Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 21086 OF 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- AFR Dr. (Mrs.) Sujata Ratha ..… Petitioner -Versus- State of Orissa and others ….. Opp. Parties For Petitioner : Mr. B. Routray, Sr. Advocate, along with M/s U.C. Mishra, A. Mishra, D.R. Sendha and A.Bal, Advocates. For Opp. Parties : Mr. S. Jena, Standing Counsel for School & Mass Education Department. P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON’BLE MR. JUSTICE SANJAY KUMAR MISHRA DECIDED ON : 28.06.2022 DR. B.R. SARANGI, J. The Petitioner, by means of this Writ Petition, seeks to quash the Order dated 25.06.2013 passed by the Odisha Administrative Tribunal, Bhubaneswar, dismissing O.A. No. 2716 of 1997. Page 1 of 24 2. The factual matrix of the case, in brief, is that the Petitioner was initially appointed as a Lecturer in Education on ad hoc basis on a consolidated honorarium of Rs.500/- per month for a period of 89 days vide Order dated 19.09.1988 issued by the Secretary, Nalini Devi Women’s College of Education, Bhubaneswar. Again she was appointed, vide Order dated 13.02.1989, as ad hoc Lecturer until 31.03.1989 on a consolidated amount of Rs.750/- per month. The appointment of the Petitioner was extended beyond 28.09.1989 until further Orders or until the post is filled up on a regular basis, whichever is earlier, vide Order dated 23.09.1989. The College in question was taken over by the Government w.e.f 01.04.1990, pursuant to the Ordinance, i.e. The Nalini Devi Women’s College of Education (Taking Over of Management) Ordinance, 1991 (Orissa Ordinance No.3 of 1991), which came into force w.e.f 27.06.1991, giving effect from 01.04.1990. Vide Order dated 20.02.1991, the Petitioner was appointed as a Teacher in Education on ad hoc basis for a period of one year or till her appointment is regularized on the recommendation of Selection Board, Page 2 of 24 whichever is earlier, subject to condition that the Petitioner will produce documentary evidence regarding her regular appointment as a Lecturer in Nalini Devi Women’s College of Education. 2.1 Even though the Ordinance came into force with effect from 01.04.1990, but the Petitioner was denied absorption. Therefore, she approached the Tribunal by filing O.A. No. 2532 of 1992. A batch of cases had also been filed by different Applicants. All those Original Applications were heard analogously by the Tribunal and disposed of vide a common judgment dated 20.02.1997, with the following observation:- In case it is not possible to entrust the duty of “20 enquiry to the Education Tribunal as suggested by me within the time stipulated, respondent No.1 shall appoint a Committee consisting of the Financial Advisor of the Department who is well acquainted with the service jurisprudence relating to employment, a representative of the department not below the rank of Deputy Secretary and a representative of the Directorate not below the rank of Deputy Director who shall make an enquiry into the matter jointly. The enquiry should be completed within three 21. months as the matter is long delayed. To expedite completion of the enquiry the applicants shall submit representations with materials in support of their claim including affidavits and statements. They may also seek to call for documents from the Vigilance Department. the Respondents may also obtain documents from Page 3 of 24 Vigilance Department to disprove that the applicants or any of them do not come under the protection given under Section 7 of the Act. It goes without saying that the Principal who is accepted by the State Government to the member of the staff on 01.04.1990 should be called upon to give her statement. The teaching and non-teaching staff who are continuing as Govt. Servants should also be examined to find out whether any or all the applicants were in the college on that date. to is directed “Respondent No.1 22. take appropriate steps on basis of the report of the enquiry either to treat all or any of the applicants as Government servants being member f the staff as on 01.04.1990 or would have continued as would be reported. Decision of Respondent No.1 shall be communicated to the concerned applicants within one month of the report of enquiry. If for any reason it is found adversely in the enquiry against any of the applicants, copy of the enquiry report and the Order of rejection of the claim shall be communicated to the concerned applicant within the aforesaid period. Concerned applicant, if aggrieved, can file application under Section 19 of the Administrative Tribunal Act afresh challenging the Order and the report for effective direction. 