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2009 DIGILAW 175 (ORI)

SRI JAGABANDHU SAHOO v. STATE OF ORISSA

2009-03-03

L.K.MISHRA, P.K.TRIPATHY

body2009
JUDGMENT : P.K. Tripathy, J. - This Writ Petition is directed against order of the Director, Higher Education, Annexure- 1 (b). 2. Fact involved in this case, in short, is that Petitioner was appointed as Lecturer on 07.08.1982. He submitted his resignation on 30.10.1985 and the Governing Body, Opp. Party No. 3 accepted the resignation on 07.11.1985. Petitioner filed O.J.C. No. 6011 of 1996. That Writ Petition was disposed of on 13.08.1996 with direction to Opposite Party No. 2 to dispose of the appeal/representation, Annexure-2(b) dated 16.05.1996. Pursuant to that direction, on 29.04.1997 that appeal was disposed of as per order, Annexure-3. The appeal petition of the Petitioner was dismissed. As against that order, Petitioner filed O.J.C. No. 7313 of 1997. On 06.04.1999, while disposing of that Writ Petition, this Court considered the submission of the Petitioner that the claim of the Petitioner about fabrication of resignation letter was not properly considered by Opposite Party No. 2, though he took such ground in the appeal memo/representation. This Court thus quashed the order, Annexure-3 and directed that- "The Director will consider the appeal afresh and dispose of the same by the end of July, 1999 on the basis of materials available on record." After hearing the parties, Opposite Party No. 2 passed the impugned order, Annexure 1 (b) recording the finding in favour of the Governing Body and as against the Petitioner to the effect that the Petitioner had tendered resignation and his subsequent conduct was sufficient to prove the same. Recording such reasoning, the appeal was dismissed. In effect, Petitioner's effort is to get the first post of Lecturer in Economics if he succeeds in combating the order of termination of service of the year 1985, inasmuch as, Petitioner joined the post of Lecturer in Economics, second post w.e.f. 16.09.1991 and is continuing in that post and that from 02.04.1985 to 14.08.1990 he served as Headmaster in Mahabir Secondary Training School. 3. Mr. 3. Mr. B.K. Pattnaik, Learned Counsel for the Petitioner argued that on a bare reading of Order Dated 06.04.1999 passed in O.J.C. No. 7313 of 1997 it appears that this Court remanded the appeal for fresh disposal with a view that the Director was to find out genuineness or otherwise of the resignation letter and consequentially to find out if the order of termination was in colourable exercise of the authority by the Opposite Party No. 3, but the Opposite Party No. 2 instead of recording any positive finding on that issue mechanically followed the logic like his predecessor and dismissed the appeal. He further argued that the order of retrenchment dated 18.11.1985, Annexure 7 and order of appointment of one Annapurna Rout on 20.11.1985 provide the tellable circumstance that Petitioner's service was terminated illegally with a view to provide employment to Mr. A. Rout. Accordingly, he argues to quash the order, Annexure 1 (b) and also the order of termination of his service. In the alternative he argued to direct Opposite Party No. 2 to make a fresh enquiry on the plea of resignation, which is being seriously disputed by him. 4. Opposite Parties 3 and 4 have filed two separate counter affidavits so also Opposite Party Nos. 1 and 2 have filed a counter affidavit besides a counter to the rejoinder of the Petitioner. On a conjoint reading of the aforesaid counter affidavits, it appears that they advance a common plea in denying to the allegation of the Petitioner and defending the action of Opposite Party No. 3 so also justifying the order passed by Opposite Party No. 2. 5. In a nutshell it emerges from the aforesaid statement in the counter affidavits that on 07.08.1982 when the college was an unaided one, Petitioner was appointed as Lecturer in Economics on 07.08.1982. While so continuing, surreptitiously he sought another employment as Headmaster of Mahabir Secondary Training School w.e.f. 04.04.1985. No prior permission or order of approval was obtained by the Petitioner to seek that appoint while in service as Lecturer in Economics. When that fact could be discovered and was confronted to the Petitioner, then only Petitioner opted to resign and submitted his resignation letter, Annexure-3.That resignation was considered and accepted by the Governing Body on 07.11.1985. No prior permission or order of approval was obtained by the Petitioner to seek that appoint while in service as Lecturer in Economics. When that fact could be discovered and was confronted to the Petitioner, then only Petitioner opted to resign and submitted his resignation letter, Annexure-3.That resignation was considered and accepted by the Governing Body on 07.11.1985. In 1991 the second post of lecturer in economics was advertised and then as the Training School had been closed, Petitioner again applied for and was selected as lecturer in economics for the second post, and pursuant to that appointment from 16.09.1991 he is continuing. The college received grant-in-aid in the year 1994. Petitioner was approved as a lecturer in economics in the second post and received grant-in-aid accordingly. It is only after validation of services of the lecturers having secured less than 55% of marks and providing of grant-in-aid to the college, that the Petitioner thought of, though belatedly, to initiate this litigation so as to grab the first post of lecturer in economics. They also state that the plea of filing of an appeal or representation in 1985 is a myth in as much as no such appeal or representation was ever received by either Opposite Party No. 2 or Opposite Party No. 3. Accordingly, the stand of the Opposite Parties is that the appeal initiated in the year 1996 as against the order of termination on resignation of the year 1985 is hopelessly barred by time. 6. In the rejoinder filed by the Petitioner to the various he has not disputed about his serving as the Training School or for the second time seeking counter affidavits, Headmaster of the appointment under the present institution. He has explained that to sustain his livelihood he had to do the same. However, he has not filed a scrap of paper in support of his contention that in 1985 he filed a representation/appeal before Opposite Party No. 3. 