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2019 DIGILAW 304 (ORI)

Nirmala Naida v. State Of Odisha

2019-04-10

B.R.SARANGI

body2019
JUDGMENT B. R. Sarangi, J. - The petitioner has filed this application seeking to quash the order dated 09.08.2016 in Annexure-13 passed by the District Education Officer, Balangir refusing to grant approval to appointment of the petitioner, and for issuing direction to the opposite parties to approve appointment of the petitioner as Trained Graduate Teacher (TGT) Arts against a sanctioned vacancy. 2. The factual matrix of the case, in hand, is that the petitioner, by following due procedure of selection and having stood first in the interview, pursuant to the resolution of the Managing Committee, was appointed as Trained Graduate Teacher (Arts), vide order dated 23.07.2008 in Annexure-2, against the sanctioned and substantive post which was lying vacant in Navajeevan Vidyapitha, Balangir since 31.08.2003 consequent upon retirement of Sri J. Srichouhan. The petitioner joined as TGT (Arts) on 01.08.2008 and continued to discharge her duties without any interruption. With regard to approval of the appointment of the petitioner, opposite party no.4 vide letter dated 19.11.2008 invited attention of opposite party no.3 to take early action for approval. Since approval of her appointment remained pending without any valid reasons, the petitioner submitted her representation before the District Education Officer on 31.03.2014 ventilating her grievance and requested to approve her appointment made against the existing vacant post in the school in question at an early date. The said representation was forwarded to opposite party no.3-District Education Officer by the Secretary, of the Navajeevan Vidyapithat, Balangir, vide letter dated 17.04.2014, emphatically stating that the petitioner has been appointed as Asst. Teacher (TGT) Arts in the existing vacancy during the year 2-008 following due procedure as provided under para-4 and 5 of Chapter-11 of the Orissa Education (Minority Managed Aided Educational Institutions Employees Method of Recruitment and Conditions of Service) Order, 2003. Despite clear instruction of the Government and elaborate representation of the petitioner, no action was taken by the District Education Officer, therefore the petitioner approached this Court by filing W.P.(C) No.25363 of 2014 seeking direction to the opposite parties to approve her appointment in the light of the Government instructions dated 10.09.2004, 06.01.2011, 09.02.2011 and 08.08.2013. Despite clear instruction of the Government and elaborate representation of the petitioner, no action was taken by the District Education Officer, therefore the petitioner approached this Court by filing W.P.(C) No.25363 of 2014 seeking direction to the opposite parties to approve her appointment in the light of the Government instructions dated 10.09.2004, 06.01.2011, 09.02.2011 and 08.08.2013. This Court vide order dated 24.12.2014 disposed of the said writ petition directing the District Education Officer to consider the representation of the petitioner in the light of the Government instructions and pass appropriate orders in accordance with law within a period of two months from the date of receipt of copy of the order. In] compliance of the aforesaid order, the District Education Officer, vide letter dated 11.03.2015 in Annexure-11, sought for instruction from the j Director, Secondary Education, Odisha relating to approval of appointment of the petitioner as TGT (Arts) and it was made clear in the said order that after receipt of necessary clarification/instruction from the Director, necessary steps would be taken for approval of appointment of the petitioner, j As no action was taken, the petitioner filed this application. 3. This Court, vide order dated 03.08.2016, called upon opposite party no.2-Director, Secondary Education, Odisha, Bhubaneswar to file an affidavit within a week as to what action has been taken by him pursuant to the clarification sought for by the District Education Officer, Balangir in his letter dated 11.03.2015. In the event, the affidavit is not filed within the time stipulated, the Director Secondary Education, Odisha, Bhubaneswar shall appear in person on the next date. In compliance of the same, opposite party no.2 filed an affidavit on 10.09.2016 enclosing copy of the letter dated 06.08.2016 in Annexure-12 requesting the District Education Officer to approve the appointment of the petitioner basing upon the seniority in Navajeevan Vidyapitha, Balangir, who had been appointed by following due procedure of law. Despite such letter, the District Education Officer, vide order dated 09.08.2016 in Annexure-13, declined to approve the appointment of the petitioner as TGT (Arts) in Navajeevan Vidyapithat by stating that the Managing Committee of Navajeevan Vidyapitha, Bolangir has failed to maintain the procedure of selection for appointment to the petitioner as contained in point no.4(1 )(2) and point no.5(6) of Government Resolution No.5831/SME dated 28.02.2003, which is the subject matter of challenge before this Court in the present application. 4. Mr. PC. 4. Mr. PC. Chhinchani, learned counsel for the petitioner contended that the petitioner had earlier approached this Court by filing W.R(C) NO.25363 of 2014 seeking direction to District Education Officer, Balangir to consider her representation pursuant to Annexure-8 in the light of Annexure-6 to the said writ petition and pass appropriate order within a stipulated time and this Court disposed of the said writ petition vide order dated 24.12.2014 and in compliance of the said order, the District Education Officer, Balangir passed an order on 11.03.2015 in Annexure-11 stating that Sri Biswajit Collet and Smt. Nirmala Nanda were appointed by the Managing Committee in the abolished and existing post of TGT (Arts) respectively during the year 2008. As such, clarification has been sought for from the Director, Secondary Education, Odisha vide letter dated 11.03.2015 relating to approval of her post of NJVR Balangir as TGT (Arts) and on receipt of necessary clarification/instruction from the Director, Secondary Education, the District Education Officer would take necessary steps for approval of the TGT Arts post in favour of the petitioner. The said order has been challenged before this Court in the present application. In course of hearing, this Court sought for instruction as to what action has been taken by the Director, Secondary Education on the basis of the clarification sought by the District Education Officer pursuant to letter dated 11.03.2015, but no such clarification has been received and on the other hand, on receipt of the order dated 03.08.2016 which was received on 06.08.2016, the District Education Officer once again passed order on 09.08.2016 in Annexure-13 without complying the principles of natural justice and more so without understanding the implication of the order passed by this Court on 03.08.2016. 