Skip to content


Durga Prasad Sahoo Vs. S.D.O. and Election Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 414 of 1984
Judge
Reported in60(1985)CLT114; 1985(II)OLR62
ActsConstitutton of India - Articles 226 and 227; Orissa Education Act, 1969 - Sections 10A
AppellantDurga Prasad Sahoo
RespondentS.D.O. and Election Officer and ors.
Appellant AdvocateB.B. Mohanty, Adv.
Respondent AdvocateR. Mohanty and J.K. Rath and Addl. Govt. Adv.
DispositionPetition allowed
Cases Referred(Dwija Bhoi and Purnachandra Nanda v. State of Orissa and Ors.
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - ) where an order of assessment under the oirssa sales-tax act was challenged in the writ petition and it was held that the petitioner having efficacicus remady by way of appeal and second appeal under the sales-tax act and in the event of failure to get..........the main question that is raised in this case is that there is a bar to the exercise of the writ jurisdiction where efficacious statutory remedy exists, particularly in the cases of election disputes it is argued by mr. r. mohanty, learned counsel appearing for opposite party no. 8 that under section 44-a of the act the election of a person as a member of the samiti can only be questioned by an election petition. according to him, in the election field the existence of an alternative statutory remedy is virtually a bar to the exercise of the writ jurisdiction without first resorting to the remedy by way of an election petition. he relied on a recent full bench decision of punjab and haryana high court reported in a. i. r. 1985 p. & h. 64 (jagraj singh and anr v. state of punjab.....
Judgment:

J.K. Mohanty, J.

1. Petitioner who was serving as the Headmaster of Kantor M. E. School, an aided educational institution, since 1972, in order to contest the Panchayat Samiti (Chairman) election!of Parajanga Panchayat Samiti, submitted his resignation on 2.1.1984 to the Managing Committee. The Managing Committee of the School held its meeting on 4. 1. 1984 and the petitioner was intimated about acceptance of the resignation by the Secretary of the school with effect from 5.1.1984 vide Annexure-1. Prior to this the petitioner had given notice to the Managing Committee that he no longer wanted to continue in service. He had to resign from service as under Section 45(1) (j) of the Orissa Panchayat Samiti Act (hereinafter called 'the Act') a person who is a teacher in any school recognised under the provisions of the Orissa Education Code shall not be eligible to stand for election. On 8. 2. 1984 the petitioner filed his nomination paper before opposite party No. 1, the S. D. O., who was the Election Officer. Opposite parties 2 to 11 also filed nomination papers. On 9. 2. 1984 opposite party No. 1 scrutinised the nomination paper of the petitioner and rejected the same vide his order in Annexute-2 which is quoted below for reference.

' The candidate is a Headmaster of Kantor M. E. School which is an aided school. He has resigned from his service which has been accepted by the Managing Commitee and the Managing Committee has relieved him. As per Rule 10-A of Orissa Education Act, the services of a teacher of an aided educational institution shall not be terminated without obtaining the prior approval in writing of the Circle Inspector of Schools having jurisdiction in the case of a teacher of a school. Sri Durgaprasad Sahu is a candidate for the post of Chairman of the Panchayat Samiti, Patjang and he could not produce the approval of his resignation by the Circle Inspector of Schools. The process has remained incomplete. As such his case is rejected.'

On 10.2.1984 petitioner filed this writ petition before this Court challenging the validity of the order passed in Annexure-2 on the ground that Section 10-A of rhe Orissa Education Act has no application to this case and the approval of the Circle Inspector of Schools is not necessary as it is not a case of termination of service and the Managing Committee is competent to accept the resignation and this has been duly done. On 20. 2. 1984 this Court admitted rhe writ patition. The election was held as scheduled on 17. 2. I984 and opposite party No. 8, Rabinarayan Sahoo, was declared elected as Che Chairman of the Panchayat Samiti vide Annexure-3 dated 22.2.1984. Thereafter on 7.3.1984 petitioner fried election petition before the Election Commissioner (Subordinate Judge, Dhenkanal) and challenged the election. Subsequently he amended the writ petition and added a prayer to the writ petition to declare the election of opposite party No. 8 as Chairman void and to quash the notification in Annexure-3. On 5.9.1984 petitioner filed a petition before the Subordinate Judge, Dhenkanal, to withdraw his election petition. On 20. 9. 1984 the Subordinate Judge granted permission to the petitioner to withdraw the election petition subject to depositing a cost of Rs. 25/- and directed that the notice of withdrawal shall be published in the official gazette. The notice of withdrawal was published in the Orissa Gazette on 25.1.1985.

