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2017 DIGILAW 600 (ORI)

Arakhita Pradhan v. State of Orissa

2017-05-18

B.R.SARANGI

body2017
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner, who was working as a Hindi Teacher in Gopinath Swamy High School, Madhupalli in the district of Ganjam, by means of this writ petition, has challenged the order dated 19.07.2004 in Annexure-5 passed by the Director, Secondary Education, Orissa directing the Managing Committee to re-appoint opposite party no.5 as Hindi Teacher in his place, and sought for direction to the opposite parties to allow him to continue as Hindi Teacher, as before, in view of the observation made by the Director that the appointment of the petitioner was valid and he was serving till that date, and to regularize his services. 2. The factual matrix of the case is that Gopinath Swamy High School, Madhupalli in the district of Ganjam is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act. Opposite party no.5-Durga Prasad Mishra was appointed as Hindi Teacher purely on temporary basis by the Managing Committee of the said School. He was placed under suspension, without following due procedure of law, as he was involved in a criminal case in connection with Kodala P.S. Case No.6 of 1993 for misbehaving girl students of the School. Subsequently, considering his conduct and keeping in view the interest of the institution, as well as the girl students of the School, the Managing Committee terminated his services with effect from 05.09.1993. Opposite party no.5 was also arrested in connection with Kodala P.S. Case No.6 of 1993 for alleged offence under Section 498-A read with Section 4 D.P. Act and forwarded him to custody. After rejection of his bail application, the petitioner was remanded to jail custody. 3. For smooth management, the Managing Committee of the School vide letter dated 30.07.1996 called for names of the candidates, for the post of Hindi Teacher, from the Employment Exchange, Chatrapur, which sponsored, including the petitioner, names of about 20 candidates vide letter dated 14.08.1996. On receipt of the said names, the Managing Committee constituted the Selection Committee to conduct necessary interview for the post of Hindi Teacher. The Selection Committee, after conducting necessary interview, selected the petitioner to be appointed as Hindi Teacher and, as a consequence thereof, the Managing Committee passed resolution in appointing the petitioner as Hindi Teacher vide appointment letter dated 31.10.1996. The petitioner joined in the School on 01.11.1996 and was continuing in the said post. The Selection Committee, after conducting necessary interview, selected the petitioner to be appointed as Hindi Teacher and, as a consequence thereof, the Managing Committee passed resolution in appointing the petitioner as Hindi Teacher vide appointment letter dated 31.10.1996. The petitioner joined in the School on 01.11.1996 and was continuing in the said post. 4. While the matter stood thus, after coming to know the fact that the School in question was going to be included in the fold of Grant-in-Aid Scheme, opposite party no.5 approached this Court by filing O.J.C No.8232 of 1998 challenging his order of termination dated 06.09.1993 after lapse of six years. On 19.07.1999, this Court disposed of the said writ petition by passing the following order: “Heard learned counsel for the parties. Both the writ applications are interlinked and are disposed of by this common order. Since the dispute lies within a very narrow compass and there are three claimants in respect of one post, we think it appropriate to direct the Director of Secondary Education, Orissa to take a decision in the matter within three months from today. It goes without saying that all the claimants, the managing committee and the persons interested are to be given the opportunity of appearance and placing materials in support of their respective claim. To avoid unnecessary delay, let the contesting parties of both the writ applications appear before the Director of Secondary Education, Orissa without any further notice on 31st July, 1999 so that a date of hearing can be fixed for final disposal within the time-frame indicated above.” 