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2015 DIGILAW 550 (ORI)

Dushasan Jena v. State of Orissa

2015-09-22

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. The petitioner has filed this application seeking to declare the selection of State Award of the year 1998 in favour of the opposite party No. 5 as illegal and arbitrary and further seeking for a direction to give the award to the person selected made by the District and State Level Selection Committee for the year 1998 forthwith. 2. The short fact of the case, in hand, is that the petitioner being the senior most Assistant Teacher, remained in charge of Headmaster of Muralidhara High School, Badhamunda, in the district of Jaipur. He was appointed on 05.08.1963 and became a Trained Graduate in 1969. Because of his performance, he had received many awards from local authorities. Every year the Government of Orissa in Department of School and Mass Education arranges an Award Distribution Ceremony on the occasion of 26th January, i.e. Republic Day, to distribute State Awards to the best Teachers among the headmasters/Headmistress and Teachers of recognized Primary, Middle, Secondary and Secondary Training Schools/DIET having at least 15 years of teaching experience in Primary and Secondary Schools including other teachers as mentioned in the Government proposal. The eligibility principles for the year 1998 have been decided by the Government. Accordingly, the eligibility criteria has been incorporated by the State Authority which has been mentioned in Annexure-1. The Government has decided to give all total 50 awards to the Teachers including Primary Secondary and Sanskrit Toll teachers and it was decided on principle that there shall be one award for each Revenue District. For the year 1998 the Government has decided in principle that 30 awards would be given to the Primary School Teachers and 19 awards to the Secondary Teachers and one award to the Sanskrit Tool, in total the number is 50. There is only one award for Primary Section and one award for Secondary Section for the district of Jaipur. The selection process was every strict and hard, and therefore, there were two selection committees for the purpose of selection of best teachers to receive the award. For this purpose, a high level selection committee was formed to select a best Teacher for the district of Jaipur, both from Primary Section and Secondary Selection. There were two selection committees, namely, (i) District Level Selection Committee and (ii) State Level Selection Committee. For this purpose, a high level selection committee was formed to select a best Teacher for the district of Jaipur, both from Primary Section and Secondary Selection. There were two selection committees, namely, (i) District Level Selection Committee and (ii) State Level Selection Committee. District Level Selection Committee is the Primary Committee which after thorough scrutiny and sincere selection, recommends the names of the teachers for final selection by the State Level Committee. The State Level Selection Committee is the final authority for the purpose. The petitioner along with other eligible teachers of Jaipur Secondary Education applied for the State Award, 1998 and the District Selection Committee after thorough scrutiny and assessment of all the service records of the teachers applied for the State Award, recommended the names of two teachers, namely, the petitioner and Bhagyadhara Sahoo, opposite party No. 5 herein for final selection by the State Level Selection Committee. The State Level Committee like the District Level Selection Committee has been duly constituted with very high level officials. The State level Selection Committees after thorough scrutiny and over-all assessment of the recommended teachers, selected the petitioner to receive the State Award to Teacher of 1998 to be paced before the Government for approval. 3. Instead of approving the same, the then Minister of School and Mass Education Department, opposite party No. 4 suo motu directed the Director, Secondary Education to reconsider again whether the petitioner stood first or the opposite party No. 5. The Director, Secondary Education without sending the matter back to the State Level Selection Committee, personally submitted a report to the Secretary, School and Mass Education Department and selected the opposite party No. 5, for the State Award to Teachers, 1998. Hence, this application. 4. Mr. P.C. Acharya, learned counsel for the petitioner strenuously urged that the opposite party No. 4, the then Minister of School & Mass Education has acted malafidely and deprived the petitioner from getting the legitimate claim of receiving the State Award to Teachers, 1998 and more so, the entire action has been taken on the basis of the report submitted by the Director, Secondary Education who submitted a report personally to the Secretary, School and Mass Education Department recommending the name of opposite party No. 5 for the State Award to Teachers, 1998. He further submitted that while submitting the report, the Director, Secondary Education has neither compiled with the principles of natural justice nor only opportunity was given to the petitioner in accordance with law. More so, for some reason or other, the State Government did agree with the recommendation made, by the District Level Selection Committee or the State Level Selection Committee. Hence, the matter should have been remitted back to the very same authority for reconsideration and without doing so, the State Government again caused self-same enquiry by appointing opposite party No. 2, the Director, Secondary Education and only basing on his report, benefit has been extended to opposite party No. 5. 5. No counter affidavit has been filed by the State Government. Since it is an year-old case of the year, 1999, a Misc. Case was filed by the petitioner for production of records. Considering the same, this Court on 9.7.2015 directed the learned Standing Counsel for the School and Mass Education Department to produce the records regarding selection of State Award to Teachers, 1998. Again on 27.7.2015 opportunity was given to the learned Standing Counsel to produce the records. In compliance to the same, the record was produced on 3.9.2015 before this Court for consideration. 