Orissa High Court
Ramakanta Swain vs State Of Odisha & Others .... Opposite ... on 13 December, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.2639 & 21180 of 2017
In the matter of an application under Articles 226 and
227 of the Constitution of India, 1950.
..................
W.P.(C) No.2639 of 2017
Ramakanta Swain .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Mr. U.K. Samal, S. Naik,
S.P. Patra, B.S.Das, C.D. Sahu,
P.K. Mohapatra, B. Dash, C.
Mohanta & Mr.B. Routray.
For Opp. Parties : Mr.S.K. Samal,
Addl. Government Advocate
-AND-
W.P.(C) No.21180 of 2017
Rudranarayan Barik .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Mr. S.K. Swain, S.K. Rout
& S.C.Bairiganjan
For Opp. Parties : Mr.S.K. Samal,
Addl. Government Advocate
// 2 //
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------
Date of Hearing:29.11.2023 and Date of Judgment:29.11.2023
----------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. Since both the writ petitions have been filed inter
alia challenging the order dtd.02.02.2017 so passed by
Addl. District Magistrate, Keonjhar in Misc. Case No.17 of
2016, both the matters were taken up analogously for
hearing at the stage of admission with the consent of the
learned counsel appearing for the Parties and disposed of
by the present common order.
2. W.P.(C) No.2639 of 2017 has been filed by the
Petitioner-Ramakanta Swain inter alia with the following
prayer:-
"i) Admit the Writ Petition
ii) Call for the records;
iii) Issue Rule Nisi calling upon the Opp. Parties to show
cause as to why the order dtd.13.05.2015 and order
dtd.14.05.2015 under Annexure-6 and 7 and its
consequential order dtd.24.10.2016 under Annexure-8 and
order dtd.02.02.2017 under Annexure-13 shall not be
quashed and the Governing Body shall not be
reconstituted within a reasonable time limit;
And if the Opp. Parties do not file show cause or show
insufficient cause, the rule may be made absolute;
And further be pleased to direct the Opp.Party No.2 to
continue the Petitioner as Principal-in-charge of Pateswar
Degree Mohavidyalaya, Suakati in the district of Keonjhar
in the interest of justice.
// 3 //
And further be pleased to pass any other
order/orders, direction/directions as would be deemed fit
and proper under the circumstances;
And for this act of kindness the petitioner shall as in
duty bound ever pray".
3. It is the case of the Petitioner- Ramakanta Swain
that while continuing as Principal-In-Charge of Pateswar
Mohavidyalaya, Suakati in the district of Keonjhar, the
Governing Body of the said College, in its proceeding
dtd.14.07.2003 under Annexure-1, decided to start +3
degree wing in the College. While taking such a decision
to start the +3 wing, the Governing Body resolved to allow
Sri Ramakanta Swain to continue as Principal-In-Charge
of the +3 Wing and to take charge from the Secretary of
the College in question.
3.1. It is contended that in terms of the decision taken
by the Governing Body in its proceeding dtd.14.07.2003,
Petitioner-Ramakanta Swain in addition to his work as
Principal-In-Charge of the +2 wing also discharged the
duties of the Principal-In-Charge of +3 wing of Pateswar
Degree Mohavidyalaya, Suakati. However, while the
matter stood thus, the terms of the Governing Body of the
College though expired and no proposal for reconstitution
the Governing Body since was made, Opposite Party No.3-
Regional Director of Education vide his order
dtd.12.05.2015 appointed one Dr. Kartik Chandra Mishra
as Special Officer to exercise the Administrative and
financial Power of the Governing Body until further
orders.
// 4 //
3.2. It is contended that on being so appointed to
function as Special Officer of the Governing Body vide
order dtd.12.05.2015, the said Special Officer-Opposite
Party No.4 issued a letter on 14.05.2015 by appointing -
Opposite Party No.5 as Principal-In-Charge of the +3 wing
of Pateswar Degree Mohavidyalaya, Suakati Opposite
Party No.5 vide the said letter was also allowed to exercise
the administrative and financial power as per rules
subject to approval of special officer. But prior to
allowing Opposite Party No.5 to function as Principal-In-
Charge of the +3 wing, Opposite Party No.4 vide letter
dtd.13.05.2015 under Annexure-6, requested Petitioner-
Ramakanta Swain to remain present in the College on
14.05.2015 and to hand over the charge to the new
Principal In-charge i.e. Opposite Party No.5.
3.3. It is contended that Petitioner-Ramakanta Swain
being aggrieved by such action of the Special Officer in
allowing Opposite Party No.5 to function as In-Charge
Principal of the +3 wing and directing the Petitioner-
Ramakanta Swain to hand over the charge to Opposite
Party No.5, approached this Court in W.P.(C)
No.9807/2015. This Court vide order dtd.21.05.2015
passed an order of status quo with regard to continuance
as against the post of Principal In-Charge of the Degree
wing.
3.4. It is contended that in the meantime, Opposite Party
No.3 vide letter dtd.24.05.2016 bifurcated +2 and +3 wing
of Pateswar Degree Mohavidyalaya, Suakati w.e.f.
// 5 //
01.07.2016. However, this Court vide order
dtd.17.10.2016 when vacated the interim order so passed
on 21.05.2015, Opposite Party No.3 vide letter
dtd.24.10.2016 under Annexure-8 to the writ petition
directed Opposite Party No. 5 to act and discharge the
duties of the Principal In-Charge of the +3 wing of
Pateswar Degree Mohavidyalaya, Suakati with immediate
effect in terms of the order of appointment issued in her
favour on 14.05.2015 under Annexure-7.
3.5. It is also contended that intervention-application
filed by the present Opposite Party No.6 in W.P.(C)
No.9807 of 2015 was also not entertained by this Court.
However, challenging the order dtd.17.10.2016 so passed
by this Court in W.P.(C) No.9807 of 2015, Petitioner-
Ramakanta Swain filed W.A. No.494 of 2016. But the
said writ appeal was disposed of with liberty to approach
the learned Single Judge for expeditious disposal of
W.P.(C) No.9807 of 2015. Similarly, challenging the
rejection of the application for intervention, Petitioner in
the connected writ petition in W.P.(C) No.21180 of 2017,
approached this Court in W.P.(C) No.19123/2016,
challenging the order dtd.13.05.2015, 14.05.2015 as well
as 24.10.2016. But, in the meantime vide officer order
dtd.04.11.2016, Opposite Party No.3 appointed ADM,
Keonjhar as Special Officer of Pateswar Degree
Mohavidyalaya, Suakati in place of Dr. Kartik Chandra
Mishra, who was earlier appointed vide office order
dtd.12.05.2015.
// 6 //
3.6. It is contended that W.P.(C) No.9807 of 2015 and
W.P.(C) No.19123 of 2016 were disposed of by this Court
vide a common order dtd.07.11.2016. This Court vide the
said order granted liberty to the Petitioner of both the
cases to approach A.D.M., Keonjhar for consideration of
their grievances.
3.7. It is contended that in terms of the order passed by
this Court on 07.11.2016, Petitioner- Ramakanta Swain,
moved a detailed application before Opposite Party No.4
under Annexure-10 and with a prayer to allow him to
continue as Principal In-Charge of the +3 wing of
Pateswar Degree Mohavidyalaya, Suakati till grant-in-aid
is released in favour of the College. However, A.D.M,
Keonjhar without proper appreciation of the claim raised
by the Petitioner-Ramakanta Swain in his representation
under Annexure-10 and so also the representation made
by the Petitioner of the connected writ petition in W.P.(C)
No.21180 of 2017, rejected the claim of both the
Petitioners' vide the impugned order dtd.02.12.2016. Vide
the said order, A.D.M, Keonjhar -cum-Special Officer,
Pateswar Degree Mohavidyalaya, Suakati, while was not
inclined to interfere with the order of Opposite Party No.3
in appointing Opposite Party No.5 as Principal-In-Charge
of Pateswar Degree Mohavidyalaya, Suakati also held that
Opposite Party No.5 is senior to Opposite Party No.6.
While holding so, A.D.M, Keonjhar directed Petitioner-
Ramakanta Swain to hand over the detailed charges of
the degree college to Opposite Party No.5 within a period
of seven days for smooth functioning of the College.
// 7 //
3.8. It is contended that challenging the order
dtd.02.12.2016 so passed by the ADM, Keonjhar,
Petitioner in the connected writ petition / Opposite Party
No.6 approached this Court in W.P.(C) No.21457 of 2016.
The said writ petition was disposed of by this Court on
09.12.2016 by granting liberty to Opposite Party No.6 to
make a fresh representation before A.D.M, Keonjhar for
consideration of his grievance. Pursuant to the said
order, Opposite Party No.6 made a further grievance
before Opposite Party No.4, which was registered as Misc.
Case No.17/2016. In the Misc. Case so registered, the
Petitioner in the connected writ petition along with
petitioner Ramakanta Swain and Opposite Party No.5
were given opportunity of hearing. But A.D.M, Keonjhar
vide the impugned order dtd.02.02.2017 declared
Opposite Party No.5 as Principal-In-Charge of the
Pateswar Degree Mohavidyalaya, Suakati with immediate
effect. While holding so Petitioner Ramakanta Swain was
directed to hand over the charge of Pateswar Degree
Mohavidyalaya, Suakati in favour of Opposite Party No.5
within seven days.
3.9. Challenging the order dtd.02.02.2017, Petitioner-
Ramakanta Swain while filed W.P.(C) No.2639 of 2017,
Opposite Party No.6 also filed a Writ Petition in W.P.(C)
No.21180/2017.
3.9. W.P.(C) No.21180 of 2017 has been filed by the
Petitioner there in inter alia with the following prayer:-
// 8 //
"It is, therefore prayed that, this Hon'ble Court may
be graciously pleased to consider the above facts and
circumstances, issue notice to the Opp. Parties, calling
upon them to file counter and on hearing from both sides,
be pleased to quash the order dated 02.02.2017 under
Annexure-1 and order dated 14.05.2015 under
Annexure-4 and order dated 24.10.2016 under Annexure-
6 making it clear that, the petitioner being senior to O.P.
No.5 is entitled to remain as Principal In-charge of
Pateswar Degree Mahavidyalaya, Suakati in the district of
Keonjhar till regular Principal is posted in the said college;
And further be pleased to pass any other
order/orders as may be deemed fit & proper for granting
complete relief to the petitioner in the present facts and
circumstances of the case in the interest of justice'
And for this act of kindness, the petitioner as in duty
bound shall ever pray".