5. Though the petitioner was not noticed in the said writ petition, in compliance of the order dated 19.07.1999 passed therein, he appeared before the Director and submitted his written statement stating inter alia, that he was selected and appointed as Hindi Teacher by the Managing Committee after following due procedure. It was also stated that the services of opposite party no.5 were terminated in the year 1993 due to his involvement not only in criminal case, but also misbehaving the girl students of the School. Therefore, the appeal filed by opposite party no.5 be dismissed. In addition to the same, it was stated that opposite party no.5 voluntarily abandoned his service and took admission in B.Ed. Course without permission of the School. After termination of his services, he also took admission in Law. Therefore, the appeal filed by opposite party no.5 be dismissed. In addition to the same, it was stated that opposite party no.5 voluntarily abandoned his service and took admission in B.Ed. Course without permission of the School. After termination of his services, he also took admission in Law. As he did not attend the School, considering the difficulties of the students, the Managing Committee appointed the petitioner as Hindi Teacher. The Managing Committee of the School also appeared before the Director (opposite party no.2) and contended that opposite party no.5 had been appointed on temporary basis and he was placed under suspension for his involvement in criminal case and subsequently his services were terminated w.e.f. 05.09.1993. The Managing Committee also contended before the Director that opposite party no.5 not only involved in criminal case but also remained in jail and that apart he misbehaved the girl students of the School. Therefore, the Managing Committee terminated the services of opposite party no.5. 6. The Director, Secondary Education, Orissa, on perusal of the materials available on record, though came to a conclusion that the appointment of the petitioner was valid, but held that the services of opposite party no.5 were terminated without following due procedure of law and principles of natural justice and hence allowed his appeal and directed the Managing Committee to reappoint him as Hindi Teacher vide his order dated 19.07.2004. Hence this application. 7. Mr. A.K. Choudhury, learned counsel for the petitioner stated that the order passed by the Director on 19.07.2004 is an outcome of non-application of mind, in view of the fact that opposite party no.5, having been appointed temporarily, had no right to the post. He also stated that for termination of service of a temporary employee, no procedure is required to follow. Opposite party no.5, having been terminated from service on 06.09.1993 because of his involvement in a criminal case and misbehaviour to the girl students of the School, the direction issued by the Director, Secondary Education, Orissa for reinstatement of opposite party No.5 against the post held by the petitioner, is absolutely misconceived one. The Director could not have entertained the appeal preferred by opposite party no.5 in the year 1999, after long lapse of six years of dismissal from service. The Director could not have entertained the appeal preferred by opposite party no.5 in the year 1999, after long lapse of six years of dismissal from service. By entertaining such appeal, the order passed by the Director on 19.07.2004, directing the Managing Committee of the School to reinstate opposite party no.5 in service, has caused prejudice to the petitioner. Therefore, the order so passed by the Director has to be quashed. In order to substantiate his contention, he has relied upon Bhagwandas Fatechand Daswani and Ors. V. HPA International and Ors, 2000(I) Supreme 209 ; Baby Devassy Chully @ Bobby v. Union of India (UOI) and Ors., 2012(7) Supreme 353 ; Anil Rai v. State of Bihar, AIR 2001 SC 3173 , Kendriya Vidyalaya Sangathan and Ors., v. Ajay Kumar Das and Ors., AIR 2002 SC 2426 ; Aligarh Muslim University and Ors., v. Mansoor Ali Khan, AIR 2000 SC 2783 ; State of Manipur and Ors. V. Y. Token Singh and Ors., 2007 AIR SCW 1995; State of Punjab and Ors. V. Balbir Singh, (2004) 11 SCC 743 ; State of U.P. and Ors. V. Rekha Rani, (2011) 11 SCC 441 and Managing Committee of Jata High School and Ors. V. State of Orissa and Ors, 2014 (II) OLR 830 . 8. Mr. A.K. Mohanty, learned Standing Counsel for the School and Mass Education Department tried to justify the impugned order passed by the Director, Secondary Education, Orissa and stated that no illegality or irregularity has been committed by the Director so as to warrant interference of this Court. 9. Mr. P.K. Ghose, learned counsel appearing on behalf of Mr. S.S. Das, learned Senior Counsel for opposite party no.5 supported the arguments advanced by learned Standing Counsel for the School and Mass Education Department. He contended that pursuant to the impugned order passed by the Director, opposite party no.5 already joined in the post and is continuing against the post held by the petitioner. Therefore, any order passed by this Court would adversely affect the rights of opposite party no.5 to continue in the post. To substantiate his case, he has relied upon the case of Nigamananda Mangaraj v. The Chairman-cum-Disciplinary authority, Koraput Panchabati Gramya Bank, 2014 (II) OLR 421 . 