Orissa High Court
Badrinarayan Rath vs State Of Odisha & Others on 12 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23979 OF 2017
(An application under Articles 226 and 227 of the Constitution of India)
Badrinarayan Rath ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.S.P.Sahoo,
Advocate
-versus-
For Opposite Parties 1 to 3 : Mr.P.K.Panda,
Standing Counsel
(S & M.E. Deptt.).
For Opposite Parties 4 and 5: None.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
12.08.2022.
Sashikanta Mishra,J. Pursuant to an advertisement for the post of teacher in
Chemistry, Botany and Zoology (CBZ) issued by the Secretary of
Saraswati Academy, Kania, the Petitioner was selected and
appointed as Asst. Teacher against the said post as per order of the
Secretary of the Management dated 25th March, 2008.
Accordingly, the Petitioner joined on 25th March, 2008 by
submitting his joining report. The Petitioner possessed B.Sc. (CBZ)
qualification in the year 2008. While performing his duties he was
asked to perform the duties as in-charge Headmaster by order of
the then Inspector of Schools communicated vide letter dated 23th
July, 2011. The Management suggested him to be trained as
required under law to hold the post of CBZ and accordingly he
applied for leave to the Secretary to undergo in-service training of
B.Ed. course. The Secretary, vide letter dated 20th October, 2011
stated his no objection to the Petitioner completing the course
during the Session 2011-2012 or till completion of the same course.
Since his original certificates had not been returned, he could not
take admission in B.Ed. course and rejoined the School and
discharged his duties as before. He took admission in B.Ed. course
in the year 2013-14 and completed the course in the year 2016.
The Petitioner thereafter submitted his joining report in the School
on 23th September, 2016, but the Secretary did not accept the
same. He approached the Secretary again on 17th October, 2016
and 22nd October, 2016, but to no avail. The Petitioner came to
know that in the mean time the Secretary had illegally
recommended the name of Opposite Party No.5 for the post of
Asst. Teacher (CBZ) though he had been appointed as a stop gap
arrangement against the leave vacancy of the Petitioner. The
Petitioner, thereafter submitted representations on 25th October,
2016 to the District Education Officer and 4th November, 2016 to
the Director, Secondary Education to consider his case and not to
release the Block grant in favour of Opposite Party No.5. He also
sent an Advocate's notice to Government on 17th November, 2016
not to release the Block grant till its finalization. Since no action
was taken in the matter, the Petitioner filed a G.I.A. Case bearing
No.102/2017 on 13th April, 2017 before the Education Tribunal,
Odisha, which is still pending. However, the Petitioner came to
know that subsequently, the authorities have released Block Grant
in favour of Opposite Party No.5 ignoring the right of the
Petitioner. It is stated that non-acceptance of the joining letter
amounts to termination and since no approval was taken by the
authority as provided under Section 10-A of the Odisha Education
Act, the same is illegal and invalid. Being aggrieved thus, the
Petitioner has approached this Court seeking the following relief:-
"(a) Declaration declaring the action of management
not allowing the Petitioner to sign on attendance
register and not allowing to discharge his duties after
study leave as bad and illegal,
(b) Declaration declaring the continuance of O.P.No.5
against the post of CBZ, who had been appointed on
leave vacancy of Petitioner and release of aid in his
favour as illegal,
(c)Declaration declaring the non-following the
provisions of Section 10-A of the Odisha Education
Act, 1969, which is mandatory in nature as bad, illegal
and unlawful, hence the action of management is not
sustainable in the eye of law,
(d) Direction directing the management, the O.P.No.4
to allow the Petitioner to sign in the attendance
register and discharge his duty as Asst. Teacher
against the post of CBZ,
(e)Direction directing the O.P.Nos.3 and 4 to
recommend his case to O.P.Nos.2 and 1 for necessary
approval,
(f) Direction directing the O.P.No.2 to accord approval
and O.P.No.1 to sanction aid in favour of Petitioner,
(g) Order allowing release of aid and arrears in favour
of Petitioner by the O.P.Nos.1 to 3,
(h) Order allowing any other benefits as available
under law."
2. Despite repeated opportunities, no counter was filed by the
State-Opposite Parties. The Managing Committee of the School
(Opposite Party No.4) and the private Opposite Party No.5 also did
appear despite sufficient service of notice including notice through
Special Messenger. As such, the Writ Petition was heard on the
basis of available pleadings and materials on record.
3. Heard Mr. S.P.Sahoo, learned counsel for the Petitioner and
Mr.P.K.Panda, learned Standing Counsel for the School and Mass
Education Department.
4. At the outset, a preliminary objection is raised by Mr.
P.K.Panda, learned Standing counsel, as regards maintainability of
the Writ Petition. It is urged that even if the Petitioner's case is
accepted on its face value, it would be a case of illegal termination
being in violation of Section 10-A of the Odisha Education Act,
which can be challenged before the Odisha Education Tribunal as
per Section 10-A (3) of the Act.
In response, Mr. S.P. Sahoo has relied upon some decisions of
this Court in which it has been held that when the facts are
undisputed, the bar of alternative remedy cannot be raised.
5. For the reasons to be indicated hereinafter, this Court does not
deem it proper to refer to the said decisions or render any finding
with regard to the maintainability of the Writ Petition.
It has been averred in the Writ Petition under Paragraph-10 that
after coming to know of the recommendation of the case of
Opposite Party No.5 (wrongly mentioned as Respondent No.6), the
Petitioner submitted representations on 25th October, 2016 to the
District Education Officer and on 4th November, 2016 to the
Director of Secondary Education. He also issued an Advocate's
notice to the said authorities, copy of which is enclosed as
Annexure-10. None of these representations are disposed of as yet.
In the Advocate's notice as also the representations, the Petitioner
has ventilated his grievance in detail. It would therefore, be in the
fitness of things if the representation, as above, is considered by the
concerned authorities in accordance with law at the first instance.
This is not so much an order on maintainability of the Writ Petition
on the ground of availability of alternative remedy but an
observation that if the authority competent to redress the grievance
of the Petitioner has already been approached and the said authority
is said to be in seisin over the matter, it cannot be said that the
Petitioner has approached this Court after fully exhausting his
legal remedies.
6. Therefore, without expressing any opinion with regard to the
merits of the contentions raised before this Court, it is deemed
proper to dispose of the Writ Petition by directing the Director of
Secondary Education, Odisha, Bhubaneswar (Opposite Party No.2)
to consider the representation of the Petitioner, if not already
disposed of, in accordance with law after affording opportunity of
hearing to the Petitioner, the Management of the School and
Opposite Party No.5 by passing a lawful order within a period of
two months from the date of communication of this order or on
production of certified copy thereof by the Petitioner. Further,
while disposing of the representation, the Opposite Party No.2 shall
take into consideration the mutual claims of the Petitioner and the
Opposite Party No.5 to the post in question having due regard to
the provision under Section 10-A of the Odisha Education Act.
7. The Writ Petition is disposed of accordingly.
................................
Sashikanta Mishra,
Ashok Kumar Behera Judge
