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2014 DIGILAW 336 (ORI)

GOVERNING BODY v. PRESIDING OFFICER

2014-05-15

B.R.SARANGI

body2014
ORDER Dr. B.R. Sarangi, J. - The petitioner has filed this application challenging the judgment dated 05.09.1997 passed by the learned State Education Tribunal, Orissa, Bhubaneswar in Appeal No. 31 of 1996 directing to reinstate opposite party No. 3 in the post of Lecturer in Political Science of the petitioner College forthwith. Mr. Ajit Kumar Choudhury, learned counsel appearing for the petitioner assails the said judgment on the ground that the services of opposite party No. 3 having been terminated on 24.03.1986, i.e. prior to the institution became aided, provisions contained under Section 10-A of the Orissa Education Act, 1969 are not applicable and the institution having become aided only on 27.01.1990 and the order of termination having been passed on 18.02.1986, as per Circular dated 27.03.1983, the opposite party No. 3 had to file an appeal before the Director within thirty days. The said remedy having not been availed by him, the Education Appeal No. 31 of 1996 filed before the Education Tribunal is not maintainable. Therefore, the judgment passed by State Education Tribunal is an out come of non-application of mind. The termination order having been passed in due compliance with the principles of natural justice, the same should not have been interfered with. To substantiate his contention, Mr. Choudhury has relied upon the judgments of this Court in Nityananda Lenka and Others Vs. State of Orissa and Others, and The Managing Committee of Gangapur High School Vs. The Presiding Officer, Orissa State Education Tribunal and Another. 2. Mr. P.C. Pradhan, learned counsel for opposite party No. 3 strenuously urged that the opposite party No. 3 was restrained by the petitioners to discharge his normal duty as a Lecturer in Political Science against first post, which amounts to termination of service. The entire action has been taken by the petitioner in an arbitrary and unreasonable manner and as such, the termination is bad which is violative of principle of natural justice, thereby, the learned Tribunal is justified in directing the petitioner to allow the opposite party No. 3 to discharge his duty as Lecturer in Political Science against the first post of the College in question. To substantiate his contention he has relied upon the judgments of this Court in Dhaneswar Nayak Vs. State of Orissa and Others, ; Garuda Adabar v. State of Orissa and others, 1997 (II) OLR 521 ; Smt. Namita Dhal Vs. To substantiate his contention he has relied upon the judgments of this Court in Dhaneswar Nayak Vs. State of Orissa and Others, ; Garuda Adabar v. State of Orissa and others, 1997 (II) OLR 521 ; Smt. Namita Dhal Vs. State of Orissa and Others, and State of Orissa and Others Vs. Bhagaban Nahak, . 3. Mr. A.K. Mishra, Learned Additional Government Advocate appearing for the State supports the contention raised by learned counsel appearing for opposite party No. 3 justifying the order passed by the learned State Education Tribunal. 4. Mr. S.K. Rath-I, learned counsel for opposite party No. 4 vehemently urged that the opposite party No. 3 having been terminated on 18.02.1986 when the Institution was a private one, he should have preferred an appeal within a period of 30 days before the Director, Higher Education in compliance to Circular dated 27.03.1983. Instead of availing such remedy, he approached the learned Education Tribunal at a belated stage, and the Learned Tribunal directed to reinstate the opposite party No. 3 and grant all consequential benefits, which is absolutely erroneous, therefore this Court should interfere and set aside the same. 5. After hearing the learned counsel for the parties, and going through the materials on record, it appears that Oupada College was established in the year 1978 in the district of Balasore as an Intermediate College and got its concurrence from the Government in the year 1983. The College became aided w.e.f. 1988 and received grant-in-aid towards the salary cost of the staff in the year 1990-1991 w.e.f. 1988. The College also got affiliation in the year 1988-89 to +2 courses and the I.A. course was abolished in the year 1984-85. 6. The opposite party No. 3 joined as a Lecturer in Political Science in the year 1984 and continued till 17.02.1986. His services were terminated by the petitioner on 18.02.1986 and thereafter he was never reinstated in service as he joined in active politics and was elected as Samiti Sabhya from Bati Gram Panchayat in the year 1992 of Simulia panchayat Samiti in the district of Balasore. On the allegation of preventing to discharge the duty, opposite party No. 3 claims that he has been terminated from service without prior approval under Section 10-A of the Orissa Education Act. Therefore, he preferred appeal on 09.09.1996 before State Education Tribunal registered as Appeal No. 31 of 1996. On the allegation of preventing to discharge the duty, opposite party No. 3 claims that he has been terminated from service without prior approval under Section 10-A of the Orissa Education Act. Therefore, he preferred appeal on 09.09.1996 before State Education Tribunal registered as Appeal No. 31 of 1996. It is further stated that since prior approval from opposite party No. 2 under provisions of Section 10-A of the Orissa Education Act, 1969 was not obtained, such termination is not in conformity with the provisions of law. In the said appeal, notice was issued to opposite parties on 26.09.96. On 5.11.96 petitioner appeared in the appeal, filed vakalatnama and prayed for time to file counter. The petitioner being the respondent in the appeal No. 31 of 1996, could not file counter on 03.12.1996 and took time for filing counter and filed its counter on 31.12.1996, but the same was not accepted in consequence whereof an ex parte order was passed against the petitioner on 31.01.1997. On 6/7.02.1997, the present-petitioner filed misc. case with affidavit for setting aside the ex parte judgment and recalling the order by accepting the counter. The said order was recalled and thereafter the learned Tribunal proceeded with hearing of the appeal and finally on 05.09.1997 the impugned judgment was passed allowing the appeal No. 31 of 1996. Being aggrieved by the judgment dated 05.09.1997, the respondent Nos. 1 and 2 in the Court below being the petitioner filed the writ application challenging the judgment passed by the Education Tribunal. While issuing notice, this Court passed a status quo order in respect of the post in question as on 29.09.1997. Counter-affidavit has been filed by the opposite party No. 3, who was the appellant in Education Appeal on 18.10.2000. 