Orissa High Court
Afr Kamalini Dhal vs State Of Odisha & Others ...... ... on 6 April, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 19009 of 2019
(An application Articles 226 and 227 of the Constitution of India)
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AFR Kamalini Dhal ...... Petitioner
-Versus-
State of Odisha & others ...... Opp.Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. S.K. Das, P.K. Behera &
N. Jena, Advocates
For Opp.Parties : Mr. P.K. Panda,
Standing Counsel
for S & M.E. Department.
Mr. A.K. Mohapatra, Advocate
[ For O.P. No.6]
Mr. S.C. Dash, Advocate
[For intervenor]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th 6 April, 2023 SASHIKANTA MISHRA, J.
This short question that arises for consideration in the present case the legality and propriety of order dated Page No. 1 of 13 27.09.2019 (Annexure-21) passed by the Director, Higher Secondary Education in approving the name of the present opposite party No.6 as Principal in-charge-cum- Secretary of the educational institution in question withdrawing his earlier orders dated 15.07.2016, 24.05.2016 and 03.10.2016, whereby the petitioner was so approved.
2. The parties have pleaded extensively and as this Court observes at the outset, most of such pleadings appear to be unnecessary in so far as the present lis is concerned. This Court therefore, deems it proper to dwell upon only the most relevant facts in the present judgment.
3. The educational institution in question is Nayanmani Women's College, Saradpur in the district of Bhadrak, which was established in the year 1996. The college received permission and recognition for + 2 Arts from the session 1999-2000. It came into the grant-in-aid fold in the shape of block grant w.e.f. 20.01.2009 as per grant-in- aid Order, 2008. The College was notified by the Government as an aided College within the meaning of Section 3(b) of Odisha Education Act, 1969 by Notification Page No. 2 of 13 dated 13.05.2013. Subsequently, the name of the College was changed to Nayanmani Women's Higher Secondary School, Saradpur. The petitioner's case is that she was appointed by the governing body as a Lecturer in Logic on 11.10.1996 and joined as such on 19.10.1996. Her appointment was approved by the Director by order dated 07.06.2013. Being the senior most approved Lecturer of the College, her name was recommended by the College authorities to the Director for approval as Principal in- charge-cum- Secretary of the College. Considering such recommendation, the Director by his order dated 31.10.2013, approved the petitioner as the Principal in- charge-cum-Secretary of the College. Subsequently, two other persons namely, Dr. Gouranga Nayak belonging to the Dhamnagar College and one Santosh Sahoo belonging to Naami College were approved as Principal in-charge at different times. However, such approvals being interfered with by this Court in a writ application filed earlier by the petitioner (W.P.(C) No. 14094 of 2015) the petitioner was again declared as Principal in-charge-cum-Secretary of the Page No. 3 of 13 College by order dated 17.05.2018 by the Director. By a resolution dated 16.10.2018, the governing body which claims to have been reconstituted, passed a resolution to withdraw the petitioner as Principal in-charge and to appoint Manoj Kumar Routray (opposite party No.6) as Principal in-charge. Such resolution is purportedly based on the findings of the special audit conducted into the accounts of the College for the period from 18.06.2013 to 15.09.2015. The petitioner claims to have submitted full compliance report to the audit objection. However, by order dated 27.08.2019, the Director approved the opposite party No.6 as the Principal in-charge -cum- Secretary by withdrawing all previous orders issued in favour of the petitioner. During pendency of the writ application, the Director by order dated 20.12.2019 kept the order dated 27.09.2019 in abeyance and also withdrew the user ID and password generated by the Directorate in favour of opposite party No.6. On such basic facts, the petitioner claims the following relief:
"Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court be graciously pleased to quash the order dtd:27.09.2019 of the Director Higher Secondary Education, Odisha (Opposite Party No.4) under Page No. 4 of 13 Annexure-21 and direct the Opposite Parties not to interfere in the functioning of the present petitioner as Principal-in-Charge-cum-Secretary of Nayanamani Women's Higher Secondary School, Saradpur, as per the order dtd:31.12.2013 being the senior most approved teaching staff of the College;
And/or pass any other appropriate writ/writs, order/order, direction/directions in the fitness of the case.