3.10. It is the case of the Petitioner-Ramakanta Swain in
W.P.(C) No.2639 of 2017 that since the Petitioner
Ramakanta Swain was allowed by the Governing body of
the College in its proceeding dtd.14.07.2003 to discharge
the duty of Principal In-Charge of the +3 wing in addition
to his work as Principal-In-Charge of the +2 wing, there
was no occasion on the part of the Special Officer to
appoint Opposite Party No.5 as Principal In-Charge of the
Degree wing vide order dtd.14.05.2015 under Annexure-7
and directing the petitioner- Ramakanta Swain to hand
over the charge in favour of Opposite Party No.5.
3.11. It is also contended that since Petitioner
Ramakanta Swain was permitted by the duly constituted
Governing body of the College to act as Principal-In-
Charge of +3 wing, the Special Officer so appointed by
Opposite Party No.3 had no occasion to allow Opposite
Party No.5 to function as Principal In-Charge vide order
dtd.14.05.2015 under Annexure-7. Because of such
// 9 //
illegal order issued by the Special Officer, dispute arose
with regard to functioning of the degree wing. Even
though pursuant to the order passed by this Court,
Petitioner in both the cases moved the ADM by raising
their respective claim, but ADM, Keonjhar-Opposite Party
No.4 without proper appreciation of the pleas raised and
the effect of the resolution passed by the Governing Body
under Annexure-1 and the fact that +3 wing is an
unaided College, rejected the prayer of the Petitioner-
Ramakanta Swain to continue as Principal-In-Charge of
the College vide the impugned order dtd.02.02.2017. It is
accordingly contented that the order passed by Opposite
Party No.4 in his capacity as ADM, Keonjhar on
02.02.2017 is not sustainable in the eye of law and it
requires interference of this Court.
4. Learned counsel for the Petitioner in the connected
W.P.(C) No.21180 of 2017 on the other hand contended
that the College in question got the permission from the
Government to open +3 Arts stream from the academic
Sessions 2003-04 on 26.09.2003.
4.1. It is contended by the Petitioner- Rudra Narayan
Barik that he was appointed as Lecturer in Anthropology
in the +3 wing vide Resolution dtd.21.11.2013 of the
Governing Body. Opposite Party No.5-Bishnu Priya
Mohanta was also so appointed as Lecturer in Sanskrit in
terms of the Resolution dtd.21.11.2003. Both Petitioners-
Rudra Narayan Barik and Opposite Party No.5- Bishnu
Priya Mohanta though joined on 15.12.2003, but taking
// 10 //
into account the fact that the Petitioner-Rudra Narayan
Barik is senior to Smt. Mohanta in his age, ADM,
Keonjhar should have held Rudra Narayan Barik as
senior to Bishnu Priya. But while dealing with the matter
with passing of the impugned order on 02.02.2017,
though Opposite Party No.4 came to a finding that the
Petitioner-Rudra Narayan Barik is senior to Smt.
Mohanta because of his date of birth, but without any
reason or basis held Opposite Party No.5 as senior to the
Petitioner Rudra Narayan Barik and while holding so
allowed Opposite Party No.5 to discharge the duty of
Principal In-Charge of +3 degree wing.
4.2. It is contended that since while considering the
claim with regard to the seniority of the Petitioner Rudra
Narayan Barik vis-à-vis Bishnu Priya Mohanta, ADM,
Keonjhar came to a conclusion that both of them have
joined on 15.12.2003, taking into account the date of
birth of Rudra Narayan Barik as 15.07.1975 vis-à-vis the
date of birth of Smt. Mohanta as 29.05.1977, basing on
the order issued by the Government on 21.10.1982, the
inter se seniority in such cases is to be fixed in
accordance with the date of birth. But on the face of such
finding given by the ADM, Keonjhar, Opposite Party No.5
was illegally held as senior to the Petitioner Rudra
Narayan Barik in the impugned order dtd.02.02.2017.
4.3. It is contended that since both the Petitioners-
Rudra Narayan Barik and Smt. Bishnu Priya Mohanta
joined on 15.12.2003 which is not disputed, in view of the
// 11 //
Govt. order issued on 21.10.1982, Petitioner-Rudra
Narayan Braik is senior to Opposite Party No.5. The
order passed by ADM, Keonjhar by declaring Opposite
Party No.5 as senior to the Petitioner-Rudra Narayan
Barik is therefore not sustainable in the eye of law and
requires interference of this Court.
5. Mr. Budhadev Routray, learned Senior Counsel
appearing for the Smt. Mohanta in both the cases along
with Mr. B. Dash made his submission basing on the
stand taken in the counter affidavit so filed by her.
5.1. Learned Senior Counsel appearing for Opposite
Party No.5 contended that Pateswar Degree
Mohavidyalaya, Suakati got the permission of the
Government to open +3 Arts Stream during the Academic
Sessions 2003-04. After getting such permission and in
terms of the resolution issued by the Governing Body on
21.11.2003, Opposite Party No.5 along with Petitioner-
Rudra Narayan Barik in the connected case were
appointed as Lecturers in Sanskrit and Anthropology
respectively.