6. On the basis of the facts pleaded above, on perusal of the records, it appears that the petitioner has been duly selected by the District level Selection Committee and his name has been duly recommended to the State Level Selection Committee. The State Level Selection Committee also recommended the name of the petitioner for State Award to Teachers, 1998 and the entire selection has been done in consonance with the guidelines fixed by the authority. When the matter was paced before the Minister for approval, the then Minister, School and Mass Education Department without any rhyme or reason in the note sheet page No. 97 directed the Director, Secondary Education that the recommendation made by the Jaipur Education district should be reconsidered once again. On that basis, the Director, Secondary Education submitted his report declaring the opposite party No. 5 to be eligible for the State Award to Teachers, 1998 awarding some marks in different places as mentioned in the note-sheet No. 98. On that basis, the Director, Secondary Education submitted his report declaring the opposite party No. 5 to be eligible for the State Award to Teachers, 1998 awarding some marks in different places as mentioned in the note-sheet No. 98. The Minister, School and Mass Education Department, opposite party No. 4 could not have passed such an order when the District Level Selection Committee recommended the case of the petitioner to become eligible for the State Award to Teachers, 1998. If any doubt arose in the mind of the Minister, the matter should have been remitted back to the District Level Selection Committee for reconsideration instead of directing the Director, Secondary Education to look into the matter. In other words, the guidelines so framed by the Government becomes redundant because the District Level Selection Committee after scrutinizing all the relevant facts and records as per the guidelines selected the petitioner, which has also been confirmed by the State Level Selection Committee and, therefore, the Minister could have only approved the same in accordance with law. If the Minister in any case is differing from the view taken by the District Level Selection Committee or the State Level Selection Committee, with a fairness he should have remitted the matter back to the very same authority for reconsideration. Instead of doing so, the action taken pursuant to the report submitted by the Director, Secondary Education clearly indicates that the Minister has acted malafidely so far as Jaipur Education District is concerned. The note sheet as available at pages 97, 98, 99 and 100 clearly shows the mala fide act of the then Minister, School and Mass Education Department in awarding the State Award to Teachers, 1998. Since the Minister has acted malafidely and arbitrarily and contrary to the guidelines issued by the authority, any action pursuant to such arbitrary and unreasonable exercise of power by the Minister cannot sustain in the eye of law. Therefore, the selection of opposite party No. 5 to receive State Award to Teachers, 1998 also cannot sustain. 7. The apex Court in Common Cause A Registered Society V. Union of India and others, AIR 1996 SC 3538 has considered the allotments of retail outlets for petroleum products (the petrol pumps), by Capt. Therefore, the selection of opposite party No. 5 to receive State Award to Teachers, 1998 also cannot sustain. 7. The apex Court in Common Cause A Registered Society V. Union of India and others, AIR 1996 SC 3538 has considered the allotments of retail outlets for petroleum products (the petrol pumps), by Capt. Satish Sharma, Minister of State for petroleum and natural Gas exercising the powers of the Central Government, which was challenged in a pubic interest petition filed under Article 32 of Constitution of India wherein the apex Court in paragraph 25, held as follows: "25. This Court as back as in 1979 in Ramana Shetty's case (AIR 1879 SC 1628) (supra) held "It must, therefore, be taken to be the law..... "that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would be violative of the law of the land, Mr. Satish Sharma has acted in the utter violation of the law laid down by this Court and has also infracted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in a position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This Court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 : (1994 AIR SCW 97) approved "Misfeasance in pubic officers" as a part of the Law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing. According to Wade "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate mal-administration, and perhaps also other unlawful acts causing injury". With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of Government wealth in various forms. With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot held me personally liable". No public servant can arrogate to himself the power to act in manner which is arbitrary." 8. In Jaipur D.A. v. Daulat (1997) 1 SCC 35 , the Apex Court had held that the public law concept has also been used to make a political leader, such as a Minister, to make him legally liable to wrongs done by himself personally as well as those committed by subordinates under his control. 9. In Subash Projects v. W.B. Power Development Corporation (2005) 8 SCC 438 , the apex Court has held as follows: "xxx. We do not want to go further into that aspect, but we must notice that the Ministry of State for Powers was not fair in not apprising OECF of the entire facts with reference to the documents and seeking its advice before taking a stand on the matter of identification of the lowest tenderer on the facts and in the circumstances of the case. Xxx" 10. In the case at hand, the State Award to Teachers was given to opposite party No. 5 in the year 1998 and the writ application has been filed in 1999. In the meantime both the petitioner and opposite party No. 5 have retired from service. Keeping in view the decisions referred to above and in the facts and circumstances of the case, this Court is of the considered view that the petitioner having been selected by the District Level Selection Committee and the State Level Selection Committee, with all fairness, he is entitled to get the said award for the year, 1998. Keeping in view the decisions referred to above and in the facts and circumstances of the case, this Court is of the considered view that the petitioner having been selected by the District Level Selection Committee and the State Level Selection Committee, with all fairness, he is entitled to get the said award for the year, 1998. But with efflux of time this Court is not proposing to set aside the award given in favour of opposite party No. 5, rather for the arbitrary and illegal action of the authorities, since the petitioner has been deprived of getting his legitimate claim to receive the State Award to Teachers, 1998, his case should also be reconsidered once again keeping in view the parameters already set in the year 1998 and he should be extended with all benefits. The entire exercise should be completed within a period of two months hence. Needless to say that the Secretary, School and Mass Education Department should take immediate steps for compliance of this order. 11. With the aforesaid observation and direction, the writ application is disposed of.