Orissa High Court
Managing Committee Of ... vs State Of Odisha & Others on 8 December, 2022
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
WA Nos. 114 and 121 of 2015
Managing Committee of Padmalochan .... Appellant
Mundahan High School
(In WA No.114 of 2015)
Mr.Sameer Kumar Das, Advocate
-versus-
State of Odisha & Others .... Respondents
Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate
Mr. Manoj Kumar Mohanty, Advocate for Respondent No. 4
Mr. S.C. Dash, Advocate for Respondent No. 5
AND
Deepak Kumar Ghosh .... Appellant
(In WA No. 121 of 2015)
Mr. Manoj Kumar Mohanty, Advocate
-versus-
State of Odisha & Others .... Respondents
Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate
Mr. Sameer Kumar Das, Advocate for Respondent No. 4
Mr. S.C. Dash, Advocate for Respondent No.5
CORAM:
THE CHIEF JUSTICE
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
08.12.2022
Murahari Sri Raman, J.
1. Intra-Court Appeals have been preferred by the Managing
Committee of Padmalochan Mundahan High School at Jadibali
Village in the district of Balasore (herein after referred to as "MC")
and Deepak Kumar Ghosh, a terminated Assistant Teacher of said
High School (for convenience referred to as "Appellant"), under
Clause 10 of the Letters Patent read with Rule 2 of Chapter VIII of
the Odisha High Court Rules, 1948 and Article 4 of the Orissa High
Court Order, 1948, assailing the Judgment dated 16th February, 2015
delivered by the learned Single Judge of this Court in W.P.(C)
No.14678 of 2012, whereby the order dated 27th July, 2012 passed
by the Director, Secondary Education, Odisha has been set aside
with a limited remand.
W.A. No.114 of 2015
2. Being aggrieved by direction contained in the Judgment
delivered in the writ petition, being W.P.(C) No.14678 of 2012, for
rehearing on the issue whether the Appellant's Contractor Licence
continued and/or to ascertain the position of said licence at the time
of termination of service as Assistant Teacher of Padmalochan
Mundahan High School (for brevity referred to as "PMHS"), the MC
has filed this Writ Appeal.
W.A. No.121 of 2015
3. The Appellant, Deepak Kumar Ghosh, preferred this
Appeal against the aforesaid Judgment in said writ petition, on the
ground that when the termination order was issued on the basis of
non-acquisition of B.Ed. qualification, and the learned Single Judge
came to conclude that such ground is not tenable in view of fact that
the Appellant had acquired requisite B.Ed. qualification subsequent
to his appointment being duly permitted by competent authorities,
the direction for further enquiry as to whether "Contractor Licence"
was subsisting at the time of issue of termination order was
irrelevant.
The Writ Petition bearing W.P.(C) No.14678 of 2012:
4. Established as non-Government private school in the year
1984-85, Padmalochan Mundahan High School got recognition and
subsequently, on 6th May, 1995 it was notified as an Aided
Educational Institution with effect from 1st June, 1994. The
Managing Committee of PMHS having not found Trained Graduate
Teacher for appointment against Trained Graduate (Arts) post,
selected the Appellant having B.A. qualification and issued
appointment letter; consequent upon which he joined on 1st October,
1985. On 17th November, 1988, on the basis of letter circulated by
the Board of Secondary Education, Odisha, The Secretary of the
M.C. insisted the Appellant to obtain the B.Ed. qualification.
Accordingly, as the Directorate of the Correspondence Courses of
Utkal University issued prospectus for B.Ed. to facilitate in-service
teachers to acquire such qualification on 11th July, 1989, having
applied to undergo training programme on 7th August, 1989, said
Secretary certified that the Appellant, having B.A. qualification was
working as Assistant Teacher since 01.10.1985, and relieved the
Appellant to take admission in B.Ed. course. He further certified that
he would be allowed to join after completion of Personal Contact
Programme Training. This was also countersigned by Inspector of
Schools, Balasore Circle, Balasore on 19th August, 1989. On
08.11.1989, the Appellant being selected to take admission in B.Ed.
course, took admission as in-service teaching staff and on 20th
November, 1989 opted for undergoing the course at Government
Training College, Balasore. On 27th December, 1989, the Appellant
made an application to Special Officer, i.e., Inspector of Schools,
Balasore Circle, Balasore (as MC was not functional) for permitting
the Appellant to undergo first phase of training from 28th December,
1989 to 8th January, 1990. As directed by the said Special Officer,
the Appellant was relieved by the Headmaster of the PMHS. The
Inspector of Schools, Balasore Circle, Balasore in the capacity of
"Special Officer", in absence of MC, instructed the Headmaster of
PMHS to allow the Appellant to undergo B.Ed. training (2nd phase)
under correspondence course in Government Training College,
Balasore on 24th January, 1990. The Appellant being duly permitted
by the Inspector of Schools, Balasore Circle, Balasore was relieved
from the PMHS and had undergone the 2nd phase of training from 5th
March, 1990 to 25th March, 1990. The Appellant appeared in the
B.Ed. examination under Utkal University on 7th May, 1990 and
result of which was published only on 28th May, 1991 where the
Appellant was declared successful.
