on 15.05.1996. His joining report was duly accepted by the Governing Body of the College from the date of his initial date of joining. The Petitioner being appointed as a Lecturer in Political Science (1st post), he has been receiving the Block grant. It is pertinent to mention here that the appointment of the petitioner and the Opposite Party No.6 has been approved, and Block grant has been released at the rate of 40% in their favour as per the Grant-In-Aid Order, 2008. However, their date of joining is the same i.e. 15.05.1996 after the College became an aided College. 6. The Opposite Party No.4/ Sub-Collector, Bhawanipatna, district- Kalahandi was directed to recommend the name of the senior most teaching staff for appointment of Principal- Page 5 of 41 In-Charge-cum- Secretary. Pursuant to such approval order dated 24.04.2012 issued by the Opposite Party No.3/ Director, Higher Education Department, Odisha, Bhubaneswar , the Opposite Party No.4/ Sub-Collector, Bhawanipatna vide letter dated 26.04.2012 recommended the name of the Petitioner as Principal-In-Charge-Cum- Secretary. Though the Petitioner and the Opposite Party No.6 were appointed on the same day, the Opposite Party No.6 expressed his unwillingness to remain-in-charge of Principal of the College due to his family problem. Therefore, the said Opposite Party No.6 wrote two letters addressing to the President of the Governing Body in expressing his unwillingness and the Opposite Party No.4/ Sub-Collector, Bhawanipatna after considering such aspect recommended the name of the petitioner on 26.04.2012 to the Opposite Party No.3/ Director, Higher Education Department, Odisha, Bhubaneswar for approval as Principal-cum- Secretary of the Governing Body of the College in question. Accordingly, the Opposite Party No.3/ Director, Higher Education Department, Odisha, Bhubaneswar on the recommendation of the Opposite Party No.4/ Sub-Collector, Bhawanipatna issued the Office Order dated 11.05.2012 whereby the name of the present petitioner 6 of 41 was approved as Principal-in-Charge-cum-Secretary of the Governing Body of the College. 7. Subsequently, the State Government in its letter dated 20.10.2014 nominated the MLAs of the Ruling party as Presidents of Governing Body different aided colleges. The then MLA projecting himself as President of the Governing Body recommended the name of the Opposite Party No.6 for the position of Principal-in-charge and the Opposite Party No.3/ Director, Higher Education, Odisha vide order dated 13.04.2015, approved the name of the Opposite Party No.6 as Principal-in-charge-cum-Secretary of the College and the earlier approval order by which the name of the Petitioner was approved as Principal-In-Charge –cum- Secretary was withdrawn. 8. Being aggrieved by such order dated 13.04.2015 of the Opposite Party No.3/ Director, Higher Education, Odisha, Bhubaneswar, the Petitioner approached this Court by way of W.P.(C) No.7301 of 2015 and this Court while issuing notice to the parties has passed an interim order dated 16.04.2015 by staying operation of the order dated 13.04.2015 of the Opposite Party No.3/ Director, Higher Education, Odisha, Bhubaneswar till the next date. The said Writ Petition is still pending where all the present Opposite Page 7 of 41 Parties except the present Opposite Party No.2 were the parties. 9. While the Petitioner was so continuing as Principal-In- Charge of the College in question, a complaint was lodged against him by one Lachhaman Behera in Lanjigarh Police Station which has been registered as Lanjigarh P.S. Case No.64 of 2021 for commission of offences under Sections 420/ 406/ 294/506 of the I.P.C. for which the Petitioner got arrested by the Police and remained in custody on 26.08.2021. Subsequently, the Petitioner has been released on bail by this Court vide order dated 03.11.2021 passed in BLAPL No.8191 of 2021. After his released on bail, when the Petitioner went to the College to discharge his normal duties, he was served with an order purported to have been passed by the Opposite Party No.4/Sub-Collector & S.D.M., Bhawanipatna on 11.10.2021 projecting himself as the President of the Governing Body, and thereby he was placed under suspension with immediate effect by invoking the power conferred under Rule-12(2) of the OCS (CC & A) Rules, 1962 solely on the ground that he was arrested on 26.08.2021 and he had remained in judicial custody for some time. The said suspension order has been issued based on the letter dated 04.10.2021 issued by the Opposite Party No.2/ Additional Secretary to Government of Odisha, 8 of 41 Bhubaneswar, where the Opposite Party No.4 was directed to initiate disciplinary proceeding against the Petitioner and to remove him from the post of Principal-In-Charge with immediate effect. In the meantime, the Opposite Party No.2 approved the post of the Opposite Party No.6 as Principal- In-Charge-cum- Secretary of the College which was earlier held by the Petitioner from the very inception. The Petitioner being aggrieved by such action of the authority filed W.P.(C)No.38079 of 2021 seeking that the order of suspension dated 11.10.2021 along with the Government letters dated 04.10.2021 and 25.11.2021 be quashed. This Court after hearing the parties, issued notice to the parties vide order dated 10.12.2021 and further passed an order by
Decision
