The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 12466 of 2009 Application under Articles 226 & 227 of Constitution of India. AFR Saroj Kumar Mohapatra …. Petitioner --------------- -versus- State of Odisha and others …. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. Sameer Kumar Das, R.N. Mishra-2, S.K. Mishra, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate. M/s. K.K. Swain & P.N. Mohanty, Advocates. [For O.P. No.4] __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August, 2024 SASHIKANTA MISHRA, J. The petitioner challenges order dated 29.06.2009 passed by the Director Higher Education, Odisha. 2. The basic dispute between the parties is with regard to inter se seniority of the petitioner and opposite Page 1 of 16 party No.4. The petitioner claims to have been appointed as Lecturer in Political Science in B.N.M.A. College, Paliabindha in the district of Bhadrak on 21.12.1992 against the 4th post. According to him, the opposite party No.4 was appointed much later i.e., on 04.03.1995 against the 5th post. On the other hand, the opposite party No.4 claims that though she was appointed w.e.f. 14.03.1995 on regular basis yet she was in employment in college w.e.f. 22.12.1993 and that said period was subsequently regularized. As such, she claims to be senior to the petitioner. 3. Multiple litigations have arisen to decide the issue. A brief reference to the previous cases would suffice. The petitioner and one Tapan Kumar Nayak filed OJC No. 14505 of 2001 challenging the inaction of the authorities in considering their case for coverage under the Orissa Aided Educational Institution (Appointment of Lecturers Validation) Act, 1998 ( in short ‘Validation Act”). Vide order dated 19.06.2002, the petitioners were granted liberty to approach the Director, Higher Education by submitting representation. Since no action was taken, the petitioner Page 2 of 16 and said Tapan Kumar Nayak again approached this Court in W.P.(C) No. 3644 of 2002, which was disposed of on 03.12.2003 directing the Director to take a decision on their representations. By order dated 28.03.2005, the Director held that the service of the petitioner and said Tapan Kumar Nayak were entitled to be validated under the provisions of the Validation Act and accordingly recommended their names to the Government for approval and release of grant- in-aid. In the meantime some other persons filed OJC No. 562 of 2001 and OJC No. 6566 of 2002 alleging several illegalities committed by the Governing Body in appointment of staff. On 05.06.2006, the Asst. Provident Fund Commissioner passed order under Section 7-A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 directing the Governing Body to deposit the PF dues of the petitioner w.e.f. 21.12.1992. The Governing
Legal Reasoning
Body challenged the order of the EPF authority before this Court in W.P.(C) No. 10657 of 2006 and W.P.(C) No. 7657 of 2007, both of which were dismissed with direction to the Governing Body to prefer appeal. The appeals preferred by the Governing Body also came to be dismissed. Page 3 of 16 4. The present opposite party No.4 filed W.P.(C) No. 6053 of 2005 challenging the order of the Director recommending the case of the petitioner for approval under the Validation Act on the ground that he had joined on 29.12.1994 and not on 21.12.1992. Said writ application was disposed of by order dated 31.07.2007 directing the Director to cause fresh enquiry in pursuance of the earlier order passed in W.P.(C) No. 3644 of 2002 after giving opportunity of hearing to the parties and by allowing them to adduce evidence. Pursuant to such order, both the parties and representative of the Governing Body appeared and adduced documentary evidence in support of their respective stands. After considering the contentions raised and on appreciation of the evidence the Director, vide the impugned order determined the question of inter se seniority by holding that the petitioner joined on 29.12.1994 whereas the date of joining of opposite party No.4 is to be treated as 22.12.1993. Being aggrieved, the petitioner has filed the present writ application with the following prayer: “Under the facts and circumstances it is, therefore prayed that the Hon’ble court be graciously Page 4 of 16 pleased to quash the order dated 29.6.2009 under Annexure-1 passed by the opposite party No.2, And further this Hon’ble court be please to direct the opposite parties no.1 to 3 to restore the seniority of the petitioner over the opposite party no.4 and to grant him all consequential service benefits by taking his initial date of joining in the college to be 21.12.1992, And further the opposite parties no.1 and 2 be direct validate the, appointment of the petitioner and to pay the salary components of the petitioner from 17.10.1998 as per the validation Act, 1998 as that have been equally circumstanced persons within a stipulated period as deemed fit and proper, extended other the to And/or pass any other appropriate writ/writs, order/orders, direction/directions in the fitness of the case, And for this act of kindness the petitioner shall, as in duty bound ever pray.” 5.
