The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 1143 OF 2024 In the matter of an application under Articles 226 and 227 of the Constitution of India Purnima Swain …. Petitioner -Versus- State of Odisha & others …. Opp. Parties Advocates appeared in this case: For Petitioner : M/s. Amiya Kumar Mohanty(A), R.K. Behera, R.C. Pradhan & S.K. Das, Advocates
Legal Reasoning
For Opp. Parties: Mr. U.C. Behura, Addl. Government Advocate (OP Nos.1 to 4) M/s Debi Prasad Dhalsamanta, N.R. Routray, (Ms) S.P.Dhal, C. Mohanta & D.K. Mallik, Advocates [OP No.5] CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD J U D G M E N T 08.08.2025 Page 1 of 9 PER DIXIT KRISHNA SHRIPAD,J. This case has a checkered history. It is a saga of a gentle lady relentlessly waging a series of legal battles, not being deterred by the victory that eluded her, throughout. 2. Brief fact matrix: (a) Petitioner joined the OP-School as Assistant Teacher w.e.f. 15.01.1991, pursuant to a particular advertisement, to which response from the job market then was bleak. To her bad luck, she was removed from service unceremoniously w.e.f. 10.01.1994, when she was sent on deputation for training. She preferred departmental appeal, which the Director of Secondary Education favoured, vide order dated 19.08.1996, with a direction to reinstate her in service as before. Management’s challenge to Director’s order in OJC No.1933 of 1998 was negatived by this Court vide order dated 13.12.2007. (b) In the meanwhile, Petitioner had filed OJC No.15689 of 1997 seeking a direction for the approval of her post in the School. A Coordinate Bench of this Court, vide order dated 13.12.2007, relegated the Petitioner to Education Tribunal. The Tribunal did not Page 2 of 9 favour her claim by dismissing GIA Case No.84 of 2008 vide order dated 31.03.2010. Petitioner’s FAO No.186 of 2010 came to be negatived by a Coordinate Bench of this Court, vide order dated 12.09.2013. Petitioner’s further challenge in SLP No.32733 of 2013 met the same fate. All these, were in relation to her claim for the approval of post in question and had nothing to do with the order of reinstatement, that had attained finally. (c) While negativing the FAO No.186 of 2010, learned Judge of this Court observed that the Petitioner should be considered for appointment as a Teacher under the Management of School in question, although she was not entitled to grant of approval to the post for want of educational qualification. Petitioner filed GIA No. 24 of 2016 seeking implementation of this order, coupled with
Decision
Director’s order dated 19.08.1996, which came to be disposed off on 15.02.2020 with a direction to consider her candidature for appointment in terms of the said observation. That did not happen and eventually Petitioner moved W.P.(C) No.4746 of 2022, which came to be disposed of vide order dated 12.05.2023 to consider her Page 3 of 9 representation in the light of Deputy Director’s recommendation dated 13.04.2021 at Annexure-9. However, the consideration did not yield any fruit, the representation having been rejected, vide order dated 26.12.2023 made by the Commissioner-cum-Secretary to Government in Department of School & Mass Education. That happens to the subject matter of challenge in this writ petition. 3. Learned counsel for the Petitioner vehemently argues that regardless of entitlement to approval to the post in question, the reinstatement order, which his client has secured at the hands of Director on 19.08.1996, has remained unimplemented throughout and that would not augur well to the rule of law and to the interest of the public service; the statutory orders, which have attained finality after challenge, have to be implemented and that having not happened by virtue of impugned order of the Commissioner, this Court should come to the aid of poor petitioner, who has prima facie entitlement. 4. Learned AGA-Mr. Behura appearing for the OPs resists the petition contending that although the Petitioner has waged too many Page 4 of 9 legal battles, she did not emerge victorious, her SLP No.32733 of 2013 at hands of Apex Court of the country having failed. He also submits that the question of reinstatement would not arise in the absence of rejection of petitioner’s claim for approval of the post at the hands of competent authority. So contending, he seeks dismissal of the writ petition. 5. Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons: 5.1. The initial appointment of the Petitioner as Assistant Teacher w.e.f. 15.01.1991 is not in dispute. She was sent for official training to make value addition and that, during the period of training she came to be unceremoniously removed from the post, vide order dated 10.01.1994. Her appeal against the said removal succeeded. The Director after setting aside the removal, vide order dated 19.08.1996, directed for her reinstatement in service. Learned counsel for the petitioner is right in telling that this statutory order, Page 5 of 9 on being challenged by the then Management of School in OJC No.1933 of 1998 attained finality, on its dismissal. 5.2. The vehement contention of learned AGA that petitioner’s OJC No.15689 of 1997 seeking approval of the post in question came to be negatived, vide order dated 13.12.2007, is only a half truth. The main prayer was not granted, is true. However, Petitioner was permitted to make an appropriate representation to the competent authority, which she did. That was the subject-matter of GIA Case No.84 of 2008, which had sought to enforce observation of the Division Bench made in his OJC No.15689 of 1997 to continue her in service sans approval. It is strange that the said GIA came to be dismissed vide order dated 31.03.2010. 5.3. Petitioner filed FAO No.186 of 2010 against the order dated 31.03.2010 and the Coordinate Bench of this Court negatived the FAO, vide order dated 12.09.2013, is true. The Coordinate Judge at para-7 observed “….the respondent no.5 having acquired training qualification much prior to the appellant, the appellant cannot be considered to be senior to the respondent no.5 as the yardstick did Page 6 of 9 not permit for adjustment of a 5th Trained Graduate Teacher and the appellant should be considered to be a teacher under the management of the school, and is not entitled to Grant-in-aid for the present till new sections are opened in the School requiring extra Trained Graduate Teachers….” This also strengthens the case of petitioner to an extent, the denial of approval to the post in question notwithstanding. 5.4. Learned counsel for the Petitioner submits and there is no reason to doubt the version that presently the affairs of School are managed by the District Education Officer, the tenure of then Managing Committee having expired, and that there is dearth of hands in the School and, therefore, keeping in view the little victory which she has secured in some litigations, especially the Director’s order of reinstatement dated 19.08.1996 having attained finality, Petitioner should be accommodated, becomes acceptable. It is told at the Bar that the School in question is admitted to Grant-in-Aid way back in the year 1998 and, therefore, it partakes the character of Article 12 entity in the light of Apex Court decision in Ajay Hasia v. Page 7 of 9 Khalid Mujib Sehravardi, AIR 1981 SC 487. He is right in telling the Court that an Article 12 entity has to conduct itself as a Model Employer, as constitutionally ordained vide Bhupendra Nath Hazarika v. State of Assam, (2013) 2 SCC 516. 5.5. Courts in General and constitutional Courts in particular are there, to maintain the practical rights of citizens. They cannot turn away worthy causes by quoting some jurisprudential theories. It is relevant to quote what Justice Oliver Wendell Holmes of US Supreme Court said in DAVIS v. MILLS, 194 US 451 (1904): “Constitutions are intended to preserve practical and substantial rights, not to maintain theories…” In the above circumstances, this writ petition succeeds in part; the impugned order of the Commissioner having been quashed by issuance of Writ of Certiorari, a Writ of Mandamus follows to the OPs to accommodate petitioner in one of the vacancies in the posts of Assistant Teacher in the 5th OP-School forthwith and report compliance to the Registrar General of this Court within an outer limit of six (6) weeks. It is made clear that petitioner shall not be entitled to any financial benefits for the time spent in the legal battles. However, for Page 8 of 9 the purpose of pension & other terminal benefits, notional service shall be counted. Now, no costs. Web copy of this judgment be acted upon by all concerned. Dixit Krishna Shripad Judge Orissa High Court, Cuttack The 8th August, 2025/ Anisha Signature Not Verified Digitally Signed Signed by: ANISHA NANDA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Aug-2025 17:45:09 Page 9 of 9