holding that pendency of the Writ Petition shall not be a bar for the Government to take a decision on the letter dated 03.12.2021 under Annexure-12-B. 10. It is pertinent to mention here that after filing of the said Writ Petition, the Opposite Party No.4 in its letter dated 03.12.2021 referring to the interim order passed in W.P.(C) No.7301 of 2015 requested the Opposite Party No.2 to give necessary instructions regarding reinstatement and appointment of Principal of the College in favour of the Petitioner. This while issuing notice vide order dated 10.12.2021 passed in W.P.(C) No.38079 of 2021 has Page 9 of 41 specifically held that “pendency of the writ petition shall not be a bar for the Government to take a decision on the letter dated 03.12.2021 marked as Annexure-12-B”. 11. The Petitioner after obtaining the order dated 10.12.2021 passed in W.P.(C) No.38079 of 2021 produced the same before the State authorities requesting to recall the earlier letter dated 25.11.2021 regarding appointment of Principal in favour of the Opposite Party No.6. Accordingly, the Opposite Party No.2 in its letter dated 17.01.2022 recalled the earlier letter dated 25.11.2021 and communicated the said decision to all other authorities including the Opposite Party Nos.4 and 6. After receipt of the said letter dated 17.01.2022, the Opposite Party No.4 passed order dated 18.01.2022 whereby the petitioner who was placed under suspension on 11.10.2021 was reinstated in service as Lecturer in Political Science of the College. On the very same day, the Opposite Party No.4 had issued another letter addressing to the Opposite Party No.6 with a copy to the Branch Manager, SBI, Biswanathpur directing the Opposite Party No.6 to step down from the post from the post of Principal and refrain from signing any file, transaction etc. with effect from 17.01.2022 till finalization of a regular Principal in the College. On 18.01.2022 the Petitioner again joined as the Principal of the said College. 10 of 41 12. While the matter stood thus, the Opposite Party No.2 on the very next day i.e. on 19.01.2022 issued another letter whereby the Opposite Party No.2 without any rhyme and reason withdrawn the earlier Government letter dated 17.01.2022 and directed the Opposite Party No.6 to continue as Principal of the College. Being aggrieved by the said letter dated 19.01.2022 issued by the Opposite Party No.2, the Petitioner is constrained to approach this Court by way of the present Writ Petition. II. Submissions of the Petitioner: 13. Learned counsel for the Petitioner submits that in all these above mentioned Writ Petitions, the common prayer of the Petitioner is to allow him to continue as Principal-in- Charge-cum-Secretary of the college keeping in view the office order dated 11.05.2012 issued by Director of Higher Education Department. It is submitted that while the Petitioner was continuing smoothly as Principal-in-Charge- cum-Secretary of the College, a resolution was purported to have been passed at the behest of the then Local M.L.A on 08.02.2015 deciding to remove the Petitioner from the post of Principal-in-Charge-cum-Secretary and based on such resolution, the Director of Higher Education without following any procedure and without taking into consideration the Government Resolution dated 23.03.2015, Page 11 of 41 passed Office Order dated 13.04.2015 by approving the post of the private Opposite Party No. 6 (Arun Kumar Chandan) as Principal-in-Charge-cum-Secretary in place of the present Petitioner by withdrawing the earlier approval order dated 11.05.2012 issued in favour of the Petitioner. Therefore, petitioner finding no other alternative, except to approach this Court in W.P.(C) No.7301 of 2015 with a prayer to quash such Office order dated 13.04.2015 on the ground that the same is contrary to the Government Guidelines issued on 23.03.2015 particularly at Clause-5 which clearly stipulates if an employee not willing to join in the post of Principal, he/she shall give the same in writing through the Principal so that his/her claim for holding the post in future shall not be taken into consideration, and further ground was taken that the so called resolution of the Governing Body dated 08.02.2015 has been passed by an invalid Governing Body as well as the same was passed at the behest of the then Local M.L.A who projecting himself as the President of the Governing Body which is contrary to the statutory rule governing the field. Furthermore, it was also specifically pleaded that the private Opposite Party No.6 is not at all eligible to hold the post of Principal as the very approval order issued in his favour is illegal and liable to be cancelled because of his discontinuance in service 12 of 41 between 1999 to 2000, when the said Opposite Party went for higher study i.e M.Phill. It is also submitted that this Court while issuing notice to the Opposite Parties, passed an interim order on 16.04.2015 in Misc. Case No.7189 of 2015 arising out of W.P.(C) No.7301 of 2015 by staying the operation of such order dated 13.04.2015 which is still in operation. 14. He further submitted that in view of such interim order passed by this Court, the Petitioner was allowed to continue as Principal-in-Charge-cum-Secretary of the College. While the matter stood thus, the Petitioner has been falsely implicated in a criminal case for which he remained in judicial custody. Thereafter, the State Government directed the Sub-Collector, Bhawanipatana by projecting himself/ herself as President of the Governing Body to initiate disciplinary proceeding against the Petitioner and remove him from the post of Principal-in-Charge-cum-Secretary and to send the proposal for appointment of Principal-in-Charge vide its letter dated 04.10.2021, even though there is no valid Governing Body of the College. The very nomination of Sub-Collector as President of the Governing Body by the State Government has been not only deprecated by this Court, but also quashed in the case of Sri Satya Sai Seva Page 13 of 41 Organization another vs State of Odisha & Others1 and based on such Government Letter dated 04.10.2021, the Sub Collector, Bhawanipatna claiming himself as President of the Governing Body placed the Petitioner under suspension by invoking Rule-12(2) of the OCS(CCA) Rules, 1962. Thereafter, the State Government approved the post of the private Opposite Party No.6 as Principal-in-Charge-cum- Secretary of the College retrospectively with effect from 03.09.2021 vide its letter dated 25.11.2021. Against such action of the State authority, the Petitioner has filed second Writ Petition bearing W.P.