Orissa High Court

Afr Santibrata Panda vs State Of Odisha & Others ....... Opp. ... on 17 January, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P.(C) No. 13566 of 2007

        Application under Articles 226 & 227 of Constitution of India.
                                              ---------------
AFR     Santibrata Panda                                        ......            Petitioner

                                      - Versus -

        State of Odisha & Others                                .......         Opp. Parties

        Advocate(s) appeared in this case:-
        ________________________________________________________
           For Petitioner    : Mr. Budhadeb Routray, Sr. Advocate
                               with M/s. S. Das, K. Mohanty, R.P.
                               Dalai, K. Jena, S.K. Samal, P. Mohanty,
                               S.P. Nath, S.D. Routray and B. Behera,
                               Advocates.

            For Opp. Parties : Mr. S.N. Pattnaik,
                               Addl. Government Advocate

                                       Mr. J.K. Rath, Sr. Advocate with
                                       M/s. S.K. Mishra, P.K. Rout, D.N.
                                       Rath, A.K. Saa, Advocates
                                       [For O.P. No.5]

                              Mr. G.N. Pattanaik, Adv. (for O.P. No.4)
        _________________________________________________________
        CORAM:
               JUSTICE SASHIKANTA MISHRA

                                        JUDGMENT

th 17 January, 2025

SASHIKANTA MISHRA, J. The petitioner in the present writ

application seeks to challenge the order dated 08.10.2007

passed by the Inspector of Schools, Balasore Circle directing

reinstatement of opposite party No. 5 as Classical Teacher

and declaring the petitioner's appointment as such as

invalid. The petitioner also seeks to quash the inquiry report

dated 16.05.2005 of the Special Secretary, School and Mass

Education Department.

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

present opposite party No.5 was appointed as a Classical

Teacher in Kumari (B.C.) High School, Kumari in the district

of Balasore on 10.07.1987. While working as such, because

of her long unauthorised absence, the Managing Committee

terminated her services in 1995 after issuing a show cause

notice and conducting due inquiry. After termination of the

service of opposite party No.5, the petitioner was appointed

as Classical Teacher on 28.02.1997 in the said vacancy. In

the meantime, the opposite party No.5 challenged the action

of the Management before the Director of Secondary

Education by filing an appeal. The appeal came to be

dismissed on 27.05.1997 confirming the order of termination

passed by the Management. Opposite party No.5 challenged

the order of dismissal of appeal before this Court in OJC No.

10540 of 1997, which was disposed of granting liberty to her

to submit representation before the appropriate authority.

Accordingly, a fresh inquiry was conducted by the Special

Secretary to the Government in Department of School and

Mass Education which concluded that the termination of

opposite party No.5 was unjustified. Basing on such report,

the Inspector of Schools, vide order dated 08.10.2007

directed reinstatement of opposite party No.5 and also

declared appointment of the petitioner as invalid.

3. The petitioner challenged said order initially before

this Court in the present writ application but the same was

dismissed by order dated 15.07.2009 by holding that he had

no cause of action. The petitioner moved the Supreme Court

in Civil Appeal No. 6905 of 2011 against such dismissal of

the writ application. The Supreme Court, by order dated

14.05.2015 set aside the order passed by this Court and

remanded the matter for fresh adjudication. According to the

petitioner, the Director as appellate authority had dismissed

the appeal preferred by the opposite party No.5 way back on

27.05.1997 after considering all relevant facts including the

inquiry conducted by the then Assistant Inspector of Schools.

Therefore, the Inspector of Schools being a subordinate

officer had no authority to review or override the decision of

the Director. That apart, the Special Secretary's inquiry was

also unauthorised and conducted without notice to the

petitioner or the Managing Committee. It is also stated that

the termination of the opposite party No.5 was legally

justified and the petitioner was appointed in the termination

vacancy after following due procedure.

4. The case of the opposite party No.5 is that she was

appointed as Classical Teacher on 10.07.1987. Because of

her illness, she could not attend the duties in the School

from 15.11.1991 to 26.11.1991. Subsequently, after

recovering from illness, she submitted her joining report on

27.11.1991 along with leave application but the same was

not received by the Headmaster or the Secretary of the

Managing Committee. As such, she sent her joining report

along with her leave application and Medical Certificate to the

Inspector of Schools, Balasore Circle by registered post on

26.12.1991. Thereafter, she submitted several

representations to the Inspector of Schools ventilating her

grievance but no action was taken. Further, she was not paid

her monthly salary from November, 1991 and suddenly she

was prevented from signing on the attendance register with

effect from 26.12.1991. The Inspector of Schools, by order

dated 18.11.1992 directed the Secretary of the Managing

Committee to allow her to sign on the attendance register and

accordingly, the Managing Committee allowed her to sign as

such. Again, the opposite party No.5 fell ill from 21.10.1992

to 07.11.1992 and accordingly, she remained on leave by

submitting appropriate application with medical certificate

but the Secretary of the Managing Committee refused to

receive the leave application but due to intervention of the

Inspector of School, the leave period was also regularised.

