Orissa High Court
Governing Body Of Bahanaga College vs State Of Orissa & Others ........... ... on 1 May, 2014
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT, CUTTACK
W.P.(Civil) NO. 41 OF 2010
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Governing Body of Bahanaga College ......... Petitioner
- Versus -
State of Orissa & Others ........... Opposite Parties
For petitioner - M/s. K.K. Swain, Mr. P.N. Mohanty.
For opp. parties- M/s. S.K. Das, Mr. S.K.Mishra
( for opposite party no.3)
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PRESENT:-
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing :09.04.2013 : Date of judgment :01.05.2014
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DR. B.R. SARANGI, J. The Governing Body, Bahanaga College, Bahanga, in
the district of Balasore, being the petitioner, has filed this petition
assailing the order dated 21.11.2009 passed by the Director, Higher
Education, Orissa, Bhubaneswar communicated on 05.12.2009 under
Annexure-20 setting aside the termination order issued against
opposite party no.3 on the ground that the Governing Body is not the
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approved Governing Body to terminate the service of the opposite
party no.3.
2. The brief fact of the case, in hand, is that the Bahanaga
College, Bahanaga, in the district of Balasore was established in the
year 1991. The College got concurrence and affiliation from the
session 1992-1993 by following due procedure. The opposite party
no.3 was appointed against first post of Lecturer in History in the said
College on 22.08.1991. While the opposite party no.3 was so
continuing in the College, the Secretary of the Governing Body
appointed his brother- Sri Surendra Kumar Das as against 2nd post of
Lecturer in History on 15.09.1994. At the relevant point of time there
was no justification for the 2nd post of Lecturer in History in the College
as per its workload.
3. The Governing Body was approved by the Director, Higher
Education, Orissa, Bhubaneswar on 27.10.1997 for a period of three
years. The term of approved Governing Body expired on 26.10.2000
after completion of three years. Pending reconstitution of the
Governing Body as per the proposal submitted by outgoing Governing
Body, the said Body continued with the management. However, in the
meantime the College became eligible to receive grant-in-aid.
Therefore, in anticipation of grant-in-aid the Secretary of the outgoing
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Governing Body tried to drive out the opposite party no.3 from the
College in order to accommodate his brother against the First post of
Lecturer in History and to make him eligible to receive grant-in-aid.
Accordingly, letters were issued to opposite party no.3 by the principal
and also the Secretary stating, inter alia, that the opposite party no.3
remained unauthorizedly absent from duty w.e.f. 1.1.2002. Therefore,
a show cause notice was issued by the Principal of the College to
opposite party no.3 on 07.02.2002 for the alleged unauthorized
absence and also called upon him to explain as to why disciplinary
action shall not be initiated against him. Opposite party no.3 filed
show cause stating that he was never absent from duties as alleged.
Therefore, the opposite party no.3 in his letter dated 10.03.2004 and
28.07.2004 also requested the authorities concern to cause an
impartial inquiry in order to unveil the truth. But subsequently, such
allegation of unauthorized absence from duty against the opposite
party no.3 was proved to be false and concocted, which appears from
the letter dated 15.07.2004 of the Principal of the College under
Annexure-14. Opposite party no.3 has communicated a letter on
14.07.2008 received on 15.07.2008 but no letter has been received
except empty envelope. On 26.07.2008 on receipt of such empty
envelope the opposite party no.3 sent a registered letter to the
Governing Body which was returned with the endorsement that the
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"addressee refused to accept". On 31.07.2008 the opposite party no.3
wrote a letter to the Principal of the College and the same was sent
through registered post on 01.08.2008 which was also refused by him.
Thereafter, the opposite party no.3 approached the Regional Director
and the Government, but no action was taken. Therefore, finding no
other alternative, the opposite party no.3 approached the Director,
Higher Education, Orissa, Bhubaneswar for his service protection under
the Government Circular dated 27.03.1983 with a prayer to allow him
to discharge his duty in the College.
