Orissa High Court
Kaminilata Sahu vs State Of Odisha & Others on 11 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9746 OF 2017
(An application under Articles 226 and 227 of the Constitution of India)
Kaminilata Sahu ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Sidheswar Mallik,
Advocate
-versus-
For Opposite Parties 1 and 2: Mr.N.K.Praharaj,
Government Advocate.
For Opposite Parties 3 and 4: Mr. M.K.Dash, Advocate.
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
11.08.2022.
Sashikanta Mishra,J. The Petitioner was appointed as a Lecturer in Sanskrit on 12th
September, 2009 on contractual basis in Biren Mitra Memorial
Women's College, Cuttack. The said College is an aided
educational institution. While continuing as such, an advertisement
was published on 24th August, 2013 inviting candidates for
selection and appointment to the post of Lecturer in Sanskrit.
The Petitioner, though continuing in the post applied pursuant to
the said advertisement. An interview was conducted in which the
Petitioner stood first. She was issued a fresh appointment order on
24th December, 2013 as Lecturer in Sanskrit on consolidated pay of
Rs.2000/- per month, which was subsequently enhanced to
Rs.5,300/-. On 4th May, 2017, the Principal of the College
(Opposite Party No.4) issued an office order disengaging the
Petitioner and some other Lecturers from their services w.e.f. 1st
May, 2017. Neither any prior notice was issued nor any
explanation was called for from the Petitioner. No reason was also
ascribed for taking such action. Being aggrieved thus, the Petitioner
has approached this Court claiming the following relief:-
"Quash the impugned order dated 4.5.2017
disengaging the Petitioner as at Annexure-5.
Direct/order that the Petitioner's services as a lecturer
in Sanskrit shall be regularized and pass such other
orders as may be deemed fit and proper in the interest
of justice."
2. No counter affidavit is filed by Opposite Party Nos.1 and 2.
3. The Governing Body of the Institution (Opposite Party No.3)
and the Principal of the College (Opposite Party No.4) have filed a
joint counter. In the said counter, it is stated that in view of the
restrictions issued by the State Government vide order dated 20th
April, 1998, the appointment of the Petitioner being without prior
permission of the State Government is not valid. Moreover, such
appointment was made without resolution of the Governing Body
nor approval of the appropriate authority. The Petitioner was
appointed on consolidated remuneration which was conditional in
nature. The Regional Director of Education, Bhubaneswar vide
order dated 24th September, 2014 specifically directed that no
appointment should be made without his prior permission and in
case of any violation, the Opposite Party No.4 will be held
responsible. Therefore, when the Opposite Party No.4 came to
know that the appointment of the Petitioner is without prior
permission of the authorities concerned, he passed the impugned
order disengaging the Petitioner and others from their services. It is
further stated that since the Petitioner's appointment was invalid to
begin with, she does not have the locus standi to challenge the
impugned order. Further, the instructions issued by the Regional
Director of Education in his letter dated 10th August, 2015 with
regard to disengagement of contractual/guest faculties have been
referred to and it is stated that the Petitioner was disengaged as
there is no requirement for engagement of Lecturer in Sanskrit as
per the prescribed work load. The instructions issued on 19th
September, 2016 of the Regional Director with regard to
engagement of guest faculty was also referred to.
4. The Petitioner filed a rejoinder disputing the averments made in
the counter affidavit. It is stated that the instructions issued by the
Regional Director do not have retrospective effect. The Petitioner is
neither a contractual employee nor a guest faculty but was
appointed against regular vacant post on consolidated pay, which
was enhanced from time to time by the Governing Body. Therefore
even otherwise, the instructions of the Regional Director are not
applicable. It is further stated that there is requirement of three
Lecturers in Sanskrit and therefore, it is in correct to say that there
is no work load for teaching faculty in the said discipline.
5. Heard Mr. Sidheswar Mallik, learned counsel for the Petitioner,
Mr. N.K.Praharaj, learned Government Advocate for Opposite
Party Nos.1 and 2, and Mr. Manmaya Kumar Dash, learned
counsel for Opposite Party Nos.3 and 4.
6. It is submitted by Mr. Mallik that the impugned order was
passed without adhering to the principles of natural justice
inasmuch as neither any notice was issued to the Petitioner nor any
opportunity was afforded to her to have her say in the matter. It is
further contended by Mr. Mallik that the circulars/instructions of
the Regional Director of Education referred to in the impugned
order are prospective in nature and cannot be made applicable to
the case of the Petitioner, who has been continuing in her post since
2009. Mr. Mallik further draws attention of this Court to the case of
Soumyashree Das v. Governing Body of Biren Mitra Memorial
Women's College and other (W.P.(C) No.8396 of 2017), which
was disposed of by judgment dated 12th May, 2020 passed by a Co-
ordinate Bench. The Petitioner therein stands exactly on the same
footing as the Petitioner in the present case. By the said judgment,
this Court after going through the facts, provisions of law and
earlier decision of this Court in the case of Managing Committee
Majhipada M.E. School v. State of Odisha and others; reported in
1992 (1) OLR 447, quashed the impugned order of disengagement
passed in respect of the Petitioner therein. According to Mr. Mallik,
the present Petitioner stands on the same footing as a common
order of disengagement was passed in respect of five teachers
including the present Petitioner and the said Soumyashree Das.
7. Per contra, learned Government Advocate has contended that
the Petitioner was appointed without any resolution of the
Governing Body and without approval of the concerned authority
and therefore, she has no right to the post so as to challenge the
impugned order.
8. Mr. M.K.Dash has put forth similar contentions as learned
Government Advocate stated above and adds that the work load of
the institution does not justify the post of Lecturer in Sanskrit and
whenever the need would arise in future, the Governing Body may
decide to engage guest faculty. In so far as the present Petitioner is
concerned, according to Mr. Dash the impugned order was passed
taking into consideration all the above facts as also on the specific
instructions issued by the Regional Director of Education.
9. A bare reading of the impugned order dated 4th May, 2017
reveals that the same was passed purportedly in obedience to letter
Nos.10529 dated 10th August, 2015 and 13441 dated 19th
September, 2016 of the RDE, Bhubaneswar and as per the decision
of the Staff Council Meeting as well as approval of the ADM-cum-
President, Government Body. As already stated, a co-ordinate
Bench in the case of Soumyashree Das (who stands at Sl. No.3 in
the impugned order), has already dealt with the contentions raised
by the parties before this Court and has held that the impugned
order is not in consonance with law and dehors the principle of
natural justice and amounts to infraction of Rules 21 and 8 of
Odisha Education (Recruitment and Conditions of Services and
Teachers and Members of the Staff) and Aided Educational
Institution Rules, 1974 Rules. The co-ordinate Bench has also
referred to the earlier decision reported in 1992(1)OLR 447 to hold
that the Governing Body/Managing committee is estopped to
challenge the validity of the appointment on the ground of non-
approval of the appointment by the concerned authority and thus,
quashed the impugned order. After perusing the judgment passed in
the case of Soumyashree Das referred to above, this Court is in
respectful agreement with the same as the Petitioner stands exactly
on the same footing as the said Soumyashree Das and is hence,
entitled to similar order in her favour.
10. In the result, the Writ Petition is allowed. The impugned order
under Annexure-8 in so far as it relates to the Petitioner
(Kaminilata Sahu) is hereby quashed. The petitioner shall be
forthwith reinstated in her post, if not already reinstated, and shall
be given all consequential benefits within a period of two months.
................................
Sashikanta Mishra,
Ashok Kumar Behera Judge