And for this act of kindness as in duty bound the petitioner shall ever pray."
4. The case of the Director, Higher Secondary Education (opposite party No.4) is that the impugned order was passed basing on the governing body resolution relating to financial irregularities committed by the petitioner as revealed from the report of the District Audit Officer, Local Fund Audit. Though the petitioner submitted compliance, the same was without approval of the governing body on the plea that the governing body had completed its tenure. Under such facts, the Directorate had approved the name of opposite party No.6 as the Principal-cum-Secretary of the institution. Subsequently, however, the petitioner having filed a contempt application bearing CONTC No. 2231 of 2019 before this Court, the user ID, password issued to opposite party no.6 was withdrawn by order dated 20.12.2019.
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5. The case of the opposite party No.6 is that both he and the petitioner had joined the institution on the same date, i.e., on 19.10.1996 and both of them were approved on the same date. In the approval order, the name of opposite party No.6 was placed at the top of the list and above the petitioner. Therefore, the petitioner cannot be treated as senior to him or the senior most approved Lecturer of the College. It is his further case that there were serious allegations of misappropriation of College funds by the petitioner during her tenure as Principal in-charge which was reflected in the audit report and therefore, her approval as Principal in-charge was rightly withdrawn by the Director and the opposite party no.6, being the senior most approved teacher was rightly approved as Principal in-charge.
6. Be it noted that an application has been filed by one Madan Mohan Panda for intervention claiming to be one of the founding members and the senior most member of the governing body of the College. The said application for intervention has met with objection from the petitioner on the ground that the proposed intervenor was a Government Page No. 6 of 13 servant and retired in the year 2015 and therefore, he could not have been a founder member. It is further stated that his wife Susamarani Panda was the Secretary of the governing body and therefore, he has a vested interest in the matter.
This Court finds that the lis involved is confined to determining the correctness of the order of the Director passed under Annexure-21. The opposite party No.6 is a necessary party as he is directly affected by such order. However, the same cannot be said of the proposed intervenor. Nothing has been stated in the application for intervention as to how the presence of the proposed intervenor is necessary for a just decision of the case. As such, this Court finds no reason much less any compelling necessity to allow the application for intervention, which is therefore, dismissed.
7. Heard Mr. S.K. Das, learned counsel for the petitioner; Mr. P.K. Panda, learned Standing Counsel for School and Mass Education Department; and Mr. A.K. Mohapatra, learned counsel for opposite party No.6. Page No. 7 of 13
8. It is argued by Mr. S.K. Das that in view of the ratio laid down by this Court in the case of Ajit Kumar Ray vs. Director, Higher Education Orissa and others reported in 1996 (I) OLR 209 when two persons join on the same date, the senior among them in age has to be treated as senior. In the present case, the petitioner's date of birth is 02.03.1971 and that of opposite party no.6 is 24.03.1971. Therefore, she is the senior most approved teacher of the institution and also accepted as such. Mr. Das further contends that the findings of the Audit without being established in a regular departmental proceeding cannot form the basis of any kind of punitive action being taken against the employee concerned. In any event, the petitioner has duly submitted compliance to the audit objections at the relevant time and therefore, it was entirely illegal on the part of the Director to have issued the impugned order under Annexure-21 by mechanically accepting the purported resolution of the Governing Body.
9. Mr. P.K. Panda, learned Standing Counsel for School and Mass Education Department contends that the Page No. 8 of 13 Director had acted bonafide on the basis of resolution of the Governing Body, which in turn was prompted by the Audit findings. In any event, in pursuance of the directions issued by this Court, the petitioner has been again approved as the Principal in-charge.
