The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO Nos.302 & 264 OF 2018 In the matter of an application under Section 24-C of the Orissa Education Amendment Act. Sarojini Dash …. Appellant -versus- State of Orissa & Others …. Respondents For Petitioner For Opp. Parties :M/s. K.K. Swain, Sr.Advocate along with Mr. S. Jena, P.K. Panda, Advocates :M/s. S.K. Samal, Addl. Govt. Advocate Mr. J.K. Rath, Sr. Advocate along with Mr. P. Prusty, Adv. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 10.11.2023 and Date of Order: 03.01.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since both the appeals have been filed challenging the judgment dt.24.02.2018 so passed by the State Education Tribunal (in short, called <The Tribunal=) in G.I.A. Case No.180 of 2016, both the appeals are heard analogously and disposed of by the present // 2 // common order. 2. While FAO No.302 of 2018 has been filed by the appellant, who was the applicant before the Tribunal in G.I.A. Case No.180 of 2016, F.A.O No.264 of 2018 has been filed by the Managing Committee of the School also challenging the judgment passed by the Tribunal on 24.02.2018. 3. It is the case of the appellant in F.A.O No.302 of 2018 that the School in question Maa Durga Girls High School, Bangalo, in the district of Cuttack was established in the year 1991. Respondent No.5 was appointed as against the post of Trained Graduate Teacher (PCM) vide order dt.24.11.2001 of the Managing Committee and in terms of the said order, Respondent No.5 joined in the school on 24.11.2001. 3.1. It is contended that since Respondent No.5 remained on unauthorized leave for a period of more than three (3) months w.e.f 29.11.2005 and subsequently, she made an application on 01.10.2006 to Page 2 of 19 // 3 // remain on Maternity Leave, taking into account such unauthorized absence of Respondent No.5, the Managing Committee provided appointment to the appellant vide order dt.22.01.2007 under Annexure-3 to the G.I.A application. The appellant in terms of the order dt.22.01.2007 joined in the school as against the post of T.G.T(PCM). 3.2. It is contended that on being so appointed as against the post of T.G.T (PCM), name of the appellant was reflected in the renewal recognition form so submitted by the Managing Committee before the Board of Secondary Education, Orissa. It is also contended that subsequently Respondent No.5 was terminated from her services w.e.f 16.04.2007 vide order under Annexure- 2 series to the G.I.A application. On being so terminated from her services w.e.f 16.04.2007, the Managing Committee in its proceeding dt.09.06.2007 approved the appointment of the appellant so made on 22.01.2007 w.e.f 17.04.2007 and regularized the appointment of the appellant. Page 3 of 19 // 4 // 3.3.
Legal Reasoning
kept pending, appellant approached this Court in W.P.(C ) No.18949 of 2015. This Court vide order dt.16.10.2015 while disposing the matter directed Respondent No.2 to take a decision on the representation made by the appellant on 07.10.2015. 3.6. It is contended that Respondent No.2 without proper appreciation of the appellant’s claim vis-a-vis the claim of Respondent No.5, rejected the claim of the appellant so made in his representation dt.07.10.2015 while upholding the direction issued by the Respondent No.3 in his letter dt.26.09.2015 vide order dt.18.04.2016. 3.7. It is contended that challenging the direction issued by Respondent No.3 in his letter dt.26.09.2015 and the order passed by Respondent No.2 in his order dt.18.04.2016, the appellant moved the Tribunal in G.I.A Case No.180/2016 inter alia with the following prayer. Page 6 of 19 // 7 // < It is, therefore, prayed that this Hon’ble Tribunal may graciously be pleased :- (i) Admit the G.I.A case (ii) Call for the records; (iii) The impugned letter of opposite party no.3 dated 26.09.2015 under Annexure-10 and the consequential office order issued by opposite party no.2 dated 18.04.2016 under Annexure-13 be quashed (iv) Further the opposite party nos.1 to 3 be directed to approve the appointment of the applicant as against the post of Trained Graduate Teacher (PCM) and necessary grant-in-aid in shape of block grant be released in her favour as has been done in the case of other employees of the institution and the applicant may be also entitled to receive all financial and consequential benefit as due and admissible to the said post within a reasonable time to be stipulated by this Hon’ble Tribunal (v) And may pass such other appropriate order as this Hon’ble Tribunal deems fit and proper in the eye of law.