Orissa High Court
Biajayanti Nayak vs State Of Odisha & Ors. .... Opposite ... on 3 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34453 of 2021
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Biajayanti Nayak .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : Mr. B. Routray, Sr. Advocate
along with
Mr. S.D. Routray, Advocate
For Opp. Parties : Mr. S.K. Samal, AGA
(Opp. Party Nos. 1, 2)
Mr. M.K. Mohanty, Advocate
(Opp. Party Nos. 3 & 4)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 10.11.2023 and Date of Judgment: 03.01.2024
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Biraja Prasanna Satapathy, J.
The present writ petition has been filed inter alia with the
following prayer:-
// 2 //
"It is therefore, most humbly prayed that this
Hon'ble Court be graciously pleased to
i) Admit the writ application.
ii) Call for the record.
ii)(a) Issue Rule Nisi calling upon the opposite parties to
show cause as to why the impugned order dated 22.10.2021
under Annexure-8 issued by opposite party no. 3, shall not be
quashed.
ii)(b) If the opposite parties fail to show cause or show
insufficient cause make the rule absolute and issue a writ in
the nature of certiorari or any other writ/writs
direction/directions quashing the impugned order dated
22.10.2021 under Annexure-8 issued by opposite party no.
3."
iii) Issue a writ in the nature of mandamus or any other writ/writs,
direction/directions directing the opposite parties to accept
the joining report and allow the petitioner to continue in her
former post of Principal in Charge taking into consideration
the admitted facts as stated in the writ petition and to release
the current and arrear salary of the petitioner within a
reasonable time to be stipulated by this Hon'ble Court.
iv) And/or pass such other order/orders, direction/directions as this
Hon'ble Court may deems fit and proper for the ends of
justice.
And for the said act of kindness, the petitioner as in duty
bound shall ever pray."
2. It is the case of the Petitioner that Petitioner was selected and
appointed as a Lecturer in History in the +3 wing of Biju Pattnaik
Women's Degree College in the district of Subarnapur vide order
dtd.04.10.1993 under Annexure-1. The services of the Petitioner was
duly approved in terms of Grant-in-Aid Order, 2008 vide order
dtd.22.07.2011 under Annexure-2. In the said order of approval the date
of joining of the Petitioner was taken as 11.10.1993.
// 3 //
2.1. It is contended that Petitioner while continuing as such and she
being the senior most teacher continuing in the College, vide order
dtd.26.08.2011, Petitioner was allowed to take over complete charges
of Principal-in-Charge -cum- Secretary of the College. In terms of the
order issued on 26.08.2011 under Annexure-4 series, Petitioner took
charge as Principal-in-Charge -cum- Secretary on 29.08.2011.
2.2. It is contended that the Governing Body of the College, which was
reconstituted vide order dtd.13.12.2019 was dissolved in terms of the
notification issued by the Govt. in the Department of Higher Education
on 24.01.2020. Such a notification was issued by the Govt. in exercise
of the power conferred under the proviso to Sub Section 6 of Section 7
of the Orissa Education Act, 1969 (in short Act). Vide the said
notification while dissolving the Governing Bodies and Managing
Committees of all Non-Govt. Aided Institutions including Aided
Degree Colleges of Odisha coming under the purview of Higher
Education Department with immediate effect, a decision was taken that
where the College is situated at the district headquarters, the Addl.
District Magistrate of the concerned district shall act as the President of
the Governing Body or the Managing Committee till further orders.
// 4 //
2.3. Learned Sr. Counsel appearing for the Petitioner contended that
Section 3(h) of the Act provides the definition of Governing Body. As
provided under Section 3(h), Governing Body means any Body of
individuals, by whatever name designated, in which the Management of
a (a junior college or a Higher Secondary School, as the case may be)
vests. It is further contended that Section 7 of the Act deals with the
Managing Committee or Governing Body of Educational Institutions is
concerned. Section 7 of the Act provides as under:-
"7. (1) Every private educational institution shall have a
managing committee or governing body, as the case may be
constituted in accordance with the rules.
(2) The managing committee or the governing body, as the case
may be, constituted for any private educational institution, shall
obtain the approval of its constitution by the prescribed
authority in the prescribed manner failing which the institution
shall not be eligible for recognition.
(3) The Managing Committee or the Governing Body, as the
case may be, shall be responsible for the proper management of
the institution and shall exercise such powers and perform such
functions as may be prescribed.
(4) A Managing Committee or the Governing Body, as the case
may be, shall continue in office for a term of [three years] from
the date of its approval by the prescribed authority under sub-
section (2) [and shall be reconstituted in accordance with the
rules. ]
(5) The existing Managing Committees or the Governing Bodies,
as the case may be, of aided or recognised educational
institutions, which were constituted prior to the date of
commencement of the Orissa Education (Amendment) Act, 1991
// 5 //
including those, if any, which are under suppression on the said
date, shall be reconstituted in accordance with the rules that
may be made under this Act for carrying out the provisions of
this section as an ended by the Orissa Education (Amendment)
Act, 1989, within a period of '(two years) from the date of
commencement of the said rules and every such existing
Managing Committee or Governing Body, as the case may be,
shall cease to continue in office on and from the date on which it
is so reconstituted.]
(6) The prescribed authority may allow the Governing Body or
the Managing Committee, as the case may be whose term has
expired under sub-section (4) or sub-section (2) of section 7-A
to continue in office till the Governing Body or the Managing
Committee is reconstituted, or appoint any person or persons to
exercise the powers and discharge the functions of the
Governing Body or the Managing Committee during the
intervening period:
Provided that the State Government may reconstitute the
Governing Body or the Managing Committee as the case may
be, notwithstanding that the term of such Governing Body or
Managing Committee has not expired and on such
reconstitution, the existing Managing Committee or Governing
Body, as the case may be shall stand dissolved."
2.4. Placing reliance on the provisions contained under Section 7(3) of
the Act, learned Sr. Counsel contended that it is the Managing
Committee or Governing Body as the case may be, shall be responsible
for the proper management of the Institution and shall exercise such
powers and performs such function as may be prescribed. Rule 21 of
the Orissa Education (Establishment, Recognition and Management of
Private Colleges) Rules, 1991 (in short 1991 Rules) prescribes the
modality for constitution of the Governing Body. Rule 22 of the said
// 6 //
Rules prescribes the provisions for approval of the Governing Body and
Rule 23 provides the modality for reconstitution of the Governing
Body. Rule 29 of the Rules provides the powers and functions of the
Governing Body. Similarly Rule 31 prescribes the powers and
functions of the President of the Governing Body and Rule 32
prescribes the powers and functions of the Secretary of the Governing
Body. It is contended that in terms of the notification issued by the
Govt. on 24.01.2020, Opp. Party No. 3 was permitted to discharge the
function of the President of the Governing Body of the College.