Again from 29.03.1993 to 24.06.1993, the opposite party

No.5 being in an advanced stage of pregnancy availed

maternity leave for the said period. But after completion of

the period of leave, when she went to the school, she was not

allowed to sign on the attendance register. She again

approached the Inspector of Schools by letter dated

06.07.1993. The Inspector of Schools, vide letter dated

25.10.1994 directed the headmaster of the school to remain

present along with other members of the staff in course of an

inquiry to be conducted in the matter. The Assistant

Inspector of Schools conducted an inquiry on 31.10.1994

and submitted appropriate report. The opposite party No.5

claims to have continued to discharge her duties by attending

her classes regularly and by signing the attendance register

till 04.01.1995. However, on 05.01.1995, the headmaster of

the school prevented her to attend examination duty and to

sign the attendance register. When she protested, she was

driven out from the school with the help of a peon. She met

the Inspector of Schools and submitted her grievance, but no

action was taken. Accordingly, she filed an appeal before the

Director, Secondary Education. In the meantime, the

petitioner, who happens to be the son of the President of the

Managing Committee, was appointed as Classical Teacher in

place of the opposite party No.5 with effect from 01.03.1997.

5. The Director without taking into consideration the

materials available or record and basing on an ex-parte

inquiry report of the Assistant Inspector of Schools and

without giving any opportunity to the opposite party No.5

rejected the appeal by order dated 16.05.2005. The opposite

party No.5 therefore, submitted a representation to the

Government to conduct further enquiry into the matter.

Accordingly, two responsible officers of the Government being

the Special Secretary and the Inspector of Schools conducted

a spot inquiry by going through the documents available in

the school and also questioned the villagers and ex-teachers

present at the relevant time. Basing on such inquiry, they

submitted a report, wherein it was clearly indicated that the

opposite party No.5 was wrongfully terminated from service

without following due procedure. In the meantime, the

opposite party No.5 had approached this Court in OJC

No.10540 of 1997 challenging the order passed by the

Director. Said writ application was disposed of by order dated

16.08.2007 granting her liberty to move representation before

the appropriate authorities under the Government on the

basis of the inquiry report. Pursuant to such order, the

opposite party No.5 submitted representation on 18.09.2007

before the Inspector of Schools, Balasore Circle. By order

dated 08.10.2007, the Inspector of Schools after considering

the inquiry report allowed the representation by directing the

Managing Committee to allow the opposite party No.5 to work

as Classical Teacher by disallowing the petitioner to work in

that school. According to the opposite party No.5, she was

prevented from discharging her duties with effect from

04.01.1995 which amounts to termination of her service, but

the same being violative of the principles of natural justice,

the appeal filed by her should have been allowed by the

Director. However, the Director was swayed away by the

statement of a senior clerk attached to the office of the

Inspector of Schools and therefore, the appeal was rejected.

In any case, the action of the Managing Committee in

refusing employment to the opposite party No.5 was actuated

by malafides, inasmuch as the petitioner, who happens to be

the son of the then President of the Managing Committee,

was appointed in place of the opposite party No.5 and in

order to do so, the opposite party No.5 was wrongfully

deprived of employment. It is further stated that the matter

was enquired into by two responsible officers of the

Government, who found that there was no valid reason to

terminate the services of the opposite party No.5 and

moreover, proper procedure had not been followed. Therefore,

the impugned order was passed directing the Managing

Committee to take back opposite party No.5 into employment

by disallowing the petitioner to work as Classical Teacher. It

is also stated that the petitioner has no valid right to

continue in employment.

6. The stand of the State Government is that the

Managing Committee of the School terminated the services of

the opposite party No.5 without following due procedure.

Further, the Managing Committee without being aware of

Government Rules and norms prescribed for aided/unaided

Educational Institutions engaged the petitioner in the post

held by the opposite party No.5 with effect from 10.07.1987.

The petitioner was appointed without following any

procedural method regulating the service conditions under

the above category of schools and therefore, no right is

conferred upon him. Moreover, an inquiry was conducted

jointly by the Special Secretary and the Inspector of Schools

on the basis of school records. It was established in course

of inquiry that the action of the Managing Committee in

terminating the services of opposite party No.5 was illegal

and in contravention of the Orissa Education (Recruitment

and Conditions of Service of Teachers and Members of the

Staff of Aided Educational Institutions) Rules, 1974. The

inquiring authority also suggested both the parties to settle

the problem amicably after discussion.

7. Heard Mr. Budhadev Routray, learned Senior

Counsel with Mr. J. Biswal, learned counsel for the

petitioner; Mr. S.N. Pattnaik, learned Addl. Government

Advocate for the State; and Mr. J.K. Rath, learned Senior

Counsel with Mr. A.K. Saa, learned counsel for the opposite

party No.5.

8. Mr. Routray would argue that once the Director

being the appellate authority had dismissed the appeal

preferred by the opposite party No.5 after considering all the

relevant facts including the inquiry conducted by the

Assistant Inspector of Schools, the Inspector of Schools

lacked authority to pass any order overriding the order

passed by the appellate authority, which almost amounts to

reviewing the order passed by higher authority. According to

Mr. Routray, this is impermissible in law. Mr. Routray further

argues that the inquiry conducted by the Special Secretary

was without any legal basis and conducted without notice to

the petitioner or the Managing Committee.

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

for the opposite party No.5 would argue that the entire

objective of the managing committee was to somehow appoint

the petitioner in place of the opposite party No.5 as he

happened to be the son of the then President of the Managing

Committee. Moreover, the refusal of employment to opposite

party No. 5, which amounts to termination of her services,

was entirely without following the due procedure laid down in

law. The inquiry committee formed by two senior officers of

the Government, after perusing the records of the school,

clearly found that proper procedure had not been followed

either in terminating the services of the opposite party No.5

or in appointing the petitioner in her place. As such, the

Inspector of Schools rightly held that the termination of

opposite party No. 5 is illegal.

10. Mr. Pattnaik, learned State Counsel also makes

similar arguments as Mr. Rath noted above. He further

submits that the petitioner was appointed in the termination

vacancy of opposite party No.5 without following due

procedure by the Management. That apart, the termination of

opposite party No.5 in the form of refusal of employment was

also without following due process of law.

11. I have carefully considered the rival submissions

and have also gone through the materials available on record.

The facts of the case, as narrated, are not disputed. The

opposite party No.5 was appointed as a Classical Teacher in

the school way back in the year 1987. She continued as such

till 1995 when she claims to have been illegally terminated by

way of refusal of employment. There is also no dispute that

the petitioner was appointed in the vacancy so caused in the

year 1997 and has been continuing as Classical Teacher till

date. In the additional affidavit filed by the petitioner it is

seen that a certificate has been issued by the headmaster

certifying that the petitioner has been performing his duties

continuously since 01.03.1997 till date and that his

performance is satisfactory. Further his services have been

approved by the Government. At the same time, this Court is

also conscious of the fact that as per the inquiry conducted

by the Special Secretary and the Inspector of Schools jointly,

it was revealed that the opposite party No.5 was terminated

without following proper procedure of law. The parties have

been litigating since 1997. In course of hearing, on a query

posed by this Court, learned State Counsel has obtained

instructions to the effect that there is a vacancy of Classical

Teacher due to retirement of the incumbent in a similar

category school i.e. Mohan Charan High School, Aladiha (new

aided) under Baliapal Block in the district of Balasore. This is

a peculiar case where the petitioner having been appointed

against the termination vacancy, has been continuing as

such for the last 27 years and his services have been duly

approved. If there was any procedural irregularity in his

appointment, the same obviously cannot be agitated at this

distance of time. Moreover, he cannot be faulted with for the

wrong committed by the management at the relevant time. At

the same time it must also be borne in mind that the

opposite party No. 5 was validly appointed in the year 1987

and continued as such till 1995 when she appears to have

been refused employment without following the due

procedure. The question is, whether in such peculiar facts

and circumstances is it necessary or would it be equitable to

implement the order passed by the Inspector of Schools

holding the termination of the opposite party No.5 as illegal.

It would rather enure to the benefit of all parties if the

opposite party No. 5 is restored her position and at the same

time the petitioner, who has been discharging his duties

satisfactorily for the last 27 years, is also protected. Since

there is a vacancy available in a similar school in the very

same district, this Court is of the considered view that the

opposite party No. 5 or the petitioner can be adjusted in the

said vacancy without causing any prejudice to the other

person. This Court is conscious of the fact that the impugned

order may not require any interference in view of the fact that

the Managing Committee did not follow proper procedure

while terminating the services of the opposite party No.5 but

then, as has already been stated hereinbefore, the petitioner

cannot also be blamed for the mistake committed by the

Managing Committee and that too, at this distance of time. If

the impugned order is to be implemented strictly, it would

result in termination of services of the petitioner, which

obviously would affect his right to livelihood guaranteed

under Article 21 of the Constitution of India. Therefore,

taking an overall view of the matter, particularly in the

peculiar facts and circumstances of the case and without

setting a precedent, this Court holds that ends of justice

would be best served if the interests of both the petitioner

and opposite party No. 5 are protected. In other words, the

petitioner having been appointed subsequently to the

opposite party No. 5 can be conveniently adjusted in the

aforementioned vacancy while the opposite party No.5 can be

reinstated in her former post.

12. For the foregoing reasons therefore, the writ

petition is disposed of with the following directions:

(i) The opposite party No.5 shall be reinstated in

her former post as directed by the Inspector of

Schools in the impugned order.

(ii) The opposite party authorities shall pass

necessary orders to appoint the petitioner in any

available vacancy in a nearby school by granting

him continuity of service.