Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 103 (ORI)

Deepak Kumar Ghosh v. State of Odisha

2015-02-16

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. The case of the petitioner as reveals from the pleadings made in the writ petition and the arguments by the learned counsel appearing for the petitioner is that the Padmalochan Mundahan High School in the village Jadibali, P.S.-Raj Nilagiri, Dist. Balasore was a private recognized un-aided educational institution prior to 01.06.1994. Since the Managing Committee of the aforesaid High School could not find a trained graduate teacher for appointment against T.G.(Arts) post, in a duly constituted selection process the Managing Committee selected the petitioner having B.A. qualification at that point of time. Following the issuance of appointment letter, the petitioner joined his duty in the above High School on 1.10.1985. (2) It is claimed by the petitioner that the School in question was recognized in the year 1986 and name of the petitioner found place in the list of teachers as against the trained graduate posts in the particular School. On getting the recognition, the Management Committee of the School was constituted and approved by the Inspector of Schools vide Office Memo No.2286 dtd.10.03.1986 for three years. Following the provision contained under Rule 4 (2) and Rule 6 of the Orissa Education (Management of Private Schools) Rules 1980 the term of the Managing Committee of the School expired on 09.03.1989. (3) It is next contended by the petitioner that since the Managing Committee of the School was not reconstituted following the aforementioned rule even after the expiry period, following the aforesaid rule the Managing Committee of the School continued for an additional period of six months and as per the submission of the petitioner the term of the Managing Committee of the School with such extension expired on 9.03.1990. Consequently, the Managing Committee of the School vested with the Inspector of Schools w.e.f. from 09.09.1989. (4) It is next contended by the petitioner that in order to acquire the B.Ed. qualification as an in-service teacher following the launching of a scheme by the Utkal University for acquiring the B.Ed. Training under Correspondence Course, particularly in view of the provision contained in Clause-7 of the Prospectus, petitioner approached the Managing Committee of the School for allowing him to undergo the correspondence course of B.Ed Training to the Secretary of Managing Committee of the School on 11.08.1989. Training under Correspondence Course, particularly in view of the provision contained in Clause-7 of the Prospectus, petitioner approached the Managing Committee of the School for allowing him to undergo the correspondence course of B.Ed Training to the Secretary of Managing Committee of the School on 11.08.1989. The Secretary counter signed the application form of the petitioner and forwarded the same to the Inspector of Schools, who also approved the request of the petitioner being forwarded by the Managing Committee signed on 19.08.1999 and forwarded the application of the petitioner to the Director of Correspondence Courses, Utkal University for their action in the matter. Following acceptance of his application the petitioner had taken admission in the B.Ed. training courses by obtaining permission in the Government Training College, Balasore. The petitioner was issued with an index Card bearing No.0255 dtd.21.08.1989 by the Director of Correspondence Courses, Utkal University. Upon receipt of the intimation letter to take the admission in B.Ed. Course on or before 20.11.1989, the petitioner sought for permission of the Inspector of Schools, who was in-charge of the Managing Committee of the School and took admission in B.Ed. Course. Petitioner submitted that he was directed to undergo for first phase of training in Government Training College, Balasore for 12 days from 28.12.1989. Upon grant of leave, he was relieved from his service on 08.01.1990. Subsequently, the petitioner was sent for second phase training in Government training College at Balasore and the petitioner completed the second phase of training from 5.03.1990 to 25.03.1990. (5) It is next contended by the petitioner that the Managing Committee of the School was in the meanwhile reconstituted on 4.04.1990 for five years following the Sub-section 4 of Section 7 of the Orissa Education (Amendment) Act, 1988. It is alleged by the petitioner that after reconstitution of the new Managing Committee of the School, the petitioner was not allowed to discharge his duty without any rhyme and reason, for which the petitioner made a complain to the Inspector of Schools. On receipt of which the Inspector of Schools vide letter dtd.1.08.1990 directed the Secretary of Managing Committee of the School to allow the petitioner to discharge his duty but the same was not accepted. So the Inspector of Schools personally visited the School on 22.08.1990 and conducted an inquiry in the School. On receipt of which the Inspector of Schools vide letter dtd.1.08.1990 directed the Secretary of Managing Committee of the School to allow the petitioner to discharge his duty but the same was not accepted. So the Inspector of Schools personally visited the School on 22.08.1990 and conducted an inquiry in the School. During inquiry, the Secretary of the School was found absent for which the Inspector of Schools handed over a letter for the Secretary to the Headmaster of School to