2.5. Learned Sr. Counsel appearing for the Petitioner referring to the
meaning of Governing Body as provided under Sec. 3(h) of the Act and
provisions contained under Sec. 7(3) r.w. Rule 29 of the 1991 Rules
contended that it is the Governing Body who is competent to ensure
proper management, maintenance and custody of the private colleges
and to maintain discipline in the private colleges. The President of the
Governing Body is only permitted to ensure that the decisions taken by
the Governing Body are implemented by the Secretary and the
Governing Body functions properly and hold its meeting regularly. The
President is also competent to take a decision in case the Secretary
// 7 //
defaults in calling a meeting of the Governing Body as directed by the
President.
2.6. Relying on the provisions contained under Sec. 3(h) r.w. Sec. 7(3)
and Rule 29 vis-à-vis Rule 31 of the 1991 Rules, learned Sr. Counsel
appearing for the Petitioner contended that since in terms of the
notification issued by the Govt. on 24.01.2020, the Governing Body of
the Petitioner's College was dissolved and no Governing Body having
been reconstituted in the meantime, Opp. Party No. 3, who was
appointed as President of the Governing Body in terms of the said
notification is not competent to discharge the function of the Governing
Body. As per the definition contained U/s. 3(h) of the Act, Governing
Body means anybody of individuals, not a single individual. In support
of his aforesaid submission, learned Sr. Counsel appearing for the
Petitioner relied on a decision of this Court reported in 2008 (II) OLR
432 (Sri Sathya Sai Seva Organization & Anr. Vs. State of Odisha &
Ors.). This Court in Para 10 of the said Judgment has held as follows:-
"10. A fascicle reading of all these provisions show that the
Governing Body of a college shall continue in office for a term of
three years from the date of its approval by the prescribed
authority. However, it can be superseded before completion of its
term of three years, if it is found that it has neglected or failed to
perform any of the duties imposed on it. In either of the case, the
prescribed authority may allow the Governing Body to continue in
// 8 //
office till the new Governing Body is reconstituted or appoint any
person or persons to exercise the powers and discharge the
function of the Governing Body during the intervening period. In
the present case, there is no material to show as to why the
Governing Body of petitioner No.3 College was dissolved. But
Annexure-2, under which the Governing body of petitioner No.3
College was dissolved, has not been challenged in this writ
petition. Petitioners are aggrieved only with the notification,
Annexure- 4, so far Opp. party No.3, College is concerned. This
notification shows that Opp. party No.4 was nominated as the
President of the Governing Body of Opp. party No.3 College. Once
the Governing Body was dissolved, there exists no Governing Body
for which a President can be nominated. It appears that there was
total non-application of mind by the Government, more
particularly, opp.parties 1 and 2 to understand and follow the
provision of law in the Rules, 1991. It is so, because Rule 25 of the
Rules, 1991, which is the relevant provision in sub-rule 1
prescribes that 'xxx as soon as the college becomes an aided
college, the Governing Body of the College shall be reconstituted
in the following manner..." (underlined to put emphasis). When the
Governing Body was dissolved on 10.06.2004 and a new
Governing Body was not in existence, the order of the State by
nominating only a person as the President was improper and
uncalled for. Therefore, the act of nominating opposite party No.4
as the President under Annexure-4 is a half-done job and as such
Annexure-4, so far Opp.party No.3, College is concerned cannot
be sustained and accordingly we quash the same. Consequentially,
until reconstitution of the Governing Body in accordance with Rule
25 of the Rules, 1991, management of the College be entrusted to a
competent authority under that Rules and steps be taken for
reconstituting the Governing Body. So far allegations and the
counter allegations relating to misutilisation of funds by Opp.
party No.4, non-auditing of the funds etc. are concerned, we
refrain from going to those factual controversy. Nonetheless, it is
the duty of the opp parties 1 and 2 to see that for the entire un-
audited period, there is proper audit by the Local Fund Authorities
and any person responsible for mismanagement or otherwise of the
Government funds or the funds available from the U.G.C. may be
dealt with suitably in accordance with the law. Such steps be taken
expeditiously by the officer, who shall remain in charge of the
// 9 //
College. In any case the Opposite party No.2 shall see to the
proper implementation of the above direction."
2.7. It is also contended that the decision passed in the case of Sri
Sathya Sai Seva Organization was followed by this Court in its order
dtd.09.04.2019 in W.P.(C) No. 7103 of 2019. The view of this Court
placing reliance in the decision of Sri Sathya Sai Seva Organization is
quoted hereunder:-
"Learned counsel for opposite party no. 4 further
contended that if a third party is appointed as President of
the Governing Body of the institution, the judgment cited
above in Sri Sathya Sai Seva Organization and another
(supra) is not applicable to the present case.
Since this question has been answered in the
aforesaid judgment, this Court should not go into the merits
of the case by reopening the matter which will amount to
reviewing the said judgment, which is not permissible under
law."
2.8. Learned Sr. Counsel appearing for the Petitioner contended that
Opp. Party No. 3 was appointed as President of the Governing Body in
terms of the notification issued by the Govt. on 24.01.2020. But in view
of the provisions contained under the Act and the Rules as cited (supra)
vis-à-vis the decision in the case of Sri Sathya Sai Seva Organization,
in absence of a duly constituted Governing Body, Opp. Party No. 3 is
not competent to discharge the function of President of the Governing
Body, lest the function of the Governing Body and initiate any
// 10 //
disciplinary action against the Petitioner. Since vide the impugned
communication dtd.22.10.2021, Opp. Party No. 3 has been permitted to
initiate a disciplinary proceeding against the Petitioner with the
approval of the Governing Body, the said action of the Govt. in the
Department of Higher Education in permitting the Opp. Party No. 3 to
initiate the disciplinary proceeding is not sustainable in the eye of law
and it requires interference of this Court. It is also contended that Opp.
Party No. 3 is not competent to initiate any disciplinary proceeding in
his capacity as President of the Governing Body. Opp. Party No. 1
without proper appreciation of the provisions contained under Sec. 3 (h)
r.w. Section 7(3) of the Act and Rule 29 vis-à-vis Rule 31 of the 1991
Rules issued such a direction to Opp. Party No. 3, which is not
permissible in the eye of law. It is accordingly contended that the
direction issued in the impugned communication dtd.2.10.2021 under
Annexure-8 is not sustainable in the eye of law.
3. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand
made his submission basing on the stand taken in the counter affidavit
so filed by Opp. Party Nos. 1 & 2. It is contended that the Governing
Body of the Petitioner's College so constituted on 13.12.2019 was
dissolved by the Govt. in the Department of Higher Education in
// 11 //
exercise of the power conferred under the proviso to Section 7(6) of the
Act with issuance of the notification on 24.01.2020. In terms of the said
notification Opp. Party No. 3 was permitted to act as President of the
Governing Body until further orders. Since the Governing Body of the
College after such dissolution has not yet been reconstituted, Opp.
Party No. 3 in his capacity as President of the Governing Body is
competent to take disciplinary action as permissible against the
Petitioner.
