- (1.)The appellant, who is working as a Lecturer in English (1st post) in Indira Gandhi (Junior) Mohavidyalaya, Nimapara in the district of Puri, which is an aided educational institution within the meaning of Section 3 of the Orissa Education Act and Rules framed thereunder, files this appeal seeking to quash the order dated 29.2.2012 passed by the learned State Education Tribunal in GIA Case No. 36 of 2010 vide Annexure-5 dismissing his application for release of grant-in-aid in respect of the post held by him.
(2.)The short fact of the case in hand is that Indira Gandhi (Junior) Mohavidyalaya, Nimapara in the district of Puri was established as a Junior college with +2 wing in the year 1989. On completion of five years of its establishment, as per the Grant-in-aid Order, 2004, the college came within the fold of grant-in-aid. At the time of opening of the college, one Choudhury Ramakanta Das was appointed as Lecturer in English against 1st post in the year 1989 and he continued up to 15.12.1992. Respondent no.4, Smt.Swapna Mohanty was appointed against 2nd post of Lecturer in English on 25.11.1991 by the Governing Body. Due to resignation of Choudhury Ramakanta Das, the holder of 1st post, the Governing Body vide its resolution dated 16.12.1991 elevated the respondent no.4 to the 1st post of Lecturer in English. Taking into account the work load, warranting the 2nd post of Lecturer in English in +2 wing, the Governing Body following due procedure of selection appointed the appellant pursuant to which he joined against the post on 6.2.1993.
When the matter thus stood, there was disturbance in the Governing Body of the college and therefore, respondent no.2, the Director, Higher Education appointed one K.K.Raymohapatra, the then Principal of S.A.Mohavidyalaya, Balipatna as Special Officer for discharging the day to day affairs of the college vide order dated 25.4.2001. The Special Officer terminated the respondent no.4 on the charge of negligence in duty vide office order dated 14.5.2002. Thereafter, the appellant was elevated to the 1st post of Lecturer in English after termination of the services of respondent no.4 by the said Special Officer. The new Governing Body under the Presidentship of Sub-Collector, Puri was constituted vide notification of the Government dated 14.10.2001. Against the order of termination dated 14.5.2002 respondent no.4 preferred an appeal before the Director, Higher Education, Odisha. In the said proceeding appellant was not made a party. Without giving opportunity to the said appellant, the Director allowed the appeal preferred by respondent no.4 and set aside the order of termination vide order dated 21.02.2006 and directed for reinstatement of respondent no.4 against the post she was holding at the time of termination. Pursuant to such order of the Director, Higher Education, Orissa dated 21.02.2006, respondent no.4 was reinstated in service on 28.02.2006 and has been discharging her duties against the 1st post of Lecturer in English. Thereafter, respondent no.4 filed GIA Case no. 120 of 2006 before the learned State Education Tribunal for approval of her appointment against the 1st post of Lecturer in English in which the appellant was not made a party. The learned Tribunal upon hearing the parties allowed the GIA case and directed for approval of her appointment against the 1st post of Lecturer in English and to release GIA by way of Block Grant in respect of the post w.e.f. 01.01.2004. Since the order passed by the learned Tribunal was not implemented, respondent no.4 filed W.P.(C) No. 17803 of 2009 before this Court. The Division Bench of this Court by order dated 25.11.2009 directed for implementation of the order passed by the learned Tribunal in GIA Case No. 120 of 2006. Against the said order, the State Government preferred FAO No. 589 of 2010 which was also dismissed by order dated 16.07.2011. After dismissal of FAO No. 589 of 2010, the State Government approved the appointment of respondent no.4 against the 1st post of Lecturer in English and released Block Grant in her favour w.e.f. 01.02.2009. Thereafter, claiming GIA the appellant filed GIA Case No. 36 of 2010 in which respondent no.4 has been arrayed as a party. Upon hearing the parties, the learned Tribunal dismissed the GIA Case holding therein that since respondent no.4 is senior to the appellant and pursuant to the order passed by the learned Tribunal in the earlier GIA Case No. 120 of 2006 and confirmed by this Court in W.P.(C) No. 17803 of 2009 and FAO No.589 of 2010, the matter has been set at rest and there is no scope for the appellant to claim the benefit any further. Hence, this appeal.

(3.)Dr.M.R.Panda, learned Senior Counsel for the appellant strenuously urged that the very initial appointment of respondent no.4 having no requisite qualification being bad, any action taken subsequent thereto is also a nullity in the eye of law. More so, it is urged that due to non-impletion of the appellant as a party in the appeal preferred by respondent no.4 before the Director and subsequent GIA No. 120 of 2006 filed by her, the orders so passed by the Director as well as the learned Tribunal cannot sustain in the eye of law and both the orders should be vitiated. He further submitted that the orders having been obtained by respondent no.4 by playing fraud on the Court, the same is vitiated and therefore, any consequential action on the basis of the fraud played on the Court cannot sustain in the eye of law. Accordingly, the respondent no.4 is not entitled to get GIA and this fact has been suppressed before this Court in the writ application and therefore, any benefit accrued to respondent no.4 by suppressing the material fact and by playing fraud on the Court, is not admissible to her. He further submits that respondent no.4 had admitted that she was terminated from service and against that order she had preferred an appeal before the Director, who passed order of reinstatement on 21.02.2006. Since respondent no.4 has admitted that the college received GIA w.e.f. 01.01.2004 vide Notification dated 20.04.2004 and the institution being an aided one, the Director Higher Education has no jurisdiction to hear the appeal and pass the order of reinstatement. Therefore, the power of adjudication ipso facto would stand transferred by operation of statute to the learned Education Tribunal. Hence, the order of the Director reinstating respondent no.4 in service is without jurisdiction and void ab-initio and she is not entitled to get other consequential benefits as has been granted by the Director. This fact has been suppressed before the learned Tribunal in GIA Case No. 120 of 2006 and before this Court in W.P.(C) No. 17803 of 2009. He further submitted that since the termination of respondent no.4 has been given effect to by the Governing Body by following the principles of natural justice and the same having not been challenged before the appropriate forum, the order passed by the Governing Body remains unaltered. But the respondent no.4 misled this Court in OJC No. 3798 of 2001 and the order itself does not whisper about the words of "setting aside the order of termination". A proceeding was initiated against respondent no.4 for having remained absent from duty unauthorizedly from 06.04.1998 following the procedure prescribed and she was charge sheeted and was called upon to put in his written statement and on receipt of the written statement of defence, the enquiry officer was appointed who dealt with the entire case and after the charges stood proved against respondent no.4 she was terminated from service by Resolution dated 29.07.2001. Against the said order of termination dated 29.07.2001, respondent no.4 preferred an appeal on 07.07.2005, i.e., after lapse of four years before the Director Higher Education. By that time, the Director had no jurisdiction to entertain such appeal since the College in question had been declared as aided one. But while disposing of O.J.C No. 3798 of 2001, this Court directed the Director to take a decision and the Director has taken a decision on 26.12.2001 and therefore, neither this Court nor the Director has stated anything about the disciplinary proceeding initiated against respondent no.4, which has been approved by the Governing Body vide Resolution dated 29.07.2001. After the College was declared as an aided one, the Director Higher Education had become functus officio and as such, any order passed by him cannot sustain in the eye of law. More so, in GIA Case No. 120 of 2006 the respondent no.4 has approached the learned Education Tribunal with unclean hands and suppressed the materials facts and intentionally has not made the Principal-cum-Secretary or the SubCollector, who became the President of the Governing body as a party after the college was notified as aided one w.e.f. 01.01.2004. But she made Mr. Baidhar Mallick as a party only to conceal, suppress and mislead the facts before the learned Tribunal. After termination of respondent no.4, the appellant was elevated to the 1st post of Lecturer in English on 14.10.2001, therefore, it was within the knowledge of respondent no.4 that he is a necessary party to the proceeding and that ultimately the appellant would be affected in the event any order is passed by the learned Tribunal. Even then deliberately he has not been made a party to the proceeding. More so, by the time respondent no.4 was appointed, she had no requisite qualification. Therefore, the very appointment of respondent no.4 against the 1 st post of Lecturer in English having no requisite qualification was absolutely illegal. To substantiate his contentions, he has relied upon the judgments in Kulwant Singh and others v. Dayaram and Others, 2015 3 SCC 177; Kanwar Singh Saini v. High Court of Delhi, 2012 4 SCC 307; State of Orissa & Anr. v. Mamata Mohanty, 2011 2 JT 164; Meghmala & Ors. v. G. Narasimha Reddy & Ors., 2010 2 OrissaLR 778; Smt. Rama Panigrahi v. State of Orissa & others, 2003 1 OrissaLR 438; and in Balraj Teneja & Anr. v. Sunil Madan and Anr., 1999 6 JT 473.