2. Opposite patty No. 8, who has been elected as the Chairman of the Panchayat Samiti, has filed counter. In his counter he has. Questioned the maintainability of this writ petition. According to him, the election can only be challenged by an election petitions Section 44-A of the Act provides that no election of a person as a member of a Samiti held under this Art shall be called in question except by an election petition presented in accordance with the provisions, of this Chapter, The petitioner having filed an election petition before the Election Commissioner (Subordinate Judge, Dhenkanal), the matter should have been decided in that proceeding, but not in a writ petition. It has been further stated in the counter that nothing has been produced to show that the Managing Committee has actually met and passed a resolution accepting the resignation of the petitioner. At least seven days' notice is required to be given to convene a meeting of the Managing Committee, but no such notice has been given in this case, as it is apparent that the resignation was submitted on 2. 1.1984 and it is said to have been accepted in the meeting held on 4. 1.1984. As this case involves determination of certain disputed questions of fact/the proper forum would be to decide these in an election petition which had been tiled by the petitioner. In any view of the matter, this writ petition is not maintainable and should be dismissed. The petitioner has also filed a rejoinder refuting the allegations made in the counter.

3. The main question that is raised in this case is that there is a bar to the exercise of the writ jurisdiction where efficacious statutory remedy exists, particularly in the cases of election disputes It is argued by Mr. R. Mohanty, learned counsel appearing for opposite party No. 8 that under Section 44-A of the Act the election of a person as a member of the Samiti can only be questioned by an election petition. According to him, in the election field the existence of an alternative statutory remedy is virtually a bar to the exercise of the writ jurisdiction without first resorting to the remedy by way of an election petition. He relied on a recent Full Bench decision of Punjab and Haryana High Court reported in A. I. R. 1985 P. & H. 64 (Jagraj Singh and Anr v. State of Punjab and Ors.). Reliance was also placed on a decision of the Supreme Court reported in A. I. R. 1983 S. C. 603 (Titaghur Paper Mills C. Ltd. and Anr. v. State of Orissa and Anr.) where an order of assessment under the Oirssa Sales-Tax Act was challenged in the writ petition and it was held that the petitioner having efficacicus remady by way of appeal and second appeal under the Sales-Tax Act and in the event of failure to get relief in appeals to have the case stated to High Court, the special leave petiticn was not maintainable. On behalf of the petitioner Mr. B. B. Mohanty, the learned counsel, relied on a decision reported in Vol. XLI C. L. T. 1072 (Girish Chandra Patra v. Election Officer, Adhangagarh Grama Panchayat-cum-Block Development Officer, Biridi Block and others) where the election of a Sarpanch was challenged. The Court held:

'Exist once of even an equally efficacious statutory remedy does not oust the jurisdiction of this Court under Articles 226 and 227 of the Constitution. Ordinarily when there is an equally efficacious alternative remedy, the Court is reluctant to exercise its jurisdiction under Articles 226 and 227 of the Constitution. This is an appropriate case where the High Court decided to exercise its jurisdiction as no evidence is necessary for arriving at the conclusion which it has reached. On admitted facts and the exposition of law given, the election is to be set aside and the petitioner need not be called upon to file an election petition.'

