Orissa High Court
Prasanta Kumar Mohapatra (Dead) vs State Of Odisha on 19 February, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 7094 of 2004, W.P.(C) No. 7095 of 2004 and
W.P.(C) No. 7096 of 2004
Applications under Articles 226 and 227 of the Constitution of India.
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W.P.(C) No. 7094 of 2004
1. Prasanta Kumar Mohapatra (dead)
1(a) Priti Rani Mohapatra
1(b) Tamana Mohapatra ...... Petitioners
W.P.(C) No. 7095 of 2004
Pravakar Senapati ...... Petitioner
W.P.(C) No. 7096 of 2004
Dr. Hemanta Kumar Satpathy ...... Petitioner
-versus-
1. State of Odisha
2. Xavier Institute of Management,
Bhubaneswar
3. Co-ordinator, Cenderete,
Xavier Institute of Management,
Bhubaneswar
4. Xavier University, Bhubaneswar ...... Opp. Parties
(In all the Writ petitions)
For Petitioner in all the W.P.(C)s : Mr. Jagannath Patnaik,
Senior Advocate along with
Ms. Soma Patnaik, Advocate
And Mr. R.K. Pati, Advocate
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 1 of 26
For Opp. Parties in all the W.P.(C)s : Mr. Budhadeba Routray,
Senior Advocate along with
Mr. Jagadish Biswal, Advocate
and Mr. R.K. Pati, Advocate
(for Opp. Party Nos. 2 and 3)
Mr. D.K. Mishra,
Addl. Govt. Advocate
(for Opp. Party No.1)
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
19.02.2025 Savitri Ratho, J In these three writ petitions, the petitioners have challenged the orders terminating their services on different grounds and they have further prayed for the consequential relief of reinstatement in service with all benefits.
2. The prayers in these writ applications are therefore identical. W.P.(C) No. 7094 of 2004 had been filed by Mr. Prasanta Kumar Mohapatra with the following prayer:
"i) the order under Annexure-7 passed by the opp.
party no. 1 terminating the services of the petitioner shall not be quashed as illegal and arbitrary.
ii) the Opp. parties shall not be directed to reinstate the petitioner with consequential benefits. W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 2 of 26
iii) the action of the opp. parties shall not be declared as illegal and malafide.
And pass any other orders or directions as this Hon'ble Court may deem fit just and proper."
W.P.(C) No. 7094 of 2004 had been filed by Mr. Prasanta Kumar Mohapatra with identical prayer. As he expired during pendency of the writ application, he has been substituted by his legal heirs i.e. his wife Priti Rani Mohapatra and his minor daughter Tamana Mohapatra.
W.P.(C) No. 7095 of 2004 has been filed by Mr. Pravakar Senapati with identical prayer and the order of termination is annexed as Annexure 7.
W.P.(C) No. 7096 of 2004 has been filed by Dr. Hemanta Kumar Satpathy with identical prayer where the order of termination is annexed as Annexure 7.
W.P.(C) No. 7062 of 2004 had been filed by Sarat Kumar Rath with identical prayer where the order of termination is annexed as Annexure 8. As the learned counsel for the petitioners submitted that Mr. Rath has passed away on 25.09.2023, in the absence of his substitution, his case has been delinked from these three cases.
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 3 of 26 MAINTAINABILITY
3. The question of maintainability had been raised by this Court at the time of issuing notice in W.P.(C) No. 7094 of 2004, on 24.08.2004. The question of maintainability has also been raised by Mr. Budhadeb Routray, learned Senior Advocate appearing on behalf of the opposite parties no. 2 to 4 at the time of argument. So with the consent of the learned counsel, the writ applications have been heard on the question of maintainability without going into the factual aspects.
SUBMISSIONS
4. Mr. Jagannath Patnaik, learned Senior Counsel has submitted that the jobs performed by the petitioners in the Xavier Institute of Management, Bhubaneswar (in short "XIMB"/ "Institute") XIMB were perennial ones and they had been given regular appointment and they were working under the opposite party no.2 and in other Regional Offices of XIMB. But while the services of their juniors were retained, the services of the petitioners have been illegally terminated while the petitioners were working as Project Managers / Programme Managers in the NORC, Centre for Development Research and Training (in short of Xavier Institute W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 4 of 26 of Management, "CENDERET") of XIMB, even though the type of work performed by the petitioners was very much available.
