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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  

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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  

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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  

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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  

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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.   

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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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