23. In Order to temporarily accommodate the eligible and suitable applicants in any vacant post available, I sought for information from the Respondents. Without waiting for such information I direct that the applicants or any of the applicants who are found to be more suitable than others may be appointed to the teaching and non-teaching posts under the Directorate. Director shall take steps in this regard. However, such ad hoc appointment shall not be a subject matter of dispute in this Tribunal as the same is purely ad hoc in nature.” In compliance of the direction of the Tribunal contained in the Judgment dated 20.02.1997, as mentioned above, the Petitioner submitted a representation on 31.03.1997 Page 4 of 24 to Opposite Party No.1. Vide letter dated 11.08.1997, the Petitioner was directed to appear before the Enquiry Committee to be held on 18.08.1997 with all the papers and documents in support of her claim. Pursuant thereto, she appeared before the Enquiry Committee on the stipulated date along with all supporting documents. Vide letter dated 20.11.1997, Opposite Party No.1 communicated the Petitioner that the Government, basing on the Report of the Enquiry Committee, has been pleased to reject her claim for absorption in Government Service. Against such Order of rejection dated 20.11.1997, the Petitioner approached the Tribunal once again by filing O.A. No. 2716 of 1997. But the Tribunal,
Legal Reasoning
by the impugned Order dated 25.06.2013, confirmed the Order of rejection of the claim of the Petitioner for absorption in Government Service, by holding that no irregularity or illegality has been committed in the Order impugned so as to call for any interference by the Tribunal, and accordingly dismissed the Original Application. Hence, this Writ Petition. Page 5 of 24 3.
Legal Reasoning
Mr. Asutosh Mishra, learned Counsel appearing for the Petitioner, admitting the above fact, vehemently contended that the Tribunal, vide Order dated 20.02.1997 passed in O.A. No. 2532 of 1992 and batch, had specifically directed that the Enquiry Committee should determine as to whether any of the Applicants was continuing as the member of the staff of the College as on 01.04.1990 or would have continued as would be reported, but for the illegal and vindictive action of the Principal, it took a long time to decide. It is further contended that so far as the Petitioner is concerned, the Ex-Principal of the Petitioner’s College, namely, V.V. Viddyrthee, gave a certificate on 27.02.1991 that she was Lecturer in Nalini Devi Women’s College of Education, Bhubaneswar, from 15.02.1989 to 05.02.1991, which is placed on record as Annexure-7 to the Writ Petition. He also contended that the then Secretary of Nalini Devi Women’s College of Education extended the engagement of the Petitioner beyond 28.09.1989 until further orders or until the post is filled up on regular basis, whichever is earlier, vide Order dated 23.09.1989, which is also made Page 6 of 24 available at Annexure-6. If both the documents are taken into consideration, the irresistible conclusion would be, as on 01.04.1990 the Petitioner was in service and therefore, she should have been absorbed in Government Service by virtue of the Ordinance issued by the Government vide Annexure-1 to the Writ Petition. The Enquiry Committee, which had been constituted by virtue of the direction given by the Tribunal by Order dated 20.02.1997 passed in O.A. No. 2532 of 1992 and batch, had not taken into consideration these two material documents to come to the conclusion that the Petitioner was not in service as on 01.04.1990 to get herself absorbed in service. Consequentially, illegalities and irregularities have been committed by the Enquiring Committee, which had been constituted by virtue of Order dated 20.02.1997 passed by the Tribunal in O.A. No. 2532 of 1992 and batch, and subsequently confirmed by the impugned Order dated 25.06.2013, at Annexure-9, passed by the Tribunal. It is contended that Opposite Party No.1 has not applied its independent mind, rather mechanically accepted the Report of the Committee Page 7 of 24 rejecting the claim of the Petitioner for absorption in Government service, which cannot sustain in the eye of law. 4. Mr. S. Jena, learned Standing Counsel for School & Mass Education Department appearing for the Petitioners, contended that Nalini Devi Women’s College of Teacher Education, Bhubaneswar, formerly known as Nalini Devi Women’s College of Education, was taken over by the Government of Odisha with effect from 27.06.1991, as per Orissa Ordinance No. 3 of 1991, which got approval of the State Legislature. As per Clasue-7 of the Ordinance, “all teaching and non-teaching employees in the employment of the College as on the 1st day of April, 1990 shall be deemed to have been absorbed in