(C) No.38079 of 2021 with a prayer to quash the Government Letter dated 04.10.2021 and the subsequent letter dated 25.11.2021 in appointing the Opposite Party No. 6 as Principal-in-Charge-cum-Secretary of the College so also the order of suspension dated 11.10.2021 on the ground that the order of suspension has been passed not only by incompetent authority but also the same is contrary to the law laid down in the case of Adikanda Jena vs State of Odisha & others2, wherein this Court by interpreting Rule-21 of the 1974 Rules clearly held that the employees of aided educational institution are not ipso facto Government servants and the conditions of service 1 2008 (II) OLR page-432 2 1990(1) OLR page-234 14 of 41 applicable to Government servants are not otherwise applicable to them, and suspension of employees for having detained in jail custody beyond 48 hours in connection with any criminal case as provided under Rule-12(2) of OCS (CC&A) Rules, 1962 is not provided under the 1974 Rules. Therefore, such suspension which has been passed against an employee of an aided institution by invoking Rule-12(2) of 1962 Rules, held to be misconceived and vulnerable. It is submitted that in the said Writ Petition the Government Letters dated 04.10.2021 and 25.11.2021 in removing the Petitioner from the post of Principal is completely in contravention with the interim order passed by this Court in W.P.(C) No.7301 of 2015 in as much as the same is contrary to the Government guideline dated 23.03.2015 (under Annexure 12-A to W.P.(C) No.38079 of 2021). 15. It was further submitted that after filing of such Writ Petition bearing W.P.(C) No.38079 of 2021, it has come to the notice of the Petitioner that the Sub-Collector, Bhawanipatna while considering the representation of the Petitioner by referring the interim order passed by this Court in W.P.(C) No.7301 of 2015, requested the State Government to give necessary instruction for reinstatement of the Petitioner and for his appointment as Principal of the College vide its letter dated 03.12.2021 and the same has Page 15 of 41 annexed as Annexure-12-B to the affidavit filed by the Petitioner. This Court while issuing notice in the said case vide its order dated 10.12.2021 under Annexure-12 to the first Writ Petition, clearly directed that the pendency of the Writ Petition shall not be a bar for the Government to take a decision on the letter dated 03.12.2021 marked as Annexure- 12-B. 16. He further submitted that after receipt of such order so also keeping in view the recommendation made by the Sub- Collector, Bhawanipatna, the State Government referring to the interim order passed in W.P.(C) No.7301 of 2015, recalled its earlier letter dated 25.11.2021 (which is the subject matter of the challenge in W.P.(C) No. 38079 of 2021) vide its letter dated 17.01.2022, and based on such Government Letter, the Sub Collector, Bhawanipatna revoked the order of suspension by reinstating the Petitioner in service vide order dated 18.01.2022. On the very same day, the Sub-Collector, Bhawanipatna has also recalled the appointment of the private Opposite Party No. 6 by stepping down him from the post of Principal and to refrain from signing any file, transaction etc. w.e.f 17.01.2022. While the matter stood thus, the State Government after one day of issuing the letter dated 17.01.2022 i.e. on 19.1.2022 again illegally allowed the 16 of 41 Opposite Party No. 6 to function as Principal of the College by withdrawing the letter dated 17.01.2022. Being aggrieved by such decision of the State Government vide dated 19.01.2022 (Annexure-17), the Petitioner has compelled to approach once again before this Court in W.P.(C) No.2807 of 2022 with a prayer to quash the Letter dated 19.01.2022 under Annexure-17 and further prayed to restore the letter dated 17.01.2022 under Annexure-13 to allow him to continue as Principal-in-Charge-cum-Secretary of the College. The main ground taken in the said case is that the Opposite Party No.2 i.e. the Add. Secretary to Government, Higher Education Department by exceeding his jurisdiction and by violating the principle of natural justice has passed the impugned letter on 19.01.2022 by misinterpreting the order passed in W.P.(C) No.38079 of 2021 and such action of the said Opposite Party No. 2 is illegal and contrary to the interim order passed by this Court as well as the same is contrary to the Government Guideline dated 23.03.2015. It is also submitted that this Court after considering the gravity of the matter so also taking into consideration the illegal and malafide action of the State authorities has been pleased to passed an interim order by staying operation of the impugned Government letter dated 19.01.2022 under Annexure-17 which is still in operation. Page 17 of 41 17. He further submitted that the action of the State/ Opposite Parties is totally untenable in law in as much as the same is contrary to the statutory provision governing the field. Therefore, the impugned orders passed in the respective Writ Petitions are thoroughly misconceived and, accordingly, the same are liable to be quashed by declaring the same illegal, arbitrary, invalid and inoperative in law. It is submitted that the action of the Opposite Parties, particularly in issuing the impugned letters dated 04.10.2021, 25.11.2021 and 19.01.2022 are contrary to the interim order passed by this Court in W.P.(C) No.7301 of 2015 as well as the Government Guideline dated 23.03.2015. Therefore, all these batch of Writ Petitions filed by the Petitioner may be allowed and the State authorities be directed to allow the Petitioner to continue as Principal-in- Charge-cum-Secretary of the College as before keeping in view the Office order dated 11.05.2012 as well as the letter dated 18.1.2022. 