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2000 DIGILAW 348 (ORI)

GOKULANANDA PANDA v. STATE OF ORISSA

2000-07-14

L.MOHAPATRA, PRADIPTA RAY

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JUDGMENT : Pradipta Ray, J. - The post of junior Clerk in Gangadhar Prasad High School, Balasore (hereinafter referred to as 'School') fell vacant on May 5, 1993 due to the death of the incumbent. The Managing Committee of the School by its Resolution No. 6 dated August 17, 1993 decided to fill up the said vacant post and authorised the Headmaster to call for the names from the Employment Exchange. On the basis of the request of the Headmaster, the Employment Exchange sponsored names of 40 candidates. On December 31,1993 the Managing Committee constituted a sub-committee for conducting the selection test. On February 25, 1994 the Managing Committee decided hold written test on April 2, 1994 and viva voce on April 12,1994. In the written test held on April 2, 1994 29 candidates including the present petitioner and opp.party No. 6 appeared. In the written test the present petitioner occupied first position. In the viva voce held on April 12, 1994, 10 selected candidates including the present petitioner and opp. party No.6 appeared and a merit list was prepared. 2. According to the petitioner he secured highest marks and occupied first position in the merit list and on such basis he was appointed in the said post of Junior Clerk on May 10, 1994 and he joined on May 11, 1994. The petitioner has stated that his appointment was approved by the Managing Committee of the School on May 17, 1994 and he discharged his duties till June 24, 1994 when he received the impugned letter bearing No. 433/94 dated June 22,1994 informing him that the Managing Committee in its meeting held on June 10, 1994 cancelled the Managing Committee's resolution dated May 17, 1994 and all consequential actions including issuance of appointment letter to the petitioner. It was alleged in the said letter that the meeting dated May 17, 1994 was held under duress and the petitioner forced the members of the Managing Committee to adopt a resolution selecting him for appointment. Subsequently the Managing Committee held a fresh viva voce on July 16, 1994 through a sub-committee which recommended the name of opp.party No. 6 for appointment. The petitioner has challenged cancellation of his appointment and appointment of opp.party No. 6. 3. This writ petitions is contested by the opp. party No. 4. Subsequently the Managing Committee held a fresh viva voce on July 16, 1994 through a sub-committee which recommended the name of opp.party No. 6 for appointment. The petitioner has challenged cancellation of his appointment and appointment of opp.party No. 6. 3. This writ petitions is contested by the opp. party No. 4. the Headmaster of the School at the time of the selection and appointment of the petitioner and the opp. party No. 6 who was appointed after cancellation of appointment of the petitioner The gist of the case of the said opp. parties 4 and 6 is : The viva voce conducted by the selection committee was vitiated because the Tahsildar, the then President of the Managing Committee of the School who was not a member of the Selection Committee participated in the viva voce test and awarded marks in order to make the petitioner first. The appointment letter dated May 10, 1994 and the joining report dated May 11, 1994 were manufactured and those were never issued by the then Headmaster-cum-Secretary of the Managing Committee. On May 17, 1994 the petitioner, his brother and several other associates threatened the members of the Managing Committee and compelled them to adopt a resolution confirming the selection and appointment of the petitioner. Subsequently on June 10, 1994 the Managing Committee cancelled the appointment of the petitioner and held fresh selection test. On June 22, 1994 the petitioner was informed that he was no longer the Junior Clerk of the School in view of the cancellation of his appointment by the Managing Committee. On July 19, 1994 the opp.party No.6 was appointed as Junior Clerk on the basis of the new selection test. The petitioner did not appear at the said fresh selection test. 4. The opp.party No.5 who subsequently joined as Headmaster of the School on August 26, 1994 has filed a counter affidavit supporting the claim of the petitioner. According to opp.party No.5 the Managing Committee of the School in its meeting held on November 18, 1993 initially constituted a selection committee for appointment of Junior Clerk. On December 31,1993 a new selection committee was constituted by the Managing Committee and the President of the Committee was taken in as a member. A written test was held on April 2, 1994 and viva voce on April 12, 1994. On December 31,1993 a new selection committee was constituted by the Managing Committee and the President of the Committee was taken in as a member. A written test was held on April 2, 1994 and viva voce on April 12, 1994. On the basis of the performance in the said tests a merit list was prepared. In the