5.2. While Opposite Party No.5 joined as Lecturer in
Sanskrit in the +3 wing on 15.12.2003, Petitioner in the
connected cases Rudra Narayan Barik joined as such on
18.12.2003. Petitioner- Ramakanta Swain who was
acting as the Principal College of the +3 degree wing in
terms of the resolution issued by the Governing Body
under Annexure-1 also accepted the date of joining of
Opposite Party No.5 as 15.12.2003 and that of Rudra
// 12 //
Narayan Barik as 18.12.2003. Since Opposite Party No.5
joined in the College in +3 wing on 15.12.2003 and Sri
Rudra Narayan Barik joined on 18.12.2003, so admitted
by the Petitioner- Ramakanta Swain while acting as
Principal In-Charge of the College, the said fact was also
taken into consideration by the ADM while deciding the
seniority of Opposite Party No.5 vis-à-vis Rudra Narayan
Barik.
5.3. Even though Opposite Party No.4 considering the
submissions of Rudra Narayan Barik gave a finding that
seniority has to be maintained as per the date of birth if
both the incumbents join on a particular date, but in view
of the admission made by the Petitioner Ramakanta
Swain regarding joining of the Opposite Party No.5 as
15.12.2003 and that of Opposite Party No.6 as
18.12.2003, ADM, Keonjhar rightly declared Opposite
Party No.5 as senior to Sri Barik in order dtd.02.02.2017.
5.4. With regard to the claim of the Petitioner-
Ramakanta Swain to continue as Principal-In-Charge of
the College, learned Senior counsel appearing for
Opposite Party No.5 contended that even though this
Court passed an interim order on 21.05.2015 directing
maintenance of status quo with regard to continuance of
Principal In-Charge of the degree wing in W.P.(C) No.9807
of 2015, but the said interim order was vacated by this
Court on 17.10.2016. After vacation of the interim order,
Opposite Party No.3 vide his order dtd.24.10.2016 when
directed the Petitioner-Ramakanta Swain to hand over the
// 13 //
charge of the Principal-In-Charge of the College, the
matter was again challenged before this Court in W.A.
No.494/2016. The said writ appeal was disposed of at
the request of the Petitioner Ramakanta and liberty was
granted to approach the learned Single Judge for
expeditious disposal of W.P.(C) No.9807 of 2015. The
order dtd.17.10.2016 was also challenged by the
Petitioner of the connected writ petition in W.P.(C)
No.19123 of 2016. Both the writ petitions in W.P.(C)
No.9807 of 2015 and 19123 of 2016 were disposed of by
this Court vide order dtd.07.11.2016. Vide the said order
both the Petitioners in the present two writ petitions were
permitted to make their grievance before the ADM,
Keonjhar.
5.4. Pursuant to the said order, Petitioners in both the
cases moved the ADM, Keonjhar by filing their respective
representations. ADM, Keonjhar by order dtd.02.12.2016
when rejected the claim of both the Petitioners, the order
dtd.02.02.2016 was challenged by the Petitioner in the
connected writ petition in W.P.(C) No.21547/2016. This
Court vide order dtd.09.12.2016 again permitted Opposite
Party No.6 to make a fresh application before ADM,
Keonjhar for its consideration. In terms of the order
dtd.09.12.2016, Petitioner Rudra Narayan Barik in the
connected writ petition made his application before ADM,
Keonjhar, which was registered as Misc. Case No.13 of
2016. In the said Misc. Case, ADM, Keonjhar by giving
opportunity of hearing to all concerned passed the order
on 02.02.2017 by directing the Petitioner-Ramakanta
// 14 //
Swain to hand over the charge of the Principal In-Charge
of +3 wing in favour of Opposite Party No.5. In the said
order, ADM, Keonjhar also rightly held Opposite Party
No.5 as senior to Opposite Party No.6 i.e. Petitioner-
Rudra Narayan Barik in the connected writ petition.
5.5. Learned Senior Counsel further contended that this
Court while dealing with both the writ petitions passed an
order on 17.05.2018 to the following effect:-
"Heard.
This Court after hearing the matter in detail for judging
legality and propriety of the order passed by the Addl. District
Magistrate, Keonjhar dated 2.2.2017 passed in Misc. Case
No.17 of 2016, whereby and where under, this Court has
directed the petitioner to hand over the charge in favour of Smt.
Bishnupriya Mahanta, Lecturer in Sanskrit (O.P. No.5) who will
function the Principal-in-charge, Pateswr Degree
Mahavidyalaya, Suakati.
The petitioner has challenged the aforesaid order on the
ground that he cannot be asked to hand over the charge in
favour of Smt. Bishnupriya Mahanta who is the opposite party
no.5, reason being that he is working as Principal-in-charge by
the decision taken by the Governing Body, although after the
status of the College has come under the fold of +2 and +3
courses but at the time when the institution in question was
under the composite fold, the duly constituted Governing Body
has appointed him to act as Principal-in-charge with the
proposal to constitute fresh Governing Body for the Degree
College, which is lying pending before the competent authority,
hence during pendency of the said proposal before the
competent authority directing him to hand over charge in favour
of opposite party no.5 is absolutely illegal.
Mr. Budhadev Routrary, learned Senior Counsel appearing for
opposite party no.5 and also Mr. Amit W.P. (C) No.2639 of
2017 Pattnaik, learned counsel for the State, both have
submitted that the proposal submitted by the petitioner is
beyond the statutory period of 90 days, as such the same
cannot be acted upon by the competent authority and moreover
in pursuance of the power conferred under Section 7(6) of the
Orissa Education Act, 1969, the Addl. District Magistrate has
been empowered to function as the President of the Governing
Body, hence the petitioner ought to have handed over the charge
in favour of the ADM who happens to be the President of the
Governing Body.
