Afr Saroj Kumar Sethi vs State Of Orissa And Others
2021 Latest Caselaw 4439 Ori

                   ORISSA HIGH COURT: CUTTACK


                       W.P.(C) NO. 31829 OF 2011

         In the matter of an application under Articles 226 and
         227 of the Constitution of India.
                                ---------------

AFR Saroj Kumar Sethi ..... Petitioner

-Versus-

         State of Orissa and others              .....    Opp. Parties


           For Petitioner       : M/s. K.K. Swain, P.N. Mohanty,
                                  R.P. Das, P.K. Mohapatra &
                                  K. Swain, Advocates

           For Opp. Parties :    Mr. B. Prusty,
                                 Standing Counsel for
                                 S&ME Department


         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON :: 31.03.2021

DR. B.R. SARANGI, J. The petitioner, who was engaged as a

Contract Teacher under TGT (CBZ) category and posted

at Upgraded High School, T. Bagalpur, Khalikote, // 2 //

pursuant to the advertisement dated 02.11.2010, has

filed this writ petition seeking to quash the order dated

15.11.2011 at Annexure-6 passed by opposite party no.3

disengaging and relieving him from the post, in

pursuance of order dated 11.05.2011 passed by this

Court in W.P.(C) No. 3732 of 2011 (Niharika Rath & 10

others vs. State of Odisha), and further seeks for a

direction to opposite parties to reinstate him in service

with all consequential service and financial benefits as

due and admissible to the post held by him.

2. The factual matrix of the case, in hand, is

that an advertisement was issued on 14.11.2009 inviting

applications from eligible candidates for giving

contractual appointment of Trained Graduate Science

Teacher only to those who have CBZ at degree level. The

said advertisement was challenged by one Baburam Pani

in W.P.(C) No. 2356 of 2010 stating inter alia that

engagement of Trained Graduate Science Teacher should

not be confined only to persons having CBZ combination

at degree level but should include the subjects, such as, // 3 //

Life Science, Micro Biology and Biotechnology etc.

Subsequently, an advertisement was published on

02.11.2010 in Odia daily "The Dhariti" for filling up of

posts of Trained Graduate Teachers (CBZ), pursuant to

which the petitioner applied for in respect of Ganjam

Circle. As he fulfilled the eligibility criteria mentioned

therein, by following due procedure of selection, he was

selected under scheduled caste category,

consequentially, an engagement order was issued in his

favour by the Inspector of Schools, Ganjam Circle,

Ganajm, vide office order dated 05.02.2011 which has

been annexed as Annexure-3 to this writ petition,

subject to fulfillment of conditions mentioned therein.

One of the conditions was that the order of engagement

was subject to outcome of W.P.(C) No. 2356 of 2010

(Baburam Pani vs. State of Orissa and others). Knowing

fully well the above condition, as stipulated in the

engagement order, the petitioner joined in the post on

07.02.2011 in Upgraded High School, T. Bagalpur in the

district of Ganjam. He continued to discharge his duty // 4 //

peacefully and his contractual engagement was renewed

up to 28.02.2012 by virtue of order dated 01.03.2011 of

the Inspector of Schools, Ganjam Circle, Berhampur.

But unfortunately, he was disengaged from service vide

order dated 15.11.2011 in Annexure-6 on the basis of

the order dated 11.05.2011 passed in W.P.(C) No. 3732

of 2011 (Niharika Rath and others v. State of Orissa and

others), wherein the petitioner was not impleaded as a

party. Hence this application.

3. Mr. K. Swain, learned counsel appearing

for the petitioner contended that the order of

disengagement dated 15.11.2011 passed by the

Inspector of Schools, Ganjam Circle, Brahmapur vide

Annexure-6 is an outcome of non-application of mind

and it violates the principles of natural justice, as no

opportunity of hearing was given to the petitioner while

he was disengaged from service. It is further contended

that as per the terms and conditions of the engagement

order issued under Annexure-3, his engagement was

subject to outcome of W.P.(C) No. 2356 of 2010 // 5 //

(Baburam Pani vs. State of Orissa and others), but the

order impugned has been passed relying upon the order

dated 11.05.2011 passed by this Court in W.P.(C) No.

3732 of 2011 (Niharika Rath & 10 others vs. State of

Odisha), in which the petitioner was not a party.

Thereby, the order so passed disengaging and relieving

the petitioner w.e.f. 15.11.2011 cannot sustain in the

eye of law. To substantiate his contention, he has relied

upon the judgment of this Court in Ganeswar Hansda

v. State of Odisha & Others, 2020 (I) ILR-CUT-113.