18. Learned counsel for the Petitioner further submitted that in so far as the validity of the order of suspension passed by the Opposite Party No.4 dated 11.10.2021 under Annexure-9 is concerned, admittedly the College in question is an aided educational institution which is clearly evident from Annexure-1 to the Writ Petition, and the service condition of 18 of 41 the aided employee is governed under a set of rule which called as the Orissa Education (Recruitment and Condition of service of Teachers, Members and Staff of Aided Educational Institutions) Rules, 1974. Under the said statutory Rule, the power has been vested to the Governing Body under Rule-21 to place an employee under suspension by obtaining prior approval from the Director. But in the instant case, neither the Petitioner has been suspended by the valid approved Governing Body nor the same has been done in accordance with Rule 21 of 1974 Rules. Rather, the Petitioner has been suspended by an incompetent authority by invoking Rule-12(2) of the OCS(CCA) Rules, 1962, which is admittedly not applicable to the Petitioner, as it is only applicable to Government employees in as much as the same is contrary to the law decided in the cases of Adikanda Jena and Sri Satya Sai Seva Organization (supra). Therefore, the order of suspension dated 11.10.2021 under Annexure-9 passed by the Opposite Party No.4 in W.P.(C) No.38079 of 2021 cannot sustain in law, as the same is without jurisdiction and contrary to law. 19. He further submitted that during course of hearing it was vehemently argued by the Opposite Party No. 6 that since vigilance case is pending against the Petitioner, he may not be allowed to continue as Principal-in-Charge-cum- Page 19 of 41 Secretary of the College and also prayed for dismissal of all the Writ Petitions. In this connection, he submitted that mere pendency of a vigilance case or criminal case cannot be a ground for the authority to debar the Petitioner to continue as Principal-in-Charge, particularly when the Petitioner has been released on bail by this Court and till date the trial has not yet commenced. Moreover, the Petitioner has not been proven guilty in the aforesaid vigilance case. Hence such stand taken by the private Opposite Party No. 6 cannot sustain in law. Therefore, he submitted that the said stand may be ignored and the Writ Petitions filed by the Petitioner may be allowed. III. Submissions of Opposite Party Nos.1 to 3 20. Learned counsel for the State submitted that the above mentioned W.P.(C)No.2807 of 2022 has been filed by the Petitioner challenging the Government letter No.2502 dated 19.01.2022 under Annexure-17 issued by Opposite Party No. 2 wherein the contents of Government letter No. 2188, dated 17.01.2022 under Annexure-13 were recalled and further prayer has been made in the aforesaid Writ Petition to declare the Government letter No.2502, dated 19.01.2022 under Annexure-17 to be illegal and inoperative, and to direct the State/ Opposite Parties to restore the Government Letter No.2188/HE, dated 17.01.2022 and allow him to 20 of 41 continue as Principal-cum-Secretary of Maa Hira Neela Degree Mohavidyalaya as before keeping in view the office order dated 11.05.2012 under Annexure-5 issued by Opposite Party No.3, as well as the letter dated 18.01.2022 under annexure-15 issued by Opposite Party No. 4 and to extend all other consequential service and financial benefits as due and admissible to him within a reasonable period. 21. He further submitted that earlier the Directorate of Higher Education vide their letter No.20263 dated 11.05.2012 have approved the appointment of the Petitioner (Sri Ramesh Chandra Sahoo, Lecturer in Political Science) as Principal- In-Charge-cum-Secretary of Maa Hira Neela Degree Mahavidyalaya, Biswanathpur, District-Kalahandi. At that time, the Opposite Party No. 6 (Sri Arun Kumar Chandan, Lecturer in History) though senior, had expressed his unwillingness to accept the post of Principal-In-Charge. Consequent to the reconstitution of the Governing Body of the said College, vide their resolution dated 08.02.2015, it was proposed for appointment of the Petitioner as Principal In-Charge of the College. However, on the recommendation of the President, Governing Body of Maa Hira Neela Degree Mahavidyalaya, Biswanathpur, District-Kalahandi, the Directorate of Higher Education vide their letter no.13867 date 13.04.2015, approved the appointment of the Page 21 of 41 Opposite Party No.6 as Principal-In-Charge-cum-Secretary of the College. Being aggrieved, the Petitioner filed W.P(C) No.7301 of 2015 wherein this Court has granted stay on the operation of the office order of Director, Higher Education dated 13.04.2015 till next date. 22. It was further contended that in view of the aforesaid directions of this Court, the Petitioner continued to be the Principal-In-Charge-cum-Secretary of the College till he was arrested on 26.08.2021 and put under Judicial custody in Langigarh Police Station Case No.64 of 2021 for the offence punishable under Section 420/406/294/506 of the IPC. Therefore, to obviate the situation, one Sri Prasanna Kumar Sahoo, Lecturer in English took over the charge of Principal-in-charge of the College and subsequently he handed over the charges of Principal-In-Charge-cum- Secretary on 03.09.2021 to the Opposite Party No.6. In the meantime, based on the allegation Letter No.6089 dated 21.08.2021 of the President of Governing Body of the College, the Government in Higher Education Department vide letter No.40017 dated 04.10.2021, asked the President, Governing Body of the College to initiate disciplinary proceedings against the Petitioner and to send a proposal for appointment of another senior-most faculty member as Principal-In-Charge. On 11.10.2021, the President of the 22 of 41 Governing Body of the College put the Petitioner under suspension in view of disciplinary proceeding initiated against him. Thereafter, vide Letter No.7487 dated the Sub- Collector, Bhawanipatna-Cum-President, Governing Body of the College submitted a proposal along with seniority list of 04 numbers of senior-most teaching staff for consideration of approval for appointment of Principal-in- Charge-cum Secretary of the College consequent upon the arrest of the Petitioner and his subsequent suspension vide his order No.6783 dated 11.10.2021. Hence, the Government in Higher Education Department in order to mitigate the situation, approved the name of the Opposite Party No.6 as Principal-in-Charge-cum-Secretary with effect from 03.09.2021 (Fore Noon) vide Letter No.48207 dated 25.11.2021 as he could be found to be the senior most faculty member among the teaching staff. 