furnish a report in respect of the petitioner. The Inspector of Schools by letter dtd.07.11.1990 again directed the Secretary of Managing Committee of the School to allow the petitioner to discharge his duty by signing the Staff Attendance Register and pay his salary. It is alleged that in spite of all the above developments, the petitioner was not allowed to discharge his duty in the School for which the petitioner was constrained to make a representation to the Inspector of Schools on 4.01.1991 alleging the conduct of the Secretary of Managing Committee of the School. Following the above, the Inspector of Schools vide letter dtd.24.01.1990 directed the petitioner to come to his office on 02.02.1991 along with relevant records and documents in support of his grievance. While the matter stood thus on 6.03.1991, the petitioner received a letter bearing No.94 dtd.24.05.1990 intimating him therein that his service is terminated for his not having the B.Ed. Training qualification. In the meanwhile on 28.05.1991, the result of B.Ed. Examination was declared and the petitioner was also declared to have passed in the B.Ed. Examination. Being aggrieved by the termination of the petitioner vide letter dtd.24.05.1990, the petitioner preferred an Appeal before the Director, Secondary Education, Odisha on 22.03.1991. As the said Appeal was not disposed of, the petitioner was constrained to move this Court by filing O.J.C. No.7960 of 1994, which matter had been disposed of by this Court. While disposing O.J.C. No.7960 of 1994, this Court directed the Director of Secondary Education, Odisha to dispose of the Appeal of the petitioner within a period of three months from the date of receipt of the order. While disposing O.J.C. No.7960 of 1994, this Court directed the Director of Secondary Education, Odisha to dispose of the Appeal of the petitioner within a period of three months from the date of receipt of the order. (6) On 6.05.1995 the Padmalochan Mundahan High School was notified as an aided Educational Institution w.e.f.1.06.1994 and as a consequence of which the Inspector of Schools approved the service of one P.C. Nayak as the Headmaster In-charge against the post of the Headmaster and one A.K. Nanda against the first post of Arts trained Graduate Teacher and one K.K. Mohanty held the 2nd Arts Trained Graduate post. In the meanwhile, the Director upon consideration of the case of the parties by his letter dtd.27.02.1997 allowed the Appeal of the petitioner by setting aside the termination order passed by the Managing Committee of the School on the ground of not following due procedures. As a consequence of which, the Director directed for reinstatement of the petitioner in service, however without any arrear salary. It is alleged by the petitioner that he was not allowed to join the post and thus he was constrained to file O.J.C. No.8166 of 1997 for issuing a direction to the Managing Committee of the School for accepting his joining report and allowing him to discharge his duty following the direction of the Director in the Appeal. At the same time the Managing Committee of the School also filed O.J.C. No.5490 of 1997 in this Court challenging the order passed by the Director in the Appeal. Both the above writ petitions were disposed of by a common order dtd.12.11.2007 quashing the order dtd.27.02.1997 passed by the Director and directed the Director, Secondary Education, Odisha to conduct fresh or further enquiry to resolve the factual controversy and record his finding by passing appropriate consequential order. Pursuant to the direction of this Court as indicated hereinabove, the allegation of the petitioner as well as the Managing Committee of the School was relooked. The petitioner alleged that even though hearing of the Appeal was closed on 25.09.2010 and the petitioner had filed a detailed written note of submission on 30.09.2010 but after about one year and ten months of the conclusion of hearing, the Director dismissed the Appeal at the instance of the petitioner. The petitioner alleged that even though hearing of the Appeal was closed on 25.09.2010 and the petitioner had filed a detailed written note of submission on 30.09.2010 but after about one year and ten months of the conclusion of hearing, the Director dismissed the Appeal at the instance of the petitioner. (7) Learned counsel for the petitioner assailed the impugned order on the following grounds : (A) The tenure of the Managing Committee of the School in particular educational institution ultimately came to an end on 8.09.1989 following the Rule 4 (2) and Rule 6 of the Orissa Education (Management of Private Schools) Rules 1980. Thus the extension of the term of the Managing Committee of the School as existed on 8.09.1989 is contrary to the provisions contained in Section 7 of the Orissa (Amendment) Act, 1988. (B) Engagement of the petitioner to a post in Private Educational Institution is a contract in between the parties and the contract is to prevail in absence of any law. Even though the State Government is empowered to make any rule for carrying out any of the purposes of the Act but till today no rule has been framed for regulating the condition of the service relating to the qualification, salary, leave, pension, provident fund, age of retirement, disciplinary action and other matters. Under the circumstances and particularly in absence of any specific law, petitioner having a contract license without execution of any work and without receipt of any amount from