Dr. Dhiren Mohanty vs State Of Odisha And Others
2023 Latest Caselaw 894 Ori

                        ORISSA HIGH COURT: CUTTACK
AFR
                            W.P(C) NO. 18445 OF 2020

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                   ---------------

          Dr. Dhiren Mohanty              .....                 Petitioner

                                        -Versus-

          State of Odisha and others      .....              Opp. Parties


               For Petitioner      :   Mr. J.K. Rath, Sr. Advocate
                                       along with M/s. D.N. Rath,
                                       P.K. Rout and A.K. Saa,
                                       Advocates.

               For Opp. Parties    :   Mr. A.K. Mishra,
                                       Addl. Government Advocate


          P R E S E N T:

                THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of Hearing: 25.01.2023 :: Date of Judgment : 27.01.2023

DR. B.R. SARANGI, J. The petitioner, who was working as a Reader

in S.V.M. Autonomous College, Jagatsinghpur, being an

approved teaching staff of an aided educational institution,

has filed this writ petition to quash order no. 7542 dated

15.02.2020 passed by opposite party no.2 under Annexure-

1 suspending the payment of government grant-in-aid in favour of the petitioner with immediate effect until further

orders; the order passed by the opposite party no.5 vide

memo no.0662 (3)/2000 dated 19.02.2020 under

Annexure-3 where a communication has been made

pursuant to the order dated 15.02.2020 under Annexure-1

that the payment of grant-in-aid towards salary and other

purposes of the petitioner is hereby suspended from the

month of February, 2020 until further orders; and the letter

no. 21955/HE dated 02.07.2020 passed by the opposite

party no.2 vide Annexure-9 withdrawing the grant-in-aid

released in favour of the petitioner towards salary and other

purposes with effect from February, 2020 as per Section 7-

D of the Orissa Education Act, 1969. The petitioner has

further prayed for direction to the opposite parties to

release the salary component as per the grant-in-aid

released in favour of the petitioner as expeditiously as

possible.

2. The factual matrix of the case, in a nutshell, is

that the petitioner was duly appointed and joined as

Lecturer in Commerce by the Governing Body of Sarala

Mohavidyalaya, Rahama on 13.01.1986. The appointment

of the petitioner was approved by the Director Higher

Education, vide order no. 15925 dated 03.04.1997, and

accordingly he was extended with 1/3rd salary component

with effect 01.06.1991, 2/3rd of the salary component with

effect from 01.06.1993 and full salary cost with effect from

01.06.1995, in accordance with the provisions contained in

Rule-9 of the Orissa Education (Recruitment and

Conditions of Service of Teachers and Members of Staff of

Aided Educational Institution) Rules, 1974 (hereinafter to

be referred as "1974 Rules"), which have been framed by the

legislatures under Section 10 (1) of the Orissa Education

Act, 1969. The pay of the petitioner was revised in

accordance with the Pay Revision Rules made by the State

Government from time to time for the employees of the

aided institutions. The petitioner was brought into the cadre

of Lecturers of aided educational institution in accordance

with Orissa Aided Educational Institutions (Employees

Common Cadre and Inter Transferability) Rules, 1979.

While the petitioner was continuing as a Lecturer in Sarala

Mohavidyalaya, he was transferred to S.V.M. College

Jagatsinghpur on 17.07.1999 in accordance with Inter-

transferability Rules, 1979. Thereafter, the petitioner was

promoted to the post of Reader with effect from 01.06.2014.

2.1 While the petitioner was so continuing, the State

Government in the Higher Education Department

introduced E-Admission System of students to different

colleges and, thereby, formulated a scheme called Student

Academic Management System (in short "SAMS"). According

to the said system, Common Application Forms (CAFs) are

to be submitted and the candidates who apply for

admission to the colleges coming under the zone of

consideration of the nodal colleges notified by the State

Government are to be selected and on the basis of their

choice colleges and the merit, as assessed in accordance

with the scheme, admission of the students are to be put to

the colleges chosen by the candidates as per their merit.

Accordingly, SVM Autonomous College, Jagatsinghpur was

taken as the Nodal College for E-Applicants applied under

the Common Application Form for their placement for

admission in different colleges according to the merit as

assessed under the Scheme.

2.2 As per the decision of the Governing Body, an

Admission Committee was constituted comprising of

Principal as the Chairman, Officer-in-Charge (+2 Stream) as

Member, all Bursars as the Members, Science Faculty-Shri

Kumar Bara Mohanty, Arts Faculty-Shri Abhaya Kumar

Bihari and Commerce Faculty-Dr. Harihar Das. The

petitioner was a member being Administrative Bursar. All

application forms were registered and verified by two Data

Entry Operators, who were engaged for +3 admission and

+2 admission respectively. During the session 2015-16 Dr.

Lingaraj Behera and Shri Rabi Prasana Sahu were

functioning as the Principal of the College for +2 Wings and

+3 Wings respectively. As per the guidelines issued by the

Government of Odisha in its letter no. 16249 dated

16.06.2012, the common application form is to be validated

in SAMS Resource Centre under the Project Students

Academic Management System. Accordingly, a Member of

the Validation Team, who is described as Validater, is

engaged in the ratio of 1:100, i.e., one Validater per 100

validation students for effective and error free validation.

The guidelines indicate that each individual validation team

member shall be responsible for any mistake in validation

and, therefore, each one should ensure its correctness, right

up to updating the same in the e-space (software). A

mistake may deprive a genuine applicant for his/her

admission in the college.