23. He further submitted that since the Petitioner was under suspension, though he released from judicial custody on bail on 03.11.2021, his candidature for holding up the post of Principal-in-Charge as before could not be considered. 24. It is also submitted that, in the meantime, the Petitioner had filed W.P. (C) No.38079/2021 before this Court challenging the legality and propriety of the order of suspension dated 11.10.2021 passed by the President, Page 23 of 41 Governing Body of the College and the consequential order dated 25.11.2021 of the State Government approving the appointment of the Opposite Party No.6 as Principal-in- Charge-cum-Secretary of the College with effect from 03.09.2021 (F.N.). This Court while taking up the matter passed interim order dated 10.12.2021 which reads as follows: "Pendency of the writ petition would not be a bar for the Government to take a decision on the letter dated 03.12.2021 marked as Annexure- 12/B enclosed to the affidavit filed by the petitioner dated 05.12.2021.” 25. He further submitted that in view of the interim order dated 13.04.2015 passed in WP(C) No.7301 of 2015, the matter was scrutinized and in view of the same the order dated 25.11.2021 under annexure 10 in which the Opposite Party No.6 was appointed as Principal-in-charge of the College was recalled vide Letter No. 2188/HE, dated 17.01.2022. However, in view of the interim order dated 10.12.2021 passed in W.P.(C) No.38079 of 2021 giving liberty to take a decision on the letter dated 03.12.2021 marked as Annexure-12/B enclosed to the affidavit filed by the petitioner dated 05.12.2021, the matter was again examined and it could be found that the Petitioner had mislead the Court in giving frivolous submissions 24 of 41 suppressing the fact of his arrest and consequent thereto the Departmental Proceedings putting him under suspension which made him ineligible to hold the post of Principal in- charge of the College. Thus, it was consciously decided to recall the contents of the letter No. 2188, dated 17.01.2022 by issuing letter No. 2502/HE, dated 19.01.2022 impugned herein this Writ Petition as Annexure-17. 26. He further submitted that being aggrieved with the letter dated 19.01.2022 under annexure-17, the Petitioner has preferred the present Writ Petition wherein he has failed to bring on record the interim order dated 10.12.2021 passed in WP(C) No.38079/2021 wherein the Government/Opposite Party was given liberty to take a decision with regard to appointment of Principal-in-Charge of the College so far as the Petitioner’s claim is concerned. Therefore, there is no wrong in issuing the letter dated 19.01.2022 recalling the contents of the letter dated 17.01.2022. 27. He also submitted that since the very appointment of Principal-In-charge of the Opposite Party No.6 vide Government Letter No.48207/HE, dated 25.11.2021 in view of issue of letter dated 19.01.2022 has been put a question in the present Writ Petition and since the Petitioner is under suspension as on date due to his involvement in a vigilance case and putting him under judicial custody from Page 25 of 41 08.03.2022 till 21.03.2022, as per information obtained from the President, Governing Body, another Lecturer named Kanaklata Behera, Lecturer in Odia of the college has been nominated as Principal-In-Charge of the said College temporarily to cater the day to day administrative need as well as smooth functioning of the College. Specifically, when a criminal proceeding is pending against the Petitioner, it was considered prudent not to allow him to continue as Principal-In-Charge of an educational institution. In such view of the matter, he submitted that all the Writ Petitions are liable to be dismissed. III. Court’s Reasoning and Conclusion: 28. From a bare perusal of the pleadings of the parties, it can be ascertained that the primary issue that arises for consideration is whether the Opposite Party No.6’s appointment as Principal-in-Charge-cum-Secretary was contrary to Clause-5 of Government Resolution dated 23.03.2015 which stated that if a person is not willing to join to the Post of Principal, he/she shall give the same in writing so that his/her claim for holding the said post in future shall not be taken to consideration. 29. In the instant case, the question is regarding the appointment of Principal-in-charge. The facts of the present case do not involve the appointment of Principal on a 26 of 41 regular basis and is only related to appointment on a temporary basis or on ad hoc arrangement. Admittedly, the Opposite Party No.6 expressed his unwillingness to remain in the position of Principal-in-charge due to family problem on 07.11.2011 and 26.04.2012 and accordingly, the name of the Petitioner was recommended for the position of Principal-in-charge-cum-Secretary by the Sub-Collector, Bhawanipatna. However, the Opposite Party No.3 vide order dated 13.04.2015 approved the appointment of Opposite Party No.6 as the Principal-in-charge-cum- Secretary on the recommendation of the President of the Governing Body. Aggrieved by the decision of Opposite Party No.3, the Petitioner approached this Court in W.P.(C) No.7301 of 2015 and this Court passed an interim order vide order dated 16.04.2015 whereby the operation of order dated 13.04.2015 passed by Opposite Party No.3 was stayed. 30. Further, the interim order dated 16.04.2015 passed by this Court in W.P.(C) No. 7301 of 2015 is still in operation as the said Writ Petition is still pending. In my opinion, the cause of action insofar as W.P.(C) No.7301 of 2015 is concerned, does not survive anymore as the Opposite Party No.2 in view of the interim order dated 16.04.2015 passed by this Court in W.P.(C) No.7301 of 2015, recalled the appointment Page 27 of 41 of Opposite Party No.6 as Principal-in-Charge. Accordingly, the Sub-Collector vide letter dated 18.01.2022 instructed the Opposite Party No.6 to step down from the post of Principal-in-charge with effect from 17.01.2022 till finalization of a regular Principal. In the meantime, the Petitioner being aggrieved by the order of the State Government dated 04.10.2021 and order of suspension dated 11.10.2021 approached this Court in W.P.