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2019 DIGILAW 359 (ORI)

Radhasyam Naik v. State of Orissa

2019-04-25

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who claims to be continuing as Clerk-cum-Typist in Padmalochan College, Tikrapara in the district of Bolangir, has filed this writ petition to quash order dated 30.04.2012 passed by opposite party No. 2-Director, Higher Education, Odisha Annexure-7, whereby appeal filed by the petitioner has been rejected. He further seeks for direction to opposite party No. 3 to reinstate him in his former post and allow him to discharge his duty in the College, with all consequential benefits including approval of his post and release of block grant. 2. Padmalochan College, Tikrapara, In the district of Bolangir was established in the year 1992. In the same year, it got permission and recognition in the year 1994-95. It was brought over to the Grant-in-Aid fold of the Government as per the provisions of the Grant-in-Aid Order, 2008. Therefore, the College in question is an Aided Educational Institution within the meaning of Section-3(b) of the Orissa Education Act, 1969. 3. Mr. S.K. Das, learned counsel for the petitioner contended that the petitioner, was appointed as Clerk-cum-Typist in the College on by following due process of selection on 20.11.1992, pursuant to which he joined on the very same day. While he 'was so continuing, his name was sent to the higher authorities including in the staff position of the College and he was issued with experience certificate by the Principal. In course of his continuance in the said College, the Secretary of the Governing Body directed the petitioner to pay Rs. 50,000/- on the plea that the petitioner had committed to pay the same. But, when he showed his inability, the Secretary, vide letter dated 11.09.1996, granted five days to pay the committed amount and as he could not pay the said amount, he was prevented by the Secretary to discharge his duty in the College, which amounts to termination from service. Aggrieved by such illegal action of the Governing Body, on 18.09.1996, the petitioner filed representation before the Director, Higher Education, Orissa When no action was taken, the petitioner again filed a representation on 31.03.1998 and also sent reminders to the Director, Higher Education, Orissa. Due to inaction of the Director, Higher Education, the petitioner approached the State Government and he personally approached the Director to consider his grievance and dispose of his appeal pending for last 14 years. Due to inaction of the Director, Higher Education, the petitioner approached the State Government and he personally approached the Director to consider his grievance and dispose of his appeal pending for last 14 years. The petitioner, In order to substantiate his case, also produced the copies of the Staff Attendance Register wherein he put his signature and the letter of the Governing Body in reply to the lawyer's notices, which proved the appointment and continuance of the petitioner in the College, besides the notes submitted by the Governing Body admitting his appointment. But, however, by way of counter affidavit, the Governing Body denied the appointment of the petitioner, which was objected to by the petitioner. Ultimately, the Director, Higher Education on 05.05.2011 finally heard the matter and passed order on 30.04.2012 dismissing the appeal preferred by the petitioner. 4. Mr. B. Senapati, learned Additional Government Advocate appearing for opposite parties No. 1 and 2 justifying the order dated 30.04.2012 passed by the Director, Higher Education contended that the resolution Vol. 1 produced by the Secretary, Governing Body of the College did not disclose appointment of the petitioner as Junior Clerk-cum-Typist in the College. The appointment letter, which number it bears and on which the petitioner has placed reliance, was found on verification of Issue and Despatch Register to be not issued by the College authority. He further contended that the office file of the Directorate bearing number 11M-46-92 was taken into account and from the non-teaching staff list, which was submitted by the College authority at the time to renewal pi recognition, vide letter dated 03.10.1994, it was found that one Bajaru Mahakur, having the date of joining as 08.08.1092, was continuing as Junior Clerk-cum-Typist. He also contended that the petitioner, having not been appointed, could not have approached the Director on the allegation of prevention from service amounting to termination from service and, as such, the order passed by the Director is justified. 5. Mr. D.N. Rath, learned counsel appearing for opposite party No. 3-Governing Body of the College contended at the outset that the petitioner was never appointed in the College and that is why he could not produce any document showing that he was validly appointed. Therefore, when the appointment of the petitioner is void ab initio, the question of continuance and prevention from service does not arise. Consequentially, the order dated 30.04.2012 passed by the Director,. Therefore, when the appointment of the petitioner is void ab initio, the question of continuance and prevention from service does not arise. Consequentially, the order dated 30.04.2012 passed by the Director,. Higher Education, Orissa cannot be faulted with. Therefore, he prays for dismissal of the writ petition at the threshold. 6. Heard Mr. S.K. Das, learned counsel for the petitioner; Mr. B. Senapati, learned Additional Government Advocate appearing for opposite parties No. 1 and 2; and Mr: D.N. Rath, learned counsel appearing for opposite party No. 3. Since it is a certiorari proceeding, this Court is only to examine the final order dated 30.04.2012 passed by. the Director, Higher Education, Orissa in Annexure-7. Thereby, with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 7. On perusal of the pleadings available in the appeal memo in Annexure-6, it appears that the petitioner was appointed as Clerk-cum-Typist Vide office order No. 16(5) dated 20.11.1992 and he joined in the College with effect from 20.11.1992. He rendered uninterrupted service till 1996 and was issued with experience certificate to 'that effect on 23.09.1996. So far as Issuance of appointment letter dated 20.11.1992 Is concerned, the Director, Higher Education, Orissa in his order dated 30.04.2012 disbelieved the same relying upon the file bearing No. 11M-46-92 