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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5391 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… G.B. of Soro Women’s College, Balasore and Another …. Petitioners -versus- State of Odisha and Others …. Opposite Parties For Petitioner : Mr. S.K. Das, Advocate For Opp. Parties : Mr. P.K. Panda, ASC Mr. K.P. Mishra, Sr. Advocate with Mr. S. Rath, Advocate for O.P. No.5 PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:10.07.2025 and Date of Judgment:04.08.2025 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. S.K. Das, learned counsel for the petitioner, Mr. K.P. Mishra, learned Senior Counsel along with Mr. S. Rath, learned counsel for O.P. No.5 // 2 // and Mr. P.K. Panda, learned Addl. Standing Counsel for the State. 2. The present Writ Petition has been filed by the petitioners-Governing Body as well as the Principal-in- Charge-cum-Secretary of Soro Women’s College, Soro, Balasore inter alia challenging judgment dated 07.01.2023 so passed by the State Education Tribunal (In short “the Tribunal”) in Appeal No.9 of 2018 under Annexure-5. Vide the said judgment, the Tribunal allowed the claim of O.P. No.5 and with a direction on the petitioners to allow O.P. No.5 to join in his duty in the College and pay his salary including arrears w.e.f. 07.01.2012. 3. While assailing the impugned judgment, learned counsel for the petitioners contended that O.P. No.4 was appointed vide order dated 15.08.1996 as a Watchman and pursuant to the said order, O.P. No.4 joined as a Watchman in the College on 01.09.1986. O.P. No.5 on the other hand was appointed as a Peon Page 2 of 21 // 3 // vide order dated 15.09.1986 and in terms of the said order, he joined as a Peon on 01.10.1986. 3.1. It is contended that in the meantime when the College in question became eligible to receive Grant-in- Aid under GIA Order, 1994 and as per the yardstick so prescribed in the said order, only 2 (two) Class-IV posts were made admissible to receive Grant-in-Aid. Accordingly, services of O.P. No.4 was approved as he was an earlier appointee than O.P. No.5 as against the post of Peon vide order dated 15.03.1996 and he received Grant-in-aid under GIA Order, 1994. Such approval of services of O.P. No.4 making him entitled to receive Grant-in-Aid under GIA Order, 1994 was never assailed by O.P. No.5. 3.2. Not only that services of O.P. No.5 was also approved, but against the post of Watchman and he was released with Block Grant w.e.f. 20.01.2009