Legal Reasoning
Heard Mr. Sameer Kumar Das, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State and Mr. K.K. Swain, learned counsel for opposite party No.4. 6. Much has been argued by learned counsel for the parties reflecting a bitter and long-drawn battle regarding their inter-se seniority. It is the petitioner’s case that he was appointed by the Governing Body of the College as per appointment order issued on 18.12.1992 pursuant to which he joined on 21.12.1992 against the 4th post of Lecturer in Page 5 of 16 Political Science. He was initially paid monthly consolidated remuneration of Rs.600/-. Subsequently on 19.12.1994, the Governing Body issued an advertisement for filling up the post on regular basis, pursuant to which both the petitioner as well as opposite party No.4 applied. The petitioner being selected was allowed to continue on substantive basis against the 4th post w.e.f. 29.12.1994. The opposite party No.4 was also selected and was issued with appointment order against 5th post of Lecturer in Political Science on 04.03.1995 pursuant to which she joined on 14.03.1995. The Governing Body in its Resolution No.40 dated 27.03.1998 regularized the service of the petitioner from his initial date of joining i.e., 21.12.1992. Therefore, as per the provisions of the Validation Act, all Lecturers appointed in Aided Educational institutions irregularly between 01.01.1985 to 31.12.1992 having the requisite qualification and continuing against approved and admissible post are deemed to have been validly appointed and entitled to grant- in-aid from the Government w.e.f. 17.10.1998. On the other hand, the opposite party No.4 claims to have been initially appointed on adhoc basis w.e.f. 22.12.1993, which was Page 6 of 16 subsequently regularized by the Governing Body in its resolution No.38 dated 08.08.1997. As such, she is senior to the petitioner. 7. Both the parties have tried to substantiate their respective claims by referring to several documents. The first point that seizes the attention of this Court is the admission of the petitioner himself that he was appointed on 29.12.1994 in an earlier writ application filed by him being OJC No.6101 of 1999. Copy of the said writ application has been enclosed as Annexure- R/4 to the preliminary counter affidavit filed by opposite party No.4. Perusal of the writ application reveals that the same was filed by 17 Lecturers including the present petitioner as petitioner No.17 challenging the fixation of cut-off date as 31.12.1992 for application of the Validation Act. In paragraph-5 of the said writ application the following has been clearly stated. “xxxxxx. The petitioner No.17 was appointed against the 4th Post of Lecturer in Political Science on 28.12.94 and he joined in service on 29.12.94. It is submitted here that the petitioners were validly appointed by the Governing Body and the appointments were made by the Governing Body in adopting proper Selection Procedure. Page 7 of 16 The appointment orders issued in favour of the petitioners by the Governing Body are annexed herewith as Annexure-1 Series.” 8. According to Mr. K.K. Swain, learned counsel for opposite party No.4, this being a clear admission by the petitioner himself, he is estopped from claiming a different date of appointment subsequently. In response, Mr. Sameer Kumar Das would argue that said writ petition was jointly filed and was withdrawn. The petitioner had only signed in the Vakalatnama executed in favour of the lawyer while the affidavit was sworn by another person. Further, the petitioner after coming to know about the incorrect
Decision
averments sought withdrawal of the writ petition, which was permitted by this Court to be withdrawn. As such the averments made in the writ application cannot be treated as binding in any manner. 9. The record in OJC No. 6101 of 1999 being tagged to the present case for reference reveals that same was disposed of on 16.02.2004 with the following order. “Learned counsel for the petitioner wants to withdraw this application on the submission that the writ petition is premature and at the appropriate time he may challenge the order, if any, on which he [Emphasis added] may be aggrieved. Page 8 of 16 Accordingly, this writ petition is dismissed as withdrawn.” Thus, there is no mention in the aforesaid order that the writ application was permitted to be withdrawn because of incorrect pleadings or that a liberty was granted to file a better application with correct pleadings. Liberty was only granted to challenge any order against which the petitioners may be aggrieved. Obviously the same cannot be stretched to include liberty to file a fresh writ application stating different facts. 10. Thus, there can be no dispute that OJC No. 6101 of 1999 was simply permitted to be withdrawn without granting any liberty to file better application. The law relating to effect of withdrawal of writ application was considered by the Supreme Court in the case of Sarguja Transport Service Vs. State Transport1 in the following terms: “........The principle underlying Rule 1 of Order XXIII of the Code, is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to 1 AIR 1987 SC 88 Page 9 of 16 file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1, Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code...... ......It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition........” 