The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28980 of 2024 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Md. Ansar Ali Ansari …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :
Legal Reasoning
4.3. Similar view has also been taken by this Court in a report decision reported in 2011 (Supp.-I) OLR-482 in the case of Smt. Sradhabati Parida Vrs. State of Orissa and Others. The view of this Court in Para-9 of the said judgment reads as follows:- “9. Heard learned counsel for the parties diligently. We have also perused the pleadings and the documents attached thereto and marked as exhibits. There is no dispute that opposite party No. 4 is the senior most member of the teaching staff of the college. She was appointed as Principal-in-charge of the college on 1.8.1990. Her appointment was duly approved by the State Government. Also, fact remains, that she was put under suspension with effect from 21.11.2008. The proviso to Rule 21 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the staff of aided Educational Institutions) Rules, 1974 stipulates that in case of suspension of the Principal of an aided educational institutions, prior approval of the Director has to be obtained. It is further stipulated that the Governing Body of the college can place a Principal of Page 4 of 6 // 5 // the Director, college under suspension, after the initiating disciplinary proceeding or contemplating to initiate a proceeding, only for a period of 30 days pending approval of the Director. In the case in hand, opposite party No. 4 was admittedly put under suspension on 21.11.2008. No approval having been accorded to such suspension by the order of suspension lost its force after lapse of thirty days, i.e., on and from February, 2009. It is further submitted that another suspension order was passed on 24.12.2009. The said order also lapsed as no approval was accorded by the Director within thirty days. Therefore, strictly speaking, the order of suspension passed against opposite party No. 4 did not exist. The order dated 2.3.2009, Annexure-1, reveals that the Governing Body appointed the petitioner as Principal-in-charge during the suspension period of opposite party No. 4. But then if the suspension order of opposite party No. 4 came to an end by efflux of time, then she being the senior most member of the teaching staff of the college once again became eligible to be appointed as Principal in-charge as in consonance with the Rules and guidelines framed, the senor most member of the teaching staff alone has a right to be appointed as Principal of the College. The Director in his order under Annexure-9 has elaborately dealt with the said fact.” 5. Learned Addl. Standing Counsel also fairly contended that as of now no order of approval has been issued and only vide letter dated 10.12.2024, post factor approval has been sought for. 6. Having heard learned counsel for the parties and considering the submissions made and placing reliance on the decisions as cited (supra), since the order of suspension passed against the petitioner on 08.11.2024 under Annexure-9 has not been approved Page 5 of 6 // 6 // as on date, in view of the provisions contained under the 2nd proviso to Rule 21(2) of the 1974 Rules and the decisions as cited (supra), the order of suspension so passed on 08.11.2024 under Annexure-9 has lapsed in the meantime. 7.
Arguments
Mr. S. Jena, Advocate For Opp. Parties : Mr. S.P. Das, ASC PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:13.12.2024 and Date of Order: 13.12.2024 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J. 1. Pursuant to the order passed by this Court on 06.12.2024, instruction provided by the DEO, Kendrapara vide letter dated 10.12.2024 so produced in Court be kept in record. // 2 // 2. Heard Mr. S. Jena, learned counsel for the petitioner and Mr. S.P. Das, learned Addl. Standing Counsel for the State. 3. The present Writ Petition has been filed inter alia challenging order of suspension passed by the DEO, Kendrapara vide order dated 08.11.2024 under Annexure-9. 4. Considering the nature of order passed under Annexure-9, this Court passed the following order on 06.12.2024:- “1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Pursuant to the order passed by this Court on 26.11.2024, learned Addl. Standing Counsel for the State produced the instruction provided by the D.E.O, Kendrapara. The same be kept in record. 4. Basing on the instruction, it is contended that since there is no approved Managing Committee available in the School, D.E.O., Kendrapara has exercised the power of Managing Committee in terms of the office order issued by the Director on 25.01.2019. 5. To the stand taken by the Inspector of School, learned counsel for the Petitioner contended that even though Petitioner has been placed under suspension by the D.E.O., Kendrapara in exercise of the power of Special Officer in absence of any Managing Committee, but no such order of Page 2 of 6 // 3 // suspension can be passed with retrospective effect. 6. In support of the same, learned counsel appearing for the Petitioner relied on the decision of the High Court at Patna, where it has been indicated that no order of suspension can be passed with retrospective effect. 6.1. However, taking into account the provisions contained under Rule-21 of the Odisha Education (Recruitment & Conditions of Services of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, learned Addl. Standing Counsel for the State is directed to obtain instruction as to whether in the meantime any approval to the order of suspension has been sought for and what action has been taken on the same. 7. As requested by learned Addl. Standing Counsel for the State, list this matter on 13th December, 2024. A free copy of this order be handed over to Mr. S.P. Das, learned ASC for compliance.” 4.1. Basing on the order so passed and the instruction so provided in Court, it is contended that since no approval has been accorded to the order of suspension so passed against petitioner under Annexure-9 on 08.11.2024, within a period of 30 days from the date of order, in view of the provisions contained under the 2nd proviso to Rule 21(2) of the 1974 Rules, the said order has lapsed in the meantime. 4.2. It is contended that similar view has been taken by this Court in order dated 01.09.2023 in W.P.(C) Page 3 of 6 // 4 // No.12100 of 2022. This Court in Para-7 of the said order has held as follows:- “7. Having heard learned counsel appearing for the Parties and taking into account the submissions made, this Court is of the view that since the Petitioner was an approved staff and in receipt of grant-in-aid under the Direct Payment Scheme, the College was required to obtain the approval of the Director after placing him under suspension w.e.f.11.09.1999 vide Annexure-16 within a period of 30 days in terms of the provisions contained under the 2nd proviso to Rule 21(2) of the 1974 Rules. Since no such approval was ever obtained from the Director, as per the considered view of this Court, the order of suspension lost its force after 30 days and the Petitioner is accordingly deemed to be continuing in his services as against the post of Peon till he attained the age of superannuation.”
Decision
The Writ Petition accordingly stands disposed of. Orissa High Court, Cuttack Dated the 13th December, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Dec-2024 17:35:54 Page 6 of 6