the Government during this period of service cannot be amounting to misconduct. (C) There being no act or rule framed prescribing any qualification for appointment of teachers in providing recognized educational institution in Odisha and particularly in view of the qualification prescribed under the provision of Rule 7 (1) (d) of Orissa Subordinate service (General Branch) Rules 1972 read with rule 7 (C) of the Orissa Education (Recruitment and Conditions of service of teachers and members of staff of Aided Educational Institutions) Rules 1974 and further Government of Odisha allowing the untrained teachers both in recognized Private Secondary Schools as well as in aided secondary Schools from time to time to undergo training as an in-service person, the appointment of the petitioner without having B.Ed. qualification is neither illegal nor irregular. (D) Since the petitioner was permitted to undergo the B.Ed. Course and as the petitioner has passed out in the B.Ed. qualification is neither illegal nor irregular. (D) Since the petitioner was permitted to undergo the B.Ed. Course and as the petitioner has passed out in the B.Ed. Examination, he ought to have been allowed to continue. (E) There has been two termination order in relation to the petitioner as available under Annexures-15 & 16. There appears a resolution of the Managing Committee of the School on 18.05.1990 in relation to the petitioner. The foundation in the resolution of the Managing Committee of the School discloses the termination of the petitioner due to misconduct and being a contractor. Looking to the foundation in the Managing Committee resolution coupled with the foundation in the termination it becomes a stigma in the carrier of a person. Therefore, it was incumbent to enter into a disciplinary proceeding before termination of the petitioner. Thus the petitioner alleges the termination of the petitioner without following principles of natural justice. (F) Petitioner also alleges that his termination was done even after acquiring B.Ed. qualification and the person substituted him is also untrained one. Therefore there is no valid reason in terminating the petitioner on account of having no B.Ed. qualification. (G) On the letter from the Board of Secondary Education for nonrenewal of the recognition, learned counsel for the petitioner submitted that the letter for nonrenewal of recognition of the institution contained several allegations against the particular institution. In view of number of deficiency shown therein, petitioner’s not acquiring the B.Ed. qualification at the relevant point of time could not be claimed to be in compliance of the threat by the Board of Secondary Education of Odisha. (H) Lastly the petitioner also assailed the impugned order at Annexure-19 on being perverse and without taking into account the facts stated and evidence adduced by the petitioner. The petitioner also assailed the impugned order on the premises that a person namely Mr. Ramendra Jena, even though appeared alongwith the petitioner in the particular B.Ed. Examination his service was not terminated on the premises that he had already appeared in the B.Ed. Examination and the publication of the result is awaiting, whereas the petitioner even though was standing on similar footing was terminated not having B.Ed. qualification, which amounts discrimination. Ramendra Jena, even though appeared alongwith the petitioner in the particular B.Ed. Examination his service was not terminated on the premises that he had already appeared in the B.Ed. Examination and the publication of the result is awaiting, whereas the petitioner even though was standing on similar footing was terminated not having B.Ed. qualification, which amounts discrimination. (8) Per contra only the opposite party No.4 i.e. the Managing Committee has filed a counter affidavit inter-alia contending therein that the writ petition is not maintainable on the ground of non-joinder of proper party on the premises the writ petition has been filed in absence of the person likely to be affected. The opposite party No.4 contended the impugned order vide Annexure-19 is a reasoned order and after providing opportunity of hearing to all concerned. The Director has committed no mistake in dismissing the Appeal of the petitioner as the petitioner could not have been allowed to continue as a teacher for the petitioner being a registered Class ‘C’ Contractor. The petitioner had registered himself as a Contractor from 1986 and the registration is still valid. On the question of termination of the petitioner by order dtd.18.07.1990 by an invalid Managing Committee, the opposite party No.4 submitted that the allegation of the petitioner in the said regard is unfounded and based on suppression of material facts as well as misleading this Court by giving incorrect and false statements. The opposite party No.4 claimed that there was a valid Managing Committee functioning in the School on being approved by the competent authority on 10.03.1986 and subsequently on 4.04.1990 and the allegation that the Inspector of Schools was in the meantime remained in-charge of the institution is not correct. On the question of violation of principle of natural justice, the opposite party No.4 contended that the petitioner has been given ample opportunity by issuing show-cause notice with detailed charges on 13.01.1990 and to which the petitioner also responded by filing a reply on 24.01.1990. In view of the submission of the petitioner in his reply