= 3.8. It is contended that in the G.I.A application so filed before the Tribunal, the appellant contended that even though Respondent No.5 was appointed as against the post of T.G.T (PCM) on 24.11.2001 where she joined on 03.12.2001, but since Respondent No.5 remained on unauthorized absent, the Managing Committee of the School appointed present appellant as against the post of T.G.T(PCM) vide order dt.22.01.2007 under Annexure-3 to the G.I.A Application. Subsequently, the services of Respondent No.5 was terminated by the Managing Committee vide order dt.16.04.2007 and after such Page 7 of 19 // 8 // termination of Respondent No.5, the Managing Committee in its resolution dt.09.06.2007 resolved to regularize the services of the appellant as against the post of T.G.T (P.C.M) in which she was appointed on 22.01.2007 w.e.f 17.04.2007 3.9. It is the case of the appellant before the Tribunal that Respondent No.5 in terms of the resolution issued by the Government on 27.03.1983 under Annexure-7, never challenged her termination so made on 16.04.2007. Not only that, subsequent to the appointment of appellant, her name was reflected in the renewal recognition form so submitted by the Managing Committee before the Board of Secondary Education, Orissa, every year. But respondent No.5 after remaining silent for more than 7 years, moved an application before Respondent No.3 on 10.10.2014 inter alia with a prayer to direct the school authority to allow her to join as against the Post of T.G.T (P.C.M). 3.10. It is contended that since in terms of the resolution issued by the Government on 27.03.1983, Page 8 of 19 // 9 // against such nature of termination, Director, Secondary Education is the appellate authority, but Respondent No.3 in consideration of the application submitted by Respondent No.5 on 10.10.2014, directed the school authority to allow Respondent No.5 to join in her former post of T.G.T (P.C.M) vide letter dt.26.09.2015. It is contended that Respondent No.3 is not competent to issue such a direction, as it is the Director, who is the appellate authority and to consider such nature of grievance. 3.11. It is further contended that appellant challenging the communication issued by Respondent No.3 though moved an application before Respondent No.2 on 07.10.2015, but the same was never considered. Accordingly, the appellant was constrained to move this Court in W.P.(C) No.18949 of 2015. This Court vide order dt.16.10.2015 when directed Respondent No.2 to consider the appellant’s grievance, the same was rejected vide order dt.18.04.2016 and by confirming the direction issued by Respondent No.3 in his letter dt.26.09.2015. Page 9 of 19 // 10 // 3.12. It is contended that since Respondent No.5 was duly terminated from her services as she remained on unauthorized absent and the appellant was appointed as against the said post with due approval of her appointment in the proceeding of the meeting dt.09.06.2007, the Tribunal on the face of such materials being produced, should not have rejected the appellant’s claim vide the impugned judgment dt.24.02.2018. 4. Mr. S.D. Routray, learned counsel appearing for the appellant in FAO No.264 of 2018 while supporting the submission of Mr. K.K. Swain, learned counsel for the appellant in the other appeal, contended that Respondent No.5 while continuing as against the post of T.G.T (PCM), she was issued with a show-cause on 23.03.2005 with regard to missing of valuation paper. Thereafter, Respondent No.5 remained on unauthorized absent w.e.f 29.11.2005. 4.1. It is contended that while continuing on such leave, Respondent No.5 submitted an application on 01.10.2016 in order to allow her to take maternity leave. Page 10 of 19 // 11 // After availing the maternity leave, Respondent No.5 joined in her duty on 17.01.2007. But w.e.f 01.02.2007, she remained on unauthorized leave once again. Taking into account the conduct of Respondent No.5 in remaining unauthorized absent from her duty, the Managing Committee initially resolved to appoint the appellant as against the Post of T.G.T (P.C.M) and accordingly, order of appointment was issued in favour of the appellant on 22.01.2007. Subsequently, Respondent No.5 was terminated from her services w.e.f 16.04.2007 and on such termination of Respondent No.5, the appointment of the appellant so made on 22.01.2007 was approved and her appointment was regularized by the Managing Committee in its Proceeding dt.09.06.2007. 4.2. It is accordingly contended that the Tribunal without proper appreciation of the stand taken by the appellant/ applicant in the G.I.A case as well as the Managing Committee, illegally rejected the claim of the Page 11 of 19 // 12 // appellant applicant in G.I.A Case No.180 of 2016 vide the impugned judgment dt.24.02.2018. 5. Learned Additional Government Advocate appearing for the State on the other hand contended that since by the time appellant in F.A.O 302/2018 was appointed on 22.1.2007, there was no vacancy available as per the prescribed yardstick as against the Post of T.G.T(P.C.M), the very appointment of the appellant is a nullity in the eye of law. 5.1. It is also contended that even though Respondent No.5 was terminated from her services w.e.f 16.04.2007 and the services of the appellant was regularized in the proceeding dt.09.06.2007, but the said proceeding is a manipulated one, as in the proceeding dt.09.06.2007, the decision taken by the Managing Committee on 23.07.2007 was also taken note of. 5.2. Learned Additional Government Advocate contended that the happening of 23.07.2007 cannot be taken note of in the proceeding dt.09.06.2007. It is contended that in view of such thing which is apparent on the face of the Page 12 of 19 // 13 // resolution dt.09.06.2007, it is to be held that such a resolution is a manipulated one and the services of the appellant-Sarojini Dash was never regularized in terms of the resolution dt.09.06.2007. 