10. This Court heard Mr. A.K. Choudhury, learned counsel for the petitioner, Mr. A.K. Mohanty, learned Standing Counsel for the School and Mass Education Department and Mr. To substantiate his case, he has relied upon the case of Nigamananda Mangaraj v. The Chairman-cum-Disciplinary authority, Koraput Panchabati Gramya Bank, 2014 (II) OLR 421 . 10. This Court heard Mr. A.K. Choudhury, learned counsel for the petitioner, Mr. A.K. Mohanty, learned Standing Counsel for the School and Mass Education Department and Mr. P.K. Ghose on behalf of Mr. S.S. Das, learned Senior Counsel for opposite party no.5, perused the records. Pleadings having been exchanged between the parties, the matter is finally disposed of at the stage of admission with the consent of learned counsel for the parties. 11. The undisputed fact is that opposite party no.5 was appointed as Hindi Teacher on temporary basis in the year 1990 in Gopinath Swamy High School, Madhupalli in the district of Ganjam. Due to his involvement in a criminal case and his misbehavior to the girl students of the School, he was suspended. Pursuant to direction issued by the Inspector of Schools, Ganjam Circle vide letter dated 29.04.1993, the Managing Committee in its meeting dated 05.09.1993 passed a resolution to suspend opposite party no.5 and, subsequently, he was terminated from service on 06.09.1993. Thereafter, the Managing Committee appointed one Mrutyunjaya Patnaik as Hindi Teacher, pursuant to resolution dated 23.11.1993, without issuing any formal appointment order. Subsequently, the Managing Committee endorsed a requisition, for sponsoring the names of eligible candidates for appointment as Hindi Teacher, to the Employment Exchange, Chatrapur, which sponsored, including the petitioner, names of about 20 candidates vide letter dated 14.08.1996. After following due procedure, the petitioner was selected and appointed as Hindi Teacher on 30.10.1996, pursuant to which he joined on 01.11.1996 and continued as such. When the School in question was included into the fold of grant-in-aid, opposite party no.5, challenging his termination, filed O.J.C. No.8232 of 1998 after long lapse of five years. So also opposite party no.6 (Mrutyunjaya Pattnaik) filed O.J.C. No.16199 of 1998 challenging the appointment of the petitioner. Both opposite parties no.5 and 6 were terminated on different counts. This Court disposed of both the writ petitions directing the Director, Secondary Education to take a decision within three months, since there were three claimants in respect of one post, by affording opportunity of hearing and placing the materials in support of their respective claims. Both opposite parties no.5 and 6 were terminated on different counts. This Court disposed of both the writ petitions directing the Director, Secondary Education to take a decision within three months, since there were three claimants in respect of one post, by affording opportunity of hearing and placing the materials in support of their respective claims. Consequence thereof, opposite party no.5 filed Appeal No.61 of 1999 before the Director after lapse of six years of his termination. In compliance of the order passed by this Court, the Director, after affording opportunity of hearing to the parties, passed the impugned order dated 19.07.2004. It was specifically stated therein that a report was called for from the Inspector of Schools, Ganjam Circle, who in his letter dated 01.11.2002 candidly stated that due to involvement of opposite party no.5 in a criminal case, he was remanded to jail custody, that he was suspended from duty and that the Managing Committee in its resolution dated 05.09.1993 terminated him from service for his misbehavior to the girl students of the School. Subsequently, pursuant to resolution dated 15.11.1993, it was decided to appoint opposite party no.6-Mrutyunjay Pattnaik as Hindi Teacher. But, without getting any appointment letter, though Sri Pattnaik joined on 25.11.1993, he did not attend the School with effect from 10.10.1996. Consequentially, by following due procedure of selection in inviting the names from the Employment Exchange, the petitioner was selected as Hindi Teacher and also given appointment, pursuant to which he was continuing in the School. The reasons for termination of service of opposite party no.5 were also recorded in the order, while considering his appeal, which read as follows: “1. Sri D.P. Mishra was appointed as Hindi Teacher purely on temporary basis and was continuing B.Ed. course under Berhampur University by submitting forged letter to the Secretary as well as Headmaster of the school. 2. Sri Mishra, while he was under suspension, wrote a love letter to a girl student of Class-IX of the school. 3. Sri Mishra had collected money from the outsider with assurance to allow them to appear in the school examination as regular students. 