7. While issuing notice, this Court passed a status quo order in respect of the post in question as on 29.09.1997. Counter-affidavit has been filed by the opposite party No. 3, who was the appellant in Education Appeal on 18.10.2000. 7. It appears that the writ petition has been preferred assailing the judgment passed by the Education Tribunal dated 05.19.1996 in Appeal No. 31 of 1997 mainly on two grounds namely (i) whether the appeal under Section 10-A is maintainable when the opposite party No. 3 served in an unaided College from 1984 to 17.02.1986 and was terminated w.e.f. 16.02.1986 and (ii) whether the period of service claimed by opposite party No. 3 in order to make out a case and obtain relief from Orissa Education Tribunal is tenable 10 years after his termination without any proof of continuance in service only on the allegation of prevention of discharge of duty. 8. In answering the question No. (i) so far as maintainability of the question before Education Tribunal is concerned, it appears that the opposite party No. 3 while continuing as a Lecturer in Political Science in Oupada College, Oupada his services were terminated on 18.02.1986 and by that time the College was an unaided College as admittedly the College received aid in the year 1988. By the time action was taken against the opposite party No. 3, the institution was purely a private educational institution. The services of opposite party No. 3 having been terminated 18.02.1986 and the College being not an aided College by then, no prior approval is required for termination of service of the opposite party No. 3 in view of the provision under Section 10-A of the Orissa Education Act. Section 10-A of the Education Act states as follows : "10-A. Service of teachers of aided institutions not to be terminated without approval. (1) The service of a teacher and other members of the staff of an aided Educational Institution shall not be terminated without obtaining the prior approval in writing of the- (a) Director in the case of a teacher and other members of the staff of a college; (b) Circle Inspector of Schools having jurisdiction, in the case of a teacher and other members of the staff or a School. (2) Every order passed by the Director or Circle Inspector, as the case may be, either according approval or refusing to accord approval under sub-section (1) shall be communicated to the parties concerned within three months of the reference. (3) Any person aggrieved by an order passed under sub-section (1) may prefer an appeal to the Tribunal within one month from the date of receipt of the order." 9. On perusal of the above provision, it is clear that the services of a teacher or other member of the staff of an aided educational institution shall not be terminated without obtaining prior approval in writing of the Director in case of the teachers and other members of the staff of a college and every order passed by the Director either granting approval or refusing approval under sub-section (1) shall be communicated to the parties concerned within three months of the reference. Under Sub-Section (3) of Section 10-A any person aggrieved by the order passed under sub-section (1) may prefer an appeal before the Tribunal within one month from the date of receipt of the order. This being the provision, when the petitioner was terminated from service on 18.02.1986, the institution was purely a private one and therefore, provision of Section 10-A of the Orissa Education Act was not applicable. With regard to the reliance placed by the learned counsel for opposite party No. 3 on the judgments of this Court in Dhaneswar Nayak (supra), Garuda Adabar (supra), Smt. Namita Dhal Vs. State of Orissa and Others and State of Orissa and Others Vs. Bhagaban Nahak this Court is of the view that all these cases have been decided on its own facts and circumstances of the case itself. But one thing is made clear that once the institution is an aided one and if any termination is to be made of a teaching or other staff, then the compliance of Section 10-A of the Orissa Education Act is mandatory. Without complying the provision contained in Section 10-A without taking prior approval of the authorities, the termination is illegal. Regard being had to the statutory provision under Section 10-A read with judgments referred to supra by learned counsel for opposite party No. 3, there is no dispute on such proposition as the statute bears such provision. Without complying the provision contained in Section 10-A without taking prior approval of the authorities, the termination is illegal. Regard being had to the statutory provision under Section 10-A read with judgments referred to supra by learned counsel for opposite party No. 3, there is no dispute on such proposition as the statute bears such provision. Therefore, it can be said that had the opposite party No. 3 been continuing in an aided educational institution and the order of termination had been passed, then the mandatory provisions of Section 10-A would have been followed by the authorities before passing the order of termination of service of the petitioner. But the fact of the present case is clearly different from that of the cases referred to above, in that the opposite party No. 3 was terminated from service with effect from 17.02.1986 when admittedly the institution was not an aided one. Therefore, rigors of the provision under Section 10-A of the Orissa Education Act is not applicable to the present context. In The Managing Committee of Gangapur High School (supra) this Court held that for termination of a teacher of an unaided institution prior approval of the competent authority as contemplated under Section 10-A of the Orissa Education Act is not required. Therefore, in the present case termination of services of opposite party No. 3 having been made on 17.02.1986 when the institution was an unaided one, compliance of Section 10-A is not mandatory and consequently appeal under Section 10(A)(3) is also not maintainable. Therefore, the impugned order passed by the learned Education Tribunal is without jurisdiction. 