Ganesh Kumar Nayak vs State Of Odisha And Others

Sashikanta Mishra, J

The Petitioner, in the present Writ Petition, questions the correctness of the order dated 19th September, 2013 passed by the Director, Secondary Education, Odisha in Appeal No.12/2005 preferred by the present Opposite Party No.5. As per the impugned order the said appeal was allowed with direction to the Managing Committee of the School to reinstate the appellant-Opposite Party No.5 in her former post with all benefits.

The facts of the case, briefly stated, are that Bhanjabhumi Girls’ High School at Kalama, Betanoti in the district of Mayurbhanj was established in the year 1992 and recognition was accorded for the Session 1993-94. As per resolution dated 10th August, 1992 of the Managing Committee, one Janakimani Behera (Opposite Party No.5) was appointed as Teacher and in-charge Headmaster of the School. She joined as such on 12th August, 1992. On 10th October, 2004 a show cause notice was issued to her for certain irregularities committed in maintenance of School accounts and misappropriation of funds. She submitted her reply on 3rd November, 2004. Another show cause notice was issued on 7th March, 2005. The Managing Committee placed her under suspension w.e.f. 29th April, 2005. She was asked to appear before the Managing Committee on 30th April, 2005 to explain why she should not be terminated from service. Ultimately on 20th June, 2005, the Managing Committee terminated her services w.e.f. 27th May, 2005. She preferred the aforementioned appeal before the Director Secondary Education. By order dated 19th September, 2013, enclosed as Annexure-7, the appeal was allowed as already stated herein before. In the mean time, by a resolution dated 10th September, 2007, the Petitioner was appointed as Asst. Teacher pursuant to Resolution dated 8th September, 2007. It is stated that the impugned order is bad in law as the Petitioner was not impleaded as party in the appeal and was thus deprived of an opportunity to put forth his contentions.

The stand of the State-Opposite Parties is that the Petitioner was illegally appointed against the vacancy created due to illegal termination of Opposite Party No.5 when the matter was pending adjudication before the Director, Secondary Education.

The stand of the private Opposite Party No.5 is that the appeal was preferred by her against the order of termination issued by the Management in which the Petitioner has no role whatsoever to play. The appellate authority was seized with the question of legality or otherwise of the order of termination, which has nothing to do with the so-called appointment of the Petitioner subsequently as an Asst. Teacher. Therefore, he is not a necessary party and has no locus standi to challenge the impugned order.

Heard Mr. D.K.Panda, learned counsel for the Petitioner, Mr.B.P.Tripthy, learned Addl. Government Advocate for the State and Mr. B. Routray, learned Senior Counsel along with Mr. S.K.Samal, appearing for the Opposite Party No.5.

Mr.Panda would argue that even though the legality of termination of services of the Opposite Party No.5 was the subject matter of appeal yet, the final order passed therein has the effect of adversely affecting his services. Therefore, according to him, the Petitioner is a necessary party.

Mr. B.P.Tripathy, argues that the Petitioner cannot be treated as a necessary party since he cannot possibly have any say as regards the correctness or otherwise of the order of termination issued by the Management.

Mr. B. Routray, learned Senior counsel contends that the Opposite Party No.5 was illegally terminated w.e.f. 27th May, 2005. She preferred appeal in the year 2005. At that point of time, the Petitioner had not been appointed. He was appointed much later i.e., on 10th September, 2007. Mr. Routray further submits that after termination of services of the Opposite Party No.5, one Madhusmita Behera was appointed as Asst. Teacher in the School. Because of some personal problem, the said Madhusmita Behera resigned from her post in the year 2006. Therefore, the Petitioner cannot be said to have been appointed on 10th September, 2007 on the vacancy created by the termination of services of Opposite Party No.5. Mr. Routray further argues that even otherwise the appeal was filed questioning the correctness of the order of termination. The Petitioner cannot put forth any contention in such regard. Therefore, he cannot be treated as a necessary party for which it must be held that he has no locus standi to challenge the impugned order.