Government Service as employees of the College in their respective posts with effect from the date of its transfer”. As per the said Clause, the employees, who are in the employment of the College as on 01.04.1990, shall be deemed to have been absorbed in Government service. The claim of the Petitioner is that she was engaged as a Page 8 of 24 Lecturer in Education on honorarium basis with an amount of Rs.500/- per month, vide Order dated 19.09.1988, and subsequently she was re-engaged as such till 31.03.1989 with monthly honorarium of Rs.750/- by one Shri B.K. Mania, Member Secretary. But the copy of the Resolution dated 24.09.1989 of the erstwhile Management reveals that Shri B.K. Mania was nominated as the Secretary of the Governing Body on 29.04.1989. Therefore, the so called engagement of the Petitioner by Shri B.K. Mania, vide Order dated 13.02.1989 at Annexure-5, appears to be fabricated and created by the Petitioner to justify her engagement. As the Petitioner was not a regular employee on the Pay Roll of the Institution as on 01.04.1990, she was not considered for absorption as per the condition stipulated in the Act. Pursuant to the Order dated 20.02.1997 passed by the Tribunal in O.A. No. 2532 of 1992 and batch, Opposite Party No. 1 had constituted a Committee to cause an enquiry as to whether the Petitioner and others were the staff as on 01.04.1990, i.e. the date fixed as per the legislation as the cut-off date for taking over the Page 9 of 24 institution by the Government. The Committee in its finding dated 07.11.1997, held that no service document in respect of the Petitioner was produced before the Committee regarding the retrenchment/approval of the Governing Body. As such, vide Order dated 20.11.1997, the claim of the Petitioner for absorption was rejected. Thereby, the entire action taken is well justified. 4.1 It is further contended that the Tribunal disposed of O.A. No. 1488 of 2000 filed by Dr. (Mrs) Swarnalata Parida, vide Order dated 13.03.2012, with an observation that the Petitioner therein, having not worked in the College as on 01.04.1990, can never be a regular employee of Nalini Devi Women’s College of Teacher Education. In that view of the matter, the relief, as has been sought by the Petitioner herein, is not sustainable in the eye of law and the Writ Petition deserves to be dismissed accordingly. 5. This Court heard Mr. Asutosh Mishra, learned Counsel appearing for the Petitioner and Mr. S. Jena, learned Standing Counsel for School & Mass Education Page 10 of 24 Department, appearing for the Opposite Parties by hybrid mode and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this Writ Petition is being
Decision
disposed of finally at the stage of admission. 6. On the basis of the undisputed facts, as delineated above, the sole question arises for consideration is whether, as on 01.04.1990, the Petitioner was continuing in the College in question to be considered for absorption, pursuant to Clasue-7 of the Ordinance issued by the Government? 7. As is borne out from the records, the Petitioner was not absorbed in Government service, even though she claimed that she was in employment of the College as on 01.04.1990. Therefore, she approached the Tribunal by filing O.A. No. 2532 of 1992, which was disposed of along with O.A. No. 1367 of 1991 and batch, vide Order dated 20.02.1997, with the directions as mentioned hereinbefore. In compliance of the said Order of the Tribunal, a Committee was constituted by the Page 11 of 24 Government to cause enquiry into the matter. After enquiry, the Committee submitted its Report on 07.11.1997. So far as it relates to the Petitioner, the Committee reported as follows:- “(1) Smt.Sujata Rath vide letter letter No.199 dated13.09.1989 up She was appointed as Lecturer in N.D.W. College dated appointment 19.09.1988 for a period of 89 days by Sri B.K.Mania. She was again given appointment to vide 31.03.1989. Subsequent Orders of appointment are not available and not produced. The the Governing Body held on resolution of 29.04.1989 indicated that as per resolution No. 13 her appointment has been accepted till June 1989 along with Smt. Sunanda Patnaik. Subsequent office Orders signed by the Principal No.4307 dated 04.07.1989 and 3461 dated 10.07.1989 indicate that she was conducting classroom activities during July 1989. In a joint memorandum submitted to Govt. for absorption of the members of the staff, she has signed along with Smt. S.N. Lenka (who claimed to be the Principal of the college.) Subsequently, neither the Orders of G.B. of retrenchment not the approval of G.B. has been produced to the committee. In the report submitted by Sri R.K. Panda, administrator, the list of staff members as on 01.04.1989 