4. Mr. B. Prusty, learned Standing Counsel

for School and Mass Education Department contended

that admittedly engagement order was issued in favour

of the petitioner subject to outcome of W.P.(C) No. 2356

of 2010 (Baburam Pani v. State of Orissa and others),

but the order of disengagement indicates that in

pursuance of order dated 11.02.2011 passed by this

Court in W.P.(C) No. 3732 of 2011 (Niharika Rath & 10

others v. State of Odisha) the action has been taken

disengaging and relieving the petitioner w.e.f.

// 6 //

15.11.2011 and justified the order of disengagement and

stated that the action so taken is well within the

jurisdiction of the authority concerned and does not

warrant interference of this Court.

5. This Court heard Mr. K. Swain, learned

counsel for the petitioner and Mr. B. Prusty, learned

Standing Counsel for School and Mass Education

Department, and perused the record. Pleadings have

been exchanged between the parties. Since it is a matter

of 2011, with the consent of learned counsel for the

parties, this writ petition is being disposed of finally by

giving opportunity of hearing to all the parties.

6. On the basis of the facts, as narrated

above, admittedly, Baburam Pani had filed a writ

petition before this Court in W.P.(C) No.2356 of 2010

challenging the advertisement published on 14.11.2009

inviting applications for the post of Contract Trained

Graduate Science Teacher having CBZ combination only.

His specific stand was that engagement of Trained // 7 //

Graduate Science Teacher should not be confined only to

candidates having CBZ combination at degree level, but

should include the subjects, such as, Life Science, Micro

Biology and Biotechnology etc. This Court disposed of

the said writ petition on 27.04.2011 with the following

directions:

"Since all appointments made are subject to the final result o the writ petition, this writ petition is, therefore, disposed of upholding the contention of the petitioner that he is entitled to be considered for appointment as a Trained Graduate Teacher in Science having Life Science as one of the subjects pursuant to the advertisement made. In the event any applicants less meritorious as that of the petitioner have been given appointment to such posts, the petitioner shall also be given such appointment and immediate action shall be taken and all appointments made shall be recasted in accordance with the above order. In the event the petitioner is appointed, such appointment shall be considered to have been made from the date when the initial appointment to some posts in the same district is made and the service benefits for the said period shall be given to the petitioner. However, no monetary benefit shall be given for the said period which he will be entitled to only from the date when he joins in service. In the event the petitioner is appointed to such post in case of first advertisement, as one post has been kept reserved, he shall be considered to be appointed to the said post"

Another advertisement was published on 02.11.2010

inviting applications in the prescribed format from the // 8 //

eligible candidates belonging to different revenue

districts of the State for engagement of teachers on

contract basis on a consolidated monthly remuneration

in different Government High Schools located in different

educational circles of the State. As per the said

advertisement, for the post of Contract Trained Graduate

Science Teacher a candidate must have either PCM or

CBZ combination at the degree level. Accordingly, the

Circle Level Selection Committee started the recruitment

process and the petitioner was issued with engagement

order dated 05.02.2011 in Annexure-3 in newly

Upgraded High School, T. Bagalpur subject to outcome

of W.P.(C) No. 2356 of 2010 (Baburam Pani v. State of

Orissa and others) and other conditions mentioned

therein. Be it noted that Niharika Rath and 10 others

had filed W.P.(C) No. 3732 of 2011 challenging the

recruitment process which was undertaken without

taking into account their subject/combination at degree

level. In the said writ petition, the petitioner was not

made a party. This Court disposed of the said writ // 9 //

petition, vide order dated 11.05.2011, the operative part

of which runs as follows:

"In this writ application, the petitioners have Biology and Biotechnology as subject in Graduation level. Some of the candidates also applied for being engaged as Trained Science Teachers though they did not have Physics, Chemistry, Mathematics as optional subject in Graduation level. But is appears that the candidates have Mathematics, Physics and Industrial Chemistry or Chemistry, Mathematics, Electronics as their subjects in the Graduation level. Therefore, for the reasons assigned in the order dated 27.04.2011 passed in W.P. No. 2356 of 2010, it was incumbent upon the authorities to consider the case of the petitioners for appointment as Trained Graduate Science Teachers on contract basis as per the advertisement, the directions issued in the order dated 27.04.2011 passed in W.P.(C) N o. 21356 of 2010 shall be applied to all the petitioners herein and they shall be considered for being appointed as directed therein."

7. After the above order was passed by this

Court, the Government of Odisha, Department of School

and Mass Education directed the Director, Secondary

Education, Odisha for issuing suitable instructions to

the Inspector of Schools. Accordingly, necessary

instructions were supplied by the Director, Secondary

Education to the concerned Inspector of Schools.

Accordingly, consequent upon recast of the select list,

the impugned order dated 15.11.2011 was passed // 10 //

disengaging and relieving the petitioner from the post of

Contract Teacher in TGT (CBZ) category.

