The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No. 117 of 2012 An appeal Under Sec. 24-C of the Orissa Education Act, 1969. Mahendranath Mohanta :::: Appellant -:: VERSUS ::- State of Odisha & Ors. :::: Respondents FAO No. 215 of 2009 State of Odisha & Ors. :::: Appellants -:: VERSUS ::- Ananta Narayan Mohanta :::: Respondents & Ors. Appeared in this case by Hybrid (Physical/Video Conferencing) Mode.b FAO No. 117 of 2012 For Appellant :::: Ms. Madhumita Panda, Advocate For Respondents :::: Mr. S.K. Samal, AGA (appearing for Respondent Nos.1 & 2) Mr. Jagannath Bhuyan, Advocate (appearing for Respondent No. 3) Mr. P.K. Satapathy, Advocate (appearing for Respondent No. 4) Page 1 of 22 // 2 // FAO No. 215 of 2009 For Appellants :::: Mr. S.K. Samal, AGA For Respondents :::: Mr. P.K. Satapathy, Advocate (appearing for Respondent No.1) Mr. Jagannath Bhuyan, Advocate (appearing for Respondent No. 2) Ms. Madhumita Panda, Advocate (appearing for Respondent No.3) ……… PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 12.04.2023 and Date of Order: 19.04.2023 --------------------------------------------------------------------------------------- B.P. Satapathy, J. Since both the appeals have been filed challenging the Judgment dtd.23.06.2007 passed by the State Education Tribunal (hereinafter called as “the Tribunal”) in GIA Case No. 29 of 2004, both the appeals were heard analogously and disposed of by the present common order. While FAO No. 215 of 2009 has been filed by the State, FAO No. 117 of 2012 has been filed by one Mahendranath Mohanta. For the shake of brevity & convenience, the Parties described in FAO No. 117 of 2012, are described accordingly in this order. Page 2 of 22 // 3 // 2. It is the case of the Appellant in FAO No. 117 of 2012 that pursuant to the advertisement issued by the Secretary, Ridayanath College, Barbil in the district of Mayurbhanj on 09.04.1991, the Appellant made his application for the post of Clerk-cum-Typist on 11.04.1991 under Annexure-3. In the interview held by the College on 14.05.1991 while the Appellant stood 1st in the merit list, the Private Respondent No. 4 who had also participated in the same interview stood in the 2nd position. Basing on the merit list so published by the College under Annexure-4, the Appellant was appointed as a Clerk vide order of appointment issued by the Secretary of the College on 18.05.1991 under Annexure-5 and the Appellant joined in the College on 01.06.1991 as against the post of Clerk. 2.1. It is also contended that the Private Respondent No. 4 was also issued with the order of appointment on 19.05.1991 under Annexure-10 and he also joined on 01.06.1991 as against the post of Clerk. The joining of the Appellant as well as the Respondent No. 4 as against the post of Clerk was also approved by the Governing Body in its proceeding dtd.09.06.1991 under Annexure-7. Since as per the yardstick one post of Clerk is Page 3 of 22 // 4 // admissible to get the benefit of grant-in-aid, the Appellant having been appointed as against the 1st post of Clerk of the College, was eligible to get the benefit of grant-in-aid. 2.2. While the matter stood thus, Respondent No. 4 claiming extension of the benefit of grant-in-aid on the plea that he was appointed as against the post of Head Clerk on 02.04.1991 and the present Appellant as Jr. Clerk with date of appointment as 02.04.1991, moved the Tribunal in GIA Case No. 29 of 2004 under Sec. 24-B of the Odisha Education Act. 2.3. It is the case of the Respondent No. 4 that while submitting the list of appointed non-teaching staff of the College in question to the concerned Employment Officer by the Principal of the College on 30.03.1993, Respondent No. 4 was shown appointed as against the post of Head Clerk on 02.04.1991 and the Appellant as against the post of Jr. Clerk with date of appointment as 02.04.1991. When both of them were continuing as Head Clerk and Jr. Clerk respectively, Respondent No. 4 as was not allowed to discharge his duty by the Governing Body of the College, the said
Legal Reasoning