4.1. Though MC was defunct, the (former) Secretary of MC
communicated charges under six heads against the Appellant, to
which the Appellant has stated to have furnished reply on
24.01.1990 as an abundant caution. However, the new MC passed
Resolution dated 18.05.1990 in its 44th Meeting taking decision to
remove the Appellant from service on the ground that the Appellant
had not acquired required trained graduate qualification. Though the
Letter No.94, dated 24.05.1990 addressed to the Appellant indicating
fact of his termination from service with one month's notice was
stated to be issued by the Secretary, PMHS, the same was served on
him on 06.03.1991. Letter No.104, dated 18.07.1990 signed by the
Secretary, PMHS is stated to be issued without reference to the
earlier resolution vide Letter No.94, dated 24.05.1990, wherein it has
been mentioned that a decision has been taken on 18.07.1990 by way
of Resolution in 46th Meeting of MC that the Appellant is terminated
with effect from 18.07.1990.
4.2. On reopening of the School after Summer Vacation, as the
Appellant was not allowed to discharge his duty by the newly
constituted MC, a representation was submitted to the Inspector of
Schools, Balasore. On 01.08.1990, the Inspector of Schools,
Balasore Circle, Balasore directed the Secretary of PMHS to allow
the Appellant to discharge his duty in the PMHS as he has appeared
in the B.Ed. examination. As the Appellant was not allowed to work
in the PMHS, the Inspector of Schools, Balasore Circle, Balasore
conducted enquiry by paying visit to the PMHS personally with
Administrative-cum-Accounts Officer on 22nd August, 1990 and
informed the Secretary of the PMHS on 7th November, 1990 to allow
the Appellant to work in the school. Since the above request was not
carried out, the Inspector of Schools, directed the Secretary vide
Letter dated 22.02.1991 to remain present in his office with all the
records on 07.03.1991.
4.3. On receiving the Letter dated 24.05.1990 issued by the
Secretary of PMHS intimating termination of service with one
month's notice on 06.03.1991, the Appellant filed Appeal before the
Director of Secondary Education, Odisha as per G.O. No.13585,
dated 27.03.1983. With a prayer to issue direction to dispose of said
Appeal, writ petition being O.J.C. No.7960 of 1994 was filed before
this Court, which came to be disposed of on 22.12.1994 with a
direction to the Director of Secondary Education, Odisha to dispose
of the representation/appeal within a period of three months from the
date of receipt of said order. Pursuant to said direction, the Director
allowed the appeal on 27th February, 1997 and directed for
reinstatement without any back wages.
4.4. Challenging said order, while the MC filed O.J.C. No.5490
of 1997 for acceptance of certain documents by the Director-
Appellate Authority, the Appellant filed O.J.C. No.8166 of 1997 for
a direction to accept joining report and to allow him to discharge
duty in the school as Trained Graduate Teacher (Arts). Both the writ
petitions came to be disposed of by this Court on 12th November,
2007 by a common order. After due opportunity being granted to
both the sides, on 27th July, 2012, the Director, Secondary
Education, Odisha has passed order in Appeal No.5 of 2008 filed by
the Appellant, which was impugned in the writ petition being
W.P.(C) No.14678 of 2012. Judgment has been delivered by learned
Single Judge on 16th February, 2015 in the said writ petition, against
which both the MC as well as the Appellant filed writ appeals.
5. The grievance of the Appellant, Deepak Kumar Ghosh,
was that though he acquired B.Ed. qualification after being duly
allowed by competent authorities as in-service staff of Padmalochan
Mundahan High School, the ground on which the Director,
Secondary Education, Odisha vide Order dated 27.07.2012
(Annexure-19 to the writ petition) confirmed the termination order
pursuant to Resolution(s) of the MC, could not have been sustained.
The only ground of termination of the Appellant vide Resolution(s)
dated 18.05.1990/18.07.1990 of the MC shows that the termination
was on account of non-acquisition of B.Ed. qualification and the
Appellant remained untrained Graduate. The Appellate Authority,
i.e., Director, Secondary Education has proceeded on the basis that
the Appellant was a registered 'C' Class Contractor and, therefore,
the termination order was valid. The Appellant submitted that with
due knowledgement of the proper authorities and being allowed to
pursue B.Ed. course and having obtained requisite B.Ed.
qualification as in-service person, there was no occasion for the MC
to debar him from discharging his duty as Assistant Teacher
particularly when the Secretary of MC has appended a certificate on
11.08.1989 in the application dated 07.08.189 for admission into
B.Ed. Course (Annexure-3 to the writ petition). Said Certificate runs
as follows:
"Certified that Sri Deepak Kumar Ghosh,
qualification B.A. has been working as Asst. Teacher in
P.M. High School, Jadibali (Name of the High/ME School)
which is unaided school in the District Education Circle
Balasore on regular/adhoc basis since 01.10.1985 (date)
against sanctioned post of the school. Further certified that
there is no objection to relieve him. Selection for admission
into B.Ed. course and he will be allowed to join after
completion of personal contact programme training."
5.1. It is not denying fact that the Government of Odisha has
been allowing the untrained teachers both in recognized private
school as well as aided secondary schools from time to time to
undergo training as in-service person and, therefore, it is submitted
that the appointment of the Appellant was neither illegal nor
irregular.
5.2. Per contra, the MC took a stance before the Writ Court that
the Appellant was afforded opportunity to show-cause by
communicating details of charges under six different heads framed
against him on 13th January, 1990, which the Appellant responded
on 24th January, 1990. Such reply being found not satisfactory, it is
claimed by the MC that the Appellant was again served with a letter
on 24th May, 1990, which remained un-responded. The MC
proceeded to terminate the Appellant on the threat of the School
being derecognized. The MC further took a plea that the Appellant
was continuing as a registered contractor and as such the MC has
rightly taken a decision to remove him from service. Therefore, the
Director in Appeal correctly decided the matter which warrants no
intervention by this Court.