11. Undoubtedly, the Code of Civil Procedure does not apply to the writ jurisdiction, but the principles enshrined therein can be made applicable. To such extent therefore, the Court can permit a party to withdraw a petition with liberty to file a fresh one, but that power is subject to the conditions prescribed in the provisions of Order XXIII, Rule 1 CPC and not beyond it. The grounds mentioned under Order XXIII, Rule 1 CPC are that the Court is satisfied that the suit must fail by reason of some formal defect ir there Page 10 of 16 are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter, it can grant permission to the party to file a fresh suit. What such grounds would be are no longer res integra in view of several pronouncements of the Supreme Court and different High Courts of the country. It would suffice to refer to the judgment of the Supreme Court in the case of M/s. Konkan Trading Company Vs. Suresh Govind Kamat Tarkar & Ors.2. It has been held that the grounds for granting a party permission to file a fresh suit, include a formal defect, i.e., in the form of procedure not affecting the merit of the case, such as also of statutory notices, under Section 80 of the Code, mis-joinder of the parties or cause of action, non- payment of proper Court-fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject matter of the suit, absence of territorial jurisdiction of the Code or defect in prayer clause etc., non-joinder of a necessary party, omission to substitute heirs etc. may also be considered a ground in this respect, or where the suit was found to be 2 AIR 1986 SC 1009 Page 11 of 16 premature, or it had become infructuous, or where relief could not be, and where the relief even if granted, could not be executed, may fall within the ambit of sufficient ground mentioned in that provision. 12. Coming back to the present case, it is contended that the date of appointment was wrongly mentioned as 29.12.1994 in respect of the petitioner in the earlier writ application, which the petitioner was not aware of and subsequently having been so aware, he sought withdrawal of the writ application. This contention is difficult to believe firstly, for the reason that not only was it pleaded that the petitioner’s appointment was on 29.12.1994, a copy of the appointment order was also enclosed under Annexure-1 series. Obviously, the deponent swearing the affidavit on behalf of all the 17 petitioners could not have arranged the copy of the appointment order of the petitioner on his own rather it would be more reasonable to suppose that the petitioner himself must have given a copy of his appointment order to be enclosed to the writ application. In any case, the writ petition was permitted to be withdrawn but there is nothing on record to suggest that such Page 12 of 16 permission to withdraw was on account of inaccurate pleadings (regarding date of appointment) and by granting liberty to file a better application. Such being the factual position, it is obviously not open to the petitioner to subsequently come up with the claim of being appointed on a different date. This particular aspect does not appear to have been brought to the notice of the Director while disposing of the representation but then this being a question of law can obviously be raised at any stage. Notwithstanding the above, the Director after considering the documentary evidence came up with a definite conclusion that the petitioner having applied pursuant to the advertisement dated 20.12.1994 was duly selected and appointed by the Governing Body vide letter No. 1051/94 dated 28.12.1994 and joined on 29.12.1994. Such finding being otherwise proved by way of admission of the petitioner himself in the earlier writ application, this Court finds no reason to interfere with the finding of the Director. 13. It is well settled that admission made by a party is the best evidence unless it is proved that it had been made under a mistaken belief as held by the Supreme Court in the Page 13 of 16 case of Nagubai Ammal & Ors. vs. B. Shama Rao & Ors.3. Further in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi & Ors4 it was held that as admission is the best piece of evidence that an opposite party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. 14. It is stated at the cost of repetition that after having admitted his date of appointment as 29.12.1994 in the earlier writ application, the petitioner has not been able to demonstrate to the satisfaction of this Court that same was made erroneously or without his consent due to which it was permitted to be withdrawn as stated earlier. Further said date of appointment is otherwise proved from the records. 15. Coming to the finding of Director that the opposite party No.4 is senior to the petitioner, this Court finds that the Director somewhat mechanically held that she joined on 14.03.1995 but later on her services were regularized from