and not being found the same satisfactory, the petitioner was again served with a letter on 24.05.1990 to which the petitioner did not respond. In view of the submission of the petitioner in his reply and not being found the same satisfactory, the petitioner was again served with a letter on 24.05.1990 to which the petitioner did not respond. Considering the submission of the petitioner and the threat made by the Board of Secondary Education, Odisha to derecognize the School Management and in the larger interest of the institution the opposite party No.4 was constrained to terminate the petitioner. It is next contended by the opposite party No.4 that the petitioner had earlier moved this Court in O.J.C. No.7960 of 1994 challenging the one month notice dtd.24.05.1990 in misrepresentating this Court. However the said writ petition was disposed of by this Court with a direction for consideration of the representation at the instance of the petitioner. Even though no such representation was pending at the level of the Director, constraining the petitioner to file an Appeal before the Director on 28.12.1996. Since the Director passed an illegal order in the Appeal of the petitioner without looking to the vital records and without looking to the legal objections at the instance of the opposite party No.4, the Managing Committee was constrained to file O.J.C. No.5490 of 1997, which matter was taken up by this Court alongwith O.J.C. No.8166 of 1997, being filed by the petitioner seeking a direction to implement the impugned order of the Director. Both the matters were heard together by this Court and taking into consideration serious note of the objections of the opposite party No.4 in the matter of non consideration of the aspect in relation to the petitioner being registered as a Class ‘C’ Contractor, this Court disposed of both the above matters by setting aside the order of the Director and thereby further directing the Director for reconsidering the entire matter and passing a fresh order in the Appeal. Following the direction of this Court in the above two matters the Director reconsidered the Appeal and finally dismissed the Appeal by his order dtd.27.07.2012 as appearing at Annexure-19. The opposite party No.4 claimed that in view of existence of the materials finding the petitioner continuing as a registered Contractor, the observation of the Appellate authority that a contractor cannot be permitted to continue as a teacher cannot be found to be faulted. The opposite party No.4 claimed that in view of existence of the materials finding the petitioner continuing as a registered Contractor, the observation of the Appellate authority that a contractor cannot be permitted to continue as a teacher cannot be found to be faulted. On the question of the validity of the Managing Committee, the opposite party No.4 contended that the last Management Committee of the particular School was approved on 10.03.1986 following the provisions contained in Orissa Education (Management of Private Schools) Rules 1980 true that the term of the Managing Committee under Rules 1980 was three years but following rule 6 of the said rule, the Managing Committee was to continue for another six months at the maximum and thus otherwise was to continue till 08.09.1989 following the legal position as stood thus. In the meanwhile there was amendment to the Orissa Education Act vide Act 15of 1989 w.e.f. 14.08.1989, wherein the term of the Managing Committee has been extended from 3 years to 5 years. The opposite party No.4 thus claimed that consequent upon this amendment the life of the existing Managing Committee was extended upto 10.03.1991 i.e. 5 years from 10.03.1986. However, in its order dtd.4.4.1990 the competent authority reconstituted the Managing Committee, since the new Managing Committee come into existence from 4.04.1990, the notice issued to show-cause to the petitioner by the Managing Committee existing on 13.01.1990 cannot be found to be faulted. It is further contended by the learned counsel for the opposite party No.4 on the issue of termination order that since the termination is made by the Managing Committee and as such the matter has to be canvassed before the Director and instruction / directions of the Inspector of Schools in such matters has no value. In justifying such submissions, the opposite party No.4 relied on a decision of this Court in O.J.C. No.8286 of 1992 in the matter of Sri Jayanta Sahu vs. State of Orissa and others in concluding his submission, the opposite party No.4 submitted that the service of the petitioner was terminated since 18.07.1990 and in the meanwhile 22 years have already been passed. Under the circumstances the person appointed against the petitioner having not been made a party to the litigation allthrough cannot be disturbed. In the above premises, the opposite party No.4 sought for the dismissal of the writ petition. (9) Similarly on his appearance Mr. Under the circumstances the person appointed against the petitioner having not been made a party to the litigation allthrough cannot be disturbed. In the above premises, the opposite party No.4 sought for the dismissal of the writ petition. (9) Similarly on his appearance Mr. Jena, learned counsel appearing for the opposite party No.5 made his submissions reiterating the stand taken by the opposite party No.4 and further submitted that the writ petition should be dismissed on account of misjoinder of party as no relief can be claimed against the opposite