Respondent approached this Court in OJC No. 18169 of 1997 and pursuant to the order passed by this Court, moved the Director, Page 4 of 22 // 5 // Secondary Education by filing an appeal. This Court when directed the Director, Secondary Education to decide the appeal, the Director after hearing the matter passed an order on 25.01.2000 inter alia holding that Respondent No. 4 has been illegally prevented by the Secretary of the College to discharge his duty and accordingly direction was issued to the Governing Body to allow the Respondent No. 4 to resume his duty in his post of Head Clerk. As the order passed by the Director was not implemented by the Governing Body, Respondent No. 5 approached this Court in OJC No. 2849 of 2000. But during pendency of the matter, Governing Body allowed Respondent No. 4 to join in the College on 06.09.2000 to discharge his duty as against the post of Head Clerk. Pursuant to such action of the Governing Body, Respondent No. 4 submitted his joining before the Secretary of the College on 07.09.2000 as against the post of Head Clerk. 2.4. Subsequently, proposal was also submitted by the Governing Body for release of grant-in-aid in favour of Respondent No. 4. When the College was notified to receive the block-grant w.e.f.01.01.2004 vide Notification dtd.20.02.2004, RespondentNo. Page 5 of 22 // 6 // 4 claiming extension of the benefit of grant-in-aid in his favour, moved the Tribunal in GIA case No. 29/2004. But the Tribunal without proper appreciation of the materials placed by the Appellant as well as by the Governing Body of the College, allowed the claim of Respondent No. 4 for his approval as against the post of Clerk-cum-Typist vide the impugned Judgment dtd.31.06.2007. Accordingly, FAO No. 117 of 2012 was filed by the Appellant challenging such direction of the Tribunal. But prior to filing of the present appeal, Respondent Nos. 1 & 2 had also approached this Court in FAO No. 215 of 2009 challenging the self-same Judgment passed in GIA Case No. 29 of 2004. 3. Ms. M. Panda, learned counsel for the Appellant contended that pursuant to the advertisement issued by the Governing Body of the College on 09.04.1991, the Appellant submitted his application for the post of Clerk on 11.04.1991 under Annexure-3. In the selection held on 14.05.1991 for the post of Clerk while the Appellant stood in the 1st place, the Respondent No. 4 who had also taken part in the said selection process stood in the 2nd place as per the merit list published under Annexure-4. Basing on the merit list so prepared under Annexure-4, the Appellant was issued Page 6 of 22 // 7 // with the order of appointment on 18.05.1991 under Annexure-5 and the Appellant joined in his post on 01.06.1991. Similarly, Respondent No. 4 was also issued with the order of appointment on 19.05.1991 and he also joined as a Clerk on 01.06.1991. The appointment of the present Appellant as well as of the Respondent No. 4 as against the post of Clerk was also approved by the Governing Body in its proceeding dtd.09.06.1991 under Annexure-7 and in the said proceeding the Appellant while was placed at Sl. No. 11, Respondent No. 4 was placed at Sl. No. 12 taking into account their position in the merit list. 3.1. It is contended that even though the Appellant as well as Respondent No. 4 were appointed as against the post of Clerk in the College in question in terms of the selection process initiated and merit list published under Annexure-4 and both of them joined on 01.06.1991, but the Respondent No. 4 by taking a plea that he is not being allowed to discharge his duty as Head Clerk of the College in terms of the order of appointment issued on 02.04.1991, moved an appeal before the Director, Higher Education-Respondent No. 2. When the said appeal was not disposed of by the Respondent No. 2, Respondent No. 4 Page 7 of 22 // 8 // approached this Court and this Court vide order dtd.04.02.1998 directed the Respondent No. 2 to dispose of the appeal. Pursuant to the said order passed by tis Court, Respondent No. 2 heard the appeal and passed the final order on 25.01.2000 by holding the action of the Governing Body in not allowing Respondent No. 4 to discharge his duty as unlawful and direction was issued to the Governing Body to permit Respondent No. 4 to resume his duty. As the said order passed by the Respondent No. 2 was not complied, Respondent No. 4 moved this Court in OJC No. 2849 of 2000. But during pendency of the matter, Respondent No. 4 was allowed to join on 06.09.2000 and joining of the Respondent No. 5 was also accepted by the Secretary of the Governing Body on 07.09.2000 as against the post of Head Clerk. 3.2. It is contended that the Appellant was never impleaded as a Party either in the appeal so filed by the Respondent No. 4 or in