10. Mr. A.K. Mohapatra, learned counsel appearing for the opposite party No.6 has contended that the Government Circulars relating to appointment of Principal in-charge of an institution lay down that one among the approved teachers preferably the senior most may be appointed as the Principal in-charge. In any case, in the order of approval issued by the Director (Annexure-3), the name of the opposite party No.6 is placed above the petitioner and therefore, she cannot be treated as the senior most approved teacher. It is further contended that during her tenure, the petitioner committed serious financial irregularities, which came to light during audit and therefore, the governing body rightly took the decision to withdraw her as Principal in-charge.
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11. As regards the inter se seniority of the petitioner and opposite party no.6, this Court observes that the petitioner was approved as the Principal in-charge of the institution for the first time by order dated 31.12.2013 (Annexure-5) declaring her as the senior most approved teaching staff. Such approval and/or declaration was never questioned by the opposite party No.6 at any point of time. It is only in his counter affidavit filed before this Court that such a plea has been taken. There is no dispute that both the petitioner and opposite party No.6 had joined on the same date i.e., 19.10.1996. The services of both were approved also on the same day i.e. 07.06.2013. The name of opposite party No.6 undoubtedly finds place at serial no.1 of the said order. However, the same by itself does not make him senior inasmuch as the order dated 07.06.2013 is not intended to be a merit list/ gradation list. On the other hand, in the memo appended to the aforementioned order, the governing body of the College was requested to place the name of senior most approved teaching staff as Principal in- charge of the College and to recommend the name for Page No. 10 of 13 approval. In fact, pursuant to request, the then governing body recommended the name of the petitioner by treating her as the senior most approved teaching staff, which was accepted by the Director in his order dated 31.12.2013(Annexure-5). As already stated, the above action was never challenged by opposite party no.6, or for that matter by any other person. It is therefore, no longer open to raise the question of inter se seniority as between the petitioner and opposite party No.6
12. Coming to the legality and propriety of the impugned order under Annexure-21, it has been argued at length that the same was based on the recommendation of the governing body, which in turn was based on the findings of the special audit. Firstly, the impugned order itself does not whisper a word with regard to the audit report. Rather, the Director seems to have acted mechanically on the recommendation of the President of the governing body. The allegations relating to financial irregularities committed by the petitioner as reflected in the audit report appear to have been raised for the first time before this Court in a counter Page No. 11 of 13 affidavit filed by the Director (opposite party no.4) and opposite party No.6. It is trite that a ground not taken in the original order cannot be permitted to be taken in the counter affidavit. In other words, no party can be permitted to improve upon its case by filing a counter. It is also trite that the findings of the audit report without being confirmed in a regular departmental proceeding cannot be the basis for taking any adverse action against an employee.
Secondly, this Court finds that the petitioner cannot be said to have any vested right of being approved as Principal in-charge-cum-Secretary of the institution but then having once been granted such status, subsequently withdrawing the same amounts to a definite downgrading thereof. Such downgrading would entail working under a junior. To such extent therefore, rules of natural justice demand that the petitioner should have been afforded an opportunity of hearing before contemplating any action against her. No such opportunity was afforded to the petitioner before issuance of the impugned order under Annexure-21. This Court therefore, holds that the impugned Page No. 12 of 13 order cannot be sustained in the eye of law. Of course, this is not to say that the right of the authorities to proceed against the petitioner in accordance with law on the basis of the findings of the audit report is foreclosed. It is still open to the authorities to proceed against the petitioner on the basis of the findings of the audit report after taking into account the compliance submitted by her thereto. Till the audit findings are actually proved in accordance with law, the petitioner can continue to act as the Principal in-charge.
13. In the result, the writ application is allowed. The impugned order under Annexure-21 is hereby quashed. The opposite party authorities are directed to fully restore the status of the petitioner as Principal in-charge-cum- Secretary of the College with immediate effect.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 6th April, 2022/A.K. Rana Page No. 13 of 13