// 15 //
Further contention has been raised which is with respect
to the dispute in between the opposite parties 5 and 6. The
opposite party no.5, in whose favour the order has passed to
hand over the charge since he will function as Principal-in-
charge while the opposite party no.6 (Rudranarayan Barik) is
contesting the case on the ground that the date of joining of the
opposite party nos.5 and 6 are same i.e. 15.12.2003 but on the
basis of the age, opposite party no.6 is senior, as such he is
entitled to hold the post of Principal-in-charge.
Learned counsel appearing for opposite party no.5 has
raised serious dispute regarding the date of joining of the
opposite party no.6. According to him his date of joining is
18.12.2003, which has been taken note of by the ADM in the
impugned order but no final decision has been taken to that
effect.
This Court, after hearing the learned counsel for parties,
so far as claim of the petitioner-Ramakanta Swain is concerned,
who is holding the post of Principal-in-charge by virtue of the
decision taken by the Governing Body, which is no more in
existence and also on the basis of the interim order passed in
this case on 22.02.2012, but according to my considered view
when the competent authority has conferred power upon the
ADM to act as the President of Governing Body and as per the
judgment rendered by this Court in the case of Anil Kumar
Mohanty vrs. State of Orissa & others passed in W.P.(C)
No.8065 of 2013, whereby and where under the proposition has
been laid down that even though the junior colleges/Secondary
College (+2) and Colleges (+3) Degree continuing under one roof
and one place with one campus that ipso facto cannot entitle
them to claim 'composite' status rather they are to be regulated
under the separate rules and separate Acts governing the field.
The aforesaid judgment has been passed on the basis of
various judgments rendered by the Hon'ble Supreme Court as
referred therein and also in an order passed by this Court in the
case of Governing Body of Dola Gobinda Braja Kishore
Mohavidyalaya vrs. State of Orissa and others passed in OJC
No.1486 of 1996.
In view thereof, when the status of the institution in
question is not in dispute that there is two wing i.e. +2 and +3,
as such the same person cannot be allowed to function as
Principal-in-charge, rather in view of the observation made at
para-16 in the case of Anil Kumar Mohanty (supra), whereby
and where under this Court has directed the Sub-Collector, the
President of the Governing Body to issue necessary direction to
the Principal -in -charge-cum- Secretary of the Regional Junior
Colleges, Rambag (+2) wing to hand over the charge but Promod
Kumar Mohanty so far as Regional Degree College, Rambag (+3)
Wing is concerned.
According to my considered view, since the ADM is
functioning as the Chairperson of the Governing Body, hence
applying the ratio laid down in the case of Anil Kumar Mohanty
// 16 //
(supra), the continuation of the petitioner as Principal-in-Charge
in the Degree College will not be proper.
In view thereof, the interim order dated 22.2.2017 is
recalled by directing the petitioner to hand over the charge to the
ADM, Keonjhar forthwith. So far as the dispute related to date
of joining of opposite party no.6 is concerned, this Court in order
to ascertain the factual aspect, has directed Mr. Amit Pattnaik to
come with the record lying in the office of the Regional Director
and also Director, since according to the opposite party no.5, the
petitioner, who in the capacity of Principal-in-charge has
accepted the joining of both i.e opposite party no.5 and 6 and in
the joining acceptance report when the details is being
furnished before the competent authority for seeking recognition
under the statutory provision, the details of all the staff
including the petitioner, who has furnished wherein the date of
joining of opposite party no.6 is disclosed as 18.12.20013,
which would be evident from the running page 88 and 91 and
the same record is lying with the original record of the Regional
Director but in the record which has been brought from the office
of the Director, the date of joining of opposite party no.6 is dated
15.12.2003, the said document has been submitted by the
petitioner on his own handwriting.
Thus, there is difference in the date of joining in the record
lying with the office of the Director, the date of joining on the
basis of the document submitted by the petitioner is
15.12.2003, while record lying with the office of the Regional
Director the date of joining is dated 18.12.2003 furnished by the
petitioner-Principal namely Ramakanta Swain under the seal
and signature while declaring the staff position of the Degree
College on 20.06.2007 and 20.05.2015.
Now opposite party no.6 is relying upon the date of
joining as on 15.12.2003 and taken aid of the documents lying
with the office of the Director, while the opposite party no.5 is
relying upon the date of joining which has been furnished by the
petitioner on his own handwriting before the competent
authority while giving declaration regarding the staff position.
The ADM although has taken note of regarding the date of
joining of opposite party no.6 is 18.12.2003 but no finding has
been given to that effect, as such the order passed by the ADM
is in-conclusive, so far as this contention is concerned.
This Court has got two divergent date of joining of the
opposite party no.6, hence accordingly in the prima facie view of
this Court there is some manipulation in the record, hence before
taking final decision with respect to the claim of the opposite
party no.5 and 6, the definite conclusion has to be arrived at,
with respect to the date of joining reason being that if the date
of joining of opposite party no.6 would be 18.12.2003 as
furnished by the petitioner himself, then opposite party no.5
would be senior and she will be entitled to be posted as
Principal-in-charge but when the date of joining of opposite
party no.6 would be 15.12.2003 as per the record of the Director
then by virtue of the more aged than opposite party no.5,
// 17 //
opposite party no.6 will be entitled to hold the post of Principal-
in-charge, if he is otherwise eligible.