i.e. the date from which the audit was taken up enclosed, Sri Panda has mentioned that this is as per audit report, whereas such a list is not found from the Govt. file. Of course, Sri Panda in his note mentioned that as he could not procure the copy of the audit report from the Department, he had to collect if from Law Department on 12.07.1990. Sri R.C. Dhal, as Secretary of the College has written a letter to the then Director, where he has Page 12 of 24 mentioned that after November 1989 Smt. Ratha brought to his notice that she was not allowed to take classes in the college and approached for a valid appointment Order. As this point, the appointment Order issued by Sri Mania allowing her to continue until further Orders has been put to question. This makes doubt. She was not allowed to continue. Sri Dhal says he desired to issue an appointment Order on 13.02.1990 but could not issue the Order because of the vehement opposition of Sri B.K.Patnaik. Sri Dhal seems to have resigned, on this issue saying Smt. Sujata Rath has been harassed. Probably this is the reason why Director, TE & SCERT adjusted her as Teacher Educator of DIET. These facts throw light that Smt. Sujata Rath was very much present up to February’ 90. Hence her claim to be absorbed as Lecturer in O.A. is becoming clearer and clearer. However, the committee did not get any evidence of Smt. Rath continuing from March’ 90 because the audit is silent.” 8. From the materials available before the Enquiry Committee, it is emerged that the Petitioner had filed two appointment orders issued by the Secretary of the erstwhile Managing Committee of the College. Initial appointment order was dated 19.09.1988, whereby consequent to her agreement to the terms and conditions of the appointment, she was appointed as a Teacher in Education on ad hoc basis on a consolidated honorarium of Rs.500/- for a period of 89 days. Second appointment order was dated 13.02.1989, whereby she was appointed Page 13 of 24 as an ad hoc Lecturer in Education until 31.03.1989 on a consolidated remuneration of Rs.750/- for the entire period. But, she had not produced any document or appointment order issued in her favour thereafter. In support of her contention that she was continuing in the College as on 01.04.1990, reliance was placed to the order dated 23.09.1989 issued by the Secretary of the College to the effect that the appointment of the Petitioner as “ad hoc Lecturer in Education in the College is extended beyond September, 28, 1989 until further Orders or until the post is filled up on a regular basis whichever is earlier”. But the Committee came to a finding and held that “the committee did not get any evidence of Smt. Rath continuing from March’ 90 because the audit is silent”. 9. It appears from the letter dated 12.07.1990 written by one Mr. N.C. Dhal, Advocate and Member of the College addressed to the Director, SC & SCERT, Bhubaneswar, which was also taken note of by the Committee in its Report that no appointment order was issued in favour of the Petitioner on 15.02.1990. After the Page 14 of 24 College was taken over by the Government w.e.f. 01.04.1990, the Petitioner was appointed on ad hoc basis as a Teacher of Education in Language (Oriya) in DIET, Jeypore, with a stipulation that “this adhoc appointment as a Teacher Educator in the DIET is subject to the condition that Smt. Sujata Rath will produce documentary evidence regarding her regular appointment as a Lecturer in Nalini Devi Women’s College of Education vide Order dated 20.02.1991 issued by the Director, Teacher Education & SCERT, Odisha”. 10. Since the Petitioner was not continuing in service as on 01.04.1990, the Government, vide Order dated 20.11.1997, rejected the claim for her absorption in Government service. As the Petitioner had not produced any valid regular appointment order issued by the erstwhile Managing Committee, nor was she continuing in the teaching post from 01.04.1990, her claim for absorption pursuant to Clause-7 of the Ordinance, after the College was taken over, cannot have any justification. Page 15 of 24 11. In State of Orissa v. Mamata Mohanty, 2011 3 SCC 436, the apex Court in Paragraphs-35, 36 and 37 of the Judgment held as follows:- “APPOINTMENT/EMPLOYMENT ADVERTISEMENT: WITHOUT to the the names in response fairly. Even 35. At one time this Court had been of the view that calling from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public the later on, came employment. But, that some appropriate method conclusion consistent with requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those thereto should be who apply considered the names of if candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 the vacancies Page 16 of 24