5.3. The learned Single Judge vide judgment dated 16th
February, 2015 after analyzing rival contentions and taking note of
decisions cited by both sides, came to hold that:
"(16) In view of my finding already given at
paragraph 10 I am of the view that the termination of the
petitioner on account of no proper qualification has not
been given proper consideration, hence I reverse the
finding of the Appellate Authority so far it relates to
termination of the petitioner on the ground of having no
required qualification at the time of termination."
5.4. However, the learned Single Judge remanded the matter to
the Director, Secondary Education, Odisha-Appellate Authority for
re-hearing on the question of continuance of "contractor license" at
the time of termination. Ultimately, at paragraph 25 of the Judgment
it has been held that Appellant's "reinstatement in service would be
dependent on the ultimate outcome in the matter of decision on the
question of position of the contractor license at the time of
termination or not".
Writ Appeal No.114 of 2015 filed by the Managing Committee of
Padmalochan Mundahan High School, Jadibali and Writ Appeal
No.121 of 2015 filed at the behest of Deepak Kumar Ghosh:
6. Dissatisfied with the remand order of the learned Single
Judge for rehearing on the plea of the MC with regard to
continuance of "contractor license" at the time of termination of the
service, the Appellant-Deepak Kumar Ghosh has filed the writ
appeal. The counsel for the Appellant submitted that only ground of
termination of service of the Appellant has been stated in the Letter
No.94, dated 24.05.1990 [claimed to be issued by the Secretary of
PMHS indicating fact of termination of service on one month's
notice (served on the Appellant on 06.03.1991)] and the Letter
No.104, dated 18.07.1990 [signed by the Secretary, PMHS stated to
be issued without reference to the earlier resolution vide Letter
No.94, dated 24.05.1990], indicating decision taken on 18.07.1990
by way of Resolution in 46th Meeting of MC to terminate the
Appellant with effect from 18.07.1990, was on account of non-
acquisition of trained graduate qualification. Therefore, in the
Appeal before the Director preferred by the Appellant, the Appellate
Authority should have confined his finding and observation to the
said limited extent. Thus, the learned Single Judge while recording
his conclusion that the termination of the service of the Appellant on
the ground that he did not acquire B.Ed. qualification on the date of
termination cannot be held to be valid, ought not to have directed the
Director-Appellate Authority for rehearing on the issue of
continuance of "contractor licence", which is a irrelevant factor. The
counsel for the Appellant, thus, submitted that the Judgment of
learned Single Judge to this extent is liable to be set aside.
6.1. On the contrary, the MC in Writ Appeal No.114 of 2015
attacked the Judgment of the learned Single Judge on the ground that
the facts and circumstances of the case does not justify reinstatement
of the Appellant and the learned Single Judge fell in error by
remitting the matter to the Appellate Authority for de novo hearing
with regard to "contractor license".
Analysis and consideration of the rival contentions:
7. It is the contention of Sri Manoj Kumar Mohanty, the
learned counsel for the Appellant that Sri Deepak Kumar Ghosh was
allowed to pursue B.Ed. course as in-service person on consideration
of his application dated 7th August, 1989 and such fact was also
within the knowledge of MC as also the Inspector of Schools,
Balasore Circle, Balasore. He had undergone first phase of training
from 28th December, 1989 for twelve days. He was relieved after
completion of B.Ed. Personal Contact Programme on 8th January,
1990. It is further submitted by the learned counsel for the Appellant
that in view of proviso to Rule 6(2) of the 1980 Rules and as is
apparent from the Letter vide Memo No.1434 dated 24th January,
1990 of the Inspector of Schools that the M.C. was defunct.
Therefore, the Inspector of Schools, Balasore being vested with
power of Special Officer instructed the Headmaster of PMHS in the
said Letter dated 24th January, 1990 to permit the Appellant to
undergo second phase of Training Programme. The Inspector of
Schools, Balasore Circle, Balasore further permitted the Appellant to
undergo training from 5th March, 1990 to 25th March, 1990. Mr.
Manoj Kumar Mohanty, Advocate for the Appellant urged that the
MC could not have passed Resolution on 24th May, 1990 and taken a
decision to terminate the service of the Appellant on the ground that
the Appellant remained untrained. It is further contended that as the
MC was conscious about the fact that the Appellant had already
undergone B.Ed. course having appeared in the B.Ed. examination
on 07.05.1990, which fact was never disputed neither in the counter
nor in the writ appeal by the MC, the Resolution dated 24th May,
1990 or 18th July, 1990 taking decision to terminate the Appellant
cannot be sustained. Furthermore, the intention of the MC is tell-tale
as it could not have taken decision on 18th July, 1990 without
reference to Resolution dated 24th May, 1990. This Court finds the
above contentions are borne on record and supported by documents
enclosed to the writ petition/writ appeal.
7.1. Mr. Sameer Kumar Das, learned Advocate for the MC
made valiant attempt to justify the action of MC on both the counts,
viz., as the Appellant was not qualified trained graduate, the
termination was in accordance with law and the Appellant had
subsisting "contractor licence".
7.2. Amplifying his stance, Mr. Das pressed into service Letter
No.28465-XVIIE-S-80/82-EYS, dated 08.07.1981 issued by the
Government of Odisha in Education & Youth Services Department
addressed to the Director of Public Instructions, Odisha, wherein the
staffing pattern of non-Government Secondary Schools was
prescribed. Relevant portion of said Letter is extracted herein below:
"Sub.: Fixation of standard staff for the non-
Government Secondary Schools.