Decision
the writ petition filed by Respondent No. 4 in OJC No. 18169 of 19977 and OJC No. 2849 of 2000. Accordingly, the Appellant had no occasion to know about the plea raised by the Respondent No. 4 in the appeal and consequential order passed by the Respondent No. 2 on 25.01.2000. The Appellant had also no occasion to know Page 8 of 22 // 9 // about the subsequent petition filed by the Respondent No. 4 in OJC No. 2849 of 2000 and the acceptance of the joining report of the Respondent No. 4 as Head Clerk of the College on 07.09.2000. 3.3. It is vehemently contended that since the present Appellant was never a Party in the appeal so decided by the Respondent No. 2 vide order dtd.25.01.2000, the said order is not binding on the Appellant. It is also contended that even though the Respondent No. 4 claims to have been appointed as against the post of Head Clerk on 02.04.1991 basing on the communication issued by the Secretary of the College on 30.09.1993 under Annexure-B/4 to the counter filed by the Respondent No. 4, but it is contended that the Respondent No. 4 was never appointed as Head Clerk of the College and the present Appellant as Junior Clerk of the College with date of appointment as 02.04.1991. It is contended that even though the Respondent No. 4 claims to have been appointed as against the post of Head Clerk with date of appointment as 02.04.1991, but no such order of appointment was ever produced by the Respondent No. 4 before the Tribunal nor any document showing the initiation of the selection process undertaken by the Governing Body to make appointment as against the post of Head Page 9 of 22 // 10 // Clerk, Jr. Clerk, Librarian and PET etc. on 02.04.1991. It is also contended that no such resolution of the Governing Body was also filed by the Respondent No. 4 showing his approval as against the post of Head Clerk on 02.04.1991. 3.4. Ms. Panda, learned counsel for the Appellant also contended that since the Respondent No. 4 is claiming the benefit of grant-in- aid as against the post of Head Clerk basing on his appointment on 02.04.1991, Respondent No. 4 was supposed to produce the order of appointment so issued in his favour on 02.04.1991. Since no such order of appointment was ever produced by the Respondent No. 4, his claim to get the benefit of grant-in-aid as against the post of Head Clerk with date of appointment 02.04.1991 is not at all entertainable. But the Tribunal basing on the order passed by the Respondent No. 2 in the appeal so filed by the Respondent No. 4 challenging the in action of the Governing Body in not allowing him to discharge his duty as Head Clerk, allowed the claim of Respondent No. 4 vide the impugned Judgment dtd.23.06.2007 under Annexure-1. Accordingly, it is contended that the impugned Judgment so passed by the Tribunal is not based on facts as well Page 10 of 22 // 11 // as based on records and the said Judgment is not sustainable in the eye of law. 4. Mr. S.K. Samal, learned AGA on the other hand made his submission basing on the stand taken by the Respondent Nos. 1 & 2 in FAO No. 215 of 2009. It is contended that pursuant to the advertisement issued by the Governing Body on 09.04.1991 the Selection Committee of the College drawn up a merit list on 14.05.1991 for the post of Clerk and in the said merit list, the Appellant stood in the 1st place and the Respondent No. 4 in the 2nd place. Pursuant to such selection list published on 14.05.1991 while the Appellant was issued with the order of appointment vide letter No. 23 dtd.18.05.1991, Respondent No. 5 was so appointed vide letter No. 24 dtd.19.05.1991. Both of them joined as against the post of Clerk on 01.06.1991 and the services of both of them were approved by the Governing Body in its proceeding dtd.09.06.1991. 4.1. It is contended that Respondent No. 4 by raising a plea that he is not being allowed to discharge his duty as against the post of Head Clerk, approached this Court in OJC No. 18169 of 1997. Pursuant to the order passed by this Court on 02.04.1998, Page 11 of 22 // 12 // Respondent No. 4 was permitted to move an appeal before the Respondent No. 2. Respondent No. 2 after hearing the Parties, directed the Management of the College to reinstate Respondent No. 4 in the post of Head Clerk vide order dtd.25.01.2000. Subsequently, during pendency of the matter in OJC No. 2849 of 2000 so filed by Respondent No. 4 seeking a direction for compliance of the order dtd.25.01.2000, Governing Body allowed Respondent No. 4 to join in the post of Head Clerk on 07.09.2000. 