From the rival contentions noted above, it is evident that the only question that falls for determination in the present case is, whether the Petitioner was a necessary party to the appeal filed by the Opposite Party No.5. Admittedly, the Opposite Party No.5 was terminated from service w.e.f. 27th May, 2005. The Director of Secondary Education after analyzing the facts of the case and the materials on record held that the order of suspension and termination of the appellant(Opposite Party No.5) was illegal. As such, the appeal was allowed and the Managing Committee was directed to re-instate the Opposite Party No.5 in her former post. The question whether such a person would be a necessary party or not is no longer res integra. In the case of Garuda Adabar vs. State of Orissa and others; reported in 1997 II OLR-521, a division Bench of this Court held as follows:

“3. Two tests for determining the question who is a necessary party to a proceeding are firstly, there must be a right to some relief against such party in respect of the matter involved in the proceeding in question and secondly, it should not be possible to make an effective adjudication in the absence of such a party. A person whose presence before a forum may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party and will have to be added. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceeding. (See Udit Narayan Singh Malpaharia v. Additional Member, Board of Revenue, Bihar AIR 1963 786). A party seeking impleadment as a party or questioning correctness of a decision on the plea of non-joinder will have to prima facie establish that he has interest in the subject-matter of the litigation and as such should be before the Court. The simple test in such controversy would be as to whether the presence of such a party is appropriate in view of the subject-matter in adjudication. If the answer is in the affirmation, joinder is necessary and non-joinder would be vitiative. The subject-matter of appeal was validity of termination of Rabindranath Das. Petitioner had no direct interest in or nexus to such dispute. He was therefore neither a necessary nor proper party. Similar view was expressed by apex Court in several akin cases. (See State of H.P.v. Kailash Chand Mahajan : AIR 1992 SC 1277, A. Janardhana v. Union of India, AIR 1983 SC 769) and this Court in Chintamani Panda and Anr. v. Paradeep Port and Ors.OJC No. 3034 of 1992, disposed of on 20.10.1992).”

Applying the tests as above to the facts of the present case, this Court has to consider whether the presence of the Petitioner was necessary for adjudicating the lis before the appellate authority, which as already stated related to examining the correctness of the order of termination passed against Opposite Party No.5. The answer to the above question can only be in the negative because the appellate authority took note of the fact that the Managing Committee had concluded that the Opposite Party No.5 had misappropriated the amount in question without making any audit of accounts and the order of suspension was passed without any article of charges being served upon her. Since a major penalty had been imposed without adhering to the principles of natural justice, the appellate authority held, and according to this Court rightly, that the order of termination was bad in law. Obviously, the Petitioner cannot have any say in the matter more so, as he was not in the picture at the time of passing of the order of termination. He came to the picture only in the year 2007, i.e. two years after.

Mr. Panda has relied upon the decision of the Apex Court in the case of J.S. Yadav vs. State of U.P., reported in 2011 (6) SCC 570, wherein it was held that no order can be passed behind the back of a person adversely affecting him.

This Court however, finds that in a subsequent decision rendered in the case of Poonam vs. State of U.P., and others reported in (2016) 25 SCC 779, the Apex Court interpreted the ratio of J.S. Yadav (supra) in the following manner;

“42. From the aforesaid, it is clear as day that what has been stated in paragraph 31 in the case of J.S. Yadav (supra) does not even follow from the authorities referred to therein. We have analysed the principle of when and in what circumstances, a decision becomes a binding precedent. We have also discussed the facts at length keeping in view the declaratory relief made in the writ petition preferred before the High Court. The context in which the observations have been made have to be kept in mind. Regard being had to the factual scenario in entirety and further taking note of the fact that the court was basically concerned with the retrospective and prospective applicability of the provision, we are disposed to think that it is not a binding precedent for the proposition that in a case of termination or removal or dismissal, the person appointed in the place of a terminated, removed or dismissed employee would be a necessary party. That is how the said authority has to be understood, and we so understand.”

Thus, the ratio of the J.S. Yadav (supra) is not applicable to the facts and circumstances of the present case.

From a conspectus of the analysis of the facts, contentions raised and the law involved, this Court is of the view that the Petitioner was not a necessary party in the appeal preferred by the Opposite Party No.5 before the Director, Secondary Education so as to be impleaded as such and given an opportunity of hearing. For the same reason, this Court also holds that the challenge made by the Petitioner to the impugned order is also not maintainable on the ground of absence of locus standi.

In the result, the Writ Petition fails and is therefore, dismissed. There shall be no order as to costs.

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