3.1. Learned State Counsel contended that Petitioner initially vide order
dtd.19.08.2021 of the Opp. Party No. 3 in contemplation of initiation of
the proceeding was placed under suspension under Annexure-6. It is
contended that Petitioner challenging the order dtd.19.08.2021
approached this Court in W.P.(C) No. 25563 of 2021. This Court
placing reliance on the provisions contained under Rule 21 of the 1974
Rules, declined to interfere with the order of suspension so passed
against the Petitioner vide order dtd.25.08.2021. It is contended that
Petitioner challenging the order dtd.25.08.2021 has moved this Court in
Writ Appeal No. 713 of 2021. In the Writ Appeal though notice has
been issued, but no interim order has been passed and the Writ Appeal
as on date is subjudice before this Court.
// 12 //
3.2. It is also contended that since the appointment of Opp. Party No. 3
as President of the Governing Body in terms of the notification issued
by the Govt. on 24.01.2020 has not been challenged by the Petitioner,
Petitioner is not permitted to challenge the action of the Opp. Party No.
3, who is discharging the function of the Governing Body in his
capacity as President of the Governing Body. It is also contended that
as provided under the proviso to Section 7(6) of the Act, Addl. District
Magistrate is competent to exercise the powers and discharge the
functions of the Governing Body and accordingly, Opp. Party No. 3 has
been rightly permitted by the Govt.-Opp. Party No. 1 to initiate a
proceeding against the Petitioner vide the impugned communication
dtd.22.10.2021 under Annexure-8.
3.3. It is also contended that the decision relied on by the learned Sr.
Counsel in the case of Sri Sathya Sai Seva Organization is not
applicable to the facts of the present case as in the said case the
notification of the Govt. appointing the President of the Governing
Body of the said college was under challenge. It is also contended that
while dealing with the matter in the case of Sri Sathya Sai Seva
Organization, this Court has not taken into consideration the provisions
contained under the proviso to Sec. 7(6) of the Act. The decision in the
// 13 //
case of Sri Sathya Sai Seva Organization since has been passed
without taking note of the provisions contained under the proviso to
Sec. 7(6) of the Act, it has got no binding precedent and the said
Judgment in view of the decision of the Hon'ble Apex Court in the case
of Union of India & Anr. Vs. Maniklal Banerjee (2006 (9) SCC 643)
is per-incuriam. Hon'ble Apex Court in Para 9 of the Judgment in the
case of Maniklal Banerjee has held as follows:-
"9. It was urged that in view of Rule 15(4)(ii) of the 1993
Rules, as pension and commuted value thereof are only
governed by the Pensions Act, 1871, the matter relating to
payment of gratuity could not have been brought within the
purview of the 1993 Rules. As pension and gratuity are not
bounties, the same should be given a liberal construction. Mr
Banerjee furthermore contended that the decision of the Joint
Consultative Machinery (JCM) to pay 20% dearness
allowance in emoluments for the purpose of gratuity being not
a decision under a legislative Act, the same is subservient to
the provisions of the 1972 Act. In any event, the Fifth Pay
Revision Commission having made an interim report that 90%
of dearness allowance should be paid to the employees who
have retired from 1-4-1995 to 31-12-1995, there is no reason
as to why the respondent should be deprived from the benefit
thereof."
3.4. It is also contended that since the action taken by the Opp. Party
No. 3 in placing the Petitioner under suspension vide order under
Annexure-6 was not interfered with by this Court inter alia holding the
action of the Opp. Party No. 3 in taking such action against the
Petitioner as permissible, on self same issue Petitioner cannot challenge
// 14 //
the authority of Opp. Party No. 3 to initiate the proceeding as directed
by the Govt. in the impugned communication dtd.22.10.2021 under
Annexure-8. It is accordingly contended that the prayer as made in the
writ petition is not entertainable and the writ petition is liable for
dismissal.
4. Mr. M.K. Mohanty, learned counsel appearing for the Opp. Party
Nos. 3 & 4 on the other hand made his submission basing on the stand
taken in the counter affidavit so filed by the Opp. Party Nos. 3 & 4. Mr.
Mohanty also made similar submission in the light of the submission
made by the learned State Counsel. It is contended that since the action
taken by the Opp. Party No. 3 in placing the Petitioner under
suspension vide order dtd.19.08.2021 was not interfered with by this
Court in W.P.(C) No. 25563 of 2021 and the action of the Opp. Party
No. 3 was found legal and justified, on self same issue, Petitioner
cannot challenge the authority of Opp. Party No. 3 to initiate the
disciplinary proceeding in terms of the direction issued by the Govt.
under Annexure-8.
4.1. Learned counsel appearing for the Opp. Party Nos. 3 & 4 further
contended that even though Petitioner in terms of the provisions
// 15 //
contained under Rule 21 of the Odisha Education (Recruitment &
Conditions of Service of Teachers & Members of the Staff of Aided
Educational Institutions) Rules, 1974 (in short 1974 Rules) was placed
under suspension vide order dtd.19.08.2021 and as provided under the
said provision, approval is required to be obtained within a period of 30
days from the Director, Higher Education, but since no such approval
was extended, Petitioner is being placed under suspension from time to
time and last such order of suspension was passed on 18.10.2023. The
order of suspension so passed on 18.10.2023 is pending approval of the
Director, Higher Education.
4.2. Mr. Mohanty further contended that since in terms of the
notification issued by the Govt. on 24.01.2020, Opp. Party No. 3 has
been nominated as President of the Governing Body and has been
permitted to discharge the duties and functions of the Governing Body,
the ground on which the writ petition has been filed is not entertainable.
It is also contended that in view of the decision of the Hon'ble Apex
Court reported in 2022 (6) SCC 65, Dental Council of India Vs. Biyani
Shikshan Samiti & Anr., multiple writ petitions seeking to agitate
same issue in substance is not permissible. Hon'ble Apex Court in Para
48 & 49 of the said Judgment has held as follows:-
// 16 //
"48. We further find that the impugned judgment [Biyani
Shikshan Samiti v. Union of India, 2018 SCC OnLine Raj
3456] of the Division Bench of the High Court is also not
sustainable on the ground of judicial propriety. Respondent 1
had already filed a writ petition being SB Civil Writ Petition
No. 15090 of 2016, challenging the action of the Council and
Respondent 2 in returning the application of Respondent 1 for
grant of recognition to new dental college and for a direction
to reconsider its application submitted on 24-9-2011. The said
writ petition was filed in the year 2016. The said writ petition
was dismissed by the learned Single Judge of the High Court
by the judgment and order dated 3-11-2016 [Biyani Sikshan
Samiti v. Union of India, 2016 SCC OnLine Raj 10755] .
48.1. After the said writ petition was rejected on 3-11-2016
[Biyani Sikshan Samiti v. Union of India, 2016 SCC OnLine
Raj 10755] , Respondent 1 filed the present writ petition being
DB Civil Writ Petition No. 3260 of 2017 before the Division
Bench of the High Court on 1-3-2017. In the said writ petition,
the prayer was for challenging the validity of the impugned
notification and for a direction to reconsider the proposal of
Respondent 1. The impugned notification could have very well
been challenged in the earlier writ petition, which was filed in
the year 2016 before the learned Single Judge of the High
Court. However, having failed in that writ petition before the
learned Single Judge, Respondent 1 filed another writ petition
before the Division Bench of the High Court.