Reliance was also placed on a decision reported in 57(1984) C. L. T. 451 (Abban Singh alias Abhan Singh Rajput v. Election Officer, Raighara Gram Panchayat and Ors.) where rejection of the nomination paper of the petitioner who was a candidate for the election to the office of Sarpanch was challenged and consequently the election that was subsequently held was also challenged. This Court entertained the petition and ultimately set aside the election held on the ground that tha rejection of the nomination paper of the petitioner was illegal. Reliance was also placed on another recent decision of this Court reported in 59 (1985) C. L. T. 348: 1985 (I) OLR 408 (Dwija Bhoi and Purnachandra Nanda v. State of Orissa and Ors.) where the rejection of nomination paper was challenged in a writ petition. This Court entertained the petition and set aside the election on the ground that the rejection of the nomination paper was not justified. From the above decision of this Court it is evident that this Court has entertained writ petitions challenging the election in appropriate cases. In the decision repotted in Vol. XLI (1975) C. L. T. 1072 (supra) the position has been made absolutely clear that ordinarily when there is an equally efficacious alternative remedy available, the Court should be reluctant to exercise its jurisdiction under Articles 226 and 227 of the Constitution. But in appropriate cases the High Court may decide to exercise its jurisdiction when no evidence is necessary for arriving at the conclusion. It appears that in the other two decisions of this Court cited above, the question of maintainability was not raised. Even in the Full Bench decision of the Punjab and Haryana High Court, it has been made clear that it is only in exceptionally extraordinary circumstances that the writ Court would deviate from this hallowed rule, because the existence of an alternative statutory remedy is virtually a bar.

4. It is to be seen whether this case can be decided without going into any evidence. As it appears from Annexure-1, the only ground for rejection of nomination paper of the petitioner is that Section 10-A of the Orissa Education Act, 1969 (wrongly mentioned as rule 10-A) has not been complied with. The relevant provisions of Section 10-A of the Orissa Education Act are quoted below.

'10-A. Services of teachers of aided institutions not to be terminated without approval-

(1) The services of a teacher and other members of the staff of an aided educational institution shall not be terminated without obtaining the prior approval in writing of the__

(a) xx xx(b) Circle Inspector of Schools having jurisdiction in the case of a teacher and other members of the staff of a School.'

The Flection Officer rejected the nomination paper as according to him while accepting the resignation of the petitioner the Managing Committee shr.uld have taken approval in writing of the Circle Inspector. The approval was not produced along with the nomination paper filed by the petitioner. The petitioner could not show that the approval of the Inspector was obtained. It is not disputed by the opposite parties that the Managing Committee has the power to accept the resignation of a teacher. The question for consideiation is whether Section 10-A of the Orissa Education Act has any application to this case. It is absolutely clear that the services of the petitioner have not been terminated. So the question of taking approval of the Circle Inspector does not at all arise in this case. The sole ground for rejecting the nomination paper was absence of approval in writing ot the Circle Inspector. Evidently the Election Officer has committed gross illegality in insisting on the production of the approval of resignation by the Circle Inspector of Schools. Therefore, in our view, the rejection of the nomination paper of the petitioner on this ground is absolutely illegal.

5. In this case objection has been raised on behalf of opposite party No. 8 that the Managing Committee has not accepted the resignation and it was not convened according to the Rules. An affidavit has also been filed to that effect which has been controverted by. another affidavit filed on behalf of the petitioner. This question was not raised before the Election Officer and the only ground on which the nomination paper was rejected was for non-compliance of Section 10-A of the Orissa Education Act. So it is needless to go into the question and we express no opinion regarding this.

6. After hearing arguments of the learned counsel for both sides and considering the facts and circumstances of the case we are of the view that this is an appropriate case where we should exercise our jurisdiction as no evidence is necessary for arriving at the conclusion which we have reached. The order in Annexure-2 is quashed and the election of opposite party No. 8 as the Chairman of the Panchayat Samiti as per Annexure-3 is set aside. The authorities are directed to hold a fresh election.

7. In the result, the writ petition is allowed. In the circumstances, there shall be no order as to costs.

K.P. Mohapatra, J.

8. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //