Kali Prasad Das vs State of Odisha and Others

S.N. Prasad, J.—Heard learned counsel for the review petitioner and Mr. Amit Pattnaik, learned counsel for opposite party-State.

This petition has been filed Under Order XIVIII, Rule-1 of C.P.C. for review of order dtd. 2.9.2015.

This court has disposed of a writ petition of the petitioner, namely, Dr. Kali Prasad Das who has approached this court for issuance of direction upon the opposite parties for accepting his joining as per the joining report dtd. 2.7.2015 in the Ganjam College, Ganjam as Reader in Mathematics.

The fact which has been pleaded by the writ petitioner in the writ petition is that he has joined his service as Reader in Mathematics, Ganjam College, Ganjam which is a non-Government aided college. The Directorate, Higher Education, Orissa, Bhubaneswar vide office order dtd. 6.2.2014 deployed the petitioner and four other lecturers of different subjects to Niranjan Government Women''s College, Aska, Ganjam with immediate effect until further orders and accordingly the petitioner was immediately relieved w.e.f. 15.2.2014, the petitioner has submitted his joining at Niranjan Government Women''s College, continued there, but vide order dtd. 21.5.2015 passed by the Director, Higher Education, Orissa the deployment order dtd. 6.2.2014 has been cancelled, in pursuance to the same the petitioner has again submitted his joining report on 2.7.2015 before the Principal-in-Charge-cum Secretary, Ganjam College but his joining not accepted, hence he has submitted joining before the Director of Higher Education, Orissa, Bhubaneswar on 3.7.2015, reported duty before him but he has not taken any action in this regard. Hence the petitioner having no option has approached this court.

This court has passed order on 2.9.2015 on the basis of the pleading made in the writ petition and considering the fact that when the order passed by the competent authority, i.e. the Director, Higher Education cancelling the deployment order vide order dtd. 21.5.2015 hence there cannot be any interference of any of the authority in its implementation unless the order will be reversed or revised by the competent authority. Keeping this fact in mind the writ petition was disposed of directing the Secretary to look into the matter and to conduct an enquiry especially for the reason that when the joining of the petitioner has not been accepted by the Secretary-cum Principal-in-Charge which was submitted by the petitioner on 2.7.2015 on the very next day, i.e. on 3.7.2015 he has given his joining before the Director and even the director has not taken any action, hence this court has taken this very seriously because the authority who is competent, i.e. the Director, Higher Education, Orissa after knowing about non-implementation of his order, he has taken no action. Hence the Secretary was directed to conduct enquiry and to take action as to why the order passed by the competent authority is not implemented and why the Director of Higher Education has sat over the matter and not taken any action.

The main fact for consideration before this court was that if any order was passed by the competent authority if violated by any functionary will amounts to insubordination and interference with the valid order having been issued by the competent authority and if permitted, then a chaotic situation will be emerged in the State and the order passed by the competent authority will be flouted by other authorities which will not be in the interest of the administration of the State.

After disposal of the writ petition the instant review petition has been filed on behalf of opposite party Nos. 3 & 4 to the writ petition who are the Governing Body of Ganjam College and the Principal-in-Charge, Ganjam College stating inter alia therein that the petitioner has filed this writ petition by suppressing material facts regarding his debarment to do examination duty by Berhampur University, he had given admission to the students beyond the strength affiliated by the Council. The Governing Body has passed a resolution to take departmental action for his action admitting students unauthorisedly beyond the permitted strength and instigating the students against the college. The Governing Body has requested the Director, Higher Education and Secretary, Higher Education to transfer him to some other college for the aforesaid reasons.

According to opposite party Nos. 3 and 4 on whose behalf the instant review petition has been filed, the order dtd. 2.9.2015 needs to be revised and recalled for the following reasons:-

(i) The writ petition has been filed by suppressing material fact.

(ii) The Governing Body of the College has got power not to accept the joining in view of the provision of the Orissa Aided Educational Institutions'' Employees'' Common Cadre and Inter transferability Rules, 1979, hereinafter referred as The Rule 1979.

Learned counsel for the petitioner has relied upon the judgments rendered by the Hon''ble Supreme Court of India in cases reported in 2008 (5) Supreme 281, 2012 (1) OLR 330 and 2014 (1) SCC 697. By referring to these judgments it has been submitted that if there is material suppression of facts and if the writ petitioner is not approaching the High Court with clean hand, the writ petition is to be dismissed at the threshold.

On the other hand learned counsel appearing for the writ petitioner has submitted that there is no manifest illegality in the order passed by this court in W.P.(C) No. 13609 on 2.9.2015 because of the reason that the provision of Orissa Aided Educational Institutions'' Employees'' Common Cadre and Inter transferability Rules, 1979 contained therein the provision of Rule 9 will not be applicable because it is not a transfer rather it is only a deployment order, the origin of the post of the petitioner was in the Ganjam College, vide order dtd. 6.2.2014 he was simply been deployed to Niranjan Government Women''s College by the order of the Director, Higher Education with a specific direction that the petitioner will draw his salary as usual after obtaining leave statement from the Principal, Niranjan Government Women''s College, Aska, the moment the deployment order has been cancelled vide order dtd. 21.5.2015, the petitioner has came to the Ganjam College as such it cannot be said that the order dtd. 21.5.2015 is a transfer order hence the provision of Rule 9 of the Rule 1970 since it specifically deals with respect to a case of transfer, will not be applicable in the facts and circumstances of the case of the petitioner since the case of the petitioner is of deployment.

The petitioner has been deployed by cancelling the order dtd. 21.5.2015 by the order passed by the Deputy Director (NGC-II) in pursuance to the Government Order No. 6902/HE dtd. 2.5.2015. Hence the opposite party Nos. 3 & 4 (review petitioner) has got no jurisdiction not to accept the joining of the petitioner and the petitioner being a regular reader cannot be forced to remain on road for no fault of his own, considering these aspects this court vide order dtd. 2.9.2015 has directed the Commissioner-cum-Secretary of the Department to conduct enquiry. Hence there is no manifest illegality in the order, there is no error apparent on record and the opposite party Nos. 3 & 4 got no authority not to accept the joining of the petitioner, they ought to have obeyed the order passed by the competent authority of the State Government.

After hearing learned counsels for the parties and on perusal of the record, the argument which has been advanced on behalf of learned counsel for the review petitioner that on account of the fact that serious allegation has been leveled, recommendation of initiation of departmental proceeding is there, hence the decision of the competent authority to post the petitioner in Ganjam College is absolutely in correct.

This argument of the review petitioner cannot be accepted because of the reason that it is the Government who is the competent authority to post a lecturer, reader or professor and for that purpose "The Rules 1979" is formulated wherein in Rule 6 the power to transfer has been dealt which is being quoted herein below:-

"6. Power to transfer - (1) The Director shall have the power to transfer employee of the common cadre in the case of Colleges. The Inspector in the case of High Schools and the District inspector in respect of Middle English Schools shall have the power to transfer employee in the common cadre from the institution to another within the jurisdiction.

(2) The Director shall have the power to transfer employees in the common cadre from one educational circle to another in respect of employees serving in High Schools and the Inspector, one educational district to other within his circle in case of employees serving of Middle English Schools.

(3) No employee who has not completed five years of the service in a particular institution shall be ordinarily transferred:

Provided that such an employee may be transferred before completion of the said period in public interest, administrative and academic consideration so demanded.

[(4) The authorities empowered to make transfer under Sub-rules (1) and (2) shall be the disciplinary authorities in respective cases during the period intervening the date of relief and date of joining]."

From perusal of the provision as contained in Rule 6 it is apparent that the Director has power to transfer employee of the common cadre in the case of the colleges, meaning thereby the director is the competent authority to transfer an employee of the college.

There is no dispute that the petitioner was posted prior to 6.2.2014 in the Ganjam College, Ganjam and he was deployed to Niranjan Government Women''s College, Aska by the order of the Director, Higher Education Orissa with a direction to draw the salary from Ganjam College after obtaining leave statement from the principal, Niranjan Government Women''s College, Aska, this makes the picture very clear that the original order of posting issued in favour of the petitioner by the competent authority was in the Ganjam College, Ganjam and it has never been recalled. However, vide order dtd. 6.2.2014 the petitioner by an interim measure was deployed to go to Niranjan Government Women''s College, Aska, accordingly the petitioner has joined after having been relieved but vide order dtd. 21.5.2015 which was passed in pursuance to the Government Order No. 9602/HE dtd. 2.05.2015, the deployment of the petitioner from Niranjan Government Women''s College has been cancelled. The order dtd. 21.5.2015 suggests that the same has been passed on the basis of the decision taken by the Government and as such nobody can question the order issued by the Government save and except the Government itself or by a court of law if challenged but not by the individual functionary or by the authority of the State Government or by the Governing Body of the College. The petitioner after issuance of order dtd. 21.5.2015 will be deemed to have been returned to the parent college that is Ganjam College, Ganjam and hence the petitioner was supposed to discharge his duty there and the petitioner has given his joining report on 2.7.2015 but joining has not been accepted.

At this juncture the argument advanced by learned counsel for the review petitioner that under the provision of Rule 9 the power has been vested with the Governing Body to relieve or accept the joining reports. For better appreciation the provision of Rule 9 of Rules 1979 is quoted herein below:-

"9. The Principal in respect of a College and the headmaster, Headmistress or the Head of the Institution in respect of an institution other than a College shall be the competent to issue Last pay certificate in respect of - employees while on transfer and to relieve or accept their joining reports. The Last Pay Certificate of the employees so transferred shall be countersigned by the Secretary of the concerned Governing Body or Managing Committee, as the case may be:

Provided that in the event of vacancy in the office of the Principal, Headmaster, Headmistress or Head of the Institution, as the case may be, the senior most member of the teaching staff of the institution shall be the authority competent to issue the Last Pay Certificate."

From perusal of the provision of Rule 9 it is apparent that the same relates to transfer but the facts of this case is not of transfer rather of deployment and there is material difference in between transfer and deployment which is very much clear from the order dtd. 6.2.2014 because the petitioner on deployment was directed to take salary from Ganjam College, Ganjam on the basis of the leave statement to be obtained from the principal Niranjan Government Women''s College, Aska. Hence the provision of Rule 9 is not applicable to the circumstances of the case.

So far as the contention of learned counsel for the review petitioner that so many allegations have been leveled against the petitioner, recommendation of initiation of departmental proceeding has been made, but fact remains that there is no departmental proceeding initiated against the petitioner. Even assuming that departmental proceeding has been initiated, on the garb of pendency of departmental proceeding the joining of an employee cannot be refused otherwise it will amounts to punishment in course of the departmental proceeding itself.

But here no departmental proceeding is pending against the petitioner and merely on the ground of some allegations leveled by the Governing Body of the College the joining cannot be refused.

The review petitioners although have tried to justify their stand that under the power conferred under Rule 9 of the Rules, 1979 the review petitioners have got power not to accept the joining but Rule 9 is altogether with different situation, i.e. of transfer and not of deployment.

So far as applicability of judgments upon which reliance was placed by learned counsel for the review petitioners, the judgments reported in 2008 (5) Supreme 281, 2012 (1) OLR 330 and 2014 (1) SCC 697, the same relates to suppression of material facts. Learned counsel for the review petitioners has argued that the petitioner has filed writ petitioner before this court regarding the question of Principal in in-charge capacity and this fact has not been brought to the notice in the writ petition along with other irregularities leveled against the petitioner regarding recommendation of initiation of departmental proceeding, etc. but considering the nature of the prayer made in the writ petition which strictly relates for joining in view of the valid order passed by the competent authority. These facts have no bearing with the writ petition and the petitioner has merely prayed for acceptance of his joining. Even assuming that the petitioner would have narrated all these facts in the writ petition then also there would not have any material difference because of the nature of the prayer made by the writ petitioner in the writ petition and an employee cannot be permitted from out of service if an order has been issued in his favour by the competent authority of posting.

It is also settled that the college or its Governing Body cannot interfere and cannot come in the way of the decision of the competent authority of their own and if they at all are aggrieved, they ought to have challenged the order from which they are aggrieved before the proper forum or before the appropriate authority. But instead of doing so they have come in the way of the order passed by the competent authority which cannot be approved otherwise it will lead to giving premium to illegal action of the Governing Body of the College in not accepting the order passed by the Government.

Hence in totality of the facts and circumstances as discussed herein above the order passed by this court on 2.9.2015 in W.P.(C) No. 13609 of 2015 needs no interference.

Accordingly the review petition is dismissed.