48.2. Though one of the prayers challenges the validity of
the impugned notification, another prayer claims for
reconsideration of its proposal. The said prayer has been
granted by the Division Bench of the High Court by its
impugned judgment and order dated 24-4-2018 [Biyani
Shikshan Samiti v. Union of India, 2018 SCC OnLine Raj
3456] . It could thus be seen that the prayer for
reconsideration of the proposal submitted by Respondent 1,
which was already rejected by the learned Single Judge of the
High Court vide order dated 3-11-2016 in Biyani Sikshan
Samiti v. Union of India [Biyani Sikshan Samiti v. Union of
India, 2016 SCC OnLine Raj 10755] , has been renewed in the
fresh writ petition filed in the year 2017 and granted [Biyani
Shikshan Samiti v. Union of India, 2018 SCC OnLine Raj
3456] by the Division Bench of the High Court.
// 17 //
49. We, therefore, find that on the ground of judicial
propriety also the Division Bench of the High Court ought not
to have entertained the writ petition for a prayer, which
already stood rejected. In that view of the matter, the
impugned judgment and order dated 24-4-2018 [Biyani
Shikshan Samiti v. Union of India, 2018 SCC OnLine Raj
3456] passed by the Division Bench of the High Court is not
sustainable."
4.3. It is also contended that Petitioner has never challenged the
dissolution of the Governing Body with issuance of the notification
dtd.24.01.2020, whereby Opp. Party No. 3 was allowed to discharge the
duties of the President of the Governing Body. Petitioner accordingly is
not permitted to challenge the action of the said authority while filing
the writ petition in question.
5. To the submissions made by learned Addl. Government Advocate and
learned counsel appearing for Opposite Party Nos.3 and 4, learned Senior
Counsel appearing for the Petitioner contended that since as provided
under the Act and the rules governing the field, the President of the
Governing Body nowhere has been permitted to discharge the duties and
function of the Governing Body, in view of the decision of this Court in
the case of Sri Sathya Sai Seva Organization (as cited supra) any action
taken by the President on behalf of the Governing Body is not sustainable
in the eye of law.
// 18 //
In the above noted case, this Court has taken a view that once the
Governing Body was dissolved there exists no Governing Body for which
a President can be nominated. The aforesaid view in the case of Sri
Sathya Sai Seva Organization has also been followed by this Court in its
order dtd.09.04.2019 in W.P.(C) No.7103 of 2019.
It is also contended that the view expressed by this Court in the case
of Sri Sathya Sai Seva Organization has not been over-ruled till date and
the ratio decided in the said case is squarely applicable to the facts of the
present case.
5.1. With regard to the stand taken by the learned State Counsel as well as
by the learned counsel appearing for Opposite Party Nos.3 and 4 that the
action of the President of the Governing Body in placing the Petitioner
under suspension has been upheld by this Court in its order
dtd.25.08.2021, learned Senior Counsel appearing for the Petitioner
contended that since as provided under 1991 Rules, it is the Governing
Body who is competent to take a decision against the Petitioner in terms
of Rule-21 of 1974 Rules, the decision rendered by this Court in its order
dtd.25.08.2021 since is contrary to the provision contained under Rule-21
of the 1974 Rules, the said decision is to be treated as per-incurim in view
// 19 //
of the decision rendered by this Court Hon'ble Apex Court in the case of
Hyder Consulting (UK) Ltd. vs. Governor, State of Orissa, Civil Appeal
No.3147 of 2012 & batch decided on 25.11.2014. Hon'ble Apex Court in
Para-14 of the said judgment has held as follows:-
"14. Therefore, I am of the considered view that a prior decision
of this Court on identical facts and law binds the Court on the same
points of law in a later case. In exceptional circumstances, where
owing to obvious inadvertence or oversight, a judgment fails to
notice a plain statutory provision or obligatory authority running
counter to the reasoning and result reached, the principle of per
incuriam may apply. The said principle was also noticed in the case
of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.
MANU/SC/0329/2001: (2001) 6 SCC 356."
5.2. It is contended that since this Court in its order dtd.25.08.2021
without proper appreciation of the provisions contained under Rule-21 of
the 1974 Rules vis-à-vis the power and function of the Governing Body so
defined under 1991 Rules held the order of suspension passed by the
President of the Governing Body / Opposite Party No.3 as legal and
justified, the said order cannot be treated as a binding one and instead it is
a decision per-incuriam.
5.3. Learned Senior Counsel also contended that since as per the
notification issued by the Government on 24.01.2020, the Governing
Body of the Petitioner's College was dissolved and in the said
notification, it was clearly indicated that the Addl. District Magistrate of
// 20 //
the concerned District shall only act as the President of the Governing
Body, Opposite Party No.3 in his capacity as the President of the
Governing Body is not competent to take any disciplinary action against
the Petitioner as Governing Body consists of a body of individuals and not
a single individual.
5.4. It is also contended that this Court while disposing W.P.(C) No.25563
of 2021 vide order dtd.25.08.2021, proceeded to dismiss the writ petition
basing on the admission made by the learned counsel appearing therein
that as per the provisions contained under Rule-21 of the 1974 Rules, the
Governing Body is competent to place the Petitioner under suspension.
5.5. It is accordingly contended that since this Court took such a view in
its order dtd.25.08.2021 basing on the concession given by the learned
counsel appearing for the Petitioner and the same since runs contrary to
the provisions contained under 1991 Rules, such a concession given by
the learned counsel is also not binding and thereby justifying the action of
Opp. Party No. 3.
5.6. In support of the same, learned Senior Counsel appearing for the
Petitioner relied on the decision of the Hon'ble Apex Court in the case of
// 21 //
Union of India v. SC. Parashar reported in (2006) 3 SCC 167. Hon'ble
Apex Court in Para-9 & 11 of the said judgment has held as follows:-
"9. Before adverting to the said question we may record
that wrong concession of a counsel on a pure question of law
is not binding upon a party. non-mentioning irrelevant if it
for passing It is furthermore trite it is found that the requisite
ingredients thereof were available on records wrong
mentioning of a provision in an order may be held to be that
the penalty imposed upon him was a major penalty.
XXX XXX XXX
11. However, there cannot be any doubt whatsoever that
the Disciplinary Authority never intended to impose a minor
penalty. The concession of the learned Counsel appearing for
the appellant before the High Court was apparently
erroneous. It is now well-settled that wrong concession made
by a counsel before the court cannot bind the parties when
statutory provisions clearly provide otherwise. [See Union of
India and Ors. v. Mohanlal Likumal Punjabi and Ors.
MANU/SC/0137/2004 : 2004(166)ELT296(SC) ]. The penalty
imposed upon the respondent, in our considered view,
therefore, should be kept confined to the reduction to the
minimum of the time- scale of pay for a period of three years
with cumulative effect. The effect of such a penalty has been
considered by this Court in Shiv Kumar Sharma v. Haryana
State Electricity Board, Chandigarh and Ors.
