Afr Kamalini Dhal vs State Of Odisha & Others ...... ...
2023 Latest Caselaw 2908 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                         W.P.(C) No. 19009 of 2019
       (An application Articles 226 and 227 of the Constitution of India)
                                  ---------------

AFR    Kamalini Dhal                        ......     Petitioner

                              -Versus-

       State of Odisha & others             ......     Opp.Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________
          For Petitioner    :    M/s. S.K. Das, P.K. Behera &
                                 N. Jena, Advocates

          For Opp.Parties :           Mr. P.K. Panda,
                                      Standing Counsel
                                      for S & M.E. Department.

                                      Mr. A.K. Mohapatra, Advocate
                                      [ For O.P. No.6]

                                 Mr. S.C. Dash, Advocate
                                 [For intervenor]
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

th 6 April, 2023

SASHIKANTA MISHRA, J.

This short question that arises for consideration

in the present case the legality and propriety of order dated

27.09.2019 (Annexure-21) passed by the Director, Higher

Secondary Education in approving the name of the present

opposite party No.6 as Principal in-charge-cum- Secretary of

the educational institution in question withdrawing his

earlier orders dated 15.07.2016, 24.05.2016 and

03.10.2016, whereby the petitioner was so approved.

2. The parties have pleaded extensively and as this

Court observes at the outset, most of such pleadings appear

to be unnecessary in so far as the present lis is concerned.

This Court therefore, deems it proper to dwell upon only the

most relevant facts in the present judgment.

3. The educational institution in question is

Nayanmani Women's College, Saradpur in the district of

Bhadrak, which was established in the year 1996. The

college received permission and recognition for + 2 Arts from

the session 1999-2000. It came into the grant-in-aid fold in

the shape of block grant w.e.f. 20.01.2009 as per grant-in-

aid Order, 2008. The College was notified by the

Government as an aided College within the meaning of

Section 3(b) of Odisha Education Act, 1969 by Notification

dated 13.05.2013. Subsequently, the name of the College

was changed to Nayanmani Women's Higher Secondary

School, Saradpur. The petitioner's case is that she was

appointed by the governing body as a Lecturer in Logic on

11.10.1996 and joined as such on 19.10.1996. Her

appointment was approved by the Director by order dated

07.06.2013. Being the senior most approved Lecturer of the

College, her name was recommended by the College

authorities to the Director for approval as Principal in-

charge-cum- Secretary of the College. Considering such

recommendation, the Director by his order dated

31.10.2013, approved the petitioner as the Principal in-

charge-cum-Secretary of the College. Subsequently, two

other persons namely, Dr. Gouranga Nayak belonging to

the Dhamnagar College and one Santosh Sahoo belonging to

Naami College were approved as Principal in-charge at

different times. However, such approvals being interfered

with by this Court in a writ application filed earlier by the

petitioner (W.P.(C) No. 14094 of 2015) the petitioner was

again declared as Principal in-charge-cum-Secretary of the

College by order dated 17.05.2018 by the Director. By a

resolution dated 16.10.2018, the governing body which

claims to have been reconstituted, passed a resolution to

withdraw the petitioner as Principal in-charge and to

appoint Manoj Kumar Routray (opposite party No.6) as

Principal in-charge. Such resolution is purportedly based on

the findings of the special audit conducted into the accounts

of the College for the period from 18.06.2013 to 15.09.2015.

The petitioner claims to have submitted full compliance

report to the audit objection. However, by order dated

27.08.2019, the Director approved the opposite party No.6

as the Principal in-charge -cum- Secretary by withdrawing

all previous orders issued in favour of the petitioner. During

pendency of the writ application, the Director by order dated

20.12.2019 kept the order dated 27.09.2019 in abeyance

and also withdrew the user ID and password generated by

the Directorate in favour of opposite party No.6. On such

basic facts, the petitioner claims the following relief:

"Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court be graciously pleased to quash the order dtd:27.09.2019 of the Director Higher Secondary Education, Odisha (Opposite Party No.4) under

Annexure-21 and direct the Opposite Parties not to interfere in the functioning of the present petitioner as Principal-in-Charge-cum-Secretary of Nayanamani Women's Higher Secondary School, Saradpur, as per the order dtd:31.12.2013 being the senior most approved teaching staff of the College;

And/or pass any other appropriate writ/writs, order/order, direction/directions in the fitness of the case.