2.3 The instructions issued by the State Government

vide letter dated 16.06.2012 and the common prospectus

for admission to +3 degree under Annexure-5 would show

that the common application form along with the

application fee would be submitted in the college counter,

wherein the same is registered and index number is allotted

and, thereafter, such application form is communicated to

the validation team. The data entry operators are to make

entry the application form along with the documents and

the same is validated by the validation team appointed by

the State Government. The members of the validation team

are remunerated for such work for validating the applicant

for admission under SAMS. After validation is made, the

validation applicants are entered in the e-validated entry

register and the same is communicated to the State

Government in Higher Education Department. The State

Government intimated the selected applications in different

modes, i.e. SMS, e-mail, website and the same is also

notified in the college notice board and toll free sanjog help

line. On the basis of such intimations, the selected

candidates take admission in the college.

2.4 In view of the procedure adopted, as mentioned

above, neither the examination committee nor any member

attached thereto has any role to play after SAMS project has

been adopted by the State Government for admission to the

Degree Colleges. But on the basis of the allegation of excess

admission made by the college authorities during the

academic session 2015-16 and that the petitioner had not

discharged his duties sincerely and transparently, a notice

of show cause was issued alleging that students were

allowed to take admission beyond the permitted strength

during the period 2015-16, when the petitioner was

continuing as the Reader in Commerce. There was no

allegation that any candidate had been admitted who was

not found to be in the merit list of the selected candidates.

The admission section took admission beyond the

sanctioned strength for which neither the petitioner nor the

Selection Committee can be blamed. The list of eligible

candidates were sent to the Admission Committee with the

approval of the Chairman of the Committee and, therefore,

the allegation made against the petitioner on the basis of

the report of the Internal Committee constituted by the

opposite party no.2, on the basis of certain interrogation

made by them and without giving any opportunity to the

petitioner against whom some observations have been made

by the Committee, could not have been utilized against him

by the opposite party no.2 so as to stop the salary of the

petitioner, which amounts to denial of salary to the

petitioner as per the provisions contained in Rule-9 of 1974

Rules.

2.5 The opposite party no.2-Commissioner-cum-

Secretary, Higher Education Department, vide memo no.

7542/HE dated 15.02.2020 under Annexure-1, directed the

Principal of the College-opposite party no.5 to call for show-

cause from the petitioner and to stop release of his salary

and other GIA benefits with immediately effect until further

orders. Consequentially, the Principal of the College-

opposite party no.5 intimated to the petitioner, vide memo

no. 0662 dated 19.02.2020 under Annexure-3, that

pursuant to the order dated 15.02.2020 passed by opposite

party no.2, the Grant-in-Aid towards the salary and other

purposes is hereby suspended with effect from the month of

February, 2020. In response to the same, the petitioner

submitted his reply on 13.03.2020 that he has not

committed any wrong and report submitted by the so called

committee may not be taken into consideration and his

salary may be released. Thereafter, an order was passed by

the opposite party no.2 on 02.07.2020 under Annexure-9

that the Grant-in-Aid released in favour of the petitioner is

hereby withdrawn w.e.f. February 2020 as per Section 7-D

of the Orissa Education Act. Challenging such orders, the

petitioner has approached this Court in the present writ

petition.

3. Mr. J.K. Rath, learned Senior Counsel appearing

along with Mr. D.N. Rath, learned counsel for the petitioner

vehemently contended that the show cause issued by

opposite party no.2, vide memo no. 7542/HE dated

15.02.2020 under Annexure-1, the communication made by

the Principal of the College-opposite party no.5 vide memo

no. 0662 dated 19.02.2020 under Annexure-3 suspending

the payment of grant-in-aid towards the salary and other

purposes of the petitioner with effect from the month of

February, 2020 until further orders and consequential

order passed by the opposite party no.2 on 02.07.2020

under Annexure-9 withdrawing the grant-in-aid released in

favour of the petitioner towards salary and other purposes

w.e.f. February 2020 as per Section 7-D of the Orissa

Education Act, 1969 cannot sustain in the eye of law, in

view of fact that the Section 7(D) of the Orissa Education

prescribes that the concerned authority may withdraw the

grant-in-aid of a private aided educational institution on

certain terms and conditions and not of an employee

working in the aided educational institution. Thereby, the

said order under Anenxure-9 cannot sustain in the eye of

law. It is further contended that the Governing Body being

the appointing and disciplinary authority of the petitioner

and the petitioner being the approved staff, the denial of

salary to the petitioner is hit by Rule-9 of the 1974 Rules

and, thereby, the withdrawal of the grant-in-aid released

towards salary and other purposes by opposite party no.2 is

without authority of law and as such the order passed by

opposite party no.2 is just to cause harassment to the

petitioner. Therefore, the same cannot be sustained in the

eye of law and is liable to be quashed.

3.1 It is further contended that a bare reading of the

provisions contained under Section 7-D of the Orissa

Education Act would go to show that the prescribed

authority, if is satisfied that the Governing Body has failed

to perform any of the conditions as provided under the said

section, after providing an opportunity of hearing, may pass

order of either suspending or withdrawing the grant-in-aid

of the institution as provided under the statute. But in the

instant case opposite party no.2 is neither the prescribed

authority nor an authority vested with power to impose any

punishment to an employee of an aided educational

institution. Thereby, the order so passed by such

unauthorized authority, by abusing his power and

jurisdiction, being illegal and arbitrary cannot be sustained

and is liable to be quashed.