4.2. But, when the College become eligible to receive the benefit of grant-in-aid, as per GIA Order, 2004 Respondent No. 2 vide letter dtd.17.05.2001, 19.08.2002 and 16.12.2003 when called for the report with regard to appointment of the Appellant and Respondent No. 4, the Secretary of the College vide letter dtd.28.12.2003 indicated that while Respondent No. 4 was appointed as against the 2nd post of Clerk with date of joining as 01.06.1991, the Appellant was appointed as against the 1st post of Clerk vide order dtd.18.05.1991 with date of joining as 01.06.1991. It is also contended that in letter dtd.28.12.2003, the Secretary of the College also indicated that the Respondent No. 4 was never appointed as Head Clerk. It is also contended that as per Page 12 of 22 // 13 // the Grant-in-aid order, 1994 since only one post of Jr. Clerk-cum- Typist is admissible to the College, the 1st post of Jr. Clerk-cum- Typist being held by the Appellant, he became eligible to get the benefit of block-grant. But Respondent No. 4 claiming the benefit of grant-in-aid on the plea that he was appointed as against the post of Head Clerk with date of appointment as 02.04.1991 moved the Tribunal in GIA Case No. 29 of 2004 claiming approval of his service as against the post of Head Clerk and consequential release of grant-in-aid. The Tribunal basing on the order passed by the Respondent No. 2 in the appeal so filed by the Respondent No. 4, allowed the claim of Respondent No. 4 vide the impugned Judgment dtd.23.06.2007. Mr. Samal however fairly contended that the Appellant was never a party in the appeal so decided by the Respondent No. 2 and allowed vide order dtd.25.01.2000. 5. Mr. Jagannath Bhuyan, learned counsel appearing for the Governing Body-Respondent No. 3 on the other hand made his submission basing on the stand taken in the counter affidavit so filed in FAO No. 117 of 2012. It is contended that pursuant to the selection process undertaken by the College in terms of advertisement dtd.09.04.1991, the Selection Committee conducted Page 13 of 22 // 14 // the interview for the post of Clerk on 14.05.1991. In the said interview while the Appellant stood in the 1st position, Respondent No. 4 stood in the 2nd position. While the Appellant was issued with the order of appointment on 18.05.1991, Respondent No. 5 was issued with the order of appointment on 19.05.1991. However, both of them joined as against the post of Clerk on 01.06.1991 and their services were approved by the Governing Body in its proceeding dtd.09.06.1991. But since the Appellant was appointed taking into account his position in the merit list, the Appellant while was placed at Sl. No. 11 of the proceeding of the Governing Body dtd.09.06.1991, Respondent No. 4 was placed at Sl. No. 12 of the said resolution. 5.1. Mr. Bhuyan contended that Respondent No. 4 was never appointed as against the post of Head Clerk on 02.04.1991 and no such order of appointment was ever issued by the Governing Body. It is also contended that the services of Respondent No. 4 as against the post of Head Clerk was never approved by the Governing Body and in view of the order passed by the Respondent No. 2 in the appeal and to avoid legal complication, he was allowed to join on 07.09.2000. But the fact remains that Page 14 of 22 // 15 // Respondent No. 4 was never appointed as against the post of Head Clerk nor he was at any point of time was deprived to discharge his duty in the College. By raising a false plea before the Respondent No. 2 that he is not being allowed to discharge his duty as against the post of Head Clerk, Respondent No. 4 moved an appeal and Respondent No. 2 in the appeal when passed an order directing the Governing Body to allow him to discharge his duty, he was allowed to join on 07.09.2000. Mr. Bhuyan also contended that the Appellant was never a Party either before the Tribunal or before this Court in OJC No. 18169 of 1997 or OJC No. 2849 of 2000. 