Ganesh Kumar Nayak vs State Of Odisha And Others
2023 Latest Caselaw 5591 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                W.P.(C) No.18936 OF 2015

(An application under Articles 226 and 227 of the Constitution
of India)

 Ganesh Kumar Nayak                                 ...     Petitioner

                                -versus-

 State of Odisha and others                         ... Opposite Parties


 Advocates appeared in the case through hybrid mode:

    For Petitioner                             : Mr.D.K.Panda,
                                                 Advocate
                                -versus-

    For Opposite Party
    Nos.1 to 3                                 : Mr.B.P.Tripathy,
                                                 A.G.A.

    For Opposite Party
    No.4                                      :Mr. D.N.Rath,
                                               Advocate

    For Opposite Party
     No.5                                      : Mr. B. Routray,
                                                 Sr.Advocate
    --------------------------------------------------------------------------
    CORAM:

                 JUSTICE SASHIKANTA MISHRA

                           JUDGMENT

10.5.2023.

Sashikanta Mishra,J. The Petitioner, in the present Writ Petition,

questions the correctness of the order dated 19th

September, 2013 passed by the Director, Secondary

Education, Odisha in Appeal No.12/2005 preferred by

the present Opposite Party No.5. As per the impugned

order the said appeal was allowed with direction to the

Managing Committee of the School to reinstate the

appellant-Opposite Party No.5 in her former post with

all benefits.

2. The facts of the case, briefly stated, are that

Bhanjabhumi Girls' High School at Kalama, Betanoti

in the district of Mayurbhanj was established in the

year 1992 and recognition was accorded for the

Session 1993-94. As per resolution dated 10th August,

1992 of the Managing Committee, one Janakimani

Behera (Opposite Party No.5) was appointed as

Teacher and in-charge Headmaster of the School. She

joined as such on 12th August, 1992. On 10th October,

2004 a show cause notice was issued to her for certain

irregularities committed in maintenance of School

accounts and misappropriation of funds. She

submitted her reply on 3rd November, 2004. Another

show cause notice was issued on 7th March, 2005. The

Managing Committee placed her under suspension

w.e.f. 29th April, 2005. She was asked to appear before

the Managing Committee on 30th April, 2005 to explain

why she should not be terminated from service.

Ultimately on 20th June, 2005, the Managing

Committee terminated her services w.e.f. 27th May,

2005. She preferred the aforementioned appeal before

the Director Secondary Education. By order dated 19th

September, 2013, enclosed as Annexure-7, the appeal

was allowed as already stated herein before. In the

mean time, by a resolution dated 10th September,

2007, the Petitioner was appointed as Asst. Teacher

pursuant to Resolution dated 8th September, 2007. It is

stated that the impugned order is bad in law as the

Petitioner was not impleaded as party in the appeal

and was thus deprived of an opportunity to put forth

his contentions.

3. The stand of the State-Opposite Parties is that

the Petitioner was illegally appointed against the

vacancy created due to illegal termination of Opposite

Party No.5 when the matter was pending adjudication

before the Director, Secondary Education.

4. The stand of the private Opposite Party No.5 is

that the appeal was preferred by her against the order

of termination issued by the Management in which the

Petitioner has no role whatsoever to play. The appellate

authority was seized with the question of legality or

otherwise of the order of termination, which has

nothing to do with the so-called appointment of the

Petitioner subsequently as an Asst. Teacher. Therefore,

he is not a necessary party and has no locus standi to

challenge the impugned order.

5. Heard Mr. D.K.Panda, learned counsel for the

Petitioner, Mr.B.P.Tripthy, learned Addl. Government

Advocate for the State and Mr. B. Routray, learned

Senior Counsel along with Mr. S.K.Samal, appearing

for the Opposite Party No.5.

6. Mr.Panda would argue that even though the

legality of termination of services of the Opposite Party

No.5 was the subject matter of appeal yet, the final

order passed therein has the effect of adversely

affecting his services. Therefore, according to him, the

Petitioner is a necessary party.

7. Mr. B.P.Tripathy, argues that the Petitioner

cannot be treated as a necessary party since he cannot

possibly have any say as regards the correctness or

otherwise of the order of termination issued by the

Management.

8. Mr. B. Routray, learned Senior counsel contends

that the Opposite Party No.5 was illegally terminated

w.e.f. 27th May, 2005. She preferred appeal in the

year 2005. At that point of time, the Petitioner had not

been appointed. He was appointed much later i.e., on

10th September, 2007. Mr. Routray further submits

that after termination of services of the Opposite Party

No.5, one Madhusmita Behera was appointed as Asst.

Teacher in the School. Because of some personal

problem, the said Madhusmita Behera resigned from

her post in the year 2006. Therefore, the Petitioner

cannot be said to have been appointed on 10th

September, 2007 on the vacancy created by the

termination of services of Opposite Party No.5. Mr.

