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Soumyashree Das v/s Governing Body of Biren Mitra Memorial Womens College & Others

Company & Directors' Information:- G DAS & CO PVT LTD [Active] CIN = U74992WB1935PTC008299

Company & Directors' Information:- J MITRA AND CO PRIVATE LIMITED [Active] CIN = U52110DL1969PTC005010

Company & Directors' Information:- MITRA S K PVT LTD [Active] CIN = U51909WB1956PTC023037

Company & Directors' Information:- MITRA CORPORATION LIMITED [Active] CIN = U74999WB2012PLC180831

Company & Directors' Information:- DAS & CO PVT LTD [Strike Off] CIN = U72100AS1946PTC000740

Company & Directors' Information:- K C DAS PVT LTD [Active] CIN = U15433WB1946PTC013592

Company & Directors' Information:- S K MITRA & CO PVT LTD [Strike Off] CIN = U31909WB1946PTC013993

Company & Directors' Information:- D K DAS & CO PVT LTD [Active] CIN = U51909WB1938PTC009288

Company & Directors' Information:- U C DAS & CO PVT LTD [Active] CIN = U31200WB1987PTC042709

Company & Directors' Information:- DAS & DAS PVT LTD [Strike Off] CIN = U51109WB1950PTC019222

Company & Directors' Information:- A S DAS CO PVT LTD [Strike Off] CIN = U51109WB1957PTC023552

Company & Directors' Information:- DAS-G INDIA PRIVATE LIMITED [Active] CIN = U24304DL2020PTC370609

Company & Directors' Information:- P K DAS & CO PVT LTD [Strike Off] CIN = U74210WB1955PTC022259

    Writ Petition (Civil) No. 8396 of 2017

    Decided On, 12 May 2020

    At, High Court of Orissa


    For the Appearing Parties: S.K. Das, P.K. Behera, N. Jena, P. Dash, M.K. Dash, D. Sahoo, R. Hota, P.K. Nanda, H. Das, Advocates.

Judgment Text

1. Assailing the action of the Principal-in-charge of the B.M.M. Women's College in issuing the order of disengagement of the petitioner, the petitioner has inter alia prayed for quashing of the order dated 4.05.2017 under Annexure-8 so far as it relates to her.

2. The facts as averred in the writ petition in a nutshell is that pursuant to a selection process, the petitioner was appointed as Lecturer in Home Science in Biren Mitra Memorial Women's College, which is an aided educational institution under Section 3(6) of the Odisha Education Act, 1969. Accordingly, the petitioner joined on 18.06.2012. While continuing as such, an advertisement was published in the daily newspaper 'The Samaj' on 24.08.2013 for regular appointment and the petitioner applied in pursuance of the said advertisement and the petitioner having undergone the process of selection was duly selected and was issued with appointment order as Lecturer on 24.12.2013 and she joined on 26.12.2013 as per Annexure-5 series. Due to non-payment of salary, the petitioner along with other lecturers submitted representation to the A.D.M. who was the President of the Governing Body and due to intervention of opposite party no.2, the salary was paid to the petitioner. It has been alleged in the writ petition that the action of the petitioner did not find favour with the Principal-in-charge and being vindictive passed an order of antedated disengagement with effect from 01.05.2017 vide order dated 04.05.2017 under Annexure8 and the reference of the letter of the Regional Director of Education dated 10.08.2015 and 19.09.2016 which have been referred to in the impugned order pertains to the decision of the Staff Selection meeting. Being aggrieved and dissatisfied by the impugned order dated 04.05.2017 under Annexure-8 the petitioner has been constrained to knock the doors of this Court for redressal of her grievances.

3. Mr.S.K.Das learned counsel for the petitioner has referred to Rule 8 of The Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff and Aided Educational Intuitional Rules, 1974, (herein after referred to as 1974 Rules) Further, the learned counsel has referred to the order dated 30.08.2017 of this Court wherein the learned counsel for opposite party no.1 was directed to obtain instruction with regard to Annexure-8 since the decision of the staff selection meeting is without jurisdiction. Moreover, the impugned order has been passed without prior approval of the Director under Section 10-A of the Odisha Education Act. The learned counsel has also referred to Clause-5 of the Yardstick for approval of Posts in Aided Educational institutions for the purposes of grant-in-aid Rule 21 of the 1974 Rules, Governing Body and Sec.10-A of the Odisha Education Act. Learned counsel for the petitioner submitted by referring to Annexure-9 to the rejoinder which relates to staff council meeting dated 29.04.2017 is without jurisdiction as Staff Council meeting has no locus to disengage any staff from the college and the Resolution is completely illegal and fraught with mala fide. Further, in the rejoinder it has been mentioned that as per the policy decision of the State Government vide letter dated 26.04.2017 for separation of +2 and +3 wing which clearly mentioned that in case of State scale teachers, the separation will be made on the basis of seniority. The senior Lecturer will be placed in senior wing and the junior are placed in +2 wing. The learned counsel for the petitioner by referring to Government letter dated 26.04.2017 under Annexure-10 has submitted that the decision of the staff council meeting has violated the order of the Government under Annexure-10. Learned counsel has referred to the General Administration & Public Grievance Department order dated 19.07.2017 with regard to applicability of provision of Odisha Group-C and Group D Contractual Appointment Rule, 2013 and Group B contractual to the recruitment for which appointments were made prior to commencement of these Rules. Learned counsel for the petitioner submits that by virtue of the said Gzettee Notification dated 22.07.2017 the petitioner is to be declared as regular employee and the order of disengagement dated 04.05.2017 under Annexure-8 is liable to be quashed.