Learned counsel for the petitioner, now in course of
argument submits that the date of joining of O.P.No.6 is
18.12.2003 as recorded by him is a wrong committed by him
rather his date of joining is 15.12.2003, to substantiate, he has
place Attendance Register.
Mr. Amit Pattnaik, learned Addl. Govt. Advocate at this
juncture submits that some mischief prima facie seems to have
been committed as such matter may be referred before the
Crime Branch for enquiry, which has not been objected by the
other side including the petitioner.
Hence, in order to ascertain this aspect of the matter,
this Court thinks it proper to refer the matter before the Crime
Branch of the State to investigate the matter by calling upon the
records lying in the concerned College, office of the Regional
Director and the office of the Director to ascertain the date of
joining of opposite party no.6.
Accordingly, the Director General of Police is directed to
look into the matter and refer the matter before the Crime
Branch to be investigated by the Officer not less than the rank
of Dy. S.P. to submit the report preferably within eight weeks
from the date of receipt of copy of this order.
Accordingly, list this case on 16.08.2018.
It is made clear that the Director, Regional Director and
the Governing Body of the College will co-operate in the
investigation in this case".
5.6. It is contended that in terms of the order passed by
this Court on 17.05.2018, the matter was enquired into
by the Crime Branch and a report has been submitted by
the Crime Branch on 12.06.2018 so obtained by Opposite
Party No.5 under the RTI Act. In the said report, Deputy
Superintendent of Police CIDCB, Orissa, Cuttack after
due verification of the records has come to a conclusion
that Petitioner Rudra Narayan Barik joined in the degree
college on 18.12.2003 and Opposite Party No.5 joined as
a Lecturer in Sanskrit on 15.12.2003. The Crime Branch
also found that even though the Petitioner Rudra Narayan
// 18 //
Barik joined on 18.12.2003 but by manipulating the
record, he has shown his date of joining as 15.12.2003.
5.7. It is accordingly contended that since in terms of the
order passed by this Court on 17.05.2018 a report has
already been submitted by the Crime Branch regarding
the date of joining of Opposite Party No.5 as 15.12.2003
and that of Opposite Party No.6/Petitioner in the
connected writ petitions as 18.12.2003, there is no
illegality or irregularity with the finding of the ADM,
Keonjhar in order dtd.02.02.2017 by holding Opposite
Party No.5 as senior to Sri Rudra Narayan Barik.
5.8. Learned Senior Counsel also contended that
challenging the order dtd.17.05.2018 so passed in W.P.(C)
No.2639 of 2017, Petitioner Ramakanta Swain
approached this Court in W.A. No.301/2018. In course of
hearing of the said writ appeal, Petitioner Ramakanta
Swain clearly admitted that she has handed over the
charge of the Principal In-Charge of the College in favour
of Opposite Party No.5 in terms of the order
dtd.17.05.2018. The order passed by this Court on
25.07.2022 in Writ Appeal No.301 of 2018 is reproduced
hereunder:-
"1. This matter is taken up through hybrid mode.
2. Heard Mr. U.K. Samal, learned counsel appearing for
the Appellant.
3. This is an intra-court appeal against the order dated
17.05.2018 passed in W.P.(C) No. 2639 of 2017 by the
learned Single Judge of this Court.
// 19 //
4. The grievance of the Appellant is two-fold viz. (i) he has
been directed to hand over the charge of the principal of
the degree college and (ii) the direction that has been
issued on the Director General of Police that the
questioned document shall be investigated by an Officer of
the Crime Branch, Government of Odisha, not below the
rank of the Deputy Superintendent of Police. It has been
also directed to submit the report of the investigation
preferably within eight weeks from the date of receipt of
the copy of that order.
5. So far as the issue of recalling the order is concerned,
Mr. Samal, learned counsel has fairly submitted that since
the appellant has handed over the charge of the principal
to the Addl. District Magistrate, Keonjhar in terms of the
order dated 17.05.2018, the challenge in that regard has
become infructuous. The impugned order dated was
passed on 17.05.2018 and the direction on the Director
General of Police was that the Crime Branch should file the
report to this Court within eight weeks from the date of
receipt of the copy of the order.
6. None of the Counsel for the parties could shed light on
whether such report has been filed or not.
7. Be that as it may, what we observe in the
circumstances of the case is that even if the report is filed,
no further action be taken by the learned Single Judge till
the matter is finally decided. If any report is filed, we
direct the Director General of Police, Odisha not to act
further, unless the writ petition is finally disposed of on
merit.
8. We would request the learned Single Judge to expedite
the hearing of the matter. 9. In terms of the above, this
appeal stands disposed of. 10. Mr. B. Routray, learned
Senior Counsel, assisted by Mr. B. Dash, learned counsel
has appeared for the Respondent No.5. 11. Mr. S.K.
Swain, learned counsel has appeared for the Respondent
No.6.
Urgent certified copy of this order be granted as per rules".
5.9. It is contended that the Petitioner Rudra Narayan
Barik also was a party to Writ Appeal No.301 of 2018 and
he also accepted the submissions of the Petitioner -
Ramakanta Swain regarding handing over the charge of
// 20 //
the Principal-In-Charge by the Petitioner Ramakanta
Swain in favour of Opposite Party No.5.
5.10.It is also contended that the order passed by this
Court on 17.05.2018 was never assailed by the Petitioner
-Rudra Narayan Barik and in the alternate he supported
the submission of the Petitioner-Rudra Narayan Barik
regarding handing over the charge of the Principal In-
Charge of the +3 wing in favour of Opposite Party No.5 in
terms of the order dtd.17.05.2018.
