Governing Body of Astaranga College Astaranga, Puri v. State of Orissa
2017-09-15
S.K.MISHRA
body2017
DigiLaw.ai
JUDGMENT : S.K. MISHRA, J. 1. This judgment arises out of the two Review Applications bearing Nos. 189 of 2013 and 190 of 2013 in which the Governing Body of Astaranga College, Astaranga, Puri represented by a member of the Governing Body of the said College has sought for a review of the judgment passed by this Court in FAO Nos. 460 & 461 of 2010. 2. The admitted facts of the case are that the present opposite party no.5 i.e. Natabara Malla had earlier filed a writ application bearing OJC No.8934 of 1998. This Court, vide order dated 06.11.2007, recommended the case to the Tribunal to treat the same as an application under Section 24-B of the Orissa Education Act, which was registered as G.I.A. Case No.263 of 2007. In such view of the matter, the learned Presiding Officer, State Education Tribunal, Orissa, Bhubaneswar examined the question whether in view of the cancellation of approval of appointment of opposite party no.4-Prafulla Kumar Jena by the State Government, he is entitled for the same. 3. The G.I.A. Case No.18 of 2008, which was filed by the said Prafulla Kumar Jena, was taken up for consideration along with G.I.A. No.263 of 2007. The G.I.A. Case No. 263 of 2007 was filed by Sri Natabar Malla, i.e. the opposite party no.5 in both the review applications. In G.I.A. Case No.18 of 2008, the petitioner’s case is that he was appointed as Librarian by the Governing Body of the College w.e.f 02.02.1989 as per the standard staffing yardstick for non-Government Colleges issued by the State Government vide its letter dated 08.07.1977. The Astaranga College was established in the year, 1987 and got recognition and affiliation for +2 wing in the year, 1989 and notified as Aided Educational Institutions vide Government order no.15451 dated 15.02.1997 w.e.f 01.06.1994. 4. The +3 wing of the College got re-affiliation in 1990. On 03.07.1989, the Secretary, Governing Body of the College appointed opposite party no.4, Natabar Malla, who is a graduate having no qualification in Library Science as Librarian, which was asserted to be not permissible as per the yardstick dated 08.07.1977 prescribed by the Government. After the College came into grant-in-aid fold, the Governing Body of the College submitted necessary proposal in the prescribed form no. ‘A’ for approval of staff.
After the College came into grant-in-aid fold, the Governing Body of the College submitted necessary proposal in the prescribed form no. ‘A’ for approval of staff. It was claimed before the Tribunal that with a malafide intention, the name of the petitioner i.e. Praffula Kumar Jena, who is the opposite party no.4 in the review petitions was given concession against the +3 wing, instead of +2 wing and recommended the name of the opposite party no.5-Natabar Malla against the +2 wing by the Governing Body. Accordingly, the Deputy Director, Higher Education, Orissa in a mechanical manner recommended the name of the opposite party no.5 to the Government for approval against the said post. When the mater came to the notice of the opposite party no.4, he made representation to the Deputy Director, Higher Education and the Principal of the Astaranga College vide letter no.1235, dated 20.04.1998 intimated the Deputy Director about the appointment of the opposite party no.4 as an Assistant Librarian, which was justified as per the yardstick and further recommended for his approval. The Deputy Director after receipt of the aforesaid representation and the letter of the Principal of the College and after conducting enquiry held that the date of appointment of opposite party no.4 is 02.02.1989 and the date of appointment of opposite party no.5 is 03.07.1989. But by way of manipulation the grant-in-aid was sanctioned in favour of the opposite party no.5. Therefore, he recommended for cancellation of approval of Sri Natabar Malla and for approval of the name of Sri Prafulla Kumar Jena against the post of Assistant Librarian. Challenging the letter of recognition of cancellation of approval, Sri Nataballa Malla filed Writ Petition as stated above and it was recommended to the Tribunal to be treating an application under Section 24-B of the Orissa Education Act. 5. The present petitioner i.e. the Governing Body of the College, who was arrayed as opposite party no.3 in both the GIA cases, has filed a counter affidavit challenging the report of the Deputy Director, Higher Education, inter alia, pleading that the Governing Body of the College is the final authority to decide the inter-se seniority between Prafulla Kumar Jena and Natabara Malla.