6. Mr. P.K. Satapathy, learned counsel appearing for Respondent No. 4 on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Respondent No. 4 was appointed as against the post of Head Clerk with his date of appointment as 02.04.1991. The Principal of the College while moving the Junior Employment Officer, Karanjia vide letter dtd.30.09.1993 under Annexure-A/4, indicated the date of appointment of the Respondent No. 4 as against the post of Head Clerk on 02.04.1991 and that of the Appellant as against the post Page 15 of 22 // 16 // of Junior Clerk with similar date of appointment as 02.04.1991. It is contended that even though Respondent No. 4 was appointed as against the post of Head Clerk on 02.04.1991, but when he was not allowed to discharge his duty as against the said post, he approached this Court in OJC No. 18169 of 1997. It is contended that in the said writ petition Governing Body of the College while filing the counter affidavit, never disputed the appointment of the Respondent No. 4 as against the post of Head Clerk. But the Governing Body of the College when did not allow Respondent No. 4 to join and discharge his duty as against the post of Head Clerk, pursuant to the order passed by this Court in OJC No. 18169 of 1997, Respondent No. 4 moved an appeal before Respondent No. 2. Respondent No. 2 passed an order on 25.01.2000 by holding the action of the Governing Body in not allowing Respondent No. 4 to discharge his duty as illegal and while holding so, directed the Governing Body to allow Respondent No. 4 to resume his duty in the College. 6.1. Pursuant to the order passed by the Director on 25.01.2000, joining of the Respondent No. 4 as against the post of Head Clerk was accepted by the Secretary of the College on 07.09.2000. It is Page 16 of 22 // 17 // also contended that claiming extension of the benefit of grant-in- aid when the Respondent No. 4 moved an application before the Respondent No. 2 on 06.12.2003. Respondent No. 2 vide letter dtd.16.12.2003 directed the Secretary of the College to furnish the report. It is contended that when the College became eligible to receive the block-grant w.e.f.01.01.2004 as per Grant-in-aid order, 2004, Respondent No. 4 claiming extension of such benefit as against the post of Head Clerk, approached the Tribunal in GIA Case No. 29 of 2004. 6.2. It is contended that the Tribunal after hearing all concerned and after perusing all the materials placed by the respective Parties, came to a conclusion by holding Respondent No. 4 to get the benefit of grant-in-aid as against the post of Clerk-cum-Typist. It is accordingly contended that the Tribunal has rightly adjudicated the matter in favour of Respondent No. 4 and the present appeals filed by the Appellant as well as the State bears no merit and liable for dismissal. 7. I have heard Ms. Madhumita Panda, learned counsel for the Appellant, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Respondent Nos. 1 & 2, Mr. Jagannath Bhuyan, Page 17 of 22 // 18 // learned counsel appearing for the Respondent No. 3 and Mr. P.K. Satapathy, learned counsel appearing for Respondent No. 4. On the consent of the learned counsel appearing for the Parties with due exchange of pleadings, both the appeals were heard analogously and disposed of by the present common order. 8. Having heard learned counsels appearing for the Parties and after going through the materials available on record, it is found that pursuant to the advertisement issued by the College on 09.04.1991 the Appellant as well as Respondent No. 4 participated in the selection process for the post of Clerk. In the interview held by the College on 14.05.1991, the Appellant while was placed in the 1st position, Respondent No. 4 was placed in the 2nd position. Basing on the merit list so prepared under Annexure-4 on 14.05.1991, the Appellant was appointed as against the pot of Clerk vide order of appointment issued on 18.05.1991 under Annexure-5, where he joined on 01.06.1991. Similarly, Respondent No. 4 was so appointed vide order dtd.19.05.1991 under Annexure-10 and he also joined on 01.06.1991. The services of both the Appellant and Respondent No. 4 with date of joining 01.06.1991 was approved by the Governing Body in its Page 18 of 22 // 19 // proceeding dtd.09.06.1991 under Annexure-7. In the said proceeding under Annexure-7 the Appellant was placed at Sl. No. 11 and the Respondent No. 4 was placed at Sl. No. 12. 8.1. It is also found from the records that even though both Appellant and Respondent No. 4 were appointed as against the post of Clerk in terms of the selection process initiated by the Governing Body on 09.04.1991, but while so continuing and claiming his appointment as against the post of Head Clerk with date of appointment as 02.04.1991, Respondent No. 4 approached this Court in OJC No. 18169 of 1997 by making a plea that he is not being allowed to discharge his duty as against the post of Head Clerk by the Governing Body of the College. When this Court directed the Director to consider the grievance so raised by Respondent No. 4, Respondent No. 2 vide order dtd.25.01.2000 hold the action of the Governing Body in not allowing Respondent No. 4 to discharge his duty as illegal. Respondent No. 2 accordingly directed the Governing Body to allow Respondent No. 4 to join in his post. Pursuant to the said order passed by the Respondent No. 2 on 25.01.2000, Respondent No. 4 though was allowed to join as Head Clerk on 07.09.2000, but it is found from Page 19 of 22 // 20 // the record that the so called order of appointment of Respondent No. 4 as against the post of Head Clerk on 02.04.1991 and that of the present Appellant as against the post of Junior Clerk vide order of appointment dtd.02.04.1991, were never produced before the Tribunal. Respondent No. 4 neither in GIA Case No. 29 of 2004 nor while filing his counter in FAO No. 117 of 2012, has also produced the so called order of appointment issued in his favour as against the post of Head Clerk on 02.04.1991. 8.2. In absence of such order of appointment issued in favour of Respondent No. 4 on 02.04.1991, as per the considered view of this Court, the appointment of Respondent No. 4 as against the post of Head Clerk cannot be accepted. It is also found from the record that even though Respondent No. 4 claim himself to have been appointed as against the post of Head Clerk with date of appointment as 02.04.1991, but no document has been filed by Respondent No. 4 showing the basis of such appointment as against the post of Head Clerk by facing the selection process. No document has also been produced showing the approval of the services of Respondent No. 4 by the Governing Body as against the post of Head Clerk on 02.04.1991. The document relied on by Page 20 of 22 // 21 // the Respondent No. 4 in support of his appointment and reflected in the letter issued by the Principal of the College on 13.09.1993 cannot be accepted, in absence of any such order of appointment so issued on 02.04.1991 in favour of Respondent No. 4. 8.3. In service jurisprudence, the claim of any employee always flows from the order of appointment so issued in his favour. Since in the present case, no such order of appointment is in the record showing the appointment of Respondent No. 4 as against the post of Head Clerk on 02.04.1991, this Court is unable to accept the stand of Respondent No. 4 to have been appointed as against the said post of Head Clerk on 02.04.1991. It is also never the case of the Appellant that he was appointed as a Junior Clerk on 02.04.1991 as reflected in the letter dtd.30.09.1993 so relied on by the Respondent No. 4. It is also borne from the record that the present Appellant was never a Party in the appeal so decided in favour of Respondent No. 4 vide order dtd.25.01.2000. Since the Appellant was never a Party to the appeal, the order passed on 25.01.2000 cannot be made applicable as against him. 8.4. It is also seen from the impugned order that the Tribunal solely relying on the order passed by the Respondent No. 2 in the Page 21 of 22 // 22 // appeal so filed by Respondent No. 4, allowed the claim of Respondent No. 4 vide the impugned Judgment. But the Tribunal has not allowed the claim of Respondent No. 4 as against the post of Head Clerk. Therefore, in view of such material irregularity with regard to passing of the impugned Judgment, this Court is inclined to interfere with the same and quash the impugned Judgment dtd.23.06.2007 passed in GIA Case No. 29 of 2004. While quashing the same, this Court directs the Respondent Nos. 1 & 2 to approve the appointment of the Appellant as against the post of Jr. Clerk-cum-Typist and extend hm with the benefit of grant-in- aid as due and admissible within a period of three (3) months from the date of receipt of this order. 9. Both the appeals are accordingly disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack The 19th April, 2023/Sneha Page 22 of 22