5.11. It is also contended that since Opposite Party No.6
never challenged the order dtd.17.05.2018, he cannot
challenge the report submitted by the Crime Branch in
terms of the said order.
5.12.It is also contended that the order passed on
17.05.2018 has been affirmed by this Court while
disposing Writ Appeal No.301 of 2017 vide order
dtd.25.07.2023.
5.13. Learned Senior Counsel accordingly contended that
in view of the stand taken by the Petitioner- Ramakanta
Swain in W.P.(C) No.2639 of 2017 and the report
submitted by the Crime Branch in terms of the order
dtd.17.05.2018, the date of joining of Opposite Party No.5
being 15.12.2003 and the date of joining of Opposite
Party No.6/Petitioner in the connected writ petition being
18.12.2003, Opposite Party No.5 has been rightly
declared as senior to Opposite Party No.6 in the
// 21 //
impugned order dtd.02.02.2017 so passed by ADM,
Keonjhar.
5.14.It is accordingly contended that the order
dtd.02.02.2017 requires no interference as it has been
rightly passed. It is also contended that Opposite Party
No.5 after taking charge acting as Principal-In-Charge of
the +3 wing and in view of the same, the prayer made in
W.P.(C) No.2639 of 2017 has become infructuous.
6. To the submissions made by Mr. B. Routray, learned
Senior Counsel, Mr. U.K. Samal, learned counsel in
W.P.(C) No.2639 of 2017 contended that even though the
terms of the Governing body has since expired, but no
step is being taken to reconstitute the Governing Body of
the College in question. This Court when sought for
instruction from the learned State Counsel, instruction
provided by the Department vide letter dtd.24.11.2023 be
kept in record. From the said instruction it is found that
the Department will take step for formation of the
Governing Body after disposal of W.P.(C) No.2639/2017.
The instruction provided by the Department on
24.11.2023 is reproduced hereunder:-
"From
Sri Suryanarayn Mohapatra
Additional Seretary to Govt.
To
The Advocate General
Odisha, Cuttack
Sub:- Instruction in WP(C) NO.2639/2017 filed by Shri
Ramakanta Swain Vrs-State of Odisha and Others
Sir,
// 22 //
Apropos the subject cited above, I am directed to submit
the following facts which may please be treated as
instruction in the WP(C) No.2639/2017 filed by Shri
Ramakanta Swain Vrs-State of Odisha and Others:-
1. That, the petitioner has filed this writ application
making a prayer to quash the Letter dated 13.05.2015,
14.05.2015 of District Level Consultant, Keonjhar and
24.10.2016 of the erstwhile Regional Director of
Education, Bhubaneswar. (now Regional Director of
Education, Balasore) under Annexure-6,7 & 8
respectively regarding the Principal ship of Pateswar
Degree College, Suakati in the district of Keonjhar.
2. That, the Additional District Magistrate, (ADM) Keonjhar
was intimated that, he is functioning as Principal and
Special Officer of Pateswar Degree Mahavidyalaya,
Suakati, Dist. Keonjhar as per the orders dated
17.05.2018 of the Hon'ble High Court passed in W.P.(C)
No.2639/2017. He had also intimated that, the ADM
being the Administrative Officer of the district remains
busy with different work and finds little time to look
after the development work of the college. And also
reported that it is high time for the constitution of the
Governing Body of the college to look after the
betterment and development of the institution vide his
Letter No.120 dated 27.04.2023. He had also
requested the Higher Education Department vide his
dated 27.04.2023 to take necessary steps for the issue
of a direction to the Regional Director of Education,
Balasore to take steps for the constitution of the
Governing Body of the college keeping in view the
orders of the Hon'ble High Court in the interest of the
college itself.
3. That, after examining the report of ADM, Keonjhar, the
Regional Director of Education, Balasore has been
requested vide this Department letter dated
23.006.2023 to take suitable action as per Orissa
Education Act, 1969, Orissa Education (Establishment,
Recognition and Management of Private Colleges0
Rules, 1991 and subsequent amendment Rules, 2020
for the constitution of Governing Body of Pateswar
Degree Mahavidyalaya, Suakati, Dist. Keonjhar
keeping in view the kind orders of the Hon'ble High
Court passed in W.P.(C) No.2639/2017 or any other
orders of any Hon'ble Court under intimation to this
Department.
4. That, the Regional Director of Education, Balasore vide
his letter dated 26.07.2023 has intimated that the
// 23 //
Additional District Magistrate, Keonjhar is acting as
Principal-in-Charge of the Pateswar Degree
Mahavidyalya, Suakati, Dist. Keonjhar in pursuant to
the kind orders dated 17.05.2018 of the Hon'ble High
Court passed in W.P.(C) No.2639 of 2017 and due to a
dispute on the seniority of two senior most teaching
staff member of the college.
5. That, formation of the Governing Body of the College,
the Principal in charge happens to be the Ex-officio
Secretary and the senior most teaching staff becomes
the member. And the same is under dispute and sub-
judice before the Hon'ble High Court in WP(C) No.2639
of 2017
In view of absence of regular Principal-in-charge in the
+3 degree wing of the college, the full-fledged
Governing Body has not yet been formed. After
disposal of WP(C) No.2639/2017, steps will be taken
for formation of Governing Body for the college taking
into account the Principal-in-charge of the college who
will act as Secretary of the Governing Body.
