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2017 DIGILAW 1242 (ORI)

Tirthabasi Pradhan v. State of Odisha

2017-11-01

S.N.PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition is under Article 226 and 227 of the Constitution of India, wherein the order dated 12.12.2002 passed by the Joint Director of Schools, Regional Directorate of Education, Sambalpur is under challenge. Case of the petitioners in brief is that the petitioners have been appointed by the Managing Committee as Classical Teacher and Hindi Teacher respectively against the terminated vacancies of opposite parties 6 and 7, who while discharging their duties an allegation has been leveled against them of unauthorized absence. The Managing Committee has issued show cause notice by Under Certificate of Posting and when not responded by them, they have been terminated. The opposite parties 6 and 7 being aggrieved with the order of termination w.e.f. 21.04.1994 preferred an appeal before the appellate authority being Appeal No. 2 of 2002 and 3 of 2002 respectively. They have been taken the point that the order of termination has been passed without providing opportunity of being heard to them. According to them, the notice has been issued by Under Certificate of Posting which is not acceptable method of service of notice and the same has not been served upon them, hence the bare principle of natural justice has not been followed. The appellate authority after taking into consideration the plea taken by them has quashed the order of termination vide order dated 12.12.2002 directing them to be reinstated in service and the period has been directed to be treated as leave due and admissible. The present petitioners have been appointed against the terminated vacancies of opposite parties 6 and 7 on different dates. The grievance of the petitioners is that they have not been heard by the appellate authority and as such their cases need fresh consideration by the appellate authority since they are necessary parties by virtue of the fact they have been appointed against the post which has fallen vacant due to their termination which are occupied by them since 1994 by virtue of an appointment order by following due procedure of law. This Court at the first instance has issued notice to the opposite parties including the opposite parties 6 and 7. In terms of the notice, the said opposite parties have appeared and filed detail counter affidavit duly been sworn by the opposite party no. This Court at the first instance has issued notice to the opposite parties including the opposite parties 6 and 7. In terms of the notice, the said opposite parties have appeared and filed detail counter affidavit duly been sworn by the opposite party no. 4 inter alia therein it has been stated that the order passed by the Joint Director has got no infirmity. The opposite party no. 5, the Headmaster of the concerned School has also put his appearance and filed detail counter affidavit wherein it has been stated that opposite parties 6 and 7 were terminated by the Managing Committee of the School following due procedure vide Miscellaneous Resolution No. 20 dated 20.04.1994 for an allegation of unauthorized absence since 18.12.1993. The petitioners have been appointed subsequently and have been allowed to continue in their respective post and they are still continuing w.e.f. 1.1.2004 but due to pendency of the writ petition, they were not allowed to draw their salary even though they are continuously discharging their duties. Heard the learned counsel for the parties and perused the documents available on record. At the outset, it is evident from the perusal of the order-sheet that this case was heard on 6.6.2008 and coordinate Bench of this Court has passed an interim order in Misc. Case No. 7163 of 2008, whereby and where under the prayer made by the petitioner to stay operation has been refused, however it has been observed therein that in view of the direction passed by the Division Bench of this Court in W.P.(C) No. 16027 of 2005, the opposite parties have been directed to await further order of this Court prior to implementing the order passed in W.P.(C) No. 16027 of 2005 and accordingly, the misc. Case was disposed of. It is further evident from the order-sheet that after notice having been issued upon the opposite party nos. 5 to 7, the opposite party no.5 has appeared and filed counter affidavit but in spite of valid service of notice upon opposite parties 6 and 7, none is appearing on their behalf and as such the case is being disposed of in their absence since they have chosen not to appear even after service of notice. 5 to 7, the opposite party no.5 has appeared and filed counter affidavit but in spite of valid service of notice upon opposite parties 6 and 7, none is appearing on their behalf and as such the case is being disposed of in their absence since they have chosen not to appear even after service of notice. The fact which is not in dispute in this case is that the petitioners have been appointed on different dates against the terminated vacancies which are fallen vacant due to termination of opposite parties 6 and 7, who have been terminated from service on account of an allegation of unauthorized absence w.e.f. 18.12.1993 and onwards. The opposite parties 6 and 7 have assailed the order of termination by approaching the appellate authority by preferring an appeal being Appeal No. 2 and 3 of 2002 by taking ground of non-observance of the principle of natural justice. Their contention before the appellate authority was that since it a case of termination as such before taking any adverse decision which relates to civil consequence, the principle of natural justice ought to have been followed but since it has not been followed, hence the order of termination is not proper. The Managing Committee-State has also taken the plea that the notice has been issued upon them by Under Certificate of Posting and as such it cannot be said that the notice has not been issued before passing order of termination however, the same has been disputed by the opposite parties 6 and 7. The appellate authority after appreciating the plea taken by them has passed an order on 12.12.2002 by giving a finding that the principle of natural justice has not been followed, as such the order of termination dated 21.04.1994 with respect to both the opposite