Dismissed

Mc of Gateswar Bidya v. State

Orissa HC20 Mar 2017WP(C)/17278/2014

Case brief

AI extract

What is this about?

This judgment dismisses two writ petitions regarding the termination of an assistant teacher's service. The High Court upheld the lower order quashing the termination, ruling that because the Managing Committee acting had expired and lacked valid approval, its resolution was a nullity, rendering the termination invalid.

What did the court decide?

The writ applications stand dismissed. The order quashing the termination of service is upheld.

Mc of Gateswar Bidya Vs State — Education and Admissions | Orissa HC (2017)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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A. - W.P.(C) NO. 17278 OF 2014

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In the matter of an applications under Article – 227 of the Constitution of India.

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………

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Managing Committee of Gateswar Bidyapitha VERSUS	……. Petitioner.
State of Odisha & others	……. Opp. Parties.
For Petitioner ::::	Mr. S. Mohapatra, Adv.
For Opp. Parties ::::	Mr. B. Rout, Standing Counsel for the School & Mass Education Deptt.. (O.P.1& 2)
	M/s. D.K. Panda,
	G.Sinha, Amrit Mishra &
	P.P. Behera,Advs (O.P.-3).

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B. - W.P.(C) NO. 20290 OF 2014

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In the matter of an applications under Article – 227 of the Constitution of India.

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Pravatilata Pradhan	……… VERSUS	……. Petitioner.
State of Odisha & others		……. Opp. Parties.
For Petitioner	::::	M/s. Kali Pr. Mishra, T.P. Tripathy Advs.
For Opp. Parties	::::	Mr. B. Rout, Standing Counsel for the School & Mass Education Deptt.. (O.P.1& 2) M/s. D.K. Panda, G.Sinha, J.Sengupta, D. Mohapatra, Advs (O.P.-3).

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………

PRESENT :

THE HON’BLE MR. JUSTICE D.DASH

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------------------------------------------------------------------------------------------Date of hearing : 01.03.2017 : Date of judgment: 20.03.2017 -------------------------------------------------------------------------------------------

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The writ application under (A) has been filed by the Managing Committee of the Ghateswar Bidyapitha, Sahaspur in the District of Puri questioning the order of the Director, Secondary Education, the opposite party no. 2 passed on 09.07.2014 in Appeal Case No. 40 of 2012. By this order, the opposite party no. 2 has held the resolution of the so called Managing Committee of the School terminating the service of the opposite party no. 3 as Asst. Teacher of the said School as bad in law and thus unsustainable. In this writ application petitioner seeks quashment of above order.

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The writ application under (B) has been filed by the subsequent appointee as Asst. Teacher of the said School in the said termination vacancy of the opposite party no. 4 who is opposite party no. 3 in the earlier writ application under (A).

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Since both the above writ applications concern with the sustainability of the order of the opposite party no. 2 in setting aside the order of termination of the service of opposite party no. 3 (A) /4(B) and accordingly the consequential action next falls for

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decision, those have been heard together for their disposal by this common judgment.

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For proper appreciation, the parties hereinafter have been referred to as they have been arrayed in the writ application under (B).

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Gateswar Bidyapitha in the district of Puri was established in the year, 1980. It received Government recognition from the Academic Session 1982-83. The School thereafter got the permission to open Class-XI & X from the Board of Secondary Education Orissa from the year 1994. The opposite party no. 4 had been appointed as Assistant Teacher of the said School on 23.08.1983. After that on 10.09.1992, he tendered his resignation which stood accepted. However, on 20.07.1997 he was again appointed as such.

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When the matter stood thus on 30.06.2007, the so called Managing Committee resolved to issue notice to show-cause upon this opposite party no. 4 as to why he was frequently remaining absent from the School. It is said that no reply having been received, the notice was so sent again. Then a decision was finally taken on 02.08.2008 to terminate the service of opposite party no. 4 in view of his unauthorized absence. On 03.08.2008 this petitioner was so appointed and thereafter she joined on 04.08.2008.

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= 4 =

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Initially the opposite party no. 4 had preferred an appeal before Joint Director, School & Mass Education since the institution was a recognized though unaided one. The institution thereafter stood notified as an aided one vide Government Notification dated 27.09.2008 with effect from 01.04.2008. In view of said notification, the appeal was not entertained holding it to be not maintainable. The petitioner then challenged the said order before this Court by filing a writ application which stood disposed of giving liberty to approach the learned Education Tribunal. The matter being taken up for hearing, the learned Tribunal placing reliance upon the decision in case of Arjuna Charan Jena Vrs. State of Orissa; 66 (1998) CLT 293; remitted the matter to the Director for reconsideration of the original appeal that had been preferred by the opposite party no.4 since the cause of action for filing the appeal had arisen prior to the School being brought within the Grant-in-Aid fold.

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The appeal has been allowed and the order of termination called in question by opposite party no. 4 has been held to be bad in law. Consequentially, Managing Committee has been directed to accept the service of opposite party no. 4 in his former post with all other service benefits from the initial date of posting.