containing non-teaching staff list, which was submitted by the College authority at the time of renewal of recognition, vide letter No. 54 dated 03.10.1994, showing the name of one Bajaru Mahakur continuing as Junior Clerk-cum-Typist, having date of joining as 08.08.1992, and the name of the petitioner was not available in the records of the Director, Higher Education. Therefore, he came to a conclusion that the petitioner was never appointed in the College, and that he never produced any document to show that he was validly appointed, and that the so called appointment letter dated 20.11.1992 in Annexure-I, on which, reliance has been placed by the petitioner, was not proved by him by giving corroborative evidence to that extent. Further, the resolution Vol. 1 produced by the Governing Body of the College does not disclose about the appointment of the petitioner as Junior Clerk-cum-Typist of the-College. The Governing Body of the College, being the appointing authority, should have passed the resolution giving appointment to the petitioner. Further, the resolution Vol. 1 produced by the Governing Body of the College does not disclose about the appointment of the petitioner as Junior Clerk-cum-Typist of the-College. The Governing Body of the College, being the appointing authority, should have passed the resolution giving appointment to the petitioner. If such fact is absent in the resolution itself, the claim made by the petitioner, relying upon the so called appointment letter in Annexure-I, has no justification rather it is construed that the said appointment letter was manufactured for the purpose of the case. 8. In the counter affidavit filed before the Director, Higher Education, Orissa the Governing Body of the College has categorically stated that the petitioner, who claimed to be appointed as Junior Clerk-cum-Typist, has not produced a scrap of paper justifying that the Governing Body had issued the appointment letter in his favour. The so called appointment letter in Annexure-I, on which reliance has been placed by the petitioner, was issued by the Secretary of the Governing Body, by that time the Governing Body was not constituted nor reconstituted. There is no dispute that the Governing Body is the competent authority to issue appointment Order. As such, on verification of all the documents available in the institution, it was ascertained that at no point of time any resolution was passed by the Governing Body to appoint the petitioner as Junior Clerk-cum-Typist in the institution. The experience certificate issued on 23.09.1996 by the Principal of the College has no bearing with the so called appointment of the petitioner because neither the Secretary nor the Principal is competent to take a decision on their own. The so called appointment letter in Annexure-I, which has been relied upon by the petitioner, in absence of resolution of the Governing Body, can be construed to be without authority of law and cannot be treated as an appointment order issued by the Governing Body in favour of the petitioner. 9. The so called appointment letter in Annexure-I, which has been relied upon by the petitioner, in absence of resolution of the Governing Body, can be construed to be without authority of law and cannot be treated as an appointment order issued by the Governing Body in favour of the petitioner. 9. Much reliance has been placed on the document In Annexure-3 dated 05.04.2012, which was obtained under the Right to Information Act, 2005 from the Council of Higher Secondary Education, Odisha wherein a detailed list of non-teaching staff of the College has been provided, in which the name of the petitioner is found place at Serial No. 3 whereas the name of Bajaru Mahakur has been indicated at Serial No. 1 with date of appointment on 08.08.1992 and so far as petitioner is concerned no date of joining has been indicated. In course of hearing, this Court made a query to learned counsel for the petitioner as to whether the petitioner had placed the said document before the Director or not. It is candidly admitted that such document was procured subsequently under the Right to Information Act, 2005 and, therefore, the same was not relied upon in the appeal memo nor place the same before the Director for consideration. Therefore, the document under Annexure-3, which was obtained subsequently, having not been made part of the record before the Director, cannot be relied upon by this Court, more particularly when the date of appointment of the petitioner has not been indicated in the said list. In absence of any such document, the Director, Higher Education, Orissa, placing reliance on the resolution Vol. 1 produced by the Secretary of the Governing Body, which does not disclose the appointment of the petitioner, as well as the file of the Directorate containing the list of non-teaching staff of the College submitted at the time of renewal on 03.10.1994, 'which also does 'not indicate the name of the petitioner, came to a definite conclusion that when the appointment of the petitioner is invalid, the question of continuance and prevention from service does not arise. 10. 10. The Constitution Bench of the apex Court in Hari Vishnu V. Ahmad Ishaque, AIR 1955 SC 223 laid down the following propositions as well settled and beyond dispute: "(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior court or tribunal, even if they be erroneous. This is on the principle that a court which has jurisdiction, over a subject matter has jurisdiction to, decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in a certiorari." In Champalal Binani v. C.I.T., (1971) 3 SCC 20 : AIR 1970 SC 645 , the apex Court held that the High Court has the power to refuse the writ if it is satisfies that there was no failure of justice. This writ being discretionary, it is not issued merely because it is lawful to do so. Similar view has also been taken by the apex Court in Surya Dev Raj v. Ram Chander Rai, (2003) 6 SCC 675 . 11. Otherwise also, the writ petition is liable to be dismissed on the ground that the petitioner has not approached this Court with clean hands in view of law laid down by the apex Court in The Chance II or v. Dr. Bijayananda Kar, AIR 1994 SC 579 . 12. Therefore, this Court is of the considered view that both factually and legally, the writ petition filed by the petitioner is devoid of merits. Accordingly, the same is hereby dismissed. However, there shall be no order as to cost.