The above matter may please be apprised to the
Hon'ble Court".
7. To the submissions made by the learned Senior
Counsel, Mr. S.K. Swain, learned counsel appearing for
the Petitioner-Rudra Narayan Barik contended that
though in terms of the order dtd.17.05.2018, Crime
Branch has submitted a report by taking the date of his
joining as 18.12.2003 and that of Smt. Mohanta as
15.12.2003, but the said report is not final in the eye of
law and it is subject to challenge to be made by the
Petitioner-Rudra Narayan Barik.
8. Having heard learned counsel for the Parties and
after going through the materials available on record vis-
à-vis the submissions made by the learned counsels
appearing for the respective parties in both the writ
petitions, it is found that +3 degree wing of the College
// 24 //
was opened during the Academic Sessions 2003-2004 in
terms of the permission accorded by the Government on
26.09.2003. The +3 wing of the College having been so
opened during the academic sessions 2003-04, Petitioner
Ramakanta Swain in W.P.(C) No.2639/2017 was allowed
to discharge the duty of the Principal In-Charge of the +3
degree wing by the Governing Body of the College in its
proceeding dtd.14.07.2003.
8.1. It is found from the record that after expiry of the
term of the Governing Body, one Dr. Kartik Chandra
Mishra was appointed as the Special Officer to discharge
the duties of the Governing Body vide order
dtd.12.05.2015 so issued by Opposite Party No.3. On
being so appointed as Special Officer of the Governing
Body Dr. K.C. Mishra vide order dtd.13.05.2015
requested the Petitioner-Ramakanta Swain to remain
present on 14.05.2015 in order to hand over the charge of
the Principal In-charge of the +3 degree wing in favour of
Opposite Party No.5. Vide another order so issued by the
Special Officer on 14.05.2015, Opposite Party No.5 was
appointed as Principal In-Charge of the +3 wing. As per
the admission made by the Petitioner Ramakanta Swain
in W.A. No.301 of 2018, it is found that he has already
handed over the charge of the Principal In-Charge of the
College in favour of Opposite Party No.5 in terms of the
order dtd.17.05.2018 passed in W.P.(C) No.2639 of 2017.
8.2. It is also found that in terms of the order
dtd.17.05.2018, not only the Petitioner Ramakanta Swain
// 25 //
handed over the charge of +3 wing in favour of Opposite
Party No.5, but also in terms of the said order a report
has been submitted by the Crime Branch by holding the
date of joining of Opposite Party No.5 as 15.12.2003 and
that of the Petitioner-Rudra Narayan Barik in connected
writ petition as 18.12.2003.
8.3. It is also found from the record that even though the
terms of the Governing Body has since expired, but no
step has been taken to reconstitute the Governing Body of
the College.
8.4. In view of such position and considering the
submissions made, both the writ petitions are disposed of
inter alia with the following directions:-
(i) Opposite Party Nos.1 to 3 i.e. State in the Department
of Higher Education, Director Higher Education and
Regional Director of Education are directed to take
effective steps for reconstitution of the Governing Body of
Pateswar Degree Mahavidyalaya, Suakati in accordance
with the relevant provisions contained under the Odisha
Education (Establishment, Recognition and Management
of Private Colleges) Rules, 1991;
(ii) For re-constitution of the Governing Body for such
purpose, Opposite Party No.3 is directed to issue a
direction on ADM, Keonjhar -cum-Special Officer,
Governing Body of Pateswar Degree Mahavidyala to
submit a proposal for such reconstitution within a period
of two(2) weeks from the date of receipt of this order in
// 26 //
accordance with the provisions contained under the
aforesaid 1991 Rules.
(iii) ADM, Keonjhar-cum-Special Officer, on being so
directed will submit a proposal for reconstitution of the
Governing Body as provided under 1991 Rules within a
period of four (4) weeks from the date of receipt of the
direction.
(iv) Regional Director of Education after receipt of such
proposal from the ADM-cum-Special Officer shall take
effective step for reconstitution of the Governing Body
with due approval within a period four(4) weeks from the
date of receipt of such proposal.
(v) Reconstituted Governing Body after taking charge of
the Management of Pateswar Degree Mahavidyalaya shall
take a final decision with regard to the claim of inter se
seniority in between Opposite Party Nos.5 and Opposite
Party No.6/Petitioner in W.P.(C) No.21180 of 2017.
(vi) Reconstituted Governing Body while taking a decision
on the question of seniority of Opposite Party No.5 and 6,
shall take into consideration the relevant records
available in the College and the report submitted by the
Crime Branch in terms of the order passed by this Court
on 17.05.2018 and by providing due opportunity of
hearing to both Opposite Party Nos.5 and 6.
(vii) Till a fresh decision is taken by the reconstituted a
Governing Body and in view of the admission made by the
Petitioner- Ramakanta Swain that he has handed over the
// 27 //
charge of Principal In-Charge of Pateswar Degree
Mahavidyalaya in favour of Opposite Party No.5 in terms
of order dtd.17.05.2018, Opposite Party No.5 will be
allowed to continue as Principal In-Charge of the College
till the seniority of Opposite Party No.5 vis-à-vis Opposite
Party No.6 is so determined.
9. With the aforesaid observations and directions, both
the Writ Petitions stand disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 29th of November, 2023/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