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Heard learned counsel for the petitioners of both the writ applications and learned Standing Counsel for the School and Mass Education Department.

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I have carefully read through the order passed by opposite party no. 2 which has been called in question.

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In view of the rival contention, at first the appellate authority appears to have rightly taken up for consideration in addressing the question as to whether the order of termination of the service of the opposite party no. 4 as has been passed by the Managing Committee of the School vide resolution dated 01.08.2008 is valid or not. The opposite party no. 2 has found the Managing Committee of the School to have been first constituted on 06.01.2001 and the term to have so expired on 05.01.2004 as provided under the law. The opposite party no. 2 next found that the Managing Committee of the School was not further reconstituted and only after the School came under the Grant-in-Aid fold, the Managing Committee was so constituted and approved. In view of above factual finding, this order of termination of the service of opposite party no. 4 having been passed by a resolution of the Managing Committee which was not an approved one so as to function as such at that time, the resolution has been held to be invalid. Practically, the conclusion as above has led the opposite

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party no. 2 to set aside the order of termination of the service of opposite party no. 4.

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Be that as it may, the opposite party no. 2 has then also proceeded to address the second point as per the rival contention as regards observance of principle of natural justice in the matter of said termination. This answer has also been rendered against this petitioner and in favour of the opposite party no. 4 that it had been so violated and that the final decision has been taken without affording any opportunity of placing the explanation and without any enquiry to that effect.

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In order to appreciate the rival contention, it needs analysis of the provision of Section 7 of the Orissa Education Act which speaks of Managing Committee or the Governing Body of the Educational Institution. Sub-section 1 of section 7 of the Act mandates that every educational institution shall have a Managing Committee or Governing Body, as the case may be, constituted in accordance with rules in that behalf. Provision of sub-section 2 is to the effect that the approval of its constitution by the prescribed authority in the prescribed manner has to be obtained, failing which the institution shall not be eligible for recognition. So, as per these provisions, the approval relating to the constitution of the Managing

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Committee or the Governing Body as the case may be of any private educational institution is mandatory. The term of the Managing

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Committee or the Governing Body has been stated under subsection -4 that it would be for a period of three years from the date of approval by the prescribed authority as required under subsection-2 and it shall be reconstituted in accordance with the Rules. Pausing for a moment here when it is found that the provision relating to the approval of the constitution of the Governing Body or the Managing Committee as the case may be, by the prescribed authority has been mandatory; its reconstitution after the period provided under sub-section-4 has also to be taken as mandatory which is clear from the wordings “shall be reconstituted”, as otherwise it would be serve no purpose. It cannot also be said for a moment that the legislature while providing the specific term of the Managing Committee or the Governing Body as the case may be, intended to leave the matter of reconstitution making it directory or optional.

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Provision of sub-section 6 further fortifies the above view which empowers the prescribed authority to allow the Governing Body or the Managing Committee as the case may be whose term has expired as per sub-section -4 of the Act to continue in office till Governing Body or Managing Committee is reconstituted or to appoint any person or persons to exercise the power and discharge the functions of the Governing Body or the Managing Committee as the case may be during the intervening period.

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Admitted fact remains in the present case that the term of the Managing Committee expired on 05.01.2004. No such material has been placed that the prescribed authority had allowed said Managing Committee to continue in the office till its reconstitution. On the other hand, the letter of opposite party no. 2 filed by the opposite party no. 4 as Annexure –D/1 to his counter goes to show that by a general order, the opposite party no. 2 in exercise of power under sub-section-3 of section 7(A) of the Act had authorized the Inspectors of Schools to exercise the power and functions of the Managing Committee of the Schools in their respective circles where such Managing Committees do not exist. The other fact stands admitted that only after the School in question has come within the fold of Grant-in-Aid, the Managing Committee was constituted and approved during the year 2009. The order of termination of the service of the opposite party no. 4 with which we are concerned has been passed prior to the above constitution of the Managing Committee and that too by the Managing Committee whose term had long since expired, when also it had not been so allowed to function as such. In that view of the matter, no such factual or legal flaw is found with the finding of opposite party no. 2 in holding the so called resolution dated 01.08.2008 as nonest in

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the eye of law having been passed by the Managing Committee without the authority to take such decision having no legal existence

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and status. The resolution passed by the Managing Committee being without any authority is thus a nullity as has been rightly so held. The termination of service of opposite party no. 4 therefore having been held by opposite party no. 2 to be invalid and unsustainable, this Court finds no such illegality in it. Therefore, the action taken by the said managing committee subsequent to the above order of termination of service of opposite party no.4 which has been found to be nonest in the eye of law running against the interest of the opposite party no.4 in respect of his service in the said post cannot also sustain.

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Accordingly both the writ applications are found to be devoid of merit.

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In the result, the writ applications stand dismissed. No order as to cost is however passed.

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……………………

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D. Dash, J.

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Orissa High Court, Cuttack,

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Dated the 20^th day of March, 2017, Narayan

Mc of Gateswar Bidya v. State

Case brief

What is this about?

What did the court decide?

Mc of Gateswar Bidya v. State

Case brief

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What did the court decide?

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