It was asserted that the Governing Body having decided the same held that Sri Jena is senior to Sri Malla and the report of the Deputy Director to the contrary is beyond his jurisdiction and has no importance in the eye of law. The Governing Body has also disputed the qualification of the opposite party no. 4 and 5 at the time of their appointment. The learned Presiding Officer, State Education Tribunal held that the Deputy Director, Higher Education after verification of the record came to the conclusion that the appointment of the opposite party no.4 in GIA Case No.18 of 2008 was legal and valid in respect of +2 wing of the College and he deserve for approval of his appointment and release of grant-in-aid. Thus, the learned Presiding Officer recommended the name of Mr. Jena for the aforesaid purpose. Accordingly, it was held by the learned Presiding Officer that the petitioner in GIA Case No.18/2008 is entitled to approval of his appointment and release of grant-in-aid w.e.f 01.06.1994 as per the GIA order 1994. In view of the fact that the issue was decided in favour of the petitioner in GIA Case No.18/2008, as only a question of Grant-in-Aid filed by Natabara Malla was also disposed of in the same light by common judgment. Against the order of the learned Tribunal, the opposite parties 4 and 5 preferred appeals before this Court, which were registered as FAO Nos.460 and 461 of 2010. A careful examination of the order-sheet of both the appeals reveals that at the first instance, notices were not issued. However, State of Orissa and private opposite parties, namely, Natabara Malla and Prafulla Kumar Jena had appeared waiving notice. The only party absent was the Governing Body of the College represented through its Secretary. However, the case was heard and disposed of without hearing the opposite party no.3, i.e. Governing Body. The learned Single Judge having properly discussed the matter dismissed both the appeals as per a common judgment. Thereafter, two review applications have been filed by one Swarnaprava Behera, Astaranga College, who happens to be approved member of the Governing Body.
However, the case was heard and disposed of without hearing the opposite party no.3, i.e. Governing Body. The learned Single Judge having properly discussed the matter dismissed both the appeals as per a common judgment. Thereafter, two review applications have been filed by one Swarnaprava Behera, Astaranga College, who happens to be approved member of the Governing Body. The main plank of the review applications in both the cases is that the General Body of the Astaranga College, being the opposite party no.3 in both the FAOs should have been noticed if any appeals are filed against such order of the State Education Tribunal and any order passed in the aforesaid appeals is illegal and in this case the petitioner, being represented by one of its member, challenges the said order passed by this Court. The learned counsel for the petitioner relies upon a recently decided case of this Court, i.e. Archana Mohanty and others vs. State of Odisha and others (Writ Appeal No.237 of 2014, disposed of on 13.09.2016) passed by Division Bench of this Court presided by Hon’ble Chief Justice. The observations of the Division Bench of this Court are quoted hereunder: “ 5. We are unable to understand as to on what basis such submission has been made, as by the judgment passed by the writ Court, the appointment of the appellants has been done away with and they have been relived from the service of the School and Mass Education Department. Thus, it cannot be said that the appellants were not affected or prejudiced by the order of the writ Court. In State of Orissa vs. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 , the apex Court held as follows: “The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added.
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basis concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” The aforementioned view has been approved by the apex Court in Sirsi Municipality v. Cecelia Kom Francis Tellis, AIE 1973 SC 855. In Menaka Gandhi v. Union of India, AIR 1978 SC 597 , a seven-Judge Bench of Supreme Court held as follows: “Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be: Does fairness in action demand that an opportunity to be heard should be given to the person affected?” In Sayeedur Rehman v. State of Bihar, AIR 1973 SC 239 , the Supreme Court held as follows: “This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessary of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.
This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessary of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The omission of express requirement of fair hearing in the rules or other sources of power claimed for reconsidering an order is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties. 6. Therefore, the law is fairly settled that no order be passed against a party which is to be affected by an order or judgment, unless adequate opportunity of hearing is afforded to such party.” 6. So, on the basis of this Judgment, the learned counsel for the petitioner very emphatically argued that the Judgment passed by the single bench of this Court requires to be reviewed and it should be reviewed so that the matter can be re-heard. The opposite parties, especially opposite party no.4 has filed an affidavit inter alia pleading that the review applications have been filed by annexing a document under Annexure-2, vide Resolution No.24 dated 23.08.2013 passed by the Governing Body of the College, which is totally false, fabricated and forged document. It is specifically pleaded that the petitioner sought for a document in respect of Resolution No. 29 dated 23.08.2013 from the Governing Body of the College though the petitioner has filed Resolution No.24 dated 23.08.2013 in review application. It is therefore clear that the conduct of the person representing the petitioner that there is no such resolution of the Governing Body, bearing No.24 dated 23.08.2013. 7. It was argued by the learned counsel for the opposite parties that since no adverse order has been passed against the Governing Body of the College in the sense it has not affected any of the applicant’s right, liability etc, review application need not be allowed.