And for this act of kindness as in duty bound the petitioner shall ever pray."

4. The case of the Director, Higher Secondary

Education (opposite party No.4) is that the impugned order

was passed basing on the governing body resolution relating

to financial irregularities committed by the petitioner as

revealed from the report of the District Audit Officer, Local

Fund Audit. Though the petitioner submitted compliance,

the same was without approval of the governing body on

the plea that the governing body had completed its tenure.

Under such facts, the Directorate had approved the name of

opposite party No.6 as the Principal-cum-Secretary of the

institution. Subsequently, however, the petitioner having

filed a contempt application bearing CONTC No. 2231 of

2019 before this Court, the user ID, password issued to

opposite party no.6 was withdrawn by order dated

20.12.2019.

5. The case of the opposite party No.6 is that both

he and the petitioner had joined the institution on the same

date, i.e., on 19.10.1996 and both of them were approved on

the same date. In the approval order, the name of opposite

party No.6 was placed at the top of the list and above the

petitioner. Therefore, the petitioner cannot be treated as

senior to him or the senior most approved Lecturer of the

College. It is his further case that there were serious

allegations of misappropriation of College funds by the

petitioner during her tenure as Principal in-charge which

was reflected in the audit report and therefore, her approval

as Principal in-charge was rightly withdrawn by the Director

and the opposite party no.6, being the senior most approved

teacher was rightly approved as Principal in-charge.

6. Be it noted that an application has been filed by

one Madan Mohan Panda for intervention claiming to be one

of the founding members and the senior most member of the

governing body of the College. The said application for

intervention has met with objection from the petitioner on

the ground that the proposed intervenor was a Government

servant and retired in the year 2015 and therefore, he could

not have been a founder member. It is further stated that

his wife Susamarani Panda was the Secretary of the

governing body and therefore, he has a vested interest in the

matter.

This Court finds that the lis involved is confined

to determining the correctness of the order of the Director

passed under Annexure-21. The opposite party No.6 is a

necessary party as he is directly affected by such order.

However, the same cannot be said of the proposed

intervenor. Nothing has been stated in the application for

intervention as to how the presence of the proposed

intervenor is necessary for a just decision of the case. As

such, this Court finds no reason much less any compelling

necessity to allow the application for intervention, which is

therefore, dismissed.

7. Heard Mr. S.K. Das, learned counsel for the

petitioner; Mr. P.K. Panda, learned Standing Counsel for

School and Mass Education Department; and Mr. A.K.

Mohapatra, learned counsel for opposite party No.6.

8. It is argued by Mr. S.K. Das that in view of the

ratio laid down by this Court in the case of Ajit Kumar Ray

vs. Director, Higher Education Orissa and others

reported in 1996 (I) OLR 209 when two persons join on the

same date, the senior among them in age has to be treated

as senior. In the present case, the petitioner's date of birth

is 02.03.1971 and that of opposite party no.6 is 24.03.1971.

Therefore, she is the senior most approved teacher of the

institution and also accepted as such. Mr. Das further

contends that the findings of the Audit without being

established in a regular departmental proceeding cannot

form the basis of any kind of punitive action being taken

against the employee concerned. In any event, the petitioner

has duly submitted compliance to the audit objections at

the relevant time and therefore, it was entirely illegal on the

part of the Director to have issued the impugned order

under Annexure-21 by mechanically accepting the

purported resolution of the Governing Body.

9. Mr. P.K. Panda, learned Standing Counsel for

School and Mass Education Department contends that the

Director had acted bonafide on the basis of resolution of the

Governing Body, which in turn was prompted by the Audit

findings. In any event, in pursuance of the directions issued

by this Court, the petitioner has been again approved as the

Principal in-charge.