4. On being noticed by the Director, Higher Education, Orissa,
Bhubaneswar, the Governing Body filed counter affidavit along with
resolution dated 25.06.2008 and the order of termination dated
15.07.2008. On receipt of such letter of termination and the Resolution
which were filed with the counter affidavit by the petitioner-Governing
Body before the Director, the opposite party no.3 enquired from the
Regional Director of Education, Bhubaneswar that there was no valid
Governing Body during the period the service of the opposite party
no.3 was terminated, because the last Governing Body approved by
the Director was on 27.10.1997, wherein the opposite party no.3 was
also approved as a member of the staff representative. Therefore, the
Governing Body or its Secretary whose term has already been over,
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could not have taken any action against the opposite party no.3. As
such, the steps taken against the opposite party no.3 including
termination order are invalid, illegal and without jurisdiction.
5. On the request being made by the opposite party no.3, the
Director vide letter No. 12793 dated 16.04.2009 called for a report
from the Regional Director of Education, Bhubaneswar who reported
vide letter No.13062 dated 12.08.2009 and clarified that there was no
approved Governing Body at the time of issuance of termination order
to the opposite party no.3. The Governing Body was reconstituted and
approved only on 01.12.2008. Therefore, when the illegal action of
termination was taken place on 15.07.2008, there was no Governing
Body in the College. Considering the same, the Director, Higher
Education, Orissa, Bhubaneswar passed the order dated 21.11.2009
setting aside the termination order of the opposite party no.3 dated
15.07.2008 and directed for reinstatement of opposite party no.3 and
to grant all consequential service benefits vide memo no.41470
communicated on 05.12.2009.
6. Mr. K.K. Swain, learned counsel for the petitioner-
Governing Body strenuously urged that the Governing Body is a
perpetual body and there cannot be any vacum as somebody is to
remain in-charge of the management as provided under Section 7(5)
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and Section 7(6) of the Orissa Education Act. To substantiate his
contention he has relied upon the order of this Court in State of
Orissa and others v. Kali Charan Satpathy in F.A.O. No. 133 of
2005 disposed of on 7.1.2010. It is further stated that the Governing
Body, which was approved on 27.10.1997 and whose term has expired
on 26.10.2000, continued to function till the Governing Body was
reconstituted and approved on 01.12.2008. The outgoing Governing
Body initiated disciplinary proceeding against the opposite party no.3
by issuing a show cause notice and the opposite party no.3 having
participated in the said proceeding by submitting an explanation to the
said outgoing Governing Body. Opposite party no.3 cannot question
the validity of the said Governing Body. It is further stated that a
person who has participated in the proceeding cannot question that
proceeding subsequently. In support of such contention, he has relied
upon the judgment in K.H. Siraj v. High Court of Kerala and
others, AIR 2006 SC 2339. Apart from the same it is urged that
applying the de facto doctrine, the action taken by the outgoing
Governing Body cannot be said to be bad or invalid in the eye of law in
view of the decision in Committee of Management, Sri Kashiraj
Mahavidyalaya Inter College v. Joint Director of Education,
Vindhyachal Region, District Inspector of Schools, Jai (2005) 2
ESC 1522 and in Committee of Management, Gangadin Ram
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Kumar Inter College, Jaunpur v. Deputy Director of Education,
V Region, Varanasi, (2006) 3 ESC 1644. It is further urged that
while setting aside the order of termination on technical ground,
liberty should have been granted to the approved Governing Body to
proceed against the opposite party no.3 for his alleged misconduct in
view of the decision reported in Board of Management of S.V.T.
Educational Institution and another v. A. Raghupaty and
others, J.T. 1997 (2) SC 523. Due to non-joiner of necessary party, namely Sri Surendra Kumar Das who has been appointed against the First post of Lecturer in History, the order of the Director is liable to be set aside and to substantiate the same reliance has been placed on J.S. Yadav v. State of Uttar Pradesh and another, (2011) 2 SCC ( L & S) 140.