said merit list the petitioner's name figured as No.l On May 7, 1994 the Managing Committee of the School resolved to give appointment to the candidates who obtained highest marks in the selection test. On the basis of some complaints received by the Inspectorate, the Inspector of Schools conducted an enquiry regarding the process of selection and was satisfied that the petitioner occupied the first position and was entitled to be appointed. On May 10, 1994 appointment letter was issued to the petitioner. On May 11,1994 the petitioner joined the School after submitting his joining report. On May 17, 1994 the Managing Committee of the School again confirmed the appointment of the petitioner as Junior Clerk. According to the opp. party No.5, every thing was done in lawful manner and there was no reason for cancelling the appointment. 5. The opp.party No.3 the Inspector of Schools, Balasore Education Circle has also filed a counter affidavit in which it has been claimed that the merit list was correctly prepared by the sub-committee on April 12, 1994 and the petitioner secured highest marks therein. After the merit list was finalised on April 12, 1994 the Managing Committee held a meeting on May 7, 1994, but the then Headmaster, the opp.party No.4 intentionally did not put up the agenda for accepting the recommendation of the selection committee. Immediately the petitioner lodged a complaint with the Inspector of Schools. On receipt of the said complaint the Inspector of Schools paid a surprise visit and made spot enquiry. Upon such enquiry the Inspector was satisfied that the petitioner was duly selected and was entitled to be appointed. He orally advised the School to finalise the matter without any delay. The Inspector did not find any illegality or irregularity in the selection of the writ petitioner and submitted his report accordingly. 6. The petitioner has filed a joint-rejoinder to the counters filed by the opp.parties 4 and 6. All the contesting parties have annexed considerable number of documents in support of their respective cases. The Inspector did not find any illegality or irregularity in the selection of the writ petitioner and submitted his report accordingly. 6. The petitioner has filed a joint-rejoinder to the counters filed by the opp.parties 4 and 6. All the contesting parties have annexed considerable number of documents in support of their respective cases. From the pleadings of the parties it appears that the basic question to be decided in the writ application is whether the selection of the petitioner in the ' selection process was vitiated or not. There is no dispute that the petitioner and the opp.party No.6 both appeared at the written test and the viva voce. There is also no dispute that the petitioner occupied first position in the written test. The Inspector of Schools conducted an enquiry on May 9, 1994 and in his report he did not find anything illegal or improper with the selection of the petitioner and accordingly advised the School authority to take follow-up action. In his counter the Inspector of Schools has stated that on April 9, 1994 a verbal instruction was given to issue appointment letter in favour of the petitioner. The Inspector of Schools has also mentioned in his counter that the Secretary of the Managing Committee of the School informed the Inspector of Schools that the appointment letter had already been issued in favour of the petitioner and the joining report had been accepted. 7. The writ petitioner has annexed a Xerox copy of the resolution of the Managing Committee held on December 31, 1993 constituting the Selection Committee including the President of the Managing Committee and a Xerox copy of a letter dated April 9,1994 written by O.P.No.4 as Headmaster requesting the President of the Managing Committee to attend and conduct viva voce as Chairman of the Selection Committee for the purpose. Although no affidavit has been filed by any of the opposing parties dealing with the said documents disclosed in the rejoinder, in course of hearing the opp.parties Nos. 4 and 6 questioned the authenticity of the said annexures and demanded production of the original. 8. The selection of the petitioner has been claimed to have been vitiated because of participation of the Tahsildar, who was the President of the Managing Committee of the School. It has been claimed by the contesting opp. 4 and 6 questioned the authenticity of the said annexures and demanded production of the original. 