5. On the question of maintainability, Mr. J. Patnaik, learned Senior Counsel for the petitioners has submitted that XIMB is registered under the Societies Registration Act, 1860. The Chief Secretary, Secretary Industry and Finance Secretary of the State Government are the Ex-officio members of the Society. The Institution provided the following studies namely - two years full time Post Graduate programme in Rural Management (PGPRM), two years part time Post Graduate programme in Management (PGPRM), three years part time post graduate programme in Management (EXPGP) and short duration training programme are provided by Centre for Development Research and Training (CENDERET). The institution being engaged in imparting technical education under the norms of AICTE, a statutory body, is performing public duty. Therefore, it comes within the ambit of Article-12 of the Constitution of India. In support of his submissions, he has relied on the decisions of this Court and the Supreme Court in the following cases:
i) BCCI vs. Cricket Association of Bihar and others:
(2015) 3 SCC 251.W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 5 of 26
ii) Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others : (2002) 5 SCC 111.
iii) Andi Mukta Sadguru vs. V.R. Rudani : (1989) 2 SCC 691.
iv) Dr. Uttam Kumar Samanta vs. KIIT University :
2014 (II) ILKR CUT 1044.
v) WB State Electricity Board vs. Desh Bandhu Ghosh and others : AIR 1985 SC 722.
vi) Sanjay Kumar Kar vs. Principal cum Secretary Bhadrak Instute of Engineering and Technology and another : 2019 (1) OLR 735.
vii) The Manager vs. D.B. Belliappa: AIR 1979 SC 429.
viii) Marawari Balika Vidyalaya vs. Asha Srivastava and others : (2020) 14 SCC 449.
ix) Basanti Mohanty vs. State of Orissa and others : 72 (1991)C.L.T. 127.
The alternate submissions of Mr. Jagannath Patnaik, learned Senior Counsel for the petitioners is that even if it is held that the writ applications being related to service matters of the petitioners are not maintainable, the writ applications should be heard on merit for the following reasons:
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 6 of 26
i) in view of the fact that the writ applications are pending since the last nineteen and half years, the question of maintainability should not be allowed to be raised or gone into now; and
ii) during pendency of the writ applications, the State Legislature had passed the Xavier University Act of 2013 for which the writ applications were amended and the Xavier University through its Registrar was impleaded as opposite party No. 4 in this writ petition. XIMB being part of the University, as employees of the University, the petitioners are entitled to get all benefits at par with other employees of the University and the writ applications would therefore be maintainable.
6. Mr. Budhadeb Routray, learned Senior Counsel for the opposite parties has submitted that submitting that from a perusal of the orders of termination as under Annexure-7, it is apparent that the said order are not punitive or stigmatic in nature as they are termination in simplicitor on account of closure of the relevant projects in North Odisha Resource Centre (NORC), Baripada where the petitioners were working . He has also submitted that in the meantime "Center for Development Research and Training" (in W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 7 of 26 short 'CENDERET') which was the apex body for handling projects had been closed and completely wound up by the order of the competent authority with effect from 01.04.2016.
7. Challenging the maintainability of the writ petitions, he has submitted XIMB is a Society registered under the Societies Registration Act. The Chief Secretary, Industries Secretary and Finance Secretary are three out of the eighteen, members of the Society, as they have been nominated by the State Government. They are not ex-officio members. Land was initially provided by the State Government and the essential infrastructure too was put up by them. However, as soon as the New Society was registered these were handed over to the new society. The institute received financial support for its rural extension activities and field research from national and international agencies for specific projects and these came to an end upon completion of those projects. At the time when the impugned orders were passed and the writ applications were filed, the institute used to offer the following courses:
i.) 2 year full time P.G, Diploma in Business Management. ii.) 2-year full time P.G. Diploma in Rural Management; and
iii) 3-year Part time P.G. Diploma in Business Management. W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 8 of 26
These courses are fully funded by the fees raised from students. No subsidy or grant is received from the state or central government for the courses. These courses are designed keeping in view, the requirements of the industry, the corporate world and the rural development needs of the country, while complying with the norms laid down by the All India Council of Technical Education (AICTE) for Post Graduate Management Programmes across the country. The AICTE has approved the courses conducted by the academic wing of the institute. The Board of Governors and Members of the Association are constituted as per the by-laws of the Society which is registered with the Registrar of Societies, Government of Orissa. The rural extension wing (CENDERET) conducted short term training programmes for members and staff of its partner Non-Governmental Organizations (NGOs) engaged in rural development activities in rural areas. These training programmes were conducted as part of the various projects which CENDERET implemented from time-to-time with funding from national and international donor agencies.
