NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5670 OF 2012
(Arising out of SLP(C) No.32029 of 2010)
Jayanti Kumari Nayak … Appellant
Versus
State of Orissa & Ors. … Respondents
J U D G M E N T
Aftab Alam, J.
1. Leave granted.
2. Respondent No.4, Rajeswar Panda filed an appeal before the Director,
Higher Education, Orissa, Bhubaneswar, stating that he was appointed as a
lecturer in History in Sushree Devi Women’s College, Aul, Kendrapara after
due selection but he was not allowed to discharge his duties because the
Governing Body of the College tried to accommodate the appellant in his
place. The appeal was disposed of by the Director by an ex parte order
vide office order No.2A-9-07-III: 30092 dated July 23, 2008 holding that
the action of the General Body in prohibiting the applicant (respondent
No.4 in the present appeal) from discharging his duties was invalid and
illegal and requested the Secretary of the Governing Body to forthwith
allow respondent No.4 to perform his duties as a lecturer in the college.
3. The Governing Body filed Writ Petition (Civil) No.12317 of 2008
challenging the order passed by the Director before the Orissa High Court.
On behalf of the Governing Body, it was stated that the intimation
regarding the date of hearing was received by them a day after the hearing
was scheduled and it was for that reason that no representative of the
Governing Body was able to appear before the Director to present its case.
The High Court, however, found that the notice of hearing was given to the
Governing Body by means of a telegram and the Secretary of the Governing
Body had made the endorsement on the telegram “College closed and Secretary
absent on 4.6.2008 and 5.6.2008.” The High Court, thus, found that the
explanation given on behalf of the Governing Body for non-appearance before
the Director was incorrect. The High Court, therefore, declined to
entertain the Writ Petition but in the concluding part of the order made
the following observation:-
“However, it is open to the petitioner to file an application
before the Director, Higher Education to review the impugned order
dated 23.7.2008. If such an application is filed by the petitioner,
the Director is at liberty to deal with the same in accordance with
law.”
4. In pursuance of the order passed by the High Court, the Governing
Body filed an application before the Director for setting aside the ex
parte order dated July 23, 2008. On this application, the Director heard
both sides and passed an order on June 29, 2009 recalling his ex parte
order dated July 23, 2008 and holding that respondent No.4 had never worked
in the College and the appointment order produced by him was not a genuine
document.
5. Respondent No.4 challenged the order of the Director dated June 29,
2009 before the High Court in Writ Petition (Civil) No.10446/2009. The
High Court allowed the writ petition by order dated July 20, 2010. The
High Court noticed the earlier proceedings between the parties and further
that in the previous writ petition filed by the Governing Body of the
College, the Court had left it open to the Governing Body to file an
application before the Director for review of his earlier order of July 23,
2008. It, nevertheless, held that the Director had no power to review and
its earlier order of July 23, 2008 had become final and it could not be
altered or changed by him on the basis of a petition for recall of that
order. The High Court pronounced that the order of the Director dated July
23, 2008 was final. It, accordingly, allowed the writ petition.
6. Against the order of the High Court dated July 23, 2008, the
appellant has come in appeal to this Court.
7. On hearing counsel for the parties, we find that the two orders
passed by the High Court in this matter have resulted into an anomalous
situation. In the first round when the Governing Body challenged the ex
parte order passed by the Director, the High Court refused to entertain the
application observing that the Governing Body had received due notice of
the date of hearing. Had the High Court simply rejected the writ petition,
the Governing Body could have sought its remedies by preferring an appeal
before this Court. But, the High Court while refusing to entertain the
writ petition left it open to the Governing Body to file a petition for
review of the order dated July 23, 2008 before the Director. Acting in
pursuance of the liberty granted by the High Court, the Governing Body made
an application for recall of the ex parte order. This petition was allowed
and the Director found that respondent No.4 had approached him on the basis
of a document that was apparently not genuine. But, this order was set
aside by the High Court holding in the second round that the Director had
no power to review.
8. We are of the view that the matter has not been satisfactorily dealt
with and at the same time there are materials to suggest that respondent
No.4 was able to obtain the ex parte order from the Director on the basis
of a document, the genuineness of which is doubtful. We, therefore, deem
it just and proper to set aside all the previous orders passed both by the
High Court and the Director and remit the case to the Director to consider
the matter afresh after hearing respondent No.4, the Governing Body of the
College and the appellant and pass a fresh order on his appeal in
accordance with law. Needless to say that any party aggrieved by the
order of the Director may seek his/her remedy in accordance with law.
9. The Director shall give prior notice of the date of hearing to all
the three sides, as indicated above and after hearing them on the date so
fixed dispose of the matter in accordance with law.
10. We are informed that different proceedings/cases arising from the
earlier orders passed by the Director are pending before the High Court
and/or in other courts. As we have set aside all the earlier orders, any
proceedings arising therefrom pending before any court shall also stand
abated.
11. In the result, the appeal is allowed to the extent indicated above
but with no order as to costs.
………………………………J.
(Aftab Alam)
………………………………J.
(Ranjana Prakash Desai)
New Delhi;
July 31, 2012.
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