5.3. Learned Additional Government Advocate accordingly contended that since the very appointment of the appellant-Sarojini Dash was against a non-existent post and by that time Respondent No.5 was very much in service, the appellant has no right to claim against the post in question. 5.4. It is further contended that taking into account the fact that the appellant was appointed during continuance of Respondent No.5, Respondent No.3 basing on the direction issued by the Respondent No.2, directed the School authority to allow Respondent No.5 to join in her former post vide letter dt.26.09.2015. The said action of Respondent No.3 has also been upheld by the Director in terms of the order passed by this Court in W.P.(C ) No.18949 of 2015 vide order dt.18.04.2016. It is accordingly contended that the Tribunal after due Page 13 of 19 // 14 // consideration of the matter since has passed the judgment in question, it requires no interference. 6. Mr. D.N. Rath, learned counsel appearing for Respondent No.5 on the other hand made his submission basing on the stand taken before the Tribunal. 6.1. It is contended that Respondent No.5 was duly appointed by the Managing Committee of the School as against the post of T.G.T (P.C.M) vide order of appointment issued on 24.11.2001. In terms of the said order, Respondent No.5 joined in the school on 03.12.2001. 6.2. It is contended that during continuance of Respondent No.5, appellant was appointed vide order dt.22.01.2007. Since the very appointment of the appellant was against a non-existing post and prior to termination of Respondent No.5, such nature of appointment is void, ab initio. 6.3. In support of his submission, learned counsel appearing for Respondent No.5 relied on a decision of the Page 14 of 19 // 15 // Hon’ble Apex Court in the case of State of Punjab Vs, Debender Pal Singh 2011 (14) S.C.C 770. Hon’ble Apex Court in Paragraphs-72 &73 of the said judgment has held as follows. <72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. thereby 73. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC 3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally.= 6.4. Learned counsel for Respondent No.5 also relied on another decision of the Hon’ble Apex Court in the case of State of Orissa & Others Vs. Mamata Mohanty, (2011) 3 SCC 456. Hon’ble Apex Court in paragraph-20 has held as follows. <20. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Page 15 of 19 // 16 //
Arguments
It is contended that private Respondent No.5 at no point of time challenged the appointment of the appellant as against the post of T.G.T(PCM) w.e.f 22.01.2007 nor her termination so issued by the Managing Committee of the School on 16.04.2007. In the meantime, the School also became eligible to get the benefit of Grant-in-Aid as per Grant-in-Aid Order, 2004 read with Grant-in-Aid (Amendment) order,2008 w.e.f 01.04.2008. Even though services of the teaching and non-teaching staff of the School was approved and benefit of Block Grant w.e.f 01.04.2008 was extended vide order dt.15.03.2011, but because of the dispute with regard to the post of T.G.T.(P.C.M), the services of the appellant was not approved. 3.4. It is contended that even though Respondent No.5 was terminated from her services vide order dt.16.04.2007, but Respondent No.5 only in the year 2014 made a grievance petition before Respondent No.3 inter alia with a prayer to direct the School authority to allow her to resume duty as against the post of Page 4 of 19 // 5 // T.G.T(P.C.M) and to approve her services with release of Block Grant on 10.10.2014 vide Annexure-6 series. On receipt of the representation dt.10.10.2014 under Annexure-6 series, Respondent No.3 vide letter dt.03.11.2014 requested the school to submit a detailed report with regard to appointment as against the Post of T.G.T (PCM). The school on receipt of letter dt.03.11.2014 submitted a detailed report vide letter dt.17.11.2014 under Annexure-7 series. But, in the meantime, basing on the letter issued by the Director, Secondary Education on 29.08.2015, Respondent No.3 vide his letter dt.26.09.2015 directed the Headmaster- cum-Secretary of the School to allow Respondent No.5 to join as against her former post of T.G.T(PCM) under Annexure-8. 3.5. It is contended that challenging the direction issued by Respondent No.3 vide his letter dt.26.09.2015 under Annexure-8, the appellant moved Respondent No.2 on 07.10.2015 inter alia with a request to set aside Page 5 of 19 the direction of Respondent No.3 so issued on // 6 // 26.09.2015. As the request made by the appellant before Respondent No.2 on 07.10.2015 was not considered and