7. It was argued by the learned counsel for the opposite parties that since no adverse order has been passed against the Governing Body of the College in the sense it has not affected any of the applicant’s right, liability etc, review application need not be allowed. Thus, in the review applications, it is crystal clear that opposite party no.3, in both the writ application, i.e. Governing Body of the College, represented by its Principal-cum-Secretary, though was a party before the State Education Tribunal and had filed a counter affidavit in that cases, has not been noticed in the writ application, review of which is sought in the applications. Thus, the following questions arose at this moment. (i) Whether the review applications need to be allowed in view of the fact that no adverse order has been passed by the Governing Body regarding rights, liabilities etc. of the College; and (ii) Whether Smt. Swarnapara Behera can maintain the review application in view of the disputed facts regarding the genuineness of the resolution on which she relied upon? 8. As discussed earlier, it is apparent from the record that the learned Presiding Officer, State Education Tribunal has not passed any adverse order against the General Body of the Astaranga College, Astaranga. It has only passed an order regarding the inter-se seniority between two employees of the said College. A careful reading of the case of Archana Mohanty and others vs. State of Odisha and others (supra), this Court comes to the conclusion that no adverse order can be passed against any party without affording reasonable opportunity of showing cause and hearing to him. A natural corollary to the same is that if an order is passed, which does not have affect the rights of the party but decide a dispute between two of its employees, then even if notice is not issued to the employer concerned, no prejudice can be caused and the order cannot be set aside only on the ground of non-compliance of principles of natural justice. 9. Mr. Samir Kumar Das, learned counsel for the petitioner would submit that since the Governing Body is the final administrative authority of the College, an order passed by the High Court confirming the order passed by the Education Tribunal is illegal as it has not given any chance of hearing.
9. Mr. Samir Kumar Das, learned counsel for the petitioner would submit that since the Governing Body is the final administrative authority of the College, an order passed by the High Court confirming the order passed by the Education Tribunal is illegal as it has not given any chance of hearing. However, the Governing Body of the College is guided by the Department of Higher Education of the Government of Orissa and subject to jurisdiction of the administrative authority. It has been heard in the original GIA cases and no substantial point of contention has raised by it before the State Education Tribunal. So, considered opinion of the Court is that when this Court dismissed both the appeals without hearing the Governing Body, in view of the fact that Governing Body has not preferred appeals to the Court by submitting that it was aggrieved by the order passed by the State Education Tribunal, there is hardly any scope for it to argue that it has been prejudiced only for non-issuance of notice and non-availability of opportunity of hearing. Accordingly, I decide this point against the Governing Body and held that though no notice was issued against the Respondent No.3 in the F.A.Os., still no prejudice has been caused to it. Hence, the applications need not be allowed reviewing the orders passed in the FAOs. 10. Second question is hotly contested in this case. The learned counsel for the opposite party no.4 submits that the Resolution Book submitted by the petitioner is a forged and manipulated document. Though no direct material is available regarding the forgery of the same, it is seen that the Principal of the Astaranga College, Dist. Puri has signed the same. So, it does not appeal to commonsense that the General Body instead of asking the Principal-cum-Secretary to file a review application in the Court authorised a member of the General Body. Moreover, it is apparent from the record that the Resolution No.24, dated 23.08.2013, which is relied upon by the review petitioner is in fact the Resolution No.29 and there is manipulation of the same. It is seen that in the body of the resolution some interpolation has been done in the sense that about 3 lines, appearing in 9th to 11th lines from the bottom has been erased by using white ink and rewritten.
It is seen that in the body of the resolution some interpolation has been done in the sense that about 3 lines, appearing in 9th to 11th lines from the bottom has been erased by using white ink and rewritten. That portion relates to the decision of the committee to move review applications before the High Court, So, in the cumulative effect, this document, which records only one resolution in the Register, do not inspire confidence of this Court. It appears to the Court that the alleged member of the committee by filing writ application is espousing the individual cause of opposite party no.5. Hence, this Court is of the opinion that the authorisation given in favour of its member is doubtful and need not be relied upon. Hence, both the review applications should not be entertained being devoid of any merit and accordingly the same are dismissed. However, there shall be no orders as to the costs.