7. Petitioner emphasized on the contention that he never tendered resignation, therefore, resolution of the Governing Body, which has been recorded by Opposite Party No. 3 and accepted by Opposite Party No. 2, is not to be accepted on the face of Annexure-7, the order of retrenchment. 7. Petitioner emphasized on the contention that he never tendered resignation, therefore, resolution of the Governing Body, which has been recorded by Opposite Party No. 3 and accepted by Opposite Party No. 2, is not to be accepted on the face of Annexure-7, the order of retrenchment. We find no reason to accept such a contention of the Petitioner, inasmuch as, not only the Opposite Party members have denied about existence of any such official communication for retrenchment of the Petitioner from the Institution but also lack of any resolution by the Governing Body to that effect. While relying on the retrenchment letter, Annexure-7, Petitioner has lost sight of the fact that the retrenchment has to be ordered by the Governing Body and not by the Secretary. The concerned Resolution Book in original produced for our perusal does riot show availability of any Resolution for retrenchment of the Petitioner for possessing less than 55% of marks. From the aforesaid conduct of the Petitioner, it is apparent that he has manipulated records in furtherance of his grudge to grab the first post of Lecturer in Economics. 8. The Resolution Book clearly indicates about tendering of resignation by the Petitioner. Attendance Register of the School in original produced for our perusal indicates that Petitioner served as Headmaster of the Training School from April, 1985. Sustenance of livelihood logic put forth by the Petitioner does not stand to reason, inasmuch as, by April 1985 he was already in service as Lecturer in Economics in the College of Opposite Party No. 3. On the other hand, the aforesaid conduct of the Petitioner in serving in two different institutions in two different capacities without giving due intimation to the earlier employer, clearly indicates the indisciplined conduct of the Petitioner and that he has no respect for the discipline and decorum of service. 9. In the order impugned, the Director has recorded the finding that the resignation was voluntary and that was duly accepted by the Governing Body. That finding is sufficient to satisfy the direction in the remand order passed in O.J.C. No. 7313 of 1997. There is nothing on record to indicate that Petitioner wanted to adduce any other offurther evidence in support of his plea or to rebut the plea of the Opposite Party No. 3 and that was not accepted by the Director. That finding is sufficient to satisfy the direction in the remand order passed in O.J.C. No. 7313 of 1997. There is nothing on record to indicate that Petitioner wanted to adduce any other offurther evidence in support of his plea or to rebut the plea of the Opposite Party No. 3 and that was not accepted by the Director. Under such circumstance, there is no necessity to ask the Director again and again to enquire into the factum of resignation, which he has enquired and found to be correct. 10. In both the orders of the Director, Annexure- 1 (b) and Annexure-3, while disposing the appeals, the concerned Directors noted that the Petitioner is not entitled to the first post of Lecturer in Economics, inasmuch as, on his resignation some other teaching staff in that post has not only been appointed but also is receiving the grant-in-aid. Petitioner is serving in the same College and presently in the second post; so, he should have no grievance. 11. As noted earlier, though Petitioner has asserted that he filed representation/appeal before Opposite Party No. 3 in the year 1985, i.e., soon after termination of his service, but the same has been denied by Opposite Party No. 3 as well as Opposite Party No. 2. Notwithstanding that, Petitioner has not filed any document in support of that plea. Keeping in view the conduct of the Petitioner in manipulating an order like Annexure- 7 in connivance with the erstwhile Secretary of the College, the aforesaid plea of the Petitioner is not accepted in the absence of any documentary proof. In other words, the contention of the Opposite Parties appears to be correct when they state that Petitioner engineered the litigation only in the year 1996 and not before that. 12. Posted with all the relevant facts and circumstances and the impugned orders of the Opposite Party No. 2, we find no illegality or perversity in the findings recorded so as to dismiss the appeal of the Petitioner by Opposite Party No. 2. 13. Under such circumstances, we do not interfere with the same and accordingly the Writ Petition is dismissed. No cost. All the records produced by Opposite Parties at the time of hearing be returned on granting proper receipt. L.K. Mishra, J. I agree. Final Result : Dismissed