Routray further argues that even otherwise the appeal

was filed questioning the correctness of the order of

termination. The Petitioner cannot put forth any

contention in such regard. Therefore, he cannot be

treated as a necessary party for which it must be held

that he has no locus standi to challenge the impugned

order.

9. From the rival contentions noted above, it is evident

that the only question that falls for determination in

the present case is, whether the Petitioner was a

necessary party to the appeal filed by the Opposite

Party No.5. Admittedly, the Opposite Party No.5 was

terminated from service w.e.f. 27th May, 2005. The

Director of Secondary Education after analyzing the

facts of the case and the materials on record held that

the order of suspension and termination of the

appellant(Opposite Party No.5) was illegal. As such, the

appeal was allowed and the Managing Committee was

directed to re-instate the Opposite Party No.5 in her

former post. The question whether such a person

would be a necessary party or not is no longer res

integra. In the case of Garuda Adabar vs. State of

Orissa and others; reported in 1997 II OLR-521, a

division Bench of this Court held as follows:

<3. Two tests for determining the question who is a necessary party to a proceeding are firstly, there must be a right to some relief against such party in respect of the matter involved in the proceeding in question and secondly, it should not be possible to make an effective adjudication in the absence of such a party. A person whose presence before a forum may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party and will have to be added. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceeding. (See Udit Narayan Singh Malpaharia v. Additional Member, Board of Revenue, Bihar AIR 1963 786). A party seeking impleadment as a party or questioning correctness of a decision on the plea of non-joinder will have to prima facie establish that he has interest in the subject-matter of the litigation and as such should be before the Court. The

simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer is in the affirmation, joinder is necessary and non-joinder would be vitiative. The subject-matter of appeal was validity of termination of Rabindranath Das. Petitioner had no direct interest in or nexus to such dispute. He was therefore neither a necessary nor proper party. Similar view was expressed by apex Court in several akin cases. (See State of H.P.v. Kailash Chand Mahajan : AIR 1992 SC 1277, A. Janardhana v. Union of India, AIR 1983 SC 769) and this Court in Chintamani Panda and Anr. v. Paradeep Port and Ors. OJC No. 3034 of 1992, disposed of on 20.10.1992).=

10. Applying the tests as above to the facts of the

present case, this Court has to consider whether the

presence of the Petitioner was necessary for

adjudicating the lis before the appellate authority,

which as already stated related to examining the

correctness of the order of termination passed against

Opposite Party No.5. The answer to the above question

can only be in the negative because the appellate

authority took note of the fact that the Managing

Committee had concluded that the Opposite Party No.5

had misappropriated the amount in question without

making any audit of accounts and the order of

suspension was passed without any article of charges

being served upon her. Since a major penalty had been

imposed without adhering to the principles of natural

justice, the appellate authority held, and according to

this Court rightly, that the order of termination was

bad in law. Obviously, the Petitioner cannot have any

say in the matter more so, as he was not in the picture

at the time of passing of the order of termination. He

came to the picture only in the year 2007, i.e. two

years after.

11. Mr. Panda has relied upon the decision of the

Apex Court in the case of J.S. Yadav vs. State of

U.P., reported in 2011 (6) SCC 570, wherein it was

held that no order can be passed behind the back of a

person adversely affecting him.

12. This Court however, finds that in a subsequent

decision rendered in the case of Poonam vs. State of

U.P., and others reported in (2016) 25 SCC 779, the

Apex Court interpreted the ratio of J.S. Yadav (supra)

in the following manner;

"42. From the aforesaid, it is clear as day that what has been stated in paragraph 31 in the case of J.S. Yadav (supra) does not even follow from the authorities referred to therein. We have analysed the principle of when and in what circumstances, a decision becomes a binding precedent. We have also discussed the facts at length keeping in view the declaratory relief made in the writ petition preferred before the High Court. The context in which the observations have been made have to be kept in mind. Regard being had to the factual scenario in entirety and further taking note of the fact that the court was basically concerned with the retrospective and prospective applicability of the provision, we are disposed to think that it is not a binding precedent for the proposition that in a case of termination or removal or dismissal, the person appointed in the place of a terminated, removed or dismissed employee would be a necessary party. That is how the said authority has to be understood, and we so understand."

Thus, the ratio of the J.S. Yadav (supra) is not

applicable to the facts and circumstances of the

present case.

13. From a conspectus of the analysis of the facts,

contentions raised and the law involved, this Court is

of the view that the Petitioner was not a necessary

party in the appeal preferred by the Opposite Party

No.5 before the Director, Secondary Education so as to

be impleaded as such and given an opportunity of

hearing. For the same reason, this Court also holds

that the challenge made by the Petitioner to the

impugned order is also not maintainable on the ground

of absence of locus standi.

14. In the result, the Writ Petition fails and is

therefore, dismissed. There shall be no order as to

costs.

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

                                              Sashikanta Mishra,
                                                  Judge
                            Digitally signed by ASHOK
         ASHOK KUMAR KUMAR BEHERA
         BEHERA      Date: 2023.05.10 21:06:39
                     +05'30'



Ashok Kumar Behera