(C) No.38079 of 2021 and this Court while issuing notice passed an interim order directing that pendency of the writ petition shall not be a bar for the Government to take decision on the letter dated 03.12.2021. 31. It is pertinent to mention that in the present case, the Petitioner discharged his duties as the Principal-in-charge- cum-Secretary till he was arrested on 26.08.2021 for the offence punishable under Section 420/406/294/506 of the IPC. Therefore, to obviate the situation Sri Prasanna Kumar Sahoo, Lecturer in English took over the charge of Principal-in-Charge and he subsequently handed over the duties of Principal(I/C)-cum-Secretary on 03.09.2021 to Opposite Party No.6 who was also the senior-most faculty. Subsequently, the Government vide letter dated 04.10.2021 asked the President, Governing Body to initiate disciplinary proceeding against the Petitioner and to send proposal for 28 of 41 appointment of another senior most faculty as Principal-in- charge. The Petitioner was put under suspension vide order dated 11.10.2021 issued by the President of Governing Body and disciplinary proceeding was issued against him. Thereafter, the Government vide Letter No. 48207 dated 25.11.2021 approved the appointment of Opposite Party No.6 as the Principal (I/C)-cum-Secretary w.e.f. 03.09.2021 as he was found to be the senior most faculty member among the teaching staff. 32. Further, this Court is of the opinion that the interim order dated 16.04.2015 cannot be said to be in operation as the term “till the next date” was used in the order dated 16.04.2015 and the said order was extended from time to time as is evident from order of this Court dated 15.03.2016. However, the stay on the operation of order dated 13.04.2015 cannot be said to have continued beyond 15.03.2016 even though the stay on the operation of the order was not vacated. It is because the stay on the operation of order dated 13.04.2015 was not vacated by the Opposite Parties, an order extending the stay on the operation of order dated 13.04.2015 is neither available nor was made in the subsequent dates. In absence of any order extending the stay on operation of order dated 13.04.2015, the contention of the Petitioner that the stay order would Page 29 of 41 continue till it was vacated cannot be accepted. A similar issue has been dealt by the Apex Court in Ashok Kumar v. State of Haryana3, the Supreme Court observed: “The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 09.09.1998 or 19.08.2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30.08.1997, the learned Civil Judge, used the term "In the meantime", which was repeated in its order dated 24.09.1997, but in the subsequent orders beginning from 29.11.1997, the expression used was "till then". The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted. In our considered opinion, the purport of the order passed by the learned Civil Judge, Senior Division, Panipat, in extending the order of injunction is absolutely clear and explicit. It may be true that the date was preponed to 28.07.1998, but from a bare perusal of the order passed by the learned Civil Judge, Senior Division, it is evident that the order of injunction was not extended. Even on the subsequent dates, the order of injunction was not 3 (2007) 3 SCC 470 30 of 41 extended. In fact, no order extending the period was passed nor any fresh order of injunction was passed by the learned Civil Judge, Senior Division, subsequent thereto.” 33. During the operation of the order dated 16.04.2015, the Petitioner discharged his duties as the Principal I/C till his arrest and subsequent suspension. Therefore, the cause of action of the Petitioner under W.P.(C) No.7301 of 2015 has already been extinguished following his arrest and subsequent suspension. Thus, if the cause of action on the part of Petitioner does not survive any more, it cannot be said that the interim order dated 16.04.2015 is still in operation and the same acts as a bar for the appointment of Opposite Party No.6 as Principal I/C. 34. The appointment of Principal I/C, following the suspension of the Petitioner vide order dated 11.10.2021, was considered afresh and one Prasanna Kumar Sahoo, Lecturer in English was appointed as Principal I/C to obviate the situation. Since, the Opposite Party No.6 was appointed as Principal I/C after a due and thorough consideration which involved recalling back of the order dated 25.11.2021 in view of decision of this Court in W.P.(C) No.7301 of 2015. Thus, it cannot be said that the initial unwillingness expressed by the Opposite Party No.6 during 07.11.2011 and 26.04.2012 would act as an estoppel against his Page 31 of 41 subsequent appointment as Principal I/C especially because his appointment was not made against the continuing vacancy that arose due to suspension of the Petitioner. Had the Opposite Party No.6 been appointed as Principal I/C following the suspension of the Petitioner from the said post, his unwillingness vide letter dated 07.11.2011 and 26.04.2012 would have estopped him from being appointed to the said post. However, Sri Prasanna Kumar Sahoo, Lecturer in English was appointed as Principal I/C after the suspension of the Petitioner and he handed over the duties of Principal I/C to the Opposite Party No.6 on 03.09.2021 with due approval of the Sub-Collector. Further, the appointment of the Opposite Party No.6 as the Principal I/C was again recalled in view of the decision of this Court in W.P.(C) No.7301 of 2015. The appointment of Opposite Party No.6 as Principal I/C was finally affirmed vide Order dated 19.01.2022 in view of the order of this Court in W.P.(C) No. 38079 of 2021 and the letter dated 17.01.2022 recalling the letter dated 25.11.2021 was withdrawn. It is essential to note that the Opposite Party No.6 did not stake his claim or function as Principal I/C while the Petitioner was in charge as admittedly, he had expressed his unwillingness to take up the said post during 07.11.2011 and 26.04.2012. It was only after the suspension of the 32 of 41 Petitioner that he was considered for appointment to the post of Principal I/C as he was the senior most faculty among the teaching staffs. 