party No.5. Further opposite party No.5 was also not a party in the lower court proceeding. (10) There is no denial to the fact that the petitioner being a graduate having B.A. qualification was recruited as against a trained graduate teacher in a duly constituted selection process in an absolutely private recognized Unaided Educational Institution. There is also no denial to the fact that, there is no rule governing the field of educational qualification for a private recognized Unaided Educational Institution. The dispute arose when the petitioner’s School became an Aided Educational Institution w.e.f. 1.06.1994, as notified on 6.05.1995. Learned counsel for the petitioner submitted here that in absence of any statutory Rule in the field dealing with the Educational Qualification of the Teachers in the Unaided Schools there was absolutely no requirement of one being a Trained Graduate in an unaided School. This submission of the petitioner is being opposed by the learned counsel for the opposite party No.4 on the footing that on 21.03.1989 Board issued an ultimatum to the school with regard to the appointment of trained Teachers and in absence of which the school may not be allowed to place its students to appear in the HSC Examination, 1990 {Annexure A/4 (series) page 101}, this letter was followed with another instruction by the Board on 26.08.1989. It is also submitted that since the particular institution failed to comply the direction of the Board the Institution was derecognized and the students were directed to appear as quasi regular candidates and it is in this view of matter the Managing Committee was also constrained to issue show-cause notice to the petitioner on six charges as available under Annexure B/4. Finding the reply of the petitioner not convincing, the newly constituted Managing Committee after a threadbare discussion on the issue resolved to issue one month notice before the termination of the petitioner on 18.05.1990 to which the petitioner did not reply, consequently the Managing Committee issued the termination order on 18.07.1990. In establishing its case for removal of an untrained teacher, the opposite party No.4 placed reliance on Board’s letter as well as provision as contained in Section 7-B of the Orissa Education Act which provides for appointment of qualified teachers. (11) It is relevant here to take note of provision contended in Section 7-B of the Orissa Education Act, which is quoted as follows: “ Section 7-B-Appointment of Qualified Teachers:- (1) The State Government or any officers or authorized by it may prescribe the qualifications to be possessed by persons for appointment as teachers including the norms relating to the requirement of such teachers in different categories of private educational institutions. (2) Every private educational institution shall, in order to be recognized by the State Government, appoint the required number of qualified teachers as provided in Sub-section (1) from out of the list of candidates selected for this purpose by the Selection Board for the State or the concerned district as the case may be constituted under Sub-Section (2) of the Selection 10 in the prescribed manner. (12) It is necessary to note here that Section7-B was included in the Orissa Education Act for the first time by virtue of Orissa Education (Amendment) Act, 1988 and it came into effect from 14.08.1989. By this enactment, the statute for the first time gave an authority for prescribing the qualification to be possessed for appointment of teachers including the norms relating to the requirement of such teachers in different categories of private educational institutions and by bringing such amendment under Subclause 2, provision has been made directing the private educational institutions in order to have recognition by the State Government appoint the required number of qualified teachers provided as in Subsection (1) from out of the list of candidates selected for this purpose by the Selection Board for the State or concerned district be constituted under Sub-section (2) of the Section 10 in the prescribed manner. First of all this provision is prospective and should not have been applicable to the untrained teachers, who have already been recruited prior to coming into effect of this amended provision. Secondly, since the Sub-section 2 of the Section 7-B of the Orissa Education Act, 1988, the said provision had come into effect after the further amendment to the said provision brought in the year 1994 by Orissa Act No.13 of 1994, wherein it is prescribed that every Private Educational Institution shall appoint qualified teachers and non-teaching staffs again with a retrospective effect but without affecting the teachers who are already in service at this point of time, these provisions, to my view, had no application to the petitioner’s case. (13) During course of argument, learned counsel for the petitioner submitted that even after the amendment by virtue of Orissa Act No.13 of 1994 neither any qualification of the teachers nor any procedure has been prescribed in relation to the Private Educational Institution. Non-applicability of Orissa Education (Recruitment and Conditions of Service of teachers and members or staff of Aided Educational Institution) Rules 1974 to the private un-aided Schools is the subject matter in this Court in a number of litigation such as 2001 (I) OLR 233 , 1990 (I) OLR, 468, 1997 (II) OLR 122 which matters were disposed of by making the above proposition