5. Mr. B. Satpathy, learned Standing Counsel for School and Mass Education Department contended that since this Court sought for instruction, pursuant to order dated 03.08.2016, the District Education Officer passed order on 09.08.2016 under Annexure-13 and, thereby, the order impugned has been passed in compliance of the order dated 03.08.2016 passed by this Court. Therefore, no interference is called for by this Court in the instant case. 6. This Court heard Mr. P.C. Chhinchani, learned counsel for the petitioner; Mr. B. Satpathy, learned Standing Counsel for School and Mass Education Department and perused the record. Therefore, no interference is called for by this Court in the instant case. 6. This Court heard Mr. P.C. Chhinchani, learned counsel for the petitioner; Mr. B. Satpathy, learned Standing Counsel for School and Mass Education Department and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. Considering the contention raised by learned counsel for the parties and after going through the records, it appears that under misconception of facts and law, the District Education Officer has passed the order impugned in Annexure-13 dated 09.08.2016. While passing the order dated 11.03.2015, in compliance of the order dated 24.12.2014 passed in W.P (C) No.25363 of 2014, it has been stated that he has sought instruction from the Director, Secondary Education pursuant to letter dated 11.03.2015 for approval of the post of the petitioner in NJVP, Balangir as TGT (Arts). Instead of receiving such instruction from the Director, the District Education Officer could not have passed order in Annexure-13 dated 09.08.2016 stating that the Managing Committee of NJVP, Balangir has failed to maintain the procedure of selection for appointment of the petitioner as contained in point no.4(1)(2) of the resolution dated 28.02.2003 which would be contrary to the findings arrived at by the District Education Officer in earlier order dated 11.03.2015 in Annexure-11, where he had come to a conclusion that the service of the petitioner was approved by the Managing Committee against the existing post of TGT (Arts) during the year 2008. Moreover, the petitioner has attained the age of 46 years as on the date of appointment, her date of birth being 26.07.1962, which violates the instruction contained in point no.5(6) of government resolution dated 28.02.2003. The attempt which has been made by the District Education Officer is absolutely fallacious one in view of the fact that to escape rigours of the order dated 03.08.2016 passed by this Court, he has passed the order impugned on 09.08.2016 without any application of mind. If in one hand he sought for instruction from the Director, in other hand he could not have passed the order impugned and more so while passing such order neither any notice nor opportunity of hearing was given to the petitioner. If in one hand he sought for instruction from the Director, in other hand he could not have passed the order impugned and more so while passing such order neither any notice nor opportunity of hearing was given to the petitioner. As such, the order dated 03.08.2016, which was received on 06.08.2016, and order dated 09.08.2016 could not have been passed by him without complying the principles of natural justice. 8. In Maneka Gandhi vs. Union of India, (1978) 1 SCC 248 , Hon'ble Justice P.N. Bhagwati stated that the soul of natural justice is 'fair play in action'. 9. In Swadeshi Cotton Mills vs. Union of India, AIR 1981 SC 818 , the apex Court while considering the meaning of natural justice held as follows: "The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth", "Natural Justice" by Paul Jackson, 2nd Ed., page 1. In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in-conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice." 10. In Nagarjuna Construction Company vs. Government of Andhra Pradesh, (2008) 16 SCC 276 , the apex Court held as follows: "Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. " 11. Therefore, the essential principles of natural justice as enunciated are that (i) the persons whose rights are to be affected must be given notice of the case or the charges which he is to meet; (ii) he must be given an opportunity to make representation, explain the allegations made against him, and have his say in the matter; and (iii) the authority conducting the proceedings must not be biased and should act in good faith. 12. 12. In Nagarjuna Construction Company (supra), the apex Court has further clarified that over the years by a process of judicial interpretation two rules have been evolved as representing the fundamental principles of natural justice in judicial process including therein quasi-judicial and administrative process, namely, an adjudicator should be disinterested and unbiased (nemo judex in causa sua) and that the parties must be given adequate notice and opportunity to be heard (audi alteram partem). They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. 13. In such view of the matter, the order dated 09.08.2016 in Annexure-13 cannot sustain in the eye of law and the same deserves to be quashed and is hereby quashed. The matter is remitted back to the District Education Officer to consider the case of the petitioner afresh and take follow up action with regard to order already passed on 11.03.2015 for obtaining clarification/instruction from the Director, so that the post of the petitioner can be approved as a TGT Arts. Needless to say, while considering the grievance of the petitioner the District Education Officer shall follow the principles of natural justice and thereafter dispose of the grievance of the petitioner by passing a reasoned and speaking order as expeditiously as possible, preferably within a period of four months from the date of production/communication of this judgment. 14. With the aforesaid observation and direction, the writ petition stands disposed of. No order as to costs. Petition disposed of.