4. Sri Mishra remained away from the Headquarters and did not sign the attendance register during his suspension period.” 12. 3. Sri Mishra had collected money from the outsider with assurance to allow them to appear in the school examination as regular students. 4. Sri Mishra remained away from the Headquarters and did not sign the attendance register during his suspension period.” 12. After recording the reasons, as aforesaid, the Director proceeded to decide the appeal and considering the materials available on record and came to a definite finding to the following effect: “It appears that no appointment procedure was followed in both the cases i.e. in case of Durga Prasad Mishra and in case of Mrutyunjaya Patnaik. The Managing Committee did not follow the appointment procedure while allowing both the appellants to join as Hindi Teacher in the school. Hence, the action of the Managing Committee is illegal and contrary to the set procedure laid down for appointment of staffs.” So far as appointment of the petitioner is concerned, the Director held as follows: “Now, considering the case of 3rd party, i.e. Arakhita Pradhan, he was a duly sponsored candidate from the Employment Exchange, got his appointment letter and is serving till today. Now both the case of D.P. Mishra and Arakhita Pradhan is to be considered. No doubt the appointment of Sri Arakhita Prahdn is a valid one, but prior to this Sri Mishra was in service rightly or wrongly and his service was terminated without following the due procedure of law.” Having come to the aforesaid finding, the Director also held that opposite party no.5 was ousted from his job/service without giving him natural justice and hence his appeal was allowed and directed the Managing Committee to reappoint him as Hindi Teacher of the School, but dismissed the appeals filed by opposite party no.6 and the petitioner. 13. A glimpse on the aforesaid factual narration would reveal that the Director has committed error apparent on the face of the record to the extent that the petitioner had not preferred any appeal, as he was not aggrieved by the time the Director considered the grievance of opposite parties no.5 and 6, as because he was continuing in his service. A glimpse on the aforesaid factual narration would reveal that the Director has committed error apparent on the face of the record to the extent that the petitioner had not preferred any appeal, as he was not aggrieved by the time the Director considered the grievance of opposite parties no.5 and 6, as because he was continuing in his service. The Director has also committed grave illegality and irregularity by holding that opposite party no.5 was ousted from his job/service without giving him natural justice, in view of the fact that appointment of opposite party no.5 was purely temporary in nature and, as such, compliance of natural justice was not warranted. For that matter, observation of the Director in the impugned order, that the termination of opposite party no.5 was without following due procedure of law, and direction to the Managing Committee to reappoint him by allowing the appeal, was absolutely misconceived one. More so, the Director could not have entertained the order dated 06.09.93 terminating the opposite party no.5 from service, after long lapse of 5 years, as the appeal suffered from delay and laches. It is not out of place to mention that the Director, while holding that the termination of opposite party no.5 as bad in law and giving direction to the Managing Committee to reappoint him, came to a definite finding that no doubt the appointment of the petitioner was valid one. 14. In Rekha Rani (Supra), the apex Court held that a temporary employee has no right to the post. As the respondent’s service, in that case, was not terminated as a measure of punishment, no opportunity of hearing was required to be given and, consequentially, it was held that the direction given for reinstatement was not sustainable. Applying the same to the present context, admittedly opposite party no.5 was appointed on temporary basis and without following due procedure of law he was terminated from service because of his involvement in a criminal case as well as misbehavior to the girl students. The same being certainly not as a measure of punishment, question of giving opportunity of hearing and applying natural justice was not required. But, the Director, without understanding the implication thereof, directed for reinstatement of service, which cannot sustain in the eye of law, as the temporary employee had no right to the post. The same being certainly not as a measure of punishment, question of giving opportunity of hearing and applying natural justice was not required. But, the Director, without understanding the implication thereof, directed for reinstatement of service, which cannot sustain in the eye of law, as the temporary employee had no right to the post. Consequentially, the order so passed by the Director on 19.07.2004 cannot sustain in the eye of law and the same is liable to be set aside. 