clear by holding that since the qualification of the B.Ed training became mandatory from 18.12.1993 for an Aided and Government High school and further as under Annexure-4, the Director of the Secondary Education Orissa vide order No.8783 dtd.30.08.1993 has extended two years for teachers in Non-Government High Schools get into appropriate educational qualification and considering the fact that the petitioner cleared B.Ed on 28.05.1991, petitioner not having the B.Ed qualification in the year 1988 would not have affected his services and if there was any impediment on account of the letters from the Board of Secondary Education, Odisha vide Annexure A/4 (series) nothing prevented the Managing Committee to take up such issues in its legal spirit with the Board of Secondary Education, Odisha. In the above premises as well as the legal position in the matter of condition of trained teachers must for all institutions in 1993, the charge in relation to this issue against the petitioner remains unfounded. In the above premises as well as the legal position in the matter of condition of trained teachers must for all institutions in 1993, the charge in relation to this issue against the petitioner remains unfounded. (14) Now coming back to the petitioner’s and opposite parties’ earlier approaching to this Court in O.J.C. No.8166 of 1997 and O.J.C. No.5490 of 1997 from the issue involved therein as well as the direction of this Court contained therein, it is observed that the petitioner had moved this Court in O.J.C. No.8166 of 1997 seeking a direction from this Court in the matter of allowing his joining following the direction of the Director in an Appeal whereas the Managing Committee filed O.J.C. No.5490 of 1997 challenging the order passed by the Director in the Appeal in setting-aside the order of termination against the petitioner. On perusal of the certified copy of the order of this Court as at Annexure-17 of the writ petition, it appears that the Managing Committee challenged the order of the Director both on factual finding and legal consequences and this Court after hearing both the parties involved in both the writ petitions held as follows: “After hearing the parties at length and going through the citations, we find that the Director has not taken note of all the relevant facts and circumstances to complete an effective adjudication of the dispute on factual side. In that respect the grievance of the Managing Committee appears to be genuine inasmuch as no finding has been recorded by the Director as to whether Sri Goash was registered as a Contractor and what consequence flows from that. Similarly, the Director has not taken into note the period for which the Managing Committee was functioning in view of the provision of law amended from time to time regarding the duration of M.C. As we find after noting the career of the petitioner and the action taken against him by the Managing Committee the Director disposed of the case with the remark of violation of principle of natural justice. In view of the contention of the parties and overlapping which was factual situation it is not appropriate for us to resolve the factual controversy. In view of the contention of the parties and overlapping which was factual situation it is not appropriate for us to resolve the factual controversy. Director should be addressed to decide all the factual controversies raised before us (as noted in the writ petitions) and such controversies be set at rest by a positive finding recorded by the Director on perusal of the relevant documentary evidence if produced by the parties and thereafter he is to take a decision on contention of the parties. Accordingly, while setting aside the order Annexure-8 in O.J.C. No.5490 of 1997 we direct the Director, Secondary Education, Orissa to conduct fresh or further enquiry to resolve the factual controversy, recorded is finding and pass appropriate consequential order. He should bear in mind that we have not expressed any opinion either in favour or against either of the parties. Therefore, the Director should feel free to record his finding without any impediment but his findings should be supported by fact and evidence available existing on record. The dispute being an old one, we direct him to hear and dispose of the same within a period of ten weeks from the date of receipt of a copy of this order and therefore, we direct the parties to appear before the Director on 26.11.2007 together with certified copy of this order. Each party shall file their list of documents together with the authenticated documents before the Director by 30.11.2007. On perusal of the same, if clarification is necessary, the Director may seek such clarification by 3.12.2007 and thereafter hear the parties and dispose of the case within the above targeted period. We make it clear that both the parties are to cooperate with the Director for timely disposal of the case and it is open to the Director to draw adverse inference if any of the parties try to avoid to answer or tray to delay the disposal of the case. Both the writ petitions are disposed of accordingly. P.K. Tripathy (J.) R.N. Biswal (J.)” (15) Under the above direction, the matter was remitted back to the Director for re-disposal of the Appeal with a direction for completing the adjudication of the dispute on the factual side. Both the writ petitions are disposed of accordingly. P.K. Tripathy (J.) R.N. Biswal (J.)” (15) Under the above direction, the matter was remitted