8. Mr. Routray, learned Senior Counsel has also submitted that as XIMB is imparting education, it may be considered to be amenable to writ jurisdiction as far as examinations and admissions W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 9 of 26 of students are concerned. But as the relation between the petitioners and the XIMB was purely contractual it does not "come under the purview of performing public duty" with regard to service conditions or disputes of its employees for which XIMB does not come under the ambit of Article 12 and will not be amenable to the jurisdiction of this Hon'ble Court. Service matters and disputes relating to service of its employees cannot be equated to public duty for which the writ applications will not be maintainable. Mere approval of its courses by AICTE, a statutory body, does not mean that XIMB is performing a public duty so far as service matters are concerned. He has brought to the notice of this Court that while issuing notice in the writ applications, this Court had kept the question of maintainability open - to be decided after appearance of the opposite parties and although no objection had been raised for impleading Xavier University as an opposite party, the right to argue on merit on the question of maintainability at the time of final hearing had not been given up. He has also submitted that the status of XIMB at the stage when the impugned orders were passed is to be considered for deciding the question of maintainability. In support of his submission that the writ applications are not W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 10 of 26 maintainable, he has relied on the decisions of this Court and the Supreme Court and in the cases of:
i) WP(C) No. 5614 of 2008 Dibakar Mohapatra vs. XIMB decided on 14.07.2008 (para 3 to 5).
ii) WP(C) No. 11487 of 2008 Gadadhar Barik vs. XIMB decided on 09.11.2009.
iii) Binny Ltd and another vs. U Sadasivan and others: (2005) 6 SCC 657 (Para 29 to 34).
iv) Sushmita Basu and others vs. Ballygunge Sikshya Samity and others: (2006) 7 SCC 680 (Para 4).
v) K.K.Saksena vs. International Commission on Irrigation and Drainage and others: (2015) 4 SCC 670 (Para 41 to 45).
vi) St. Mary's Education Society another vs. Rajendra Prasad Bhargava & others: 2022 SCC Online 1091.
vi) Pradeep Kumar Dhal vs. Governing Body of Christ College & others in W.P.(C) No. 3150 of 2030 and batch decided on 26.04.2023 and
vii) Pradeep Kumar Dhal vs. Governing Body of Christ College & others in RVWPET No. 210 of 2023 and batch decided on 14.12.2023.
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 11 of 26
9. JUDICIAL PRONOUNCEMENTS The learned counsel have cited and relied on a number of decisions of this Court and the Supreme Court to buttress their submissions on the point of maintainability. It is not necessary to refer to all the decisions and the decisions cited by them and some other decisions which were found to be pertinent have been referred to.
ON MAINTAINABILITY 9.1. The case of BCCI (supra), related to a case of match fixing, which the Supreme Court found was of public importance and hence held the writ application to be maintainable.
In the case of Pradeep Kumar Biswas (supra) the majority view of the Supreme Court was that the dominant role played by the Government of India in the Governing Body of CSIR was evident. The Director- General who is ex-officio Secretary of the Society is appointed by the Government of India [Rule 2(iii)] and the control of the Government in the CSIR is ubiquitous. It ultimately held that a writ application against CSIR was maintainable.
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 12 of 26
In the case of Marawari Balika Vidyalaya (supra) reinstatement of the respondent with back wages had been allowed by the Division Bench of the High Court. The Supreme Court relying on its earlier decision in the case of Ramesh Ahuliwalia vs State of Punjab and others:: (2012) 12 SCC 331 , which had relied upon the decision in Anandi Mukta Sadguru (supra), interalia held that the the employee has served for five years before dismissal from the service by a stigmatic order, passed without holding an enquiry, for which the submission raised by learned Senior counsel for the Appellant- School that back wages should be denied was not acceptable .It held that the writ application was maintainable and dismissed the Appeal holding that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute and that judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment and that mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found .