10. With regard to question No. (ii), it appears that against the vacancy cased on account of termination of service of opposite party No. 3 w.e.f. 18.02.1986, another person has been selected and allowed to continue in service and the opposite party No. 3 participated in active politics, and consequently he was elected as Samiti Sabhya in 1992 from Bati Gram Panchayat, Simulia Block in the district of Balasore. But he preferred this appeal before the Education Tribunal registered as Appeal No. 31 of 96 stating that he was illegally prevented by the Governing Body from discharging his duties. Therefore, such prevention amounted to termination of service, which was illegal as the approval from the Director, opposite party No. 2, under Section 10-A of the Orissa Education Act was not obtained. Therefore, such prevention amounted to termination of service, which was illegal as the approval from the Director, opposite party No. 2, under Section 10-A of the Orissa Education Act was not obtained. This contention of opposite party No. 3 has no legs to stand in view of the fact that after termination of service on 18.02.1986, he having been involved in active politics and elected as Samiti Sabhya, question of preventing him from discharging his duty by the Principal or the Governing Body does not arise at all. With eyes wide open, the opposite party No. 3 having accepted the termination on 18.02.1986, he got himself involved in active politics. Therefore, his allegation of continuing in service is a myth. Rather in subsequent stages in the year 1996, he tried to make out a new case for him making allegation against the Governing Body or Principal stating that he had been prevented to discharge his duty which amounts to termination of service and such termination being not in conformity with the provisions of Section 10-A of the Orissa Education Act, he is entitled to be reinstated in service. This contention is absolutely a fallacious one and as such, the petitioner cannot claim to continue in service on the plea of illegal termination. The learned Education Tribunal has not taken into consideration this material aspect and directed for reinstatement of the opposite party No. 3 in service without assigning any specific reason rather on the basis of surmise or conjectures such direction has been given by the Education Tribunal, which has no jurisdiction to pass such order. In Nityananda Lenka (supra) the Full Bench of this Court has decided the meaning of "grant-in-aid" with reference to provision contained in Orissa Education Act and applying the same to the present case, Government passed an order on 27.01.1990 to extend the grant-in-aid in favour of the institution w.e.f. 1988. Therefore, for all practical purposes, the institution became an aided College w.e.f. 1988 within the meaning of Section 3(b) of the Orissa Education Act. Therefore, any action taken prior to the institution became aided, the provisions contained under section 10-A of the Orissa Education Act will not apply. In Smt. Pravati Bastia Vs. Therefore, for all practical purposes, the institution became an aided College w.e.f. 1988 within the meaning of Section 3(b) of the Orissa Education Act. Therefore, any action taken prior to the institution became aided, the provisions contained under section 10-A of the Orissa Education Act will not apply. In Smt. Pravati Bastia Vs. Management of Choudwar College and Others, referring to the provisions contained in Rule 11(1)(f) of Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Education Institutions) Rules, 1974, this Court held that the Rule is not violative of the freedom guaranteed under Article 19(1)(c) of the Constitution of India. A teacher contesting election as an independent candidate does not mean that he/she belongs to a political or communal party and contests as candidate for a political party. This question does not require any consideration in the present context in view of the fact that admittedly, the opposite party No. 3 participated in the election and got elected to the office of Samiti Sabhya and held the office for its term. Therefore, while holding the political office, it cannot be construed that he is continuing in service and his services have been terminated on a plea that he has been prevented to discharge his duty, and therefore, requirement under Section 10-A has to be followed. Thus, the learned Tribunal has committed gross error apparent on the face of record by entertaining such appeal and disposing of the same holding as maintainable and directing to reinstate the opposite party No. 3 in service with consequential benefits. Since Section 10-A of the Orissa Education Act is not applicable, consequence thereof, the appeal preferred under Section 10-A of the Orissa Education Act is also not maintainable and as a result the judgment so passed by the learned Tribunal cannot be sustained. In view of the foregoing discussions, the impugned judgment dated 05.09.1997 passed by the State Education Tribunal, Orissa, Bhubaneswar in Appeal No. 31 of 1996 is hereby set aside and the writ petition is accordingly allowed.