8. The selection of the petitioner has been claimed to have been vitiated because of participation of the Tahsildar, who was the President of the Managing Committee of the School. It has been claimed by the contesting opp. parties that the Chairman was not a member of the subcommittee and accordingly, he had no authority or competence to participate in tire viva voce and award marks. The opp. party No.5 in his counter affidavit has, however, expressly stated that the Tahsildar, the President of the School was also a member of the Selection sub-committee. Thus the material dispute appears to be whether the Tahsildar, the then President of the Managing Committee of the School was a member of the Sub-Committee/Committee constituted to make selection and to conduct tests including viva voce. If it is found that the President of the Managing Committee was also a member of the Sub-Committee no exception can be taken to the appointment of the writ petitioner inasmuch as in both the written test and the viva voce his position was above the opp. party No.6. For such determination it is necessary to ascertain whether Managing Committee in its meeting held on December 31, 1993 reconstituted the Selection Committee with the then Tahsildar as a member. However, in absence of the original resolution book it is not possible for us sitting in the constitutional writ jurisdiction to decide conclusively whether Managing Committee reconstituted the Selection Committee on December 31.1993 or not. We think that the Director of Secondary Education should be directed to conduct an enquiry either himself or through an officer not below the rank of Deputy Director and to find out whether the Managing Committee reconstituted the Selection Committee on December 31 1993 and the opp. party No.4 as Headmaster issued letter dated April 9, 1994 requesting him to hold viva voce as Chairman of the Selection Committee. 9. An objection regarding entertainability of the writ application by this Court has been raised. It has been pointed out that by resolution dated December 16,1994 the Government of Orissa took over the management of several Non-Govt. fully aided High School including the present School with effect from June 7, 1994. When the process of selection was going . on and petitioner was appointed, the School was fully aided Non-Govt. It has been pointed out that by resolution dated December 16,1994 the Government of Orissa took over the management of several Non-Govt. fully aided High School including the present School with effect from June 7, 1994. When the process of selection was going . on and petitioner was appointed, the School was fully aided Non-Govt. School. Although the School was taken over by the State Government retrospectively, but the petitioner's initial appointment cannot be treated as appointment by the Government to a Govt. School. If the petitioner's appointment by the then Managing of the School is found to be legal or valid, the State Government will consider the question of approving his appointment and accepting him as a non-teaching staff of the taken-over Government School. In such situation we are not able to accept the submission that the petitioner should have moved the State Administrative Tribunal and this Court has no jurisdiction to entertain this writ application. The completed acts before issue of the notification by the State Government cannot be treated as act by a taken-over Govt. School. 10. The opp. parties have also taken the objection that the order of termination of the service of the petitioner is to be challenged before the Orissa Education Tribunal. Existence of an alternative forum is. not an absolute bar and the High Court can entertain a writ application in spite of existence of an alternative remedy in appropriate case. Moreover jurisdiction of the Education Tribunal extends to disputes and differences relating to or connected with the eligibility, entitlement, payment or non-payment of grant-in-aid. The dispute relating to appointment or cancellation of appointment does not come within the jurisdiction of the Tribunal in view of the amended provisions of Section 24-B (I) of the Orissa a Education Act. 11. For the foregoing reasons we dispose of this writ petition by directing the Director of Secondary Education to make necessary enquiry either by himself or through an officer not below the rank of Deputy Director and to determine after giving an opportunity of hearing to the petitioner and the other interested persons whether the Selection Committee was reconstituted on December 31, 1993 and the then President of the Managing Committee of the School was made a member of the Selection Sub-Committee and whether opp. party No.4, the then Headmaster issued letter dated April 9, 1994 requesting the President to hold viva voce. party No.4, the then Headmaster issued letter dated April 9, 1994 requesting the President to hold viva voce. The Director or his nominee will complete the exercise and take a reasoned decision within two months from the date of communication of this order. The final reasoned order will be communicated to the petitioner and the opp.party No.5 within two weeks from the date of his order/determination. If it is found that the then President of the Managing Committee was a member of the Selection Committee, the present petitioners appointment will be considered for approval in accordance with law. If it is found that the President of the Managing Committee was not a member of the Selection Committee the impugned order of cancellation of petitioner's appointment will be treated as valid and prompt consequential action will be taken. No order as to costs. L. Mohapatra, J. 12. I agree.