Sir,
I am directed to say that the question of
fixation of standard staff for the non-Government
Secondary Schools has been felt necessary by the
Government due to introduction of the revised syllabus
under 10 years School pattern. After careful consideration
of various aspects, Government have now been pleased to
decide that the standard staff both teaching and non-
teaching for different categories of non-Government
Secondary Schools shall be as follows:
(A) For the Schools having no additional sections:
Category of staff 3 class 5 class 7 class
3. *** * * *"
Note: (a) out of the four Trained Graduate Teachers 2 must be Arts
Graduates and 2 must be Science Graduates. ***"
7.3. It is, therefore, contended by Mr. Sameer Kumar Das,
Advocate for MC that the Appellant being untrained graduate
teacher, he could not continue in the post of Assistant Teacher.
7.4. To this Mr. Manoj Kumar Mohanty, Advocate for the
Appellant has responded by arguing that at the relevant point of time
the MC having not found candidate having trained graduate
qualification, appointed the Appellant in the post of Assistant
Teacher and as such the Appellant joined in the said post on
01.10.1985. Subsequently, with due permission from and approval
by the competent authority he completed B.Ed. course. On the date
of Resolution(s) was passed by the MC, i.e., on 18.05.1990 and
18.07.1990, the Appellant had already appeared in the B.Ed.
examination, i.e., on 7th May, 1990, though the results were
published on 28th May, 1991. Mr. Mohanty relied on the decision
rendered in the case of Bibekananda Das Vrs. State of Odisha &
Ors., 1997 (II) OLR 122, wherein this Court observed as follows:
"9. At this juncture we may deal with the
instruction issued by the Government in letter
No.1074/EYS dated 5.1.1991 (Annexure-C/3). On perusal
of the aforesaid letter it would appear that the Government
took note of the position that untrained teachers were
being appointed in non-government (aided) High Schools
and after taking note of such position, the Government
clarified as follows:-
'*** that henceforward untrained teachers
should not be entertained in any Govt. High Schools
***'
The direction of the Government in the said letter
being prospective, it - cannot be made applicable against
the petitioner as he was appointed prior to the issuance of
the letter.
10. Let us now turn to some of the judgments and
orders of this Court referred to by the counsel for the
parties.
In Sarat Chandra Sahoo v. State of Orissa,
(O.J.C.No.3233 of 1989 disposed of on 10.7.1990) one of
the questions which fell for consideration was whether
under 1972 Rules, an untrained graduate could be
appointed in the Junior Grade (Assistant Teacher). In
paragraph-5 of the judgment, the Court opined that there
is no requirement in the 1972 Rules that appointment to the
junior grade shall necessarily be of only trained graduates.
By referring to Rule 7 and Rule 14 (2) of the 1972 Rules
the Court held that requirement to the posts may be either
of trained graduate or of untrained graduate.
In Gouri Devi v. State of Orissa (O.J.C. No. 1024 of
1990 disposed of on 17.6.1993) the ratio of Sarat Chandra
Sahoo (Supra) was followed and by referring to another
case in Muralidhar Pati v. State of Orissa (O.J.C. No.6165
of 1991 decided on 11.9.1992) this Court observed that
there is no bar on the part of the Inspector in giving
approval to the appointment of an untrained teacher
though while approving he may insert a condition that the
appointee unless acquires B.Ed. qualification within a
specified period may be replaced by a trained hand. The
Court observed that appointment of a teacher having
graduate qualification may be lawfully approved and
reasonable time may be granted to him for acquiring B.Ed.
qualification, as B.Ed. qualification is necessary for a
candidate to fill a permanent post of assistant teacher in a
High School.
In Anusuya Prusty v. State of Orissa, (OJC No.4972
of 1994 disposed of on 10.11.1994) the petitioner's
grievance was with regard to non-payment of her monthly
salary for a specified period. The claim was opposed by
the State and its officials on the following two grounds:
(i) As she had not acquired the qualification of a
trained graduate, she was not entitled to receive trained
graduate scale of pay, and
(ii) She was ineligible to be appointed in view of the
Government letter No. 1074/EYS dated 5.1.1991
(Annexure-C/3) in the present case.
The Court held that although the petitioner had not
acquired the prescribed qualification of a trained
graduate, she cannot be denied the untrained (graduate)
scale of pay for the period in question. Regarding letter
dated 5.1.1991 (Annexure-C/3), the Court held that it
cannot operate as a bar against the petitioner as she was
appointed prior to the issuance of the said letter.
***
11. From the foregoing discussions, the following
conclusions unhesitatingly emerge:
(i) During the relevant time, an untrained
(graduate) teacher was eligible to be appointed as
an assistant teacher in a non-government (aided)
High School. He was not eligible to receive trained
(graduate) scale of pay. Untrained (graduate) scale
of pay, however, was admissible to him. The
petitioner being a pre-1993 appointee, his
appointment cannot be dis-approved merely because
he does not possess the training qualification (B.Ed)
(ii) the Government instructions contained
in letter No.1074/EYS. dated 5.1.1991 at Annexure-
C/3 cannot be a bar against the petitioner in view of
the fact that he was appointed on 6.11.1989 prior to
the issuance of the said letter, and the State
Government has already approved the post (with
petitioner's name) against additional section in Pipli
High School, Pipli"
7.5. The learned counsel for the MC, Mr. Sameer Kumar Das
would urge that aforesaid Judgment rendered by this Court in the
case of Bibekananda Das Vrs. State of Odisha & Ors., 1997 (II)
OLR 122 has been distinguished in the matter of Manamohan
Tripathy Vrs. State of Odisha & Ors., 1999 (II) OLR 185. In
Manamohan (supra) it has been stated thus:
"10. *** Assuming that power to appoint untrained
persons continued even after introduction of new pattern,
the Management of School must justify appointment of an
untrained person in a trained post. If appointment of
untrained Graduate in trained Graduate posts are
automatically allowed after July 1, 1981 without any
justifying circumstances, it would make the new pattern
totally redundant, produce undesirable results and affect
the interest of the education inasmuch as it is an accepted
position that teaching of student should be entrusted to
appropriately trained teachers. The decision in
Bibekananda Das's cannot be said to have laid down any
proposition that the Management of the School was free to
appoint untrained persons at their will without making any
effort to get trained persons. According to us, after new
pattern was introduced with effect from July 1, 1981,
untrained persons could be appointed against trained post
only under unavoidable circumstances justifying such
appointment."