back to the Director for re-disposal of the Appeal with a direction for completing the adjudication of the dispute on the factual side. As appears the sole contention of the Managing Committee in the writ petition was that the Director had neither considered the aspect of Mr.Ghosh continuing as a registered Contractor and the consequence flows from that. Thus it is amply clear that the challenge of the order of the Director at the instance of the Managing Committee was confined as to whether the petitioner being registered as a contractor can be allowed to continue as a teacher? It is in this premises it was left open to the Director only to consider the contractor’s aspect involving the petitioner. It is amply clear that this court even though remitted the matter back to the Appellate authority for consideration on the above point but has not given any finding in relation to the violation of the principle of natural justice as arrived by the Director in his previous orders. So finding on this aspect remained unshaken. However, The matter was relooked by the Director as per the direction of this court involved in both the above writ petitions, and the Director by order dtd.27.07.2012 as at Annexure-19 passed a fresh order in the Appeal, based on the document supplied by the opposite party No.4 marked at Annexure-A/16 (series), before the Director establishing its claim in the matter of continuance of the petitioner as a contractor came to hold that the teaching being a noble profession, it’s paramount assignment is to teach the students and it was not understood as to how a registered ‘C’ class contractor can continue as a contractor and ultimately on the premises that the petitioner being an untrained teacher further as the institution was facing a consequence of de-recognition, there is no illegality in the termination of the petitioner on the ground of lack of requisite qualification. At the same time it also held that the petitioner being continuing as a ‘C’ class contractor cannot be allowed to be a teacher otherwise. At the same time it also held that the petitioner being continuing as a ‘C’ class contractor cannot be allowed to be a teacher otherwise. (16) In view of my finding already given at paragraph-10 I am of the view of that the termination of the petitioner on account of no proper qualification has not been given proper consideration, hence I reverse the finding of the Appellate Authority so far it relates to termination of the petitioner on the ground of having no required qualification at the time of termination. (17) So far as the second ground of holding the termination of the petitioner as valid i.e. on account of he is being a contractor, I have gone though the pleadings of the parties as well as the documents filed by the respective parties in the matter of continuance of the petitioner as a contractor at the relevant point of time, I find that there is no dispute that the petitioner had a ‘C’ class contractor licence when he was in service. The petitioner joined as an Assistant Teacher on 1.10.1985. The petitioner contended in the paragraph-24 of the writ petition that terms and conditions of the service is only by way of provision as made in the appointment letter and the appointment letter nowhere stipulated that the petitioner shall not have any contract license or doing any business after the school hour. There is also no conduct rule indicating any such prohibition. In filing a rejoinder affidavit in response to the counter affidavit of the Managing Committee petitioner brought therein the documents in relation to Annexure E/4 (series) vide paragraph 8 of the counter affidavit. (18) The petitioner at paragraph 10 of the rejoinder affidavit submitted as follows : “That in reply to paragraph-8 of the counter affidavit, it is humbly submitted that the facts stated in the said paragraph are not all true and correct. It is humbly submitted that he representation dtd.22.03.1991 along with the documents under Annexure-D-4 are on the record of the Director and the petitioner filed an amendment petition to the appeal memo on 28.12.1996. It is humbly submitted that he representation dtd.22.03.1991 along with the documents under Annexure-D-4 are on the record of the Director and the petitioner filed an amendment petition to the appeal memo on 28.12.1996. The said records has been intentionally and deliberately thrown away by some interested person of Directorate even after the order was passed by the Director on 27.02.1997 to reinstate the petitioner in service as the principle of natural justice has been violated and no opportunity of being heard has been provided prior to the termination of the service of the petitioner. Therefore, there is no question of filing of any fresh appeal. The Managing Committee only appeared in the appeal before the Director and did not file a single scarp of paper. Further the Managing Committee has not filed any written note of submission and any record before the Directorate in the appeal. For the first time some documents were filed before this Hon’ble Court in OJC No.5490 of 1997. This Hon’ble Court in its’ order dated 12.11.2007 has directed the Director to find out whether Sri Ghosh is a registered contractor and what consequence flows from that. This Hon’ble Court has further directed the Director to find out as to whether the Managing Committee has functioning in view of question of law amended in time to time regarding the duration of the Managing Committee. So, this