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2010 DIGILAW 210 (ORI)

SRADHABATI PARIDA v. STATE OF ORISSA

2010-03-25

A.S.NAIDU, B.N.MAHAPATRA

body2010
JUDGMENT : A.S. Naidu, J. - This writ petition involves a very ticklish and important point. The petitioner, who holds a substantive post of Lecturer in Home Science and was kept in charge of Principal of Pattamundai Women's College, Pattamundai in the district of Kendrapara, has approached this Court with a prayer to direct opposite party No. 2, Director of Higher Education, Orissa, not to appoint opposite party No. 4, Mrs. Nirupama Bal, Lecturer in History of the said college as Principal and for further direction to set aside the order dated 29.12.2009 (Annexure-9) passed by the Director, Higher Education. 2. The petitioner assails the aforesaid order under Annexure-9 on several grounds. The most important and forceful being that the Director, Higher Education, Orissa two days before his retirement had passed the order that too without following the principles of audi alteram partum and without affording an opportunity of hearing to the petitioner and others. 3. To appreciate the inter-se disputes, it would be prudent to have a bird's eye view to the facts of the case :- 4. Pattamundai Women's College is an aided educational institution, as defined u/s 3(b) of the Orissa Education Act. After retirement of the permanent Principal, opposite party No. 4, who is working as Lecturer in History and was the senior most lecturer of the college was appointed as Principal-in-charge. By order dated 1.8.1990 passed by the Secretary of the Governing Body of the college. She assumed the charge of Principal with effect from 1.8.1990. Her appointment was approved by the Government of Orissa, Department of Higher Education on 19.7.1996. The college in question became an aided educational institution with effect from 16.7.1997. It is alleged that several allegations with regard to improper activities committed by the said opposite party as in-charge Principal of the College were reported to the Governing Body. Consequently, the Governing Body of the college by its resolution dated 2.11.2008 removed her from the post of Principal-in-charge and appointed the petitioner, who was the next senior most member of the teaching staff of the college as Principal-in-charge out of the staff receiving aid. It further appears that opposite party No. 4 was also put under suspension with effect from 21.11.2008. Being aggrieved by the said suspension order, petitions were filed by opposite party No. 4 before the Commissioner-cum-Secretary, Department of Higher Education on 2.5.2009. It further appears that opposite party No. 4 was also put under suspension with effect from 21.11.2008. Being aggrieved by the said suspension order, petitions were filed by opposite party No. 4 before the Commissioner-cum-Secretary, Department of Higher Education on 2.5.2009. The Government by order dated 20.4.2009 directed the Director, Higher Education to conduct an enquiry with regard to the controversies. On the basis of such direction, the Director conducted an enquiry and by the impugned order dated 29.12.2009 (Annexure-9) held that the order of suspension of opposite party No. 4 having not been approved by the Director, cannot be sustained. The Director also revoked the suspension order of opposite party No. 4 and directed that she should be allowed to continue as Principal-in-charge of the college. The said order is mainly assailed in this writ petition among other reliefs. 5. After receiving notice, counter affidavit has been filed by opposite party No. 4, inter alia, taking the stand that the order of suspension was passed without any justifiable reason, so also, the resolution passed to remove opposite party No. 4 from the post of In-charge Principal. It is alleged that opposite party no. 4 had become a victim of the inter se rivalry of the power groups fighting for management of the college. It is further submitted that the Director had taken pains to call for the records, afforded opportunity of hearing to the parties and after considering all the facts and circumstances, has rightly revoked the order of suspension of opposite party No. 4 and directed that she should be kept in charge of Principal of the college vide Annexure-9. The said order does not suffer from any infirmity and may not be interfered with. 6. Some of the members of the teaching staff have filed petition for intervention mainly on the ground that due to the dispute between the two groups, who are fighting for the management of the college, they have been subjected to great harassment. 7. In the meanwhile in consonance with the direction issued by this Court in the earlier writ petition, the Managing Committee has been dissolved and the Sub-Collector, Kendrapara has been appointed as the President of the Governing Body. He has been impleaded as opposite party No. 3 to the writ petition. 7. In the meanwhile in consonance with the direction issued by this Court in the earlier writ petition, the Managing Committee has been dissolved and the Sub-Collector, Kendrapara has been appointed as the President of the Governing Body. He has been impleaded as opposite party No. 3 to the writ petition. According to the said opposite party, the quarrel between the two power groups has completely spoiled the academic atmosphere of the college. There is more power politics in the college than the academic pursuit. Consequently, the students of the college are subjected to unsurmountable hardship. 8. Learned counsel for the State, on the other hand, supporting the order passed by the Director, submitted that Annexure-9 was passed after granting opportunity to all the parties and the present writ petition has been filed due to internal-rivalry. 