35. Moreover, in the present case, the appointment of Principal I/C was done on a temporary or officiating basis and the appointments were not against substantive vacancy and therefore, the Government Resolution dated 23.03.2015 has no application to the facts of the present case as it is related to appointment of Principal against substantive vacancies and not Principal-in-charge who are appointed on ad-hoc or temporary basis. Thus, this Court is of the opinion that the declining of post by Opposite Party No.6 during 07.11.2011 and 26.04.2012, was for that particular period of time when the vacancy had arisen. It cannot be treated to amount to permanently declining the post for all times to come. Whenever the vacancy may again occur in future the senior most teacher may again be considered for the post of Principal according to law and the Government Resolution. Therefore, when Sri Prasanna Kumar Sahoo was relieved from the position of Principal I/C, the appointment of Opposite Party No.6 was approved against the said post as he was the senior most faculty among the teaching staffs. In fact, the Opposite Party No.6 was the senior most faculty Page 33 of 41 and same is not in dispute even when the Petitioner was discharging his duties as Principal I/C. 36. In the case of Committee of Management, Jai Kisan Inter College, Basti and Ors. v. District Inspector of Schools, Basti and Ors.4, the Allahabad High Court held hereasunder: “2. The dispute in this case is as to who is entitled to be promoted as ad hoc Principal in the Institution in question. According to the Full Bench decision of this Court in Radha Raizada v. Committee of Management, 1994 (3) UPLBEC 1551, ordinarily the senior most teacher has the right to be appointed as ad hoc Principal. Admittedly, the petitioner is the senior most teacher in the institution in question and hence according to Radha Raizada's case, the respondent No. 2 is not entitled to be promoted as ad hoc Principal. 3. Learned counsel for the petitioner has relied on a decision of this Court In Satya Vir Singh v. D.I.O.S., Bulandshahr, 1995 (1) AWC 122, and he has emphasised on paragraphs 11 and 12 of this decision in which it has been held that once the senior most teacher has declined to accept the post, he cannot claim the right to function as officiating is Principal. distinguishable. In the present case, the respondent No. 2 had declined to accept the post of Principal in the year 1981, Satya Vir Singh's case, cannot be interpreted to mean that once a person has declined to officiate as ad hoc Principal and later on the In my opinion, this decision 4 1999 (4) AWC 3452 34 of 41 vacancy again occurs, he cannot then claim to be the officiating Principal merely because he had earlier declined. In my opinion, declining of the post is only for that particular period of time when the vacancy had arisen. It cannot be treated to amount to permanently declining the post for all times to come. Whenever the vacancy may again occur in future, the senior most teacher may again be considered for the post of Principal according to law.” 37. Moreover, as held by the Allahabad High Court in the Full Bench decision in the case of Radha Raizada v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors.5, the seniority plays a dominant role in the matter of appointment to the post of the Principal/Head Master in the institution and ordinarily a senior most teacher in the Lecturer grade is to be appointed by promotion to the post of the Principal and the criteria for ad hoc appointment to the post of the Principal is by promotion keeping in view seniority subject to rejection of unfit. In paragraph 45, the Allahabad High Court held as follows: "45. Thus, seniority plays a dominant role in the matter of ad hoc appointment to the post of Principal/Head Master in the institution and ordinarily a senior most teacher in the Lecturer grade is to be appointed by promotion to the post of Principal. However, there is another aspect of the matter that a Principal is not only required to teach the students but in fact he has to run the 5 1994 (3) UPLBEC 1551 Page 35 of 41 to entrusted enormous institution. He is captain of the team. A Principal administrative is responsibilities and for that, only a person who is fit to discharge such function, deserves to be appointed. In the case of Mohd. Naim (supra), and in the case of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh (supra), two learned single Judges of this Court took the view that the criteria for ad hoc appointment to the post of Principal is by promotion on the basis of seniority subject to reject of the unfit. In view of the extra responsibilities entrusted to Principal, I am, therefore, of the view that the criteria for ad hoc appointment to the post of Principal is by promotion keeping in view the seniority subject to rejection of the unfit.” 38. In the case of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh6, the Allahabad High Court observed: "14. However, in order to minimise the possibility of arbitrariness I am of the opinion that if the management wishes to supersede the senior most teacher (who is qualified to be appointed Principal) it can only do so if (1) there are grave charges against him which are so serious that it will be the wholly detrimental institution to appoint him ad hoc Principal or (2) he suffers from such a serious physical disability that he cannot properly perform the function of Principal. In either case the senior most teacher must be given a show cause notice by the management stating the charges against him (or the physical disability) and stating that it proposed to supersede him. The hearing to be given by the interests of the to 6 1992 ESC 562 (All) 36 of 41 in management need not be a personal hearing, but copies of any material sought to be relied upon (whether contained the service book or elsewhere) must be supplied in advance so as to enable teacher to give his reply explanation. After considering the teacher's reply the Management can supersede him but only by a reasoned order, and such reasons can be scrutinised by the High Court under Article 226 of the Constitution. If the second senior most teacher is also sought to be superseded, then the same procedure must be followed in respect of him also, and so on.” 39. In the case of Ram Murti Singh v. Distt. Inspector of Schools7, the Supreme Court observed: “The short point which the learned counsel for the appellant urged before us is that under Rule 4 of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 ad hoc appointment by promotion can be made in every vacancy in the post of Head of an institution till a regular appointment is made. His contention is that since the appellant was the seniormost, he was entitled to be appointed ad hoc Principal, but instead another person, Respondent 3, was so appointed in violation of the aforesaid rule. As has often been said, no one has a right to promotion but a mere right to be for promotion if he satisfies the requirements of law or rules. Rule 4 of the Order permits to make an ad hoc appointment till a regular appointment is made. Ordinarily, the seniormost person may expect that he would be appointed, but certainly not if he is not competent. In the present case, we find from the the authority 7 1995 Supp (3) SCC 170 Page 37 of 41 order of the District Inspector of Schools, Deoria, dated 11-8- 1987 that the appellant, though the seniormost, was not found to be competent. His relationship with teachers and other employees was not satisfactory and hence the Management feared that he would not be able to draw the cooperation of the teachers and employees for working as a team. If this was found to be detrimental to the interests of the institution and he was not promoted though we do no think that we can find fault with the order passed by the District Inspector of Schools and affirmed by the High Court which saw no merit in the writ petition.” 40. Insofar as the question relating to validity of the order of suspension dated 11.10.2021 is concerned, this Court is of the view that the Governing Body of an aided educational institution has the authority to decide whether the Principal-in-charge should remain in the position if there are criminal proceedings pending against him. In the present case, the Petitioner was put under suspension due to his involvement in a vigilance case and he was put under judicial custody. The Governing Body collectively opined that since there was a criminal proceeding pending against the Petitioner, it was considered prudent not to allow him to continue as Principal-in-charge of an educational institution. It is an admitted fact that the Petitioner was arrested on 26.08.2021 for the offence punishable under Section 420/406/294/506 and was suspended. The Petitioner 38 of 41 was released on bail by this Court vide order dated 03.11.2021 passed in BLAPL No.8191 of 2021 and was subsequently reinstated in service to discharge his duties as Lecturer in Political Science, pending finalization of Departmental Proceedings. Therefore, it is an indisputable fact that there was prima facie evidence available which connected the Petitioner with the alleged offence and based on those evidences, the Governing Body put the Petitioner under suspension and later reinstated him in service only as a Lecturer in Political Science and not as Principal-in- charge. Since, the Departmental Proceedings against the Petitioner are yet to be finalized, this Court would at loathe to substitute its views without going through the entire evidence on record. 41. In the case of U.P. Rajya Krishi Utpadan Mandi vs Sanjiv Rajan8, the Supreme Court observed: “We find from the charge-sheet that the allegations against the 1st respondent are grave in as much as they indicate that the amounts mentioned there in are not deposited in the bank and forged entries have been made in the pass book of the relevant accounts and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. The Division Bench has given no reason for upholding the 8 1993 Supp (3) SCC 483 Page 39 of 41 revoking learned Single the Judge's order suspension order. In matters of this kind, it is advisable that the concerned employees are kept out of the mischief's range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. Whether the employees should or should not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority ordinarily, the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. In the present case, before the preliminary report was received, the Director was impressed by the 1st respondent-employee's representation. However after the report, it was noticed that the employee could not he innocent. Since this is the conclusion arrived at by the management on the basis of the material in their possession, no Conclusions to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record In the circumstances, there was no justification for the High Court to revoke the order of suspension.” 42. Therefore, in the present case, it is an admitted fact that the appointment of Opposite Party No.6 as Principal-In-charge- cum-Secretary was made on the basis of his seniority among the teaching staffs. Moreover since, this ad-hoc appointment was made after the suspension of the Petitioner, the Opposite Party No.6's unwillingness to officiate as Principal-in-charge on an earlier occasion would 40 of 41 not act as an estoppel to his appointment on future occasions. Further, since the appointment of Opposite Party No.6 as Principal-in-Charge vide Letter dated 19.01.2022 was made on an officiating/ad-hoc basis and not as an engagement against substantive vacancy, the Clause-5 of Government Regulation dated 23.03.2015 cannot be made applicable to such appointment. 43. The conspectus of the facts and precedents narrated hereinabove, this Court is of the view that the Writ Petitions are devoid of merits and are liable to be set aside. As such, the impugned Government Letter No.2502 dated 19.01.2022 issued by the Opposite Party No.2 does not suffer from any infirmities or illegalities. 44. Accordingly, all these Writ Petitioners are dismissed. No order as to cost. (Dr. S. K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 9th Jan., 2023/B. Jhankar Page 41 of 41