3. Learned counsel for the petitioner in order to buttress his submission has referred to the decision (Managing Committee, Majhipada M.E.School-vrs.-State of Orissa and others, (1992) 1 OrissaLR 447)

4. Controverting the averments made in the writ petition, counter affidavit has been filed by opposite party No.1 wherein it has been submitted that the number of classes in a week is less than 60 in the subject Home Science, therefore, as per the guideline/yardstick of the Government two existing lecturers and one Demonstrator are already working, hence engagement of another Lecturer is not at all permissible. Therefore, the opposite party No.1 has rightly issued the order dated 04.05.2017. Further, it has been submitted that in view of the restriction imposed by the State Government vide order dated 20.04.1998 the appointment of the petitioner was made without prior permission of the State Government. Moreover, the engagement of the petitioner was purely contractual and her engagement was not required for the institution. Accordingly the impugned order dated 04.05.2017 was issued.

5. Additional Affidavit has been filed by opposite party No.1 on 08.04.2019 wherein it has been submitted that the claim of the petitioner is not at all sustainable in view of the direction issued by the State Government from time to time as per Annexure-A/1 to D/1. Further, it has been stated that as per the Resolution dated 29.04.2017 and in pursuance of the advice of the Additional District Magistrate-cum-President of the Governing Body, the then Principalcum-Secretary of the Governing Body called the staff council meeting for smooth and better administration of the college in a democratic manner and in the meeting disengagement of the contractual staff was one of the agenda. Therefore, the resolution dated 29.04.2017 can safely be construed as the decision of the Governing Body which has been duly approved by the Additional District Magistrate-cumPresident of the Governing Body of the college and disengagement order has been passed as per the circular of the State Government which has been indicated in the impugned order itself.

6. Mr.M.K.Das, learned counsel for opposite party No.1 has submitted with vehemence since the order of termination has been passed on the direction of the Government, therefore, approval is not at all required. The learned counsel further submits that the writ petition is not maintainable in view of Section 10-A of the Orissa Education Act.

7. After having bestowed my thoughtful consideration to the rivalised submissions and on perusal of the records, it appears that the petitioner has been able to make out a case for interference due to the following :

i) The petitioner though was appointed on contractual basis initially, but subsequently he was appointed pursuant to selection for the post of Lecturer in Home Science and the impugned order of disengagement dated 04.05.2019 has been passed basing on the decision of the Staff Council meeting by referring to two letters dated 10.08.2015 and 19.09.2016 vide Annexure-C/1 and D/1 to the counter affidavit.

ii) Moreover, the Staff Council meeting have taken a decision basing on the aforesaid letter without issuance of show cause notice to the petitioner which is not legally sustainable.

iii) In order to advert to the aforesaid question, the provisions of Rule 21 of and Rule-8 of 1974 Rules is relevant:. Therefore, the impugned order under Annexure-8 so far as the petitioner is concerned appears not to be in consonance with dehors the principle of natural justice and infraction of the aforesaid Rules. The decision of (Managing Committee, Majhipada M.E. Schol-vrs.-State of Orissa and others, (1992) (1) OrissaLR 447) is squarely applicable to the case in hand. It would be relevant to refer paragraph-16 of the said judgment.

"16 The above is the position in law, according to us, when an appointment is challenged by the approving authority, if, however, the Managing Committee, who had given the appointment itself, wants to challenge the validity of the same on the ground of non-approval of the appointment by the concerned authority, we would say that it would be estopped from doing so. Not only estopped, the act of appointment by the Managing Committee without obtaining prior approval would constitute waiver on its part in challenging the validity of the appointment on this ground. We are of the firm view that any other thinking on t

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he subject would create almost a havoc in the State in the educational field because there are cases galore where succeeding Managing Committees or for that matter succeeding Secretaries or other influence-building officials of the Managing Committees try to appoint their own favourities in the schools as teachers even by displacing those who were earlier appointed by their predecessors. We cannot give handle to the Managing Committee or its functionaries to do so. It would introduce almost a chaotic condition and seriously jeopardize the security of the service of teacher, to which we cannot be parties." 8. Xxxx XXXX XXXX 9. On the cumulative effect of the aforesaid facts coupled with the reasons and judicial pronouncement the impugned order vide Annexure-8 so far as it relates to the petitioner is quashed/set aside and the petitioner shall be entitled to consequential benefits in view of the quashment of the order of disengagement dated 04.05.2017.