parties 6 and 7 has been held to be void, hence the same has been quashed and in the result they have been reinstated in service. The present petitioners being aggrieved with the said order is before this Court by way of this writ petition on the ground that the said order has been passed in their absence since they were necessary party by virtue of the fact that they have been appointed against the vacancy on account of their termination and they are holding the post since 1994 and as such they are necessary party and since the order has been passed in their absence, hence the matter needs fresh consideration by the appellate authority. Learned counsel for the opposite party-State has opposed the submission by making oral arguments that the appellate authority has passed the order on the basis of the direction passed by this Court in OJC No. 8194 of 1997 wherein also the petitioners were not the party. It has been submitted that the petitioners cannot now raise the claim of being a necessary party for the reason that even in the writ petition they are not the party even knowing the fact they have not filed any review of the order passed by this Court in OJC No. 8194 of 1997. It has been submitted that on this pretext that the order of the appellate authority cannot be said to be illegal since the appellate authority has acted on the basis of the direction passed by this Court by passing the order after hearing the affected parties who were party to the writ petition. In this context, it needs to be referred the judgment rendered by the Hon’ble Supreme Court in the case of Poonam vrs. State of U.P. and others reported in (2016 2) SCC 779, the Hon’ble Apex Court while dealing the case has been pleased to hold regarding the necessary party in the proceeding. The case before the Hon’ble Apex Court was regarding the allotment of a shop under the Public Distribution System, which was allotted in favour of a person but it was cancelled, the order of cancellation was challenged by him but the said shop has subsequently been allotted in favour of another person. The case before the Hon’ble Apex Court was regarding the allotment of a shop under the Public Distribution System, which was allotted in favour of a person but it was cancelled, the order of cancellation was challenged by him but the said shop has subsequently been allotted in favour of another person. The order of cancellation of the license has been quashed by the Hon’ble Apex Court and in these factual background, the matter has been considered regarding the right of the person in whose favour, the license has been granted to run the shop under the Public Distribution System after cancellation of the license. It has been laid down therein that the subsequent allottees would have continued to hold the shop, had the original allottee loss the appeal but she cannot assail the said order in a writ petition because she is not a necessary party, it is the State or its functionary who would have challenged the same in appeal. It is not conferred any locus on the subsequent allottee to challenge the order passed in favour of former allottee. He will be a third party to the lis in this context. It has further been held therein that the principle laid down in the case of J.S. Yadav vrs. State of U.P. reported in (2011) 6 SCC 570 , it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner, whose license is cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statue in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statue rights are created in favour of such allottees and, therefore they are necessary parties as has been held in the case of Ram Swarup and others vrs. S.N. Maira & others reported in (1999) 1 SCC 738 . The subtle distinction has to be understood. S.N. Maira & others reported in (1999) 1 SCC 738 . The subtle distinction has to be understood. It does not relate to a post or position which one holds in fortuitous circumstance. It has nothing to do with the vacancies. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It would be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as necessary party or allowed to assail the said order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation or anarchy in law. This Court after going through the factual aspect involved in this case and considering the admitted position that the petitioner has been appointed against the terminated vacancies of opposite parties 6 and 7 which the parties are not disputing, and as such applying the ratio of the Hon’ble Supreme Court rendered in the case of Poonam vrs. State of U.P. & others (supra), the petitioners cannot be held to be a necessary party. However, so far as illegality and propriety of the order passed by the appellate authority is concerned, it is the considered view of this Court that no one can be allowed to get an advantage of technically, even accepting that the principle of natural justice has not been followed while terminating the service of opposite parties 6 and 7, the appellate authority ought to have remitted the matter before the managing Committee to proceed afresh after serving notice properly but instead of doing so, and without coming to the veracity of allegations leveled against them which was with respect to unatuthorised absence, they have been given the benefit or reinstatement in service and not only that the entire service period has also been regularized. It is settled proposition of law that on technicality, order of reinstatement cannot be passed rather the proper course would be to remit the matter before the competent authority to proceed afresh after providing opportunity of being heard to the affected parties, hence in that view of the matter, the order dated 12.12.2002 is not sustainable in the eye of law and accordingly quashed. It has been stated at Bar that now the School is under the Block Grant hold, as such still the Managing Committee is the competent authority to take any disciplinary action against the teachers working in the School, hence the matter is remitted before the Managing Committee to take decision in accordance with law by proper service of show cause notice upon the opposite parties 6 and 7 and take decision within 8 weeks from the date of receipt of coy of this order. Accordingly, the writ petition is disposed of with the direction and observation made herein above. Petition disposed of.