7. Mr. Trilochan Rath, learned Addl. Standing Counsel appearing for the State, supports the order passed by the Director, Higher Education, Orissa, Bhubaneswar in setting aside the order of termination passed against opposite party no.3 and has categorically urged that since the order of termination has been passed by unapproved Governing Body, the order passed by Director suffers from no illegalities or irregularities warranting interference by this Court. -: 8 :-
8. Mr. S.K. Das, learned counsel for the opposite party no.3 strenuously urged that the contention raised by the petitioner- Governing Body is absolutely misconceived one and it is stated that resolution dated 25.06.2008 resolving to terminate the service of the opposite party no.3 is illegal, besides the fact that it is without jurisdiction, in view of the judgment passed by this Court in Governing Body of Harishpur Baldev Mahavidyalaya represented through the Secretary v. State of Orissa and Others, 85 (1998) CLT 34. Accordingly, he seeks for dismissal of the writ petition filed by the Governing Body.
9. Admittedly, it appears that the opposite party no.3 was appointed against the First post of Lecturer in History in Bahanaga College, Bahanaga, in the district of Balasore by following due procedure of selection by the Governing Body of the College, which is the appointing authority under the provisions of Act and Rules governing the field. The then Secretary appointed one Sri Surendra Kumar Das who happens to be his bother as against the 2nd post of Lecturer in History even though the same was not permissible as per the workload prescribed at the relevant point of time. In order to facilitate the said Sri Surendra Kumar Das to continue in the First post of Lecturer in History to receive grant-in-aid, the then Secretary took -: 9 :- such step against the opposite party no.3 for his termination. The term of the Governing Body, which was constituted on 27.10.1997, has expired on 26.10.2000 after completion of three years. After expiry of the term of the Governing Body, the outgoing Governing Body continued to function and manage the affairs of the College without any authority of law.
10. On perusal of Section 7(5) and Section 7(6) of the Orissa Education Act, it appears that after expiry of the term of the existing Governing Body, the Governing Body shall be continued in accordance with Rules for carrying out the provisions of this Section as amended by the Orissa Education (Amendment) Act, 1989 within a period of one year from the date of commencement of the said Rules and every such existing Managing Committee or Governing Body shall cease to continue in office on and from the date on which it is so reconstituted. Therefore, applying the ratio decided by this Court in FAO No. 133 of 2005 disposed of on 07.01.2010, it is stated by the date of termination of the service of opposite party no.3, the outgoing Governing Body was in Management, the Governing Body not being reconstituted, the order of termination is wholly and fully justified. This contention cannot hold good in view of the fact that it is admitted case that there is no approved Governing Body continuing at the relevant point of time -: 10 :- after expiry of the period of reconstitution and the petitioner- Governing Body was allowed to function in conformity with the provisions of law. Therefore this Court is of the view that the reliance placed on the order dt.07.01.2010 passed in FAO No. 133 of 2005 is based on its own facts and circumstances of that case and the same is not applicable to the present context.
11. The contention raised by the petitioner that the opposite party no.3 had participated in the disciplinary proceeding initiated against him by the Governing Body, and therefore he cannot say that the Governing Body is bad relying upon the judgment of the apex Court in H.S. Siraj (supra) is of no consequence. On perusal of the fact of the said case, it appears that the recruitment to Kerala Judicial Service was done by following procedure under Kerala Judicial Service Rules, 1991 in which there is a scheme of written and oral examination and it appears that 118 candidates had passed in the written examination of which 88 passed in the interview and the unsuccessful candidates moved the apex Court. In that context, the apex Court held that the petitioner having participated in the interview in this background, it is not open to the petitioners to turn round thereafter when they failed at the interview. The said principle is well settled in various judicial pronouncements of the apex Court and that remains -: 11 :- no more res integra and as such, the principle is not applicable in the present context. So far as the contention raised with regard to the application of de facto doctrine is concerned relying upon the case in Committee of Management, Sri Kashiraj Mahavidyalaya Inter College(supra), it appears that the context in which such doctrine has been considered in the said case is not prevailing in the present case. Facts of both the cases are totally distinct from each other. Once the facts are distinct, the applicability of the law is to be taken into consideration on the basis of the facts and circumstances of each case itself. Therefore, the case cannot be construed to be applicable to the present case. In Committee of Management Gangadin Ram Kumar Inter College (supra) the challenge was made to the order of the Deputy Director, Education by which he approved the election of Committee of Management and the matter was heard and the judgment was reserved and during pendency of such judgment, fresh election of Committee of Management took place and the fresh election would not render that writ petition infructuous and the judgment delivered in that petition will have full force of law. Therefore, the Court held that if such fresh election is allowed to stand, it will perpetuate the illegality. Considering the fact of the said case to the present case, it appears that the facts are absolutely different and the context of which the said case is decided has no -: 12 :- applicability. Therefore, the said judgment is not applicable to the present context.