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 the college under suspension, after 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 Director, 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. 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. 10. The petitioner assails the order under Annexure-9 mainly on the ground that the said order was passed behind her back. Drawing attention of this Court to the notice issued by the Deputy Director on 14.12.2009, Annexure-6 learned counsel for the petitioner submits that the Principal in-charge was intimated that the hearing of the case was fixed to 18.12.2009 before the Director. Unfortunately, the said notice was received on 21.12.2009. Consequently, she could not appear before the Director. Referring to letter dated 21.12.2009 (Annexure-7), learned counsel for the petitioner further submits that a petition was filed before the Director to intimate the Principal with regard to the next date of hearing. But then, without intimating the said date, the case was disposed of on 29.12.2009 vide Annexure-9. 11. The said submissions are strongly repudiated by Mr. Dora, learned counsel appearing for opposite party No. 4. It is stated that the Principal had full knowledge about the posting of the case and she intentionally, neither appeared before the Director nor produced the documents. Be that as it may, fact remains, the Director disposed of the case on 29.12.2009 (Annexure-9). The petitioner was a party to the said proceeding and notice was issued to her to appear before the Director. Be that as it may, fact remains, the Director disposed of the case on 29.12.2009 (Annexure-9). The petitioner was a party to the said proceeding and notice was issued to her to appear before the Director. If for some reason or the other, she could not appear and the case has been disposed of ex parte, it would be open for her to file suitable petitions before the Director to recall the ex parte order and dispose of the matter de novo. The petitioner has not taken recourse to the said provision and has rushed to this Court. 12. In view of the aforesaid facts and circumstances and in view of the controversy as to whether the petitioner was given opportunity to appear before the Director and as to whether she intentionally did not appear before the Director, being a disputed question of fact, cannot be adjudicated under the writ jurisdiction. 13. In the aforesaid scenario, we are not inclined to interfere with the impugned order, but then grant liberty to the petitioner to work out her remedies in accordance with law by filing suitable petition before the Director, Higher Education praying to recall the order under Annexure-9. It is needless to say that if such a petition is filed, the Director will issue notice to all parties, call for the records and if satisfied that notice with regard to the date of hearing was in fact not received by the petitioner in time, pass such orders as deemed just and proper. 14. In course of hearing learned counsel for the petitioner and learned counsel for the intervener submitted before this Court that in the meanwhile opposite party No. 4 has been once again suspended with effect from 20.2.2010 and the suspension order was served upon here on 23.2.2010 and as such, the said opposite party cannot be appointed as Principal-in-charge. 15. The aforesaid assertions are strongly repudiated by Mr. Dora. It is submitted that successive orders of suspension passed by the Governing Body reflect malice and avowed oblique motive to harass opposite party No. 4. According to Mr. Dora, the copy of the order of suspension has not been annexed to the writ petition and this Court should not take note of the same. 16. Dora. It is submitted that successive orders of suspension passed by the Governing Body reflect malice and avowed oblique motive to harass opposite party No. 4. According to Mr. Dora, the copy of the order of suspension has not been annexed to the writ petition and this Court should not take note of the same. 16. So far as management of the college is concerned, this Court is shocked to notice that there is no regular Principal, in Pattamundai Women's College since. 1990. Such lackadaisical attitude of the State Government calls for reprimandation. On these days, when the women education is one of the prime concerns not only of the State Government but also the entire country, a prominent women's college like Pattamundai Women's College is going without a regular Principal for last ten years. If a regular Principal is not posted in an educational institution, definitely number of disputes would crop up due to inter se rivalry between the staff as well as persons interested in the management of the college, thereby creating a chaotic situation and the students would be the worst sufferers. 17. In view of the aforesaid facts and circumstances, while agreeing with the submissions made on behalf of counsel for the Sub-Collector, who is in-charge of the management of the college and considering the interest of the students, which is paramount, and the further fact that the examinations of the students are continuing, this Court feels, ends of justice and equity will be better served if a direction is issued to opposite party No. 2 to take immediate steps for appointment of a regular Principal in the institution in question, out of the common cadre so that the academic career of the young girls can be protected, and directs accordingly. Steps shall be taken by the Director, Higher Education to comply with this direction within a period of one month from the date of communication of this order or presentation of the certified copy thereof. In the meanwhile, status quo as on date with regard to the Principal in-charge shall be maintained. 18. With the aforesaid observation and direction, the writ petition is disposed of. B.N. Mahapatra, J. 19. I agree.