MANU/SC/0440/1988: (1988)IILLU360SC in the following
terms:
// 22 //
We are unable to accept the above contention. The penalty
was imposed on April 15, 1968, and, as a result of which, he
was deprived of the monetary benefit of one increment for
one year only. The penalty by way of stoppage of one
increment for one year was without any future effect. In other
words, the appellant's increment for one was stopped and
such stoppage of increment will have no effect whatsoever on
his seniority. Accordingly, the Board acted illegally and most
arbitrarily in placing the juniors of the appellant above him
in the seniority list and/or confirming the appellant in the
post with effect from Dec. 1, 1969, that is, long after the date
of confirmation of the said respondents Nos. 2 to 19. The
question of seniority has nothing to do with the penalty that
was imposed upon the appellant. It is apparent that for the
same act of misconduct, the appellant has been punished
twice, that is, first, by the stoppage of one increment for one
year and, second, by placing him below his juniors in the
seniority list.
The ratio of the said decision is applicable to the
fact of the present case also."
5.7. Learned Senior Counsel also contended that even though in terms of
the notification issued by the Government on 24.01.2020 the Governing
Body of the Petitioner's College was dissolved along with other
Governing Body and Managing Committee of Aided Educational
Institution in the entire State, but till date no action has been initiated by
the State to reconstitute the Governing Body and thereby allowing the
Addl. District Magistrate to continue as President of the Governing Body
of the institution in question. Since in view of the clear provisions
contained under the Act vis-à-vis the 1991 rules as well as 1974 rules,
President of the Governing Body is not permitted to discharge the duties
// 23 //
and function of the Governing Body, Petitioner-Institution in absence of a
regular Governing Body is if facing all sort of problems.
5.8. It is accordingly contended that even though no relief has been prayed
for by the Petitioner for reconstitution of the Governing Body, but this
Court has got ample power and jurisdiction to issue necessary direction on
the State to reconstitute the Governing Body of the College, which has
been dissolved in terms of the notice dtd.24.01.2020 following the
principle of moulding of relief. In support of the prayer for moulding of
the relief, learned Senior Counsel appearing for the Petitioner relied on the
decision of the Hon'ble Apex Court in the case of Samir Narain
Bhojwani vs. Aurora Properties and Investments & Another reported in
(2018) 17 SCC-203. Hon'ble Apex Court in Para-24, 28 and 29 of the
said judgment has held as follows:-
"24. That apart, the learned Single Judge as well as the Division
Bench have committed fundamental error in applying the principle
of moulding of relief which could at best be resorted to at the time of
consideration of final relief in the main suit and not at an
interlocutory stage. The nature of order passed against the appellant
is undeniably a mandatory order at an interlocutory stage. There is
marked distinction between moulding of relief and granting
mandatory relief at an interlocutory stage. As regards the latter, that
can be granted only to restore the status quo and not to establish a
new set of things differing from the state which existed at the date
when the suit was instituted. This Court in Dorab Cawasji
Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi
Sorab Warden, (1990) 2 SCC 117] , has had occasion to consider
// 24 //
the circumstances warranting grant of interlocutory mandatory
injunction. In paras 16 & 17, after analysing the legal precedents on
the point as noticed in paras 11-15, the Court went on to observe as
follows : (SCC pp. 126-27)
"16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
non-contested status which preceded the pending controversy until
the final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the restoration
of that which was wrongfully taken from the party complaining. But
since the granting of such an injunction to a party who fails or would
fail to establish his right at the trial may cause great injustice or
irreparable harm to the party against whom it was granted or
alternatively not granting of it to a party who succeeds or would
succeed may equally cause great injustice or irreparable harm,
courts have evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of
a higher standard than a prima facie case that is normally required
for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which
normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking
such relief.
17. Being essentially an equitable relief the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the sound
judicial discretion of the court to be exercised in the light of the facts
and circumstances in each case. Though the above guidelines are
neither exhaustive nor complete or absolute rules, and there may be
exceptional circumstances needing action, applying them as
prerequisite for the grant or refusal of such injunctions would be a
sound exercise of a judicial discretion."
(emphasis supplied)
XXX XXX XXX
28. Reverting to the decision in Gaiv Dinshaw Irani [Gaiv
Dinshaw Irani v. Tehmtan Irani, (2014) 8 SCC 294 : (2014) 4 SCC
(Civ) 318] , relied upon by the High Court, the Court moulded the
relief in favour of the party to the proceedings to do substantial
justice whilst finally disposing of the proceedings and did not do so
// 25 //
at an interlocutory stage. In other words, reliance placed on the
principle of moulding of relief is inapposite to the fact situation of
the present case.
29. Resultantly, the invocation of principle of moulding of reliefs
so also the exercise of power to grant mandatory order at an
interlocutory stage, is manifestly wrong. To put it differently, while
analysing the merits of the contentions the High Court was swayed
away by the consent agreement between the respondents inter partes
to which the appellant was not a party. Thus, he could not be bound
by the arrangement agreed upon between the respondents inter se.
The appellant would be bound only by the Agreement entered with
Respondent 2 dated 10-3-2003 and at best the Tripartite Agreement
dated 11-9-2009. Respondent 2 having failed to discharge its
obligation under the stated Agreement dated 10-3-2003, cannot be
permitted to take advantage of its own wrong in reference to the
arrangement agreed upon by it with Respondent 1-plaintiff and
including to defeat the claim of the appellant in the arbitration
proceedings."
5.9. Learned Sr. Counsel also relied on a decision of the Hon'ble Apex
Court in the case of Employees State Insurance Corpn. & Ors. Vs.
Jardine Henderson Staff Association & Ors. (2006) 6 SCC 581. Hon'ble
Apex Court in Para 63 of the Judgment has held as follows:-
"63. The High Court under Article 226 and this Court under Article
136 read with Article 142 of the Constitution of India have the power
to mould the relief in the facts of the case."
5.10. Learned Senior counsel appearing for the Petitioner also relied on a
decision of this Court passed in WPC(OAC) No.1074/2017 (Niranjan
Das & Ors. Vs. State of Odisha & Ors.). This Court placing reliance in
the decision reported in the case of Pasupuleti Venkateswarlu Vs. The
// 26 //
Motor & General Traders reported (AIR 1975 SC-1709) held as follows
in Para-9 to 14:-
"9. "Moulding of relief" principle was recognized by the Supreme
Court in Pasupuleti Venkateswarlu v. The Motor & General Traders,
AIR 1975 SC 1709. It was observed therein that though the right to
relief must be judged to exist as on the date a suitor institutes the
legal proceeding, the principle that procedure is the handmaid and
not the mistress of the judicial process is also to be noted. Justice VR
Krishna Iyer observed:
"If a fact, arising after the lis has come to court and has a
fundamental impact on the right to relief for the manner of
moulding it, is brought diligently to the notice of the tribunal,
it cannot blink at it or be blind to events which stultify or
render inept the decrotal remedy. Equity justifies bending the
rules of procedure, where no specific provision or fair play is
violated, with a view to promote substantial justice--subject,
of course, to the absence of other disentitling (actors or just
circumstances. Nor can we contemplate any limitation on this
power to take note of updated facts to confine it to the trial
Court. If the litigation pends, the power exists, absent other
special circumstances repelling resort to that course in law
or justice. Rulings on this point are legion, even as situations
for applications of this equitable rule are myraid. We affirm
the proposition that for making the right or remedy claimed
by the party just and meaningful as also legally and factually
in accord with the current realities, the court can, and in
many cases must, take cautious cognizance of events and
developments subsequent to the institution of the proceeding
provided the rules of fairness to both sides are scrupulously
obeyed."
10. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700, the Supreme
Court again following this principle, i.e. "moulding of relief",
observed as follows:
"6. The normal rule is that in any litigation the rights and
obligations of the parties are adjudicated upon as they obtain
at the commencement of the lis. But this is subject to an
// 27 //
exception. Wherever subsequent events of fact or law which
have a material bearing on the entitlement of the parties to
relief or on aspects which bear on the moulding of the relief
occur, the court is not precluded from taking a 'cautious
cognizance' of the subsequent changes of fact and law to
mould the relief.
11. In Sheshambal (dead) through LRs V. Chelur
Corporation Chelur Building, (2010) 3 SCC 470, the apex
Court laid down the conditions in which the relief can be
moulded:
"(i) that the relief, as claimed originally has, by reason
of subsequent evnts, become inappropriate or cannot be
granted;
(ii) that taking note of such subsequent event or
changed circumstances would shorten litigation and
enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice
of the court promptly and in accordance with the rules
of procedural law so that the opposite party is not
taken by surprise."
12. In Samir Narain Bhojwani v. Aurora Properties and
Investmenets, (2018 17 SCC 203 the apex Court observed
that principle of moulding of relief could at best be resorted
to at the time of consideration of final relief in the main suit
and not at an interlocutory stage.
13. In Premalata Panda v. State of Odisha, 2015 (II) OLR
214, relying upon State of Rajasthan v. M/s. Hindustan Sugar
Mills Ltd. AIR 1988 SC 1621 : (1988) 3 SCC 449 where the
apex Court held that the High Court which was exercising
high prerogative jurisdiction under Article 226 could have
moulded the relief in a just and fair manner as required by
the demands of the situation, this Court, in exercise of such
power under Article 226 of the Constitution of India even
though no specific prayer was made in the writ petition,
taking into consideration the facts and circumstances of the
case, was inclined to mould the relief and passed order/
// 28 //
direction as deemed fit and proper as prayed for by the
learned counsel for the petitioner in the writ petition.
14. In view of the law laid down by the apex Court, so far as
"moulding of relief" is concerned, this Court is of the
considered view that even if there is no such specific prayer
made in the writ application, this Court can grant such relief,
as has been sought before this Court in course of hearing
even at the final stage by "moulding of relief"."
5.11. Learned Senior Counsel also relied on two other decisions of this
Court passed in W.P.(C) No.9179 of 2012 (Durga Charan Jena & Ors.
Vs. STate of Odisha & Ors.) and W.P.(C) No.22152 of 2013 and batch
(Sarat Chandra Routray & Ors. Vs. State of Odisha & Anr.). This Court
in Para-6 & 7 of the order in W.P.(C) No.9179 of 2012 has held as
follows:-
"6. Since the award has already attained its finality by the Apex
Court by dismissing the Special Leave Petition and as such the
authority ought to have implemented the award from the date of
the award i.e. 30.11.2000. The issue of dispute is regarding parity
in the pay scale in favour of Tax Collector/License Moharir/Bill
Moharir/Law Moharir/Work Sarkar/Amin of Urban Local Bodies
and as such the award has to be implemented w.e.f. 30.11.2000
and once the award has been published in the notification as per
the reference made by Government under section 10(1) of the
Industrial Disputes Act,1947 it has to be implemented w.e.f.
30.11.2000 but instead of doing so the award has been
implemented w.e.f. 16.3.2012 as would be evident from Annexure-
3 whereby and where under the award has been made applicable
from the date of issuance of order dated 16.3.2012. However, the
petitioner has not prayed for quashing of that part of the order
dated 16.3.2012 whereby and where under the award has been
implemented from the date of issuance of the order i.e. 16.3.2012,
but we in exercise of power under Article 226 of the Constitution
// 29 //
of India even if specific prayer has not been made, but moulding
the prayer made in the writ petition, the High Court can exercise
power under Article 226 of the Constitution of India in the ends of
justice, in this regard reference may be made to the judgment
rendered by the Hon'ble Apex Court in the case of State of
Rajasthan -vs- Hindustan Sugar Mills Ltd. and others reported
in AIR 1988 SC 1621 wherein it has been held that the High
Court in exercise of the power under Article 226 of the
Constitution of India could have moulded the relief in just and
fair manner as required by the demands of the situation, reference
may be made to para-4 of the said judgment which is being
quoted here under:
"The High Court was exercising high prerogative jurisdiction
under Art.226 and could have moulded the relief in a just and fair
manner as required by the demands of the situation."
It is also settled that on the ground of alternative remedy
the power conferred under Article 226 of the Constitution of India
cannot be exercised rather there is exception to that if the order is
without any jurisdiction or against statutory provision or if there
is violation of fundamental right, certainly High Court under
Article 226 of the Constitution of India can exercise its power
even in case of availability of alternative remedy, here in this case
the order dated 16.3.2012 whereby and where under the award
has been directed to be implemented from the date of issuance of
said order is held to be without jurisdiction since action of the
authority is contrary to the reference made by the appropriate
Government under section 10(1) of the Industrial Disputes
Act,1947 and also against the award passed by the Industrial
Tribunal dated 30.11.2000 which has been notified in the official
Gazette of the State of Odisha and the moment it has been notified
in the official gazette which attained its finality by the Apex
Court, deviation from any part of the award is without
jurisdiction and if the decision of the authority is without
jurisdiction, the High Court in exercise of power conferred under
Article 226 of the Constitution of India can interfere even though
there is alternative remedy, reference may be made, in this
regard, in the case of Whirlpool Corporation - v- Registrar of
Trade Marks, Mumbai and others reported in (1998)8 SCC 1,
wherein the Apex Court held that writ petition is maintainable
and it cannot be dismissed on the ground of availability of
// 30 //
alternative remedy if there is violation of principles of natural
justice or there is violation of any fundamental right or the order
is without any jurisdiction.
7. Accordingly, invoking said jurisdiction and in the ends
of justice and instead of relegating the workmen to go for
alternative remedy, we hereby quash part of the order dated
16.3.2012 whereby and where under the award passed in
I.D.Case No.45 of 1992 has been implemented from the date of
the award and accordingly direct the opposite party-State to
implement the award w.e.f. 30.11.2000 i.e. passing of the award
by the Industrial Tribunal with further direction upon the
opposite party-State to dispose differential salary in favour of the
workmen within period of 12 weeks from the date of receipt of
certified copy of this order. This order is being passed taking into
consideration the fact that most of the workmen have already
been retired from service and if the workmen would be relegated
to approach alternative remedy for enforcement of the award, it
will be harsh for them at this juncture of life."