12. In the Board of Management of SVT Educational Institution (supra) wherein the provision of Karnataka Private Education Institutions (Disciplined and Control) Act was under
consideration, it is held that the Karnataka High Court has no right in foreclosing further enquiry after upholding Tribunal order which has held that there is need for fresh inquiry. Therefore, under Rule 12(3) or rule 12(4) as a consequence of remittance of the order, further enquiry was called for from that stage and pending inquiry, the employee must be deemed to be under suspension. The law which has been taken into consideration in the said case is not applicable to the case at hand. Since the opposite party no.3 was prevented to discharge his duty by the non-approved Governing Body, he approached the Director against the said termination and after hearing the parties and considering the materials available, the Director set aside the illegal termination order indicating that the authority who has passed the order has no jurisdiction, thereby allowed the opposite party no.3 to continue in the service. Therefore, the law decided in Board of Management SVT Educational Institution (supra) is completely different from that of the present context. Accordingly, the -: 13 :- said case cannot be taken into consideration for adjudication of this case. Much reliance has been placed on J.S. Yadav(supra) wherein the apex Court has held that in case of non-joinder of necessary party, the party seeking relief may not be entitled to get the same. The contention of the petitioner is that since Sri Surendra Kumar Das was holding the first post of Lecturer in History against post held by opposite party no.3 is a necessary party and in that case without impleading him as a party, the order passed by the Director is vitiated. This contention also not hold good in view of the fact that the opposite party no.3 while continuing against the First post of Lecturer had been prevented illegally by an unapproved Governing Body where Sri Surendra Kumar Das has been appointed against the post of opposite party no.3 cannot create a right in his favour as such the appointment is illegal and void-ab-initio. Therefore question of impleading Sri Surendra Kumar Das as a party to the proceeding, does not arise. Admittedly Sri Surendra Kumar Das has been appointed against the 2nd post of Lecturer in the said department. Therefore, the ratio of the case in J.S. Yadav(supra) is altogether in a different footing than the present one and as such, the same may not apply to the present case.
13. On the basis of factual matrix available on record, and on perusal of the documents, it appears that the Governing Body which -: 14 :- was last constituted was approved by the Director, Higher Secondary Education on 27.10.1997 and its tenure was expired on 26.10.2000, and after expiry of the tenure, no approved Governing Body was continued in the College till 30.11.2008. Therefore, the unapproved Governing Body was not competent, also has no authority to take a decision regarding the termination of service of the opposite party no.3. Once the authority is not competent and any order passed by the incompetent authority, is a nullity in the eye of law. Therefore, applying the said principle to the present context, the action taken by the unapproved Governing Body terminating the service of the opposite party no.3, who was continuing against the first post of Lecturer in History in Bahanaga College, Bahanaga, is absolutely without jurisdiction and therefore, the resolution so passed on dated 25.06.2008 by the incompetent Governing Body, terminating the service of the opposite party no.3, is void and nonest in the eye of law. More so, the order so passed and the consequential order dated 15.07.2008 are nullity in the eye of law. Therefore, the order dated 05.12.2009 passed by the Director, Higher Education, Orissa, Bhubaneswar under Annexure-20, setting aside the Resolution of the Governing Body dated 25.06.2008 and directing to reinstate the opposite party no.3 in his former post by regularizing the period of absence as duty is hereby confirmed. In this view of the matter, this -: 15 :- Court finds no illegality or irregularity committed by the Director, Higher Education, Orissa, Bhubaneswar warranting interference by this Court.
14. Accordingly, the writ petition fails and the same is dismissed.
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Dr. B.R. Sarangi, J.
Orissa High Court, Cuttack The 1st May, 2014/Ajaya