Hon’ble Court directed the Director of Secondary Education Odisha to conduct a fresh of further enquiry to resolve the factual controversy, record the finding and pass appropriate consequential order. But, the Director fell to do so in his order dated 27.07.2012 under Annexure-19. The order of the Director under Annexure-19 is completely illegal and contrary to law as the note of submission and the facts stated by the petitioner and the decisions cited above are not taken into consideration.” In submitting the above, the petitioner contended that the documents in relation to his continuing as a contractor were brought to light for the first time in O.J.C. No.5990 of 1997. In view of the permission of this Court for hearing of the parties for a fresh decision in the matter by the Director, the petitioner submitted a representation dtd.22.03.1991 along with a document as at Annexure D/4 which are already on record of the Director. In view of the permission of this Court for hearing of the parties for a fresh decision in the matter by the Director, the petitioner submitted a representation dtd.22.03.1991 along with a document as at Annexure D/4 which are already on record of the Director. It is in this premises the petitioner contended that such records have been misplaced at the level of Director and there is no consideration of such materials on his behalf by the Director. Taking into the petitioner’s allegation as indicated hereinabove true then nothing prevented the petitioner to provide another set of documents in proof of his such contention. (19) The Director arrived at his conclusion taking into consideration the documents as provided by the Managing Committee vide Annexure E/4. From Annexure E/4, it appears that there is no dispute that the petitioner was continuing as a ‘C’ class contractor at the relevant point of time. The document at Annexure-E/4 also discloses that there has been some payment for the petitioner’s undertaking work as a ‘C’ class contractor in the year 1986-87 and then again in 1993-94 and onwards. But these are all relates to subsequent to the termination order. (20) Be that as it may, I find from the show-cause notice as issued to the petitioner involving his services as available at Annexure-B/4 to the counter affidavit at the instance of the Managing Committee clearly revealing the allegation / subject involved under explanation No.5 asking the petitioner to show-cause as to why the action shall not be taken against him for his continuing as a registered contractor, while continuing as a teacher as it violates the School Administration procedure. The petitioner in response to the same had submitted his explanation as appearing at Annexure-C/4 to the very same counter affidavit at paragraph 9 of the reply and the petitioner submitted as follows : “9. That I deny that all allegations vide explanation No.5” (21) From the above, it clearly reveals that the petitioner had a simple denial to such allegation and on the other hand if he had at all any document in his possession to prove the contrary, it was very much open to him to give a suitable reply at least. That I deny that all allegations vide explanation No.5” (21) From the above, it clearly reveals that the petitioner had a simple denial to such allegation and on the other hand if he had at all any document in his possession to prove the contrary, it was very much open to him to give a suitable reply at least. (22) Further from the document at Annexure-E/4, it is amply clear that the petitioner was continuing as a ‘C’ class contractor, even after such an allegation was made in the year 1990, the document at Annexure-E/4 has also a clear indication that the petitioner is not only continuing with the contractor license but he is also getting some money through such contracts and earning in the year 1994 runs to over Rs.40,000/-(Rupees Forty thousand only) in the whole year. Similarly his earning through such contractorship in the year 19941995 runs nearing Rs.50,000/- (Rupees Fifty thousand only), this is also the position in the subsequent years but with improvement in the financial side. (23) However, these are all receipts after the termination of the petitioner, what was relevant for the Appellate Authority is to take into account the position of the petitioner as a Contractor while the notice of termination or termination order was issued. (24) Under the circumstances, I am of the view that the Director has also not applied his mind in the above regard and his findings are based on receipt of the petitioner after the termination order takes place. I therefore also set-aside this part of the Appeal order and remit the matter back to the Appellate Authority to rehear the parties on the question of continuance and or the position of the contractor licence at the time of termination and pass a fresh order confining it to the question of contractor licence which exercise be concluded within a period of four months from today. (25) As I have already held the petitioner’s termination on account of having no qualification at the time of show-cause as well as termination as bad, under the circumstances, I further direct the petitioner’s reinstatement into service will be dependent on the ultimate outcome in the matter of decision on the question of position of the contractor licence at the time of termination or not. (26) The writ petition succeeds to the extent directed hereinabove. (26) The writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to cost.