5.12. Similarly, this Court in Para-7 & 8 of the order in W.P.(C) No.22152
of 2013 and batch has held as follows:-
"7. Since the award has already attained its finality by the Apex
Court by dismissing the Special Leave Petition and as such the
authority ought to have implemented the award from the date of
the award i.e. 30.11.2000. The issue of dispute is regarding
parity in the pay scale in favour of Tax Collector/License
Moharir/Bill Moharir/Law Moharir/Work Sarkar/Amin of
Urban Local Bodies and as such the award has to be
implemented w.e.f. 30.11.2000 and once the award has been
published in the notification as per the reference made by
Government under section 10(1) of the Industrial Disputes
Act,1947 it has to be implemented w.e.f. 30.11.2000 but instead
of doing so the award has been implemented w.e.f. 16.3.2012 as
would be evident from Annexure-3 whereby and where under the
award has been made applicable from the date of issuance of
order dated 16.3.2012. However, the petitioner has not prayed
for quashing of that part of the order dated 16.3.2012 whereby
// 31 //
and where under the award has been implemented from the date
of issuance of the order i.e. 16.3.2012, but we in exercise of
power under Article 226 of the Constitution of India even if
specific prayer has not been made, but moulding the prayer
made in the writ petition, the High Court can exercise power
under Article 226 of the Constitution of India in the ends of
justice, in this regard reference may be made to the judgment
rendered by the Hon'ble Apex Court in the case of State of
Rajasthan -vs- Hindustan Sugar Mills Ltd. and others reported
in AIR 1988 SC 1621 wherein it has been held that the High
Court in exercise of the power under Article 226 of the
Constitution of India could have moulded the relief in just and
fair manner as required by the demands of the situation,
reference may be made to para-4 of the said judgment which is
being quoted here under:
"The High Court was exercising high prerogative jurisdiction
under Art.226 and could have moulded the relief in a just and
fair manner as required by the demands of the situation."
It is also settled that on the ground of alternative remedy the
power conferred under Article 226 of the Constitution of India
cannot be exercised rather there is exception to that if the order
is without any jurisdiction or against statutory provision or if
there is violation of fundamental 5 right, certainly High Court
under Article 226 of the Constitution of India can exercise its
power even in case of availability of alternative remedy, here in
this case the order dated 16.3.2012 whereby and where under
the award has been directed to be implemented from the date of
issuance of said order is held to be without jurisdiction since
action of the authority is contrary to the reference made by the
appropriate Government under section 10(1) of the Industrial
Disputes Act,1947 and also against the award passed by the
Industrial Tribunal dated 30.11.2000 which has been notified in
the official Gazette of the State of Odisha and the moment it has
been notified in the official gazette which attained its finality by
the Apex Court, deviation from any part of the award is without
jurisdiction and if the decision of the authority is without
jurisdiction, the High Court in exercise of power conferred
under Article 226 of the Constitution of India can interfere even
though there is alternative remedy, reference may be made, in
this regard, in the case of Whirlpool Corporation -v- Registrar
// 32 //
of Trade Marks, Mumbai and others reported in (1998)8 SCC
1, wherein the Apex Court held that writ petition is maintainable
and it cannot be dismissed on the ground of availability of
alternative remedy if there is violation of principles of natural
justice or there is violation of any fundamental right or the
order is without any jurisdiction.
8. Accordingly, invoking said jurisdiction and in the ends of
justice and instead of relegating the workmen to go for
alternative remedy, we hereby quash part of the order dated
16.3.2012 whereby and where under the award passed in
I.D.Case No.45 of 1992 has been implemented from the date of
the award and accordingly direct the opposite party-State to
implement the award w.e.f. 30.11.2000 i.e. passing of the award
by the Industrial Tribunal with further direction upon the
opposite party-State to disburse differential salary in favour of
the workmen within period of 12 weeks from the date of receipt
of certified copy of this order. This order is being passed taking
into consideration the fact that most of the workmen have
already retired from service and if the workmen would be
relegated to approach alternative remedy for enforcement of the
award, it will be harsh for them at this juncture of life."
5.13. Learned Senior Counsel appearing for the Petitioner contended that
since after dissolution of the Governing Body in terms of the Notification
dtd.24.01.2020, there is no existing Governing Body, the action of the
Government-Opposite Party No.1 in allowing Opposite Party No.3 to act
as the President of the Governing Body, in view of the decision in the case
of Sri Sathya Sai Seva Organization is a nullity in the eye of law.
5.14. It is also contended that since President of the Governing Body is
not competent to discharge the duties and function of the Governing Body
and there is no such provision either under the Act or under 1991 Rules,
// 33 //
no such disciplinary action can be taken by the President of the Governing
Body, who has been appointed in terms of the Notification
dtd.24.01.2020. It is also contended that the decision rendered by this
Court on 25.08.2021 in W.P.(C) No.25563 of 2021 being hit by the
principle of per in curium, the said order has got no binding effect.
5.15. Making all such submission, learned Senior Counsel contended that
the direction issued by the Government permitting President of the
Governing Body /Opposite Party No.3 to initiate a disciplinary proceeding
against the Petitioner vide order dtd.22.10.2021 under Annexure-8 is not
sustainable in the eye of law and requires interference of this Court.
5.16. Learned Senior Counsel also contended that applicability of the
1974 Rules to the employees of aided educational institutions in receipt of
block grant, was an issue before this Court in a batch of writ petition.
Taking into account the contention raised by the learned State Counsel
that provisions of 1974 rules is not applicable to employees of Aided
Educational Institution, who are in receipt of Block Grant, the same issue
has been dealt with by this Court in its judgment dtd.19.10.2023 so passed
in W.P.(C) No.34453 of 2021 and batch. This Court in the said judgment
held that the provision of the 1974 Rules is also applicable to the
// 34 //
employees of Aided Educational Institution who are in receipt of Block
Grant. The view expressed by this Court in Para-7.1. of the said Judgment
is reproduced hereunder:-
"7.1. Therefore, in view of such provisions contained under
Section 3(b) of the Orissa Education Act, read with Section 7- C
of the Act and the decisions of this Court in the case of Ritanjali
Giri as well as Sarat Chandra Parida and Radharani Samal and
of the Hon'ble Apex Court in the case of D.S. Nakara and
Mamata Mohanty as cited (supra), it is the view of this Court that
no discrimination can be made in between two sets of employees
with regard to applicability of the 1974 Rules. While holding so,
it is the view of this Court that the provisions of 1974 Rules as is
applicable to the employees of aided educational institutions in
receipt of grant-in-aid and under G.I.A Order 1994 is also
squarely applicable to the employees working in different
educational institutions and in receipt of Block Grant under GIA
Order, 2004 onwards. Accordingly, the plea taken by the Opp.