10. Mr. A.K. Mohapatra, learned counsel appearing

for the opposite party No.6 has contended that the

Government Circulars relating to appointment of Principal

in-charge of an institution lay down that one among the

approved teachers preferably the senior most may be

appointed as the Principal in-charge. In any case, in the

order of approval issued by the Director (Annexure-3), the

name of the opposite party No.6 is placed above the

petitioner and therefore, she cannot be treated as the senior

most approved teacher. It is further contended that during

her tenure, the petitioner committed serious financial

irregularities, which came to light during audit and

therefore, the governing body rightly took the decision to

withdraw her as Principal in-charge.

11. As regards the inter se seniority of the petitioner

and opposite party no.6, this Court observes that the

petitioner was approved as the Principal in-charge of the

institution for the first time by order dated 31.12.2013

(Annexure-5) declaring her as the senior most approved

teaching staff. Such approval and/or declaration was never

questioned by the opposite party No.6 at any point of time.

It is only in his counter affidavit filed before this Court that

such a plea has been taken. There is no dispute that both

the petitioner and opposite party No.6 had joined on the

same date i.e., 19.10.1996. The services of both were

approved also on the same day i.e. 07.06.2013. The name of

opposite party No.6 undoubtedly finds place at serial no.1 of

the said order. However, the same by itself does not make

him senior inasmuch as the order dated 07.06.2013 is not

intended to be a merit list/ gradation list. On the other

hand, in the memo appended to the aforementioned order,

the governing body of the College was requested to place the

name of senior most approved teaching staff as Principal in-

charge of the College and to recommend the name for

approval. In fact, pursuant to request, the then governing

body recommended the name of the petitioner by treating

her as the senior most approved teaching staff, which was

accepted by the Director in his order dated

31.12.2013(Annexure-5). As already stated, the above action

was never challenged by opposite party no.6, or for that

matter by any other person. It is therefore, no longer open to

raise the question of inter se seniority as between the

petitioner and opposite party No.6

12. Coming to the legality and propriety of the

impugned order under Annexure-21, it has been argued at

length that the same was based on the recommendation of

the governing body, which in turn was based on the findings

of the special audit. Firstly, the impugned order itself does

not whisper a word with regard to the audit report. Rather,

the Director seems to have acted mechanically on the

recommendation of the President of the governing body. The

allegations relating to financial irregularities committed by

the petitioner as reflected in the audit report appear to have

been raised for the first time before this Court in a counter

affidavit filed by the Director (opposite party no.4) and

opposite party No.6. It is trite that a ground not taken in the

original order cannot be permitted to be taken in the

counter affidavit. In other words, no party can be permitted

to improve upon its case by filing a counter. It is also trite

that the findings of the audit report without being confirmed

in a regular departmental proceeding cannot be the basis for

taking any adverse action against an employee.

Secondly, this Court finds that the petitioner

cannot be said to have any vested right of being approved as

Principal in-charge-cum-Secretary of the institution but

then having once been granted such status, subsequently

withdrawing the same amounts to a definite downgrading

thereof. Such downgrading would entail working under a

junior. To such extent therefore, rules of natural justice

demand that the petitioner should have been afforded an

opportunity of hearing before contemplating any action

against her. No such opportunity was afforded to the

petitioner before issuance of the impugned order under

Annexure-21. This Court therefore, holds that the impugned

order cannot be sustained in the eye of law. Of course, this

is not to say that the right of the authorities to proceed

against the petitioner in accordance with law on the basis of

the findings of the audit report is foreclosed. It is still open

to the authorities to proceed against the petitioner on the

basis of the findings of the audit report after taking into

account the compliance submitted by her thereto. Till the

audit findings are actually proved in accordance with law,

the petitioner can continue to act as the Principal in-charge.

13. In the result, the writ application is allowed.

The impugned order under Annexure-21 is hereby quashed.

The opposite party authorities are directed to fully restore

the status of the petitioner as Principal in-charge-cum-

Secretary of the College with immediate effect.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 6th April, 2022/A.K. Rana