15. In Managing Committee of Jata High School (supra) this Court had come to a finding that if on the basis of availability of materials the Managing Committee passed a resolution for termination of service, the same should not have been interfered with by the Director, while exercising his jurisdiction under Orissa Education Act. Furthermore, the appeal, having not been preferred within the period of limitation prescribed under the Act, should have been rejected as barred by time. Admittedly, in the present case, opposite party no.5 was terminated from service w.e.f. 06.09.1993, and the appeal no.61 of 1998, having been preferred by him after long lapse of 5 years, should have been rejected on the ground of delay and laches. Even opposite party no.5 had approached this Court in the year 1998 (by filing OJC No.8232 of 1998) after 5 years of termination. Therefore, by entertaining the appeal filed beyond the limitation period and setting aside the order of termination passed by the Managing Committee, the Director has committed gross error of law. As opposite party no.5 was appointed temporarily, because of his conduct that he was involved in a criminal case and was misbehaving the girl students, on the instructions of the Inspector of Schools, Ganjam Circle, the Managing Committee terminated him from service. That termination is termination simpliciter and is not punitive in nature. The same should not have been interfered with in an appeal, which was preferred after long lapse of the limitation period. 16. In Kendriya Vidyalaya Sangathan (supra) the apex Court held that the action taken by the Sangathan in terminating the services of the persons appointed by Assistant Commissioner was wholly and fully justified. The Sangathan, being the appointing authority, the Assistant Commissioner was justified in taking action of terminating their services. 16. In Kendriya Vidyalaya Sangathan (supra) the apex Court held that the action taken by the Sangathan in terminating the services of the persons appointed by Assistant Commissioner was wholly and fully justified. The Sangathan, being the appointing authority, the Assistant Commissioner was justified in taking action of terminating their services. Applying the same to the present context, since the appointment was given by the Managing Committee, for reasons of involvement in a criminal case and also misbehavior to the girl students, if it terminated the services of opposite party no.5, no fault can be found with the said order of termination. But, the action of the Director in setting aside the order of termination and directing reappointment of opposite party no.5, by holding that he was ousted from his job/service without giving him natural justice, amounts of stay of process and, being thoroughly misconceived, cannot sustain in the eye of law. 17. Coming to the case laws decided in Bhagwandas Fatechand Daswari and Anil Rai (supra), the same are not applicable to the present case, inasmuch as those are the cases in which there was delay in delivering judgments and, as such, the apex Court laid down some guidelines and also observed that a long delay in delivering judgment gives rise to unnecessary speculation in the minds of parties to the case. 18. Nigamananda Mangaraj (supra), on which reliance was also placed, is a case which stands on different footing and has no application to the present case. 19. In view of the foregoing discussions, this Court is of the considered view that entertainment of the Appeal No. 61 of 1999 filed by opposite party no.5 suffers from delay and laches, consequentially, order dated 19.07.2004 in Annexure-5 passed by the Director, Secondary Education, Orissa in allowing the appeal and directing the Managing Committee to reappoint opposite party no.5 as Hindi Teacher in the School in question cannot sustain in the eye of law and the same is hereby quashed. Since the petitioner was appointed by following due procedure and the finding of the Director that his appointment was valid one, needless to say that he has to be allowed to continue as Hindi Teacher in the said school with all consequential benefits, which the opposite parties no. Since the petitioner was appointed by following due procedure and the finding of the Director that his appointment was valid one, needless to say that he has to be allowed to continue as Hindi Teacher in the said school with all consequential benefits, which the opposite parties no. 1 to 4 are directed to do within a period of three months from the date of communication of this judgment and order. 20. The writ petition stands allowed. But, in the circumstances of the case, there shall be no order as to cost.