To substantiate his contentions, leaned Senior

Counsel has relied upon the decisions of this Court in the

cases of Nityananda Lenka and Ors v. State of Orissa

and Ors, 2011 (I) OLR 524; Saroj Kumar Nayak v. State

of Orissa and others, 2010 (I) OLR 737; and Ananta

Charan Tripathy v. State of Orissa and others, 67

(1989) C.L.T. 377.

4. Mr. A.K. Mishra, learned Additional Government

Advocate appearing for the State-opposite parties, on the

other hand, vehemently contended that opposite party no.2

is none else but the Commissioner-cum-Secretary of the

Department and is competent to pass such order. On the

basis of the report submitted by the Fact Finding

Committee, show cause notice for withdrawal of grant-in-

aid of the petitioner was issued on 15.02.2020 and the

petitioner was directed to submit his written explanation

within 30 days as to why the grant-in-aid being released in

his favour towards salary and other purposes shall not be

withdrawn. On the basis of such notice of show cause dated

15.02.2020, the Principal-cum-Secretary of SVM

Autonomous College, Jagatsinghpur suspended grant-in-aid

of the petitioner with effect from the month of February,

2020, vide order dated 19.02.2020. On receipt of show

cause reply and on consideration thereof, the order

impugned under Annexure-9 was passed for withdrawal of

grant-in-aid released in favour of the petitioner towards

salary and other purposes w.e.f. February, 2020 in exercise

of the provisions contained under Section 7-D of the Orissa

Education Act, 1969. Thereby, no illegality or irregularity

has been committed by the authority concerned by passing

such order, so as to cause interference of this Court at this

stage.

5. This Court heard Mr. J.K. Rath, learned Senior

Counsel appearing along with Mr. D.N. Rath, learned

counsel for the petitioner and Mr. A.K. Mishra, learned

Additional Government Advocate appearing for the State-

opposite parties in hybrid mode and perused the record.

Even though notice was issued to opposite parties no.4 and

5 by registered post with A.D. and after valid service the

A.D. was returned and, thereby, notice was treated to be

sufficient, but none chose to enter appearance on their

behalf. Since it is a matter of 2020 and the pleadings have

been exchanged between the parties, taking into

consideration the misery of the petitioner, with the consent

of learned counsel appearing for the contesting parties, the

writ petition is being disposed of finally at the stage of

admission.

6. On the basis of the factual matrix, as delineated

above, the following questions are emerged for consideration

by this Court:-

(1) Whether the Commissioner-cum-Secretary, Higher Education Department is competent to withdraw the grant-in-aid released towards salary

and other purposes in favour of the petitioner, who is an employee of the aided educational institution?

(2) Whether the notice of show cause issued by opposite party no.2 on 15.02.2020 for suspension of the grant-in-aid, the order passed by the opposite party no.5 dated 19.02.2020 by suspending the grant-in-aid and the consequential order dated 02.07.2020 passed by opposite party no.2 by withdrawing the grant-in-aid released towards salary and other purposes in favour of the petitioner with effect from February, 2020 as per Section 7-D of the Orissa Education Act, 1969 is well justified and can be sustained in the eye of law?

7. With a view to answering the above questions

effectively, it is worthwhile to delve into the necessary

provisions of law governing the field:-

"3(m-1) Prescribed Authority means the authority to be notified by the State Government from time to time in the official Gazette;"

xxx xxx xxx

"7-D. (1) The prescribed authority may withdraw the grant-in-aid of a private educational institution, if--

(i) the recognition of the institution has been suspended or withdrawn;

(ii) the percentage of students passing the Annual and Supplementary examinations conducted by the Board of Secondary Education or the Council of Higher Secondary Education Or the concerned University, as the case may be, falls short of half of the percentage of students passing such examination for the entire Board or the Council or the University, as the case maybe, for three consecutive years;

(iii) the Governing Body or the Managing Committee, as the case may be, defaults in

furnishing the statement under sub-section (1) of Section 8 or furnishes statement which is false or incorrect;

(iv) the Managing Committee or the Governing Body, as the case may be, Or the Secretary of an aided educational institution acts in contravention Of the provisions of subsection (1) of Section 9, or of any order passed under sub-section (2) of Section 9;

(v) the Governing Body or the Managing Committee, as the case may be, or the Secretary is found to be misutilising the funds of the educational institution concerned including grant-in-aid received, if any, or utilising it for any purpose other than meeting the legitimate cost of running the educational institution, development of the educational institution, or welfare of the students or employees of that institution;

(vi) there has been persistent default in maintaining correct accounts of the receipts and expenditure of the educational institution or there has been persistent default in submitting audited statement of its accounts within the specified period;

(vii) the educational institution fails to conduct the examinations of the Board, the Council, or any of the Universities or any other examining bodies of the State fairly and properly or if the Governing Body or the Managing Committee, as the case may be, or any of its employees assists or abete in adoption of malpractices in such examinations or fails to-prevent adoption of malpractices;

(viii) unless otherwise permitted, the educational institution is found to be admitting students on any criteria other than merit ;

Explanation--In the context of merit of students belonging to reserved categories it shall mean inter se merit within the Respective category ;

(ix) the private educational institution utilises the grant-in-aid for any purpose other than the Purpose for which such grant-in-aid was paid specifically or fails to render satisfactory and timely account of its proper utilisation.

(x) the private educational institution has secured grant-in-aid by fraud or by misrepresentation of facts or by submission of incorrect facts through false declaration or by concealing any relevant information ;

(xi) the aided educational institution refuses to accept a teacher posted on transfer or continues to retain the services of a teacher who has been transferred by the competent authority ; and

(xii) the aided educational institution makes appointment in a manner not consistent with the Act and the Rules :

Provided that where the prescribed authority is satisfied that prima facie circumstances exist for action under this sub-section, he may make an order suspending payment of grant-in-aid for such period not exceeding three months as he may deemfit.

(2) Before withdrawing the grant-in-aid, the Managing Committee or the Governing Body, as the case may be, shall be given a notice of the action proposed to be taken and required to show cause within a period of thirty days from the date of receipt of the notice as to why such action shall not be taken.

(3) The Managing Committee or the Governing Body, as the case may be, aggrieved by an order of the prescribed authority withdrawing grant- in-aid, may, in such manner and within such period not exceeding sixty days, as may be prescribed, prefer an appeal before the State Government, whose decision thereon shall be final."

7.1 In exercise of the powers conferred under Section

10 (1) of the Orissa Education Act, 1969, the Orissa

Education (Recruitment and Conditions of Service of

Teachers and Members of Staff of Aided Educational

Institution) Rules, 1974 were framed. Rules-9, 11, 15 and

21 (1) of the said 1974 Rules, being relevant for the purpose

of this case, are extracted hereunder:-

"9.Drawal of pay and allowances by employees of Aided Institutions- (1) Every employee of an aided educational institution shall draw pay and dearness allowance and subsistence allowance in c ase of suspension as is admissible to counter part in the Government educational institutions under the relevant rules applicable to him and shall ordinarily be paid in the month following the month to which the claim relates directly by Government or by any Officer or by any Agency authorized by Government .

(2) The accounts shall be maintained in such manner as the Government or any person authorised by government may determine from time to time.

(3) An increment earned by an employee shall ordinarily be sanctioned by the Managing Committee or the Governing Body, as the case may be, as a matter of course within two months of its accrual unless it is withheld under the provisions of these rules:

(4) Advance increments not exceeding five may be allowed with the previous sanction of Government to a teacher in any college in consideration of his special qualifications proficiency or experience:

Provided that no application by a Governing Body to sanction advance increments shall be considered unless it is submitted through the Director.

xxx xxx xxx

11. Rules of conduct of employees- (1) The following shall be the rules of conduct of employees of Aided Educational Institutions namely:-

(a) they shall exercise academic freedom towards promotion of an intellectual climate conducive to the pursuit of scholarship;

(b) they shall at all times absolute integrity of character, devotion to duty and decorum of conduct;

(c) they shall carry out the instructions of the Headmaster or the Principal and act according to the instructions or directions of University or the Board of the Secondary Education, Orissa or the Director or other Offices of the Education Department authorised to inspect the institution in respect of their academic functions.

(d) they shall carry out the orders of the Education Department and of the President or Secretary of the Managing Committee or of the Governing Body, as the case may be, in respect of their administrative functions;

(e) they shall not except with the previous approval of the Managing Committee or the Governing Body, as the case may be engage in any trade or accept any employment under any other authority or person;

(f) they shall not be members of any political or communal party;

Explanation - A "Communal party" is one which in declared as such by the State Government or Central Government.

(g) they shall not, except with the previous sanction of the Managing Committee or the Governing Body, as the case may be, own wholly or in part, edit or manage a newspaper magazine or periodical publication :

Provided that the provisions of this sub-rule shall not apply to the literary magazines or journals to the magazines of Schools and Colleges magazines or the

magazines of the Association connected with teachers.

(2) No employee who has a wife living shall, notwithstanding that a subsequent marriage is permissible under the personal law for the time being applicable to him contract another marriage except with the prior permission of the Director.

(3) No female employee shall marry a person who has a wife living except with the prior permission of the Director notwithstanding that it is permissible for such person to have more than one wife under the personal law for the time being applicable to him.

xxx xxx xxx

15. Penalty for breach of conduct rule- For breach of any of the rules of conduct described in Rule 11 an employee shall be liable to disciplinary action in the manner provided in Chapter IV of these Rules.

xxx xxx xxx

21. Disciplinary authorities -(1) The Director may impose any of the penalties specified in Rule 20 on any employee :

Provided that the Director shall not initiate any disciplinary proceeding unless the Managing Committee or the Governing Body, as the case may be, refuses or neglects to take disciplinary action against any employee.

(2) Without prejudice to Sub-rule (1) but subject to the provision-of Sub-rules (3) and (4) any of the penalties specified in Rule 20 may be imposed -

(a) in respect of a lower grade employee, by the Headmaster or the Principal, as the case may be ; and

(b) in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be :

Provided that in case of suspension of employees tailing under Clauses (a) and (b) the prior approval of

the Inspector in respect of an employee serving in a School and of the Director in relation to any other employee is obtained :

Provided further that the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at the initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.

(3) No penalty shall be imposed on any employee by an authority other than the authority mentioned in Sub-rules (1) and (2) hereinafter referred to as the disciplinary authority.

(4) No penalty shall be imposed on a person appointed to an post in an aided institution on deputation from the Government except in accordance with the provisions of Rule 25."

8. The very purpose of introducing Section 7-D is

laudable. In order to provide infrastructural benefits such

provision has been placed in the statute. It is mentioned

therein that the procedure for filling up of the teaching

posts in unaided but recognized educational institutions is

proposed to be amended to empower the Governing Body or

the Managing Committee, as the case may be, to make

recruitment subject to and in conformity with the criteria,

conditions of eligibility, qualification and procedure

prescribed by the Government. The grant-in-aid is presently

being paid to private educational institutions on the

strength of executive instructions. Although the Act

contains a number of provisions laying down the

circumstances in which the grant-in-aid may be withdrawn,

there is no provision in the Act providing for payment of

grant-in-aid. The Bill provides for payment of grant-in-aid to

the specified categories of private educational institutions

subject to such terms and conditions as may be prescribed

or specified in an order. Thereby, in order to supersede all

previous authority including executive instructions, order,

etc. issued from time to time in regard to payment of grant-

in-aid and provides for formulation of consolidated

rules/orders laying down conditions of eligibility and

criteria for payment of grant-in-aid in accordance with the

policies of Government, the provisions have been

incorporated in the Act itself. On perusal of Section 7-D the

very nomenclature indicates withdrawal of grant-in-aid.

Under sub-section (1) of Section 7-D, it is provided that the

prescribed authority may withdraw the grant-in-aid of a

private educational institution, if it satisfies the conditions

prescribed in Clause-(i) to (xii).

9. When the Orissa Education Act, 1969 was

enacted, which came into force with effect from 21.06.1969,

the provision of Section 7-D was not there. Section 7 of the

Orissa Education Act, 1969 was substituted by Orissa

Education Amendment Act, 1989 (vide Orissa Act 15 of

1989) prescribing the Managing Committee or the

Governing Body of the Educational Institution. Section 7-A

prescribes the supersession and reconstitution of the

Managing Committee or the Governing Body, Section 7-B

prescribes the appointment of qualified teacher, Section 7-C

prescribes withholding of grant-in-aid and Section 7-D

prescribes effect of non-recognition. So far as Section 7-C

of the Orissa Education Act, 1989 is concerned, as it was

then, related to withholding of grant-in-aid of private

educational institution and not relating to any individual.

However, vide Act 14 of 1993, Section 7-C was substituted

as "grant-in-aid" in place of "withhold of grant-in-aid". Vide

Orissa Act 13 of 1994, the Orissa Education Act was

amended and Section 7-D was amended as "withdrawal of

grant-in-aid" in place of "effect of non-recognition". In this

amended provision also it was provided to the effect that the

withdrawal of grant-in-aid of a private educational

institution and not of any individual. The intention of

legislatures for bringing this amendment to the Orissa

Education Act, more particularly Section 7-D of the Orissa

Education Act, vide Act 13 of 1994, on a reading of the

same, would go to show that to ensuring the private

educational institution confirmed to basic infrastructure

and academic standard and for meeting the essential

education needs, the amendment for incorporating Section

7-D was needed. The legislatures enacted the 1974 Rules,

providing conditions of the services of the employees of

aided educational institutions, the rules of conduct of

employees, disciplinary action and disciplinary authority,

etc. of the employees of the aided educational institutions.

The same has been made pursuant to Section 10 of the

Orissa Education Act, which inter alia prescribes the

conditions of service of the staff of aided educational

institution. Clause (m-1) of Section-3, which was

incorporated by Orissa Act 16 of 1991, vide Orissa

Education Amendment Act, 1991, provides that the

"prescribed authority" means the authority to be notified by

the State Government from time to time in the official

gazette. The Government of Odisha in the Department of

Education issued notification dated 20.07.1991 prescribing

the "prescribed authority". For better appreciation, the said

notification is extracted hereunder:-

"GOVERNMENT OF ORISSA EDUCATION DEPARTMENT NOTIFICATION

Bhubaneswar "Dated, the 20.07.1991

No.XE/Codes-27/91-33145/E. In exercise of the powers conferred by Clause (m-1) of Section 3 of the Orissa Education Act, 1969, the State Government do hereby declare the prescribed authority in respect of the Degree Colleges, Secondary Schools, Higher Secondary Schools +2 Colleges and Upper Primary Schools as mentioned below-

Designation of the In respect of which educational prescribed authority institution they are declared so

Director, Higher Education, Orissa, Degree Colleges Director, Secondary Education, Orissa Secondary Schools, Higher Secondary Schools and Director, Elementary Education, +2 Colleges Orissa Primary and Upper Primary Schools.

By order of the Governor A.K. Mishra Secretary to Government"

Therefore, giving a cogent reading to the provisions, as

mentioned above, it is made clear that different sections

have been provided under the Orissa Education Act for the

functioning and performance of the educational

institutions. Thereby, opposite party no.2 has absolutely no

role to play, so far as the employees working in aided

institutions and they are to be covered under the provisions

of 1974 Recruitment Rules since the Governing Body is

their appointing and disciplinary authority. Therefore, the

impugned order passed by opposite party no.2 for stoppage

of salary of the petitioner treating it as a grant-in-aid is

completely misconceived one and, as such, the same has

been passed in arbitrary exercise of power. More so, he has

abused his jurisdiction and authority by passing the orders

impugned.

10. In S. Azeez Basha v. Union of India, AIR 1968

SC 662, while considering Article 30 (1) of the Constitution

of India, it has been observed that the words "educational

institutions" are of very wide import and would include a

university also.

In Aditanar Educational Institution v. Addl.

C.I.T., (1997) 3 SCC 346 : AIR 1997 SC 1436, while

considering Section 10 (22) 1 of Income tax Act (43 of 1961),

the apex court observed that the expression 'educational

institution' occurring in Section 10(22) of the Act includes a

society which imparts education at the levels of colleges,

and schools:

In T.M.A. Pai Foundation v. State of

Karnataka, (2002) 8 SCC 450, the apex Court observed

that the expression 'educational institutions' occurring in

various Articles of the Constitution of India means

institutions that impart education from primary school level

up to the post graduate level and includes professional

educational institutions.

11. Therefore, there is no iota of doubt that the

educational institution where the petitioner has been

employed and imparting education, for any illegalities

committed by such institution, the prescribed authority

may withdraw the grant-in-aid. But not in case of any

employee working therein. Section 7-D embraces a larger

connotation of withdrawal of grant-in-aid in respect of

institutions not in respect of particular employee.

12. Under Rule-9 of the 1974 Rules, as quoted above,

it is provided that every employee of an aided educational

institution shall draw pay and dearness allowance and

subsistence allowance in case of suspension as is

admissible to counterpart in the Government educational

institutions under the relevant rules applicable to him.

Rule-11 deals with the rules of conduct of employees of

Aided Educational Institutions. So far as conduct of

employees is concerned, the Governing Body, being the

appointing authority, is the competent authority to be a

disciplinary authority. Therefore, if any proceeding has to be

initiated against any employee of any aided educational

institution, it is the Governing Body, which can initiate

such proceeding.

13. Section 3 (b) of the Orissa Education

(Amendment) Act 1989 deals with Aided Educational

Institution. Thereby 'Aid' connotes 'grant-in-aid' and the

expression 'is receiving aid' means an institution which has

been admitted by the Government to the Scheme entitling it

to receive grant-in-aid and having regard to the legal

incidence of an aided educational institution; its rights and

obligations, it is necessary that the decision of the

Government must have been communicated to it. Therefore,

if an "Aided Educational Institution" is required to acquire

the status of an Aided Educational Institution, it should

continuously receive the aid which includes a decision of

the State Government to give the aid continuously even

though actually not paid and Educational Institution

becomes aided after receipt of the communication of the

order from the State Government.

14. There is no iota of doubt that the petitioner is

discharging his duties and responsibilities in an aided

educational institution by receiving grant-in-aid in

accordance with law. In the case of Nityananda Lenka

(supra), the Full Bench of this Court had analyzed the aided

educational institutions in terms of the discussions made

above.

15. In Ananta Charan Tripathy (supra), while

considering Rule-21 (1) of 1974 Rules, this Court held that

the Director cannot on his own and straightaway initiate

any disciplinary proceeding. If the Managing Committee or

the Governing Body, as the case may be, does not feel

inclined to initiate disciplinary proceeding against any

employee, then the expression 'refuses or neglects' in the

context must be considered to mean that there should be a

direction in the first instance to the Managing

Committee/Governing Body by the Director to initiate a

proceeding, and since it is an administrative action of the

Director, there must be sufficient evidence in each case to

show that the concerned authority had refused or neglected

to take disciplinary action against the delinquent employee.

Only in that event the Director gets authority to initiate a

disciplinary proceeding.

The same view has also been fortified in the case

of Saroj Kumar Nayak (supra).

16. In the instant case, admittedly, the Governing

Body has not intimated any negligence committed by the

petitioner in course of his continuance in service. In view of

the law laid down by this Court, as discussed above, it is

made clear that only the Governing Body is the competent

authority to take disciplinary action and nobody else.

Accordingly, the order impugned passed by opposite party

no.2 is treated as illegal and bad in law. Therefore, the

entire action taken by opposite party no.2 cannot be

sustained, being without any authority and jurisdiction.

17. On perusal of the provisions, as discussed above,

it is apt to refer here the legal maxim "Expressio Unius est

exclusion alterius" i.e. if a statute provides for a thing to

be done in a particular manner, then it has to be done in

that manner and any other manner are barred.

18. In Zuari Cement Limited v. Regional Director,

Employees' State insurance Corporation, Hyderabad

and others, (2015) 7 SCC 690, the apex Court held that it

is the basic principle of law long settled that if the manner

of doing a particular act is prescribed under any statute,

the act must be done in that manner or not at all. The

origin of this Rule is traceable to the decision in Taylor v.

Taylor, (1875) LR I Ch D 426, which was subsequently

followed by Lord Roche in Nazir Ahmad v. King Emperor,

AIR 1936 PC 253(2) and subsequently, the said principle

has also been followed in Babu Verghese v. Bar Council of

Kerala, (1999) 3 SCC 422.

19. In Nazir Ahmed v. King Emperor, AIR 1936 PC

253, law is well settled "where a power is given to do a

certain thing in a certain way the thing must be done in

that way or not at all. Other methods of performance are

necessarily forbidden." The said principles have been

followed subsequently in State of Uttar Pradesh v.

Singhara Singh, AIR 1964 SC 358, Dhananjay Reddy v.

State of Karnataka, AIR 2001 SC 1512, Chandra

Kishore Jha v. Mahabir Prasad, AIR 1999 SC 3558,

Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., AIR

2008 SC 1921, Ram Deen Maurya v. State of U.P., (2009)

6 SCC 735. Similar view has also been taken by this Court

in the case of Rudra Prasad Sarangi v. State of Orissa,

2021 (I) OLR 844 and Bamadev Sahoo v. State of Orissa,

132 (2021) CLT 927.

20. The order impugned having been passed by the

opposite party no.2-Commissioner-cum-Secretary, Higher

Education Department, the same is without jurisdiction. As

such, the same has not been exercised in good faith. The

power which has been exercised by opposite party no.2 is

one which falls within the four corners of the powers given

by the legislature. The Court is to see that those powers are

exercised in good faith.

21. In Union of India v. Sinha, J.N., AIR 1971 S.C.

40, the apex Court held that if the authority bona fide forms

an opinion the correctness of that opinion cannot be

challenged before the Courts, though it is open to an

aggrieved party to contend that the requisite opinion has

not been formed or the decision is based on collateral

grounds or that it is an arbitrary decision.

22. Thereby, if the entire scenario is taken into

consideration, the opposite party no.2-Commissioner-cum-

Secretary having not formed opinion in proper perspective,

the decision is based on collateral grounds and, as such,

the order so passed by him amounts to arbitrary exercise of

power and the same can be concluded as arbitrary decision.

Therefore, this Court has jurisdiction to interfere with the

same.

23. In State of U.P. v. Singhara Singh, AIR 1964

SC 358, the apex Court held that when a statute confers a

power on certain judicial officers, that power can obviously

be exercised only by those officers. No other officer can

exercise that power for it has not been given to him. It is

further held that if a statute has conferred a power to do an

act and had laid down the method in which that power has

to be exercised, it accessorily prohibits the doing of the act

in any other manner than that which has been prescribed.

The principle behind the rule is that if this were not so, the

statutory provision might as well not have been enacted.

24. "quando lex aliquid concedit concedere

videtur et illud sine quo res ipsa ease non potest"

means whoever grants a thing is deemed also to grant that

without which the grant itself would be of no effect. Dealing

with this doctrine Pollock G. B. observed:-

"I take the matter to stand thus : whenever any- thing is authorized, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something will be supplied by necessary intendment"

25. In Board of Revenue v. R.S. Jhaver, AIR 1968

SC 59, the apex Court observed that, "in other words, where

any power or control is expressly granted, there is intended

in the grant, to the full extent of the capacity of the grantor,

and without special mention, every power and every control,

the denial of which would render the grant itself ineffective.

26. In B.B.L. & T.M. Association v. State of

Bombay, AIR 1962 SC 486, the apex Court held that the

doctrine of implied powers can legitimately be invoked when

it is found that a duty has been imposed or a power

conferred on an authority by a statute and it is further

found that the duty cannot be discharged or the power

cannot be exercised at all unless some auxiliary or

incidental power is assumed to exist. In such a case, in

absence of an implied power the statute itself would become

impossible of compliance. The impossibility in question

must be of a general nature so that the performance of duty

or the exercise of power is rendered impossible in all cases.

It really means that the statutory provision would become a

dead letter and cannot be enforced unless a subsidiary

power is implied.

27. In Rananjaya Sing v. Baijnath Singh, AIR

1954 SC 749, the apex Court held that the spirit as well the

letter of a statute must be respected.

28. In U.S. v. American Truck, 84 L.ed. 1345 (1350)

it has been held that there is of course, no more persuasive

evidence of the purpose of a statute than the words by

which the legislature undertook to give expression to its

wishes often these words are sufficient in and of themselves

to determine the purpose of the legislation. In such cases,

the Courts follow the plain meaning.

29. In Nagpur Corporation v. Its Employees, AIR

1960 SC 675, the apex Court held that the words are the

common signs that mankind make use of to declare their

intention to one another and when the words of a man

express his meaning plainly, distinctly and perfectly, we

have no occasion to have recourse to any other means of

interpretation. Likewise, if the words of the statute are in

themselves precise and unambiguous, then no more is

necessary than to expound those words in their natural and

ordinary sense; the words themselves alone do, in such a

case, best declare the intention of the law-giver.

30. Thereby, looking into the provisions, as

mentioned above and discussed elaborately, the cardinal

rule of interpretation of statute is that words should be read

in their ordinary, natural and grammatical meaning as has

been held in Mahadeolal Kanodia v. Administrator

General of West Bengal, AIR 1960 SC 936 and

subsequent judgments of the apex Court.

31. Therefore, in construing the provisions of the

statute, it is the bounden duty of the Court to give ordinary

and plain meaning to the words used in the Statute. In

Allenbury v. Ram Krishna, (1973) 1 SCC 7, the apex

Court held where statute does not furnish any artificial

meaning to any expression, the court would apply the

ordinary meaning as commonly understood to that

expression. Therefore, it is essential for a Court in first

instance to give effect to the natural meaning of the words

used therein if those words are clear enough. Thereby,

normally the words used in a statute had to be construed in

their ordinary meaning.

32. Applying the above analogy to the case at hand,

this Court is of the considered opinion that the power has

not been vested with opposite party no.2 in consonance

with the provisions contained in Section 7-D of the Orissa

Education Act, read with Rules-9, 11 and 21 of the 1974

Rules to pass the order impugned withholding the salary of

the employee of an aided educational institution, like that of

the present petitioner. Thereby, the said order cannot be

sustained in the eye of law.