7.6. It is narrated by the learned Single Judge as follows:
"Since the Managing Committee of the aforesaid
High School could not find a trained graduate teacher for
appointment against TG (Arts) post, in a duly constituted
selection process the Managing Committee selected the
petitioner having B.A. qualification at that point of time."
7.7. Furthermore, the Appellant was given scope to get himself
complete B.Ed. training. In fact the Appellant having been allowed
by competent authority pursued and qualified B.Ed.
7.8. Since it is demonstrated by Sri Manoj Kumar Mohanty,
counsel for the Appellant that there was circumstances which
justified the School to appoint the Appellant, untrained graduate, the
case law cited by Sri Sameer Kumar Das is of no help. It may be
pertinent to quote paragraph 13 of Manamohan Tripathy Vrs. State
of Odisha & Ors., 1999 (II) OLR 185 as cited by Sri Das:
"13. It appears that the writ petitioner herein was
in fact given an opportunity to undergo B.Ed. training
when his application was forwarded on June 27, 1995.
Although more than two and half years had passed in the
meantime, the petitioner failed to avail of the said
opportunity and could not obtain B.Ed. qualification.
Accordingly, we do not find any illegality or infirmity in
the action of the Superintendent of Sanskrit Studies in not
approving the appointment of the petitioner."
7.9. The case at hand is distinguishable from Manamohan
Tripathy Vrs. State of Odisha & Ors., 1999 (II) OLR 185 inasmuch
as the opportunity granted to the Appellant was availed and he got
qualified by obtaining B.Ed.
7.10. This Court, thus, finds force in the contention of Sri Manoj
Kumar Mohanty, the learned counsel for the Appellant that during
the relevant point of time untrained graduate teachers were being
appointed by the MC in the private schools and such teachers were
being given opportunity to acquire B.Ed. qualification on later date.
7.11. It is also fact on record that the Secretary, PMHS appended
certificate on 11.08.1989 to the effect that the Appellant would be
allowed to join in the post after completion of the B.Ed. course
(Annexure-3 to the writ petition). As the Appellant was not allowed
to join in the PMHS, the Inspector of Schools, Balasore Circle,
Balasore conducted enquiry by paying visit to the PMHS personally
with Administrative-cum-Accounts Officer on 22nd August, 1990
and accordingly, directed for allowing the Appellant to resume his
duty. In spite of directions of the Inspector of Schools who
conducted enquiry into the matter personally to allow the Appellant
to join, the same remained unheeded to by the MC. Therefore, there
was no occasion for the MC to debar the Appellant from discharging
his duty as Assistant Teacher.
7.12. This Court, after referring to catena of earlier Judgments,
held in Niranjan Beura Vrs. State of Odisha, 65 (1988) CLT 659, as
follows:
"6. *** Inasmuch as some Managements were
habitual in refusing to take back the teachers after
completion of their training, the Additional Director of
Public Instructions (Schools), Odisha, issued Circular
No.358-112-75-20981 dated 17.06.1977 to all the District
Inspectors of Schools drawing their attention to the
conduct of certain Managing Committee who were not
allowing the teachers to rejoin their posts after undergoing
the training observing that such conduct of the Managing
Committee was illegal. The teachers, who wished to rejoin
their former posts after completion of their training, should
be allowed to do so.
***
9. In view of the settled position of law in this Court,
refusal to allow the petitioner to rejoin his service not
having been terminated which is the stand in paragraph 13
of the return submitted by the Management, the petitioner
continues to be in service and is entitled to be reinstated."
7.13. This Court having considered the rival contentions of both
the sides, on perusal of documents available on record, comes to the
conclusion that by the time, Resolutions dated 24th May, 1990 and
18th July, 1990 came to be passed, the Appellant had already been
allowed to undergo the second phase of B.Ed. training and written
the B.Ed. examination.
7.14. In the case of Managing Committee, Mohammadpur-
Biswanathpur Girls' High School, Cuttack Vrs. State of Odisha &
Ors., OJC No.687 of 1990, vide Judgment dated 07.05.1991, it has
been laid down as follows:
"A validly constituted Managing Committee in a
valid meeting can pass a resolution to be effective. There is
no material before us to come to conclusion that the
Managing Committee which passed the resolution on
24.04.1988 was validly constituted. Inspector was required
to examine it. If the resolution is invalid on account of
absence of a validly constituted Managing Committee, the
body of persons who resist decision of Inspector would not
be available. To raise voice against it in the capacity they
challenge. For a validly constituted Managing Committee
Rules 3, 4 and 6 of the Odisha Education (Management of
Private High Schools) Rules, 1980 are to be kept in mind
and state after stage from 1982 June, they are to be
applied. Where any requirement fails, constitution becomes
invalid. Merely by accepting a body of persons to be
Managing Committee they do not constitute the same
unless the constitution satisfies the requirement of law.
There is no estoppel against statute. Inspector is to
examine the same."