Parties that 1974 Rules is not applicable to the employees who
are in receipt of Block Grant is not entertained and accordingly
rejected. This Court directs Opp. Party No.1 to extend the benefit
of 1974 Rules to the employees of aided educational institutions
who are in receipt of block grant under GIA Order, 2004 onwards
as has already been extended in favour of the employees of aided
educational institution in receipt of Grant-in-Aid under G.I.A
Order, 1994."
6. I have heard Mr. B. Routray, learned Senior Counsel appearing for the
Petitioner, Mr. S.K. Samal, learned Addl. Government Advocate for the
State-Opposite Party Nos. 1 & 2 and Mr. M.K. Mohanty, learned counsel
appearing for Opposite Party Nos.3 and 4. On the consent of the learned
counsels appearing for the Parties and with due exchange of the pleadings,
// 35 //
the matter was heard at the stage of admission and disposed of by the
present order.
7. Having heard learned counsel for the Parties and after going through
the materials available on record, this Court finds that Petitioner is
continuing as a Lecturer in History in Biju Pattnaik Women's Degree,
College, which is admittedly an aided Educational Institution in terms of
the provisions contained under Section-3(b) of the Act. As found from the
record, the services of the present Petitioner was approved in terms of the
grant-in-aid order 2008 and the institution was declared as an aided
Institution in receipt of block grant.
7.1. As found from the record, the Governing Body of the College so
constituted on 13.12.2019 was dissolved in terms of the Notification
issued by the Government on 24.01.2020. Contents of the Notification
dtd.24.01.2020 is reproduced hereunder:-
"In exercise of powers conferred under proviso to
Sub-Section (6) of Section-7 of the Orissa Education Act,
1969, pending reconstitution of the Governing Bodies or the
Managing Committees, Government after careful
consideration have treen pleased to dissolve the Governing
Bodies or Managing Committees of all Non-Government
Aided Degree Colleges of Odisha coming under the purview
of Higher Education Department with immediate effect
except the Autonomous Colleges and the colleges
established by Minority Communities
// 36 //
Where the college is situated at the district
headquarters, the Additional District Magistrate of the
concerned district shall act as President of the Governing
Body or the Managing Committee till further order. In case
of any district having more than one Additional District
Magistrate, the District Magistrate and Collector shall
nominate one Additional District Magistrate to act as
President of the Governing Body or the Managing
Committee.
Where the college is situated outside district
headquarters, the Sub- Collector of the sub-division
concerned shall act as President of the Governing Body or
the Managing Committee till further order.
This notification shall come into force immediately
with effect from 24 January, 2020."
7.2. As found from the said notification, on such dissolution of the
Governing Body and Managing Committee of Aided Educational
Institutions functioning in the State, Addl. District Magistrate of the
concerned district was permitted to act as the President of the Governing
Body or the Managing Committee until further orders. This Court after
going through the provisions contained under Sec. 3(h) of the Act read
with Section-7(3) and Rules-21, 25 and 29 of 1991 Rules finds that it is
the Governing Body, a body of individuals, who is only competent to take
disciplinary action against its employee. But in view of the decisions
rendered in the case of Sri Sathya Sai Seva Organization, which still
governed the field once a Governing Body is dissolved there exists no
Governing Body, for which the President can be nominated.
// 37 //
7.3. But in view of the notification issued by the Government on
24.01.2020, Opposite Party No.3 in his capacity as Addl. District
Magistrate was allowed to discharge the duties of the President of the
Governing Body. Since neither in the Act nor under the Rules, President
of the Governing Body is permitted to take any disciplinary action, which
only can be taken by a duly approved Governing Body, it is the view of
this Court that the direction issued by the Government in the impugned
order dtd.22.10.2021 under Annexure-8 permitting Opp. Party No. 3 in his
capacity as President of the Governing Body to initiate a disciplinary
proceeding against the Petitioner is not sustainable in the eye of law. The
direction so issued on 22.10.2021 under Annexure-8 is hereby quashed.
7.4. Not only that the stand taken by Opposite Parties regarding approval
of the order dtd.19.08.2021 by this Court in its order dtd.25.08.2021 in
W.P.(C) No. 25563 of 2021 cannot be treated as a binding precedent as by
the time the matter was disposed of by this Court in its order
dtd.25.08.2021, 1974 Rules was not applicable to employees of block
grant institutions. Pursuant to the judgment of this Court so rendered on
19.10.2023, the provisions contained under the 1974 Rules was made
applicable to the employees working in Block Grant Institutions. Since by
the time, this Court disposed of W.P.(C) No.25563/2021 vide order
// 38 //
dtd.25.08.2021, the provisions of the 1974 Rules was not applicable to the
Petitioner, who is admittedly a Block Grant Employee, the decision
rendered by this Court relying on the provisions contained under Rule-21
of the 1974 Rules is not binding and in view of the decision of the
Hon'ble Apex Court in the case of Hyder Consulting (UK) Ltd., it is a
decision per-incuriam.
7.5. This Court taking into account the applicability of the 1974 Rules to
the employees working in aided Educational Institutions in receipt of
block grant in its judgment dtd.19.10.2023, and taking into account the
stand of Opposite Party Nos.3 and 4 that last such order of suspension was
passed on 18.10.2023, since no approval has been accorded by the
Director within a period of 30 days as provided under Rule-21 of 1974
Rules, the order of suspension as per the considered view of this Court has
lapsed. Not only that in view of the finding of this Court that President of
the Governing Body is not competent to initiate disciplinary action against
the employees of aided educational institutions, the order of suspension
passed by Opp. Party No. 3 is also not sustainable in the eye of law.
Applying the principle of moulding of relief, this Court directs Opp. Party
No. 3 to re-instate the Petitioner by accepting her joining forthwith.
// 39 //
7.6. Considering the stand taken by the Petitioner as well as the Opposite
Parties that the Governing Body of the Institution was dissolved in terms
of the notification issued by the Government on 24.01.2020 and till date
such a situation is continuing, even though no such prayer has been made
in the writ petition for re-constitution of the Governing Body, but taking
into account the provisions contained under the Act and 1991 Rules, this
Court is of the view that State-Opposite Party No.1 is required to
reconstitute the Governing Body of Aided Educational Institutions in the
State within a prescribed time period. Therefore, following the principle
of moulding of relief and placing reliance on the decisions in the case of
Samir Narain Bhojwani and Employees State Insurance Corp. and
decision of this Court in the case of Niranjan Das and Sarat Ch. Routray
as cited (supra), this Court is also of the view that State-Opposite Party
No.1 is required to take immediate step for re-constitution of the
Governing Body and Managing Committees of aided educational
institutions of the State, in terms of the provisions contained under the
1991 Rules so applicable to various High Schools, Secondary Schools and
private Colleges of the State, who are in receipt of grant-in-aid.
// 40 //
8. With the aforesaid observations and directions, the Writ Petition stands
disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 3rd of January, 2024/Sneha
Location: High Court of Orissa, Cuttack