33. Now, coming to the merits of the case, the State

Governing having introduced SAMS admission on the basis

of the district visit of the Principal Secretary, action has

been taken, that has got no connection with the present

issue, in view of the fact that the petitioner was neither in-

charge of SAMS admission of the college nor was he in any

way responsible for any alleged excess admission made to

the institution. He was merely a member of the committee,

which had been formed pursuant to the office order dated

17.07.2015. Therefore, the Principal of the college was

controlling the e-admission and the persons who were the

members of different committees were assisting him in the

matter. The petitioner only being a member of the

committee along with others, no blame individually can be

attributed to the petitioner for any alleged excess admission

of the students in the institution. More so, the fact finding

committee had not pointed out at any point of time this fact

by issuing any notice and, as such, the alleged inquiry was

conducted behind the back of the petitioner without giving

any opportunity of hearing to the petitioner and without

following the principle of natural justice. The inquiry

committee also had not issued any notice to the members of

the SAMS admission committee as well as the validation

officers and also the persons who had received the common

application form as per e-admission system. On the other

hand, the committee interrogated some persons and gave its

observation. Therefore, on the basis of the perfunctory

inquiry conducted by the so called alleged fact finding

committee, without giving any notice, the same cannot be

sustained in the eye of law. Relying upon such inquiry

report, the action taken by opposite party no.2 is arbitrary,

unreasonable, contrary to the provisions of law and violates

the principles of natural justice.

34. In the counter affidavit, a specific stand has been

taken that opposite party no.2, who is the Principal

Secretary to the Government in Higher Education

Department, being the prescribed authority under the

stature, has competence to pass such order. Such a stand

is absolutely misconstrued one, in view of the provisions of

law already discussed above. As such, he is not competent

to take action against the petitioner. Thereby, the action so

taken by opposite party no.2 indicates that he has got scant

regard towards the law enacted by the legislature,

consequentially violates the rule of law governing the field.

35. The soul of natural justice is 'fair play in action'

In HK (An Infant) in re, 1967 1 All ER 226 (DC),

Lord Parker, CJ, preferred to describe natural justice as 'a

duty to act fairly'.

In Fairmount Investments Ltd. v. Secy of

State for Environment, 1976 2 All ER 865 (HL), Lord

Russel of Killowen somewhat picturesquely described

natural justice as 'a fair crack of the whip'

In R. v. Secy. Of State for Home Affairs, ex p.

Hosenball, Geoffrey Lane, LJ, 1977 3 All ER 452 (DC &

CA), preferred the homely phrase 'common fairness' in

defining natural justice.

Natural justice, another name of which is

common sense justice, is the name of those principles

which constitute the minimum requirement of justice and

without adherence to which justice would be a travesty.

Natural justice accordingly stands for that "fundamental

quality of fairness which being adopted, justice not only be

done but also appears to be done".

36. In Swadeshi Cotton Mills v. Union of India,

AIR 1981 SC 818, the meaning of natural justice came up

for consideration and the apex Court held as follows:-

"The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight- jacket of cast-iron formula. Historically, "natural justice" has been used in a way, "which implies the existence of moral principles of self evident and unarguable truth", "natural justice" by Paul Jackson, 2nd Ed, page-1, In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice".

37. In Bhagwan v. Ramchand, AIR 1965 SC 1767,

the apex Court held that the rule of law demands that the

power to determine questions affecting rights of citizens

would impose the limitation that the power should be

exercised in conformity with the principles of natural

justice.

38. In view of the facts and law, as discussed above,

this Court is of the considered view that the order dated

15.02.2020 under Annexure-1 passed by opposite party

no.2-Commissioner-cum-Secretary, Higher Education

Department and the consequential communication dated

19.02.2020 made by the Principal of the College under

Annexure-3 and the final order dated 02.07.2020 passed by

opposite party no.2 under Annexure-9 cannot be sustained

in the eye of law and the same are liable to be quashed and

are hereby quashed.

39. It is of relevance to note that in view of the action

taken by opposite party-authorities the petitioner has been

put to miseries, sufferings and hardship with effect from

February, 2020. In the meantime, on attaining the age of

superannuation, he has already retired from service w.e.f.

30.04.2021. His exit from service itself must be very

painful, as for no fault of him he has been unnecessarily

victimized, antagonized and deprived of his legitimate claim.

In absence of a smooth exist from service an employee is

affected mentally, physically and psychologically.

Consequentially, after superannuation from service, the

petitioner approached this Court by filing an Interlocutory

Application bearing I.A. No. 9517 of 2021 and this Court,

vide order dated 10.02.2022, directed that as the petitioner

has retired from service since 30.04.2021, he is entitled to

get pension and other retiral dues and accordingly directed

the opposite parties to release the provisional pension and

other retiral dues of the petitioner within a period of four

weeks. In spite of such direction, though the petitioner has

received provisional pension w.e.f. 15.07.2022, but other

retiral dues have not been paid to him. Therefore, this Court

directs the opposite parties to immediately release the

salary of the petitioner from February 2020 till the date of

his superannuation and also release the retiral benefits as

due and admissible to the petitioner along with other

benefits as expeditiously as possible, preferably within two

months from the date of communication of this judgment,

failing which the amount will carry interest @ 9% per

annum, which shall be recovered from the salary of opposite

party no.2, who is responsible for causing difficulties to the

petitioner by abusing his power.

40. In the result, the writ petition is allowed.

However, there shall be no order as to costs.

(DR. B.R. SARANGI) JUDGE

Orissa High Court, Cuttack The 27th January, 2023, Arun/GDS