8. The petitioner has specifically pleaded in

paragraph-8 of the writ petition to the following effect:

"That it is respectfully submitted that before issuing the disengagement order, no opportunity whatsoever was given to the petitioner and the disengagement order dated 15.11.2011 was passed unilaterally behind the back of the petitioner. Therefore, the disengagement order was passed in gross violation of the principles of natural justice and in violation of the stator rules. Therefore, on this ground alone, the impugned order is liable to be quashed/set aside."

The opposite party no.3 has filed counter affidavit, but

no specific reply has been given rebutting to the

averments made in the said paragraph. Thereby, it is

deemed that the pleadings made in paragraph-8 of the

writ petition are admitted by the opposite parties. In

such view of the matter, if the disengagement order

issued in favour of the petitioner is in gross violation of

the principle of natural justice, the same cannot sustain

in the eye of law.

// 11 //

9. In addition to the above, indisputably the

order of engagement of the petitioner was made vide

Annexure-3 dated 05.03.2011, subject to outcome of

W.P.(C) No. 2356 of 2010 (Baburam Pani v. State of

Orissa and others). After the said writ petition was

allowed, Baburam Pani, the petitioner therein, has been

extended with benefit of engagement and the condition

stipulated in the advertisement itself has already been

worked out by the authority. Thereby, the petitioner

herein should not have been issued with the order of

disengagement, merely because the order of his

engagement was subject to outcome of W.P.(C) No. 2356

of 2010 (Baburam Pani v. State of Orissa and others).

10. Furthermore, on perusal of the order of

disengagement at Annexure-6 it is seen that the same

has been passed pursuant to order dated 11.05.2011 of

this Court passed in W.P.(C) No. 3732 of 2011 (Niharika

Rath & 10 others v. State of Odisha), in which the

petitioner, who is a selected candidate and is already in

service, was not made a party. Due to non-joinder of // 12 //

party, any action taken pursuant to order so passed

cannot have any binding effect on the petitioner.

Thereby, the impugned order of disengagement so

passed cannot sustain in the eye of law.

11. In Girjesh Shrivastava and others v.

State of Madhya Pradesh and others, (2011) SCC (L &

S) 192: (2010) 10 SCC 707 the apex Court, while

considering the question, in paragraph-20, 21 and 22 of

the said judgment, referring to the judgments in

Prabodh Verma v. State of U.P., (1984) 4 SCC 251 :

1984 SCC (L&S) 704 and Ramrao v. All India

Backward Class Bank Employees Welfare Assn.,

(2004) 2 SCC 76 held as follows:

"20. The next point urged by the appellants, that they had never been impleaded in the two petitions, even as orders passed by the High Court had a direct effect on their livelihood, also goes to the root of the matter as it violates the principle of audi alteram partem.

21. This Court in Prabodh Verma v. State of U.P. [(1984) 4 SCC 251 : 1984 SCC (L&S) 704] held: (SCC p. 273, para 28) "28. ... A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents...."

// 13 //

22. Similarly, this Court in Ramrao v. All India Backward Class Bank Employees Welfare Assn. [(2004) 2 SCC 76 : 2004 SCC (L&S) 337] , SCC at pp. 86-87 said: (SCC para 27) "27. ... An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon."

In view of such observations made by the apex Court, the

petitioner, having not been made a party to the writ

petition bearing W.P.(C) No. 3732 of 2011 filed by

Niharika Rath and 10 others nor the order of engagement

of the petitioner in Annexure-3 was subject to outcome of

the said writ petition, the same cannot have any binding

effect on the petitioner. Therefore, referring to the same, if

any disengagement order has been issued, the same

cannot sustain in the eye of law.

12. In Ganeswar Hansda (supra), this Court

has already discussed the matter with regard to

applicability of the principle of natural justice and held // 14 //

that the rule of law demands that the power to determine

questions affecting rights of citizens would impose the

limitation that the power should be exercised in

conformity with the principles of natural justice. It is also

further held that whenever a man's rights are affected by

decisions taken under statutory powers, the Court would

presume the existence of a duty to observe the rules of

natural justice. This view has also been taken by the

apex Court in Bhagawan v. Ramchand, AIR 1965 SC

1767 and Sukdev Singh v. Bhagatram, AIR 1975 SC

1331.

13. In view of the principles of law laid down

by the apex Court as well as by this Court mentioned

supra, the order dated 15.11.2011 vide Annexure-6,

disengaging and relieving the petitioner from the post of

Contract Teacher under TGT (CBZ) category cannot

sustain in the eye of law and, thereby, the same is liable

to be quashed and is hereby quashed. The opposite

parties are directed to reinstate the petitioner in his

former post and grant continuity of service and financial // 15 //

benefits as due and admissible to him in accordance with

law as expeditiously as possible preferably, within a

period of three months from the date of communication

of this judgment.

14. The writ petition is thus allowed. There shall

be no order as to costs.

..............................

DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 31st March, 2021, Ajaya/GDS