In the case of Dr. Uttam Kumar Samanta ( supra) , in the facts of that case , relying on the decision of the Supreme Court in the case of Sri Anadi Mukta Sadguru ( supra) , this Court held that the State Government and by reason of the provision for W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 13 of 26 approval, the Central Government also, have full control of the working of the Society and the Society is merely a projection of the State and therefore held that the Society is an instrumentality or the agency of the State and the Central Governments and it is an 'authority' within the meaning of Article 12.
In the case of Dibakar Mohapatra (supra) and Gadadhar Barik (supra), this Court has held that writ applications involving service disputes of employees of XIMB are not maintainable. In the case of Dibakar Mohapatra (supra) a Division Bench of this Court found that XIMB was a private institution imparting education and had no funding from the State Government or the Central Government. It went on to hold a follows:
"5...In the present case the dispute is between the employer and the employee arising out of a contract of employment and while discharging this part of the function, the opposite party No.1 is not discharging any public function ,and therefore , such act of opposite party No.1 which is based on a contract of employment , is not amenable to the writ jurisdiction ".
In the case of Gadadhar Barik (supra), where the petitioner had been removed from service after a disciplinary proceeding, relying on the decision in Dibakar Mohapatra (supra) as XIMB was the opposite party in both the cases, dismissed the W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 14 of 26 writ application granting liberty to the petitioner to work out his remedies in accordance with law.
In the case of St. Mary's Educational Society (supra), the Supreme Court has taken note of the decisions in Ramesh Ahluwalia (supra), Marwari Balika Vidhyalaya (supra), Shri Anadi Mukta Sadguru (supra) and has held as follows:
"69. We may sum up our final conclusions as under:-
(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions.
The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty.
W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 15 of 26 It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element.
(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 16 of 26 the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a nonteaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 17 of 26
(e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.
In the case Pradeep Kumar Dhal and batch (supra), the petitioners had prayed for different reliefs all related to their services (order of suspension, order framing charge, for regularization, challenging separation of the Department of IT and Computer Science, prayer for reinstatement and prayer for placement in a particular wing), where this Court has held as follows:
"24. This Court finds that the very same question as posed above came up for consideration before the Apex Court recently in the case of St. Mary's Education Society and Another vs. Rajendra Prasad Bharagava and others, reported in 2022 SCC OnLine SC 1091. In the said case the following issues were framed for determination.
(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational Institution and its employee can be W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 18 of 26 adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?
Analyzing the law on the subject, the Apex Court held that the School discharges a public duty by imparting education, which is a fundamental right of the citizen. However, judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service. It was further clarified that a contract of personnel service includes all matters relating to the service of employee confirmation, suspension, transfer and termination etc. It was therefore held that a writ of mandamus can be issued against a private body, which is not a 'State' within the meaning of Article 12 of the Constitution of India, but there must be a public law element involved and it cannot be exercised to enforce purely private contracts entered into by the parties. It was also held that in case of retirement and in case of termination, no public law element is involved. It also referred to the decision of the Apex Court in the case of Trigun Chand Thakur:
"45. In the case of Trigun Chand Thakur v. State of Bihar, reported in (2019) 7 SCC 513, this Court upheld the view of a Division Bench of the Patna W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 19 of 26 High Court which held that a teacher of privately managed Page 30 of 33 school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management."
LONG PENDENCY OF THE WRIT APPLICATION 9.2. As regards the contention of the learned counsel for the petitioners that as the writ application have remained pending for so many years in this Court , the question of maintainability should not be considered at this stage, it would be profitable to refer to the decision of the Supreme Court in the case of State of Uttar Pradesh and another vs. Rajya Khanij Vikas Nigam Sangharsh Samiti:
2008 (12) SCC 675, where the Supreme Court clarified the decision in the case of Suresh Chandra Tewari vs. District Supply Officer, AIR 1992 All 33 and held as follows:
.... "The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that "the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed". (emphasis supplied).W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 20 of 26
36. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the 'head note' of All India Reporter (AIR), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court.
37. The relevant paragraph 2 of the decision reads thus:
"2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed".
38. Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 21 of 26 that even if alternative remedy is available, it cannot be held that a writ- petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-
petition albeit wrongly and granted the relief to the petitioner.".....
.."52. Since we are of the view that one of the Hon'ble Judges of the Division Bench of the High Court which decided the matter at the initial stage was right in relegating the petitioners to avail of alternative remedy under the Industrial Law and as we hold that the High Court should not have entertained the petition and decided the matter on merits, we clarify that though the writ petition filed by the petitioners stands dismissed, it is open to the employees to approach an appropriate Court/ Tribunal in accordance with law and to raise all contentions available to them. It is equally open to the Corporation and the State authorities to defend and support the action taken by them. As and when W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 22 of 26 such a course is adopted by the employees, the Court/Tribunal will decide it strictly in accordance with law without being influenced by the fact that the writ petition filed by the writ petitioners is dismissed by this Court."
ANALYSIS
10. At the time of hearing the writ petition at the time of admission, the writ court is required to form a prima facie satisfaction if a legal right has been infringed or the opposite party is amenable to writ jurisdiction. If the court is prima facie satisfied on these two counts, the court may in the exercise of its discretion admit the writ petition and post it for final hearing. After the pleadings have been exchanged, and the court arrives at a conclusion that a legal right has been breached, together and a writ would lie against the opposite party, some relief can be granted. The opposite party should therefore be amenable to the writ jurisdiction of the high court on the date of institution of the writ petition as well as on the date when the writ petition is finally heard and decided.
11. Therefore, in the light of the above pronouncements of the decisions of the Apex Court, it cannot be accepted that once a writ petition is admitted, merely because several years have W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 23 of 26 elapsed after the admission of the writ petition, the question of maintainability cannot be raised or decided. At the admission stage the question of maintainability is usually not considered and notice of admission is issued or a writ petition is admitted based on prima facie finding. However, in the present writ applications, this Court, while issuing notice to the opposite parties had observed that the question of maintainability will be considered after the appearance of the opposite parties. The fact that the writ petition is pending before this Court for a long time is therefore not a bar for considering the question of maintainability.
12. As held in the decisions referred to above, normally the status of the parties as on the date the cause of action arose is to be considered for the purpose of jurisdiction. In appropriate cases, the Court may mould a relief on account of change of circumstance if otherwise it has jurisdiction. But in the present case, even though during pendency of the writ applications, XIMB has become part of Xavier University, its status on the date of the cause of action arose i.e when the services of the petitioners were terminated as well as the day the writ petitions were filed, are to be taken into account for deciding the question of maintainability. The writ applications are therefore not maintainable. W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 24 of 26
13. In view of the decisions in the cases of St. Mary's (supra) and Dibakar Mohapatra ( supra), as the writ applications relate to termination of service of the petitioners who were employed in different projects of XIMB with additional prayer for reinstatement in service , even if is assumed that XIMB is imparting education which is a public duty, as the termination of services of the petitioners does not have any direct nexus with the discharge of public duty and the termination orders are not stigmatic , the petitioners cannot invoke extraordinary writ jurisdiction under Article 226 of the constitution of India . CONCLUSION
14. W.P.(C) No. 7094 of 2004, W.P.(C) No.7095 of 2004 and W.P. (C) No.7096 of 2004 are dismissed as not maintainable.
15. But the petitioners cannot be left remediless, especially when their writ applications remained pending in this Court for so many years. As observed by the Supreme Court in the case of UP Khanij Vikas (supra), it is open to the petitioners to approach the appropriate forum in accordance with law and raise all contentions available to them. It is equally open to the opposite parties to defend and support the action taken by them. As and when such a course is adopted by the employees, the Court / Tribunal will W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 25 of 26 decide the same strictly in accordance with law, without being influenced by the fact that the writ petitions filed by the petitioners in this Court have been dismissed by this Court as the cases of the petitioners have not been considered on merit by this Court.
16. W.P.(C) 7062 of 2004 filed by Mr. Sarat Kumar Rath which had been heard along with WP(C) No. 7094 of 2004, WP(C) No. 7095 of 2004 and W.P.(C) No. 7096 of 2004, is delinked from these cases as learned counsel for the petitioner submitted that he has expired during pendency of WP(C) No. 7062 of 2004 and he has to be substituted.
(Savitri Ratho) Judge Orissa High Court, Cuttack.
The 19th February, 2025.
Puspa, P.A. Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 27-Feb-2025 18:57:09 W.P.(C) Nos. 7094, 7095 & 7096 of 2004 Page 26 of 26