7.15. At this juncture, it is fruitful to refer to Rule 6 of the 1980
Rules which reads as follows:-
"6. Term of Office of the Members of the Managing
Committee.--
(1) The term of office of the Members of the
Managing Committee shall be five years:
Provided that an ex officio member shall cease to
continue as such as soon as he ceases to hold the office by
virtue of which he held the office.
(2) If for any reason, the Managing Committee,
constituted under these rules, has not been reconstituted
before the expiry of its term as prescribed in Sub-rule (1),
it shall be deemed to continue in office until the new
Managing Committee assumes office:
Provided that the Managing Committee shall not
continue after the expiry of its term for more than six
months and that the function of the Managing Committee
shall thereafter vest with the Inspector or the District
Inspector, as the case may be:
Provided further that the provisions of this sub-rule
shall not apply to the case where a Managing Committee
has been reconstituted under the proviso to Sub-section (1)
of Section 11 of the Act.
(3) Any member of the Managing Committee other
than the ex officio members may, at any time resign from
the office by sending a letter of resignation to the
President, but such resignation shall take effect from the
date on which it is accepted by the Managing Committee.
(4) If a member of the Managing Committee other
than the ex officio member absents himself from four
consecutive meetings of the Managing Committee without
prior permission of the President, he shall cease to be a
member.
(5) Any member appointed against any casual
vacancy caused during the term of the Managing
Committee shall continue as a member only for the
remaining period of the term if the member in whose
vacancy he is appointed."
7.16. So far as is necessary for the present purpose, relevant
portion of Section 7 of the Odisha Education Act, 1969 as amended
by virtue of the Odisha Education (Amendment) Act, 1988, is
reproduced hereunder:
"7. Managing Committee or Governing Body of
the Educational Institution.--
(1) Every private educational institution shall
have a Managing Committee or Governing Body, as
the case may be, constituted in accordance with trhe
rules.
(2) The Managing Committee or the Governing
Body, as the case may be, constituted for any private
educational institution, shall obtain the approval of
its constitution by the prescribed authority, in the
prescribed manner failing which the institution shall
not be eligible for recognition.
(3) ***
(4) A Managing Committee or the Governing
Body, as the case may be, shall continue in Office
for a term of five years from the date of its approval
by the prescribed authority under sub-section (2)
and shall be reconstituted in accordance with the
rules.
***"
7.17. Aforesaid provision has come to the statute book by way of
amendment and Section 1(2) of the Odisha Education (Amendment)
Act, 1988 specifically stipulated that "it shall deemed to have come
into force on the 14th day of August, 1989". Five years term is,
therefore, applicable for the Managing Committee which got
approval after 14.08.1989, but not the one which is constituted prior
to this effective date. From reading of Section 1(2) of the Odisha
Education (Amendment) Act, 1988 it is apparent that the said
Amendment Act has prospective in application. In the present case,
the term of the Managing Committee which was approved on
10.03.1986 came to be expired on 09.03.1989 and due to non-
constitution of the Managing Committee, the term was extended for
six months as per proviso to sub-rule (2) of Rule 6. In such view of
the matter it has rightly been contended by the Appellant that after
08.09.1989, as the Managing Committee remained defunct, the
Inspector of Schools was vested with powers to function as Special
Officer. This fact is apparent from the Letter dated 24.01.1990 of the
Inspector of Schools, vide Annexure-11 to the Writ Appeal filed by
the Appellant.
7.18. As per above rule, the Managing Committee was not
functional on 13.01.1990, i.e., the date of issue of show cause notice
dated 13.01.1990 citing charges against the Appellant. From the
Letter vide Memo No.1434 dated 24th January, 1990 of the Inspector
of Schools, Balasore in the capacity of Special Officer (Annexure-10
enclosed to the writ petition) instructing the Headmaster, PMHS to
allow the Appellant to undergo second phase B.Ed. training, it is ex
facie clear that Managing Committee was defunct by that date.
Annexure-11 to the Writ Appeal shows that the newly constituted
Management Committee was approved by the Inspector of Schools
on 04.04.1990. Therefore, it is not understood as to how the
Secretary, Managing Committee claimed to have gone ahead to issue
notice levelling charges under six heads vide Letter No.94, dated
24.05.1990. It is interesting to note that said Letter dated 24.05.1990
could be served on the Appellant only on 06.03.1991. Thus, the
action of the MC is reprehensible.
7.19. It remained uncontroverted that the Appellant having
appeared in the B.Ed. examination on 7th May, 1990, the results
thereof were declared on 28th May, 1991. It is beyond control of the
Appellant for the delay in publication of the results.
7.20. This Court on perusal of the letter No.94 dated 24th May,
1990 issued by the Secretary, PMHS finds that the Resolution was
passed on 18th May, 1990 by the M.C. having taken a decision to
terminate the service of the Appellant with one month's notice. It is
revealed from letter No.104 dated 18th July, 1990 issued by self-
same Secretary, PMHS that further decision was taken in Resolution
dated 18th July, 1990 with regard to termination of the Appellant. In
this letter, there is no reference to the earlier letter dated 24th May,
1990 nor Resolution dated 18th May, 1990. This Court is satisfied
that the Appellant was not afforded due opportunity before taking a
decision to terminate his service.
7.21. This Court is, therefore, one with the elaborate reason
assigned by the learned Single Judge who came to the conclusion as
follows:
"(16) In view of my finding already given at
paragraph 10 I am of the view that the termination of the
petitioner on account of no proper qualification has not
been given proper consideration, hence I reverse the
finding of the Appellate Authority so far it relates to
termination of the petitioner on the ground of having no
required qualification at the time of termination."
Issue of subsistence of contractor licence:
8. It is the case of the Appellant that the Letter dated
24.05.1990 of the Secretary, PMHS intimating decision to terminate
the Appellant with one month's notice as taken in the Resolution
dated 18.05.1990 was served on him on 06.03.1991 and the
subsequent Letter dated 18.07.1990 intimating decision taken to
terminate the Appellant with effect from this date had never been
communicated/served. It is asserted by Sri Manoj Kumar Mohanty,
learned counsel for the Appellant that no show cause notice was ever
served on the Appellant by the Secretary of the MC, thereby entire
process undertaken by the MC to terminate the Appellant is
vulnerable and without adherence to the principles of natural justice.
8.1. It is submitted by the learned counsel for the Appellant that
neither Letter bearing No.94, dated 24.05.1990 nor Letter bearing
104, dated 18.07.1990 indicates decision to terminate the Appellant
has been on account of subsistence of "contractor licence". Both the
letters unequivocally speak that since Trained Graduate is required
to be appointed, the service of the Appellant was decided to be
terminated. However, none of these document whisper about
allegations/charges and opportunity, if any, being granted.
8.2. In this context the observation contained in the Order dated
27.07.2012 passed by the Director, Secondary Education, Odisha-
Appellate Authority, is reproduced hereunder:
"*** As it is further seen that since 1986 till 1998
Sri Ghose continued to be the contractor and performed
the job as contractor received the money from the State
exchequer. At the time of hearing, it is further admitted by
the parties that Sri Ghose is still continuing as the
contractor with the valid registration number. He has
suppressed the fact to the school authorities. This itself is
an act of misconduct. Teaching is an noble profession and
its paramount assignment is to teach the students, it is not
understood how a registered C class contractor can
continue as a contractor and also devotes his time for
teaching. It is the case of the management that they were
not aware of the fact and allowed his continuance of upto
10.08.1989. ***"
8.3. The Director of Secondary Education, Odisha appears to
have proceeded to decide the issue of "contractor licence" on the
basis of writ of mandamus issued by this Court vide common Order
dated 12.11.1997 passed in OJC No.5490 of 1997 [filed by MC] and
OJC No.8166 of 1997 [filed by Appellant-Deepak Kumar Ghosh].
8.4. This Court notes that while disposing of OJC No. 5490 of
1997 and OJC No.8166 of 1997, vide Order dated 12.11.2007, it has
been observed as follows:
"*** When the MC and the Headmaster of did not
allow Sri DK Ghosh discharge his duties on 22.03.1991, he
filed a representation before the Director Higher
Secondary Education, Orissa, Bhubaneswar, Annexure-10
in OJC No 8166 of 1997. In the meantime Sri D.K. Ghosh
also filed O.J.C. No.7960 of 1994 seeking interference of
this Court on the illegalities committed by the Managing
Committee and the Headmaster. That OJC was disposed of
on 22.12.1994 in the following manner:
'The petitioner not being allowed to discharge
his duties after service of the termination order
dated 24.5.1990 (Annexure-9) has filed a
representation to the Director of Secondary
Education, Orissa on 22.3.1991 annexed as
Annexure-10. As that representation has not been
disposed of as yet, the petitioner has approached
this Court. Though this writ application is today
listed for admission but in view of the nature of
direction, we propose to issue, it is not necessary to
issue notice on the opposite parties. Having heard
the learned counsel for the petitioner and the
learned Addl. Govt. Advocate for the opposite
parties, we direct the Director of Secondary
Education, Opposite Party No. 2 to dispose of the
petitioner's representation (Annexure-10) within a
period of three months from the date of receipt of
our order. The writ application is disposed of
accordingly. Requisites shall be filed by tomorrow.'
***
After hearing the parties at length and going
through the citations, we find that the Director has not
taken note of all the relevant facts and circumstances to
complete an effective adjudication of the dispute on factual
side. In that respect the grievance of the Managing
Committee appears to be genuine inasmuch as no finding
has been recorded by the Director as to whether Sri
Ghosh was registered as a Contractor and what
consequence flows from that. Similarly, the Director has
not taken into note that the period for which the Managing
Committee was functioning in view of the provision of law
amended from time to time regarding the duration of M.C.
As we find after noting the career of the petitioner and the
action taken against him by the Managing Committee the
Director disposed of the case with the remark of violation
of principle of natural justice. In view of the contention of
the parties and overlapping which was factual situation it
is not appropriate for us to resolve that factual
controversy. Director should be addressed to decide all the
factual controversies raised before us (as noted in the writ
petitions) and such controversies be set at rest by a
positive finding recorded by the Director on perusal of the
relevant documentary evidence if produced by the parties
and thereafter he is to take a decision on contention of the
parties. Accordingly, while setting aside the order
Annexure-8 in O.J.C. No.5490 of 1997 we direct the
Director, Secondary Education, Orissa to conduct fresh or
further enquiry to resolve the factual controversy, record is
finding and pass appropriate consequential order. He
should bear in mind that we have not expressed any
opinion either in favour or against either of the parties.
Therefore, the Director should feel free to record his
finding without any impediment but his findings should be
supported by fact and evidence available existing on
record. The dispute being an old one, we direct him to hear
and dispose of the same within a period of ten weeks from
the date of receipt of a copy of this order and therefore, we
direct the parties to appear before the Director on
26.11.2007 together with certified copy of this order. Each
parties shall file their list of documents together with the
authenticated documents before the Director by
30.11.2007. On perusal of the same, if clarification is
necessary, the Director may seek such clarification by
3.12.2007 and thereafter hear the parties and dispose of
the case within the above targeted period. We make it clear
that both the parties are to cooperate with the Director for
timely disposal of the case and it is open to draw adverse
inference if any of the parties try to avoid to answer or try
to delay the disposal of the case.
Both the writ petitions are disposed of accordingly."
8.5. The submission of counsel for the Appellant proceeded on
the premise that no evidence is available on record to suggest that
due to subsistence of contractor licence, the teaching of students was
ever affected. Furthermore, at the relevant point of time
Padmalochan Mundahan High School of Jadibali in Balasore District
was private unaided school and there was no statutory prohibition to
possess "contractor licence". It is, therefore, objected to by the
Appellant that the foundation for termination being based on
untrained qualification, there was no point in considering the merit
of the matter in the light of "contractor licence". But the argument of
the learned counsel for the Appellant is fallacious as the Appellant
has neither challenged the Order dated 12.11.2007 passed by
Division Bench of this Court in OJC No.5490 of 1997 and OJC
No.8166 of 1997 in appeal nor by way of review. Therefore, the
learned Single Judge is correct in discussing the matter on this issue
while delivering Judgment dated 16.02.2015.
8.6. It is pertinent to refer to the following observation made by
the learned Single Judge:
"(21) From the above, it clearly reveals that the
petitioner had a simple denial to such allegation and on
the other hand if he had at all any document in his
possession to prove the contrary, it was very much open to
him to give a suitable reply at least.
(22) Further from the document at Annexure-E/4, it
is amply clear that the petitioner was continuing as a 'C'
class contractor, even after such an allegation was made in
the year 1990, the document at Annexure-E/4 has also a
clear indication that the petitioner is not only continuing
with the contractor license but he is also getting some
money through such contracts and earning in the year
1994 runs to over Rs.40,000/- (Rupees Forty thousand
only) in the whole year. Similarly his earning through such
contractorship in the year 1994-1995 runs nearing
Rs.50,000/- (Rupees Fifty thousand only), this is also the
position in the subsequent years but with improvement in
the financial side.
(23) However, these are all receipts after the
termination of the petitioner, what was relevant for the
Appellate Authority is to take into account the position of
the petitioner as a Contractor while the notice of
termination or termination order was issued.
(24) Under the circumstances, I am of the view that
the Director has also not applied his mind in the above
regard and his findings are based on receipt of the
petitioner after the termination order takes place. I
therefore also set-aside this part of the Appeal order and
remit the matter back to the Appellate Authority to rehear
the parties on the question of continuance and or the
position of the contractor licence at the time of termination
and pass a fresh order confining it to the question of
contractor licence which exercise be concluded within a
period of four months from today.
(25) As I have already held the petitioner's
termination on account of having no qualification at the
time of show-cause as well as termination as bad, under
the circumstances, I further direct the petitioner's
reinstatement into service will be dependent on the
ultimate outcome in the matter of decision on the question
of position of the contractor licence at the time of
termination or not."
8.7. In such view of the matter the learned Single Judge having
remanded the matter for fresh adjudication on factual aspect has not
erred in directing the Appellate Authority to rehear the issue of
"contractor license at the time of termination". The Appellant is
afforded a scope to avail opportunity to establish his case on this
aspect. As his reply was found to be inappropriate, he is, therefore,
given a chance to place proper material before the Director,
Secondary Education, Odisha in Appeal No.5 of 2008. Thus, further
direction in the Judgment dated 16.02.2015 of the learned Single
Judge suffers no infirmity as he directed the Director to "pass a
fresh order confining it to the question of contract license which
exercise be concluded within a period of four months from today".
8.8. Records reveal that "contractor license" was issued to the
Appellant on 17th September, 1986. It is a fact that at that point of
time, the PMHS was a private school (unaided) and the learned
counsel for the Appellant pointed out that the appointment letter did
not contain any clause prohibiting or restricting possession of
"contract license". It is also noteworthy that on the date of alleged
issue of show cause notice, i.e., 13.01.1990 by the Secretary of MC
(Annexure-B/4 to the counter affidavit filed by the MC in the writ
petition) calling upon the Appellant to furnish reply in connection
with contemplated disciplinary proceeding, the MC was defunct. Be
that as it may, the contention that there was no necessity for the
learned Single Judge to direct for further inquiry into the aspect of
"contractor licence" cannot be acceded to in view of the fact that the
Appellant as well as the MC accepted the common Order dated
12.11.2007 passed by Division Bench of this Court in OJC No.5490
of 1997 and OJC No.8166 of 1997, wherein the Director of
Secondary Education, Odisha was directed to specifically record
finding "as to whether Sri Ghosh was registered as a contractor and
what consequence flows from that". This Court, therefore, does not
find any justified ground to show indulgence in the decision
rendered by the learned Single Judge.
Conclusion & Order:
9. In the above factual backdrop and reasons assigned with
legal position, this Court does not find infirmity in the conclusion
arrived at by the learned Single Judge.
9.1. For the foregoing reasons, W.A. No.114 of 2015 filed by
the Managing Committee of Padmalochan Mundahan High School
in the Village: Jadibali, P.S.: Raj Nilagiri, District: Balasore, and
W.A. No.121 of 2015 filed by Deepak Kumar Ghosh are dismissed.
9.2. It is directed that the opposite parties shall take appropriate
effective steps forthwith to give effect to the Judgment dated
16.02.2015 of the learned Single Judge passed in W.P.(C) No.14678
of 2012.
9.3. However, in the circumstances, there is no order as to
costs.
(Dr. S. Muralidhar)
Chief Justice
(M. S. Raman)
Judge
MRS/Aks
