Governing Body, Biren Mitra Memorial Women�s College, Thoria Sahi vs State Of Odisha And Others

This matter is taken up through Hybrid mode.

In  the  present  intra  Court  appeal,  the  appellant-Governing Body, Biren Mitra Memorial Women’s College, Thoria Sahi, has put to challenge an order passed by the learned Single Judge of this Court dated 11.08.2022 in W.P.(C) No.9746 of 2017.

From bare perusal of the impugned order of the learned Single Judge, which is under challenge in the present appeal, it is apparent that an order dated 04.05.2017 was subject matter of challenge in W.P.(C) No.8396 of 2017 (Soumyashree Das  v. Governing Body of Biren Mitra Memorial Women’s College), which came to be disposed of by an order dated 12.05.2020. It is not in dispute that the appellant was a party in the said writ petition i.e. W.P.(C) No. 8396 of 2017. It is also not in dispute that pursuant to the decision of the learned Single Judge dated 12.05.2020 in W.P.(C) No.8396 of 2017, the Governing Body has implemented the said order.

Following the decision rendered in the case of Soumyashree Das (supra), the learned Single Judge, by the impugned order, which is under challenge in the present appeal, passed the following order:

“9. A bare reading of the impugned order dated 4th May, 2017 reveals that the same was passed purportedly in obedience to letter Nos.10529 dated 10th August, 2015 and 13441 dated 19th September, 2016 of the RDE, Bhubaneswar and as per the decision of the Staff Council Meeting as well as approval of the ADM-cum-President, Government Body. As already stated, a co-ordinate Bench in the case of Soumyashree Das (who stands at Sl. No.3 in the impugned order), has already dealt with the contentions raised by the parties before this Court and has held that the impugned order is not in consonance with law and dehors the principle of natural justice and amounts to infraction of Rules 21 and 8 of Odisha Education (Recruitment and Conditions of Services and Teachers and Members of the Staff) and Aided Educational Institution Rules, 1974 Rules. The co-ordinate Bench has also referred to the earlier decision reported in 1992(1)OLR 447 to hold that the Governing Body/Managing committee is estopped to challenge the validity of the appointment on the ground of non-approval of the appointment by the concerned authority and thus, quashed the impugned order. After perusing the judgment passed in the case of Soumyashree Das referred to above, this Court is in respectful agreement with the same as the Petitioner stands exactly on the same footing as the said Soumyashree Das and is hence, entitled to similar order in her favour.

In the result, the Writ Petition is allowed. The impugned order under Annexure-8 in so far as it relates to the Petitioner (Kaminilata Sahu) is hereby quashed. The petitioner shall be forthwith reinstated in her post, if not already reinstated, and shall be given all consequential benefits within a period of two months.”

Assailing the impugned order of the learned Single Judge dated 11.08.2022, Dr. P. Chuli, learned counsel representing the appellant-Governing Body of Biren Mitra Women’s College and others has submitted that the writ petition was wrongly entertained by the learned Single Judge there being a statutory remedy available to the writ petitioner/respondent No.3 under Section 10-A(3) of the Orissa Education Act, 1969.

We reject the said submission at the threshold. It is the settled legal position that availability of an alternative remedy does not bar the exercise of writ jurisdiction under Article 226 of the Constitution of India. The Governing Body of Biren Mitra Women’s College, after having accepted the said decision rendered in the case of Soumyashree Das (supra). cannot question the legality thereof in the present appeal. Learned counsel for the petitioner has also argued that the decision in the case of Soumyashree Das (supra) suffers from illegality that cannot be perpetuated.

Taking into account the fact that the Governing Body chose not to challenge rather it implemented the order of this Court passed in the case of Soumyashree Das (supra) which dealt with the order dated 04.05.2017 which was subject matter of challenge in W.P.(C) No.9746 of 2017, in the background of the facts noted above, the writ appeal deserves to be dismissed with cost. The appeal is accordingly dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand) to be paid by the appellant to the respondent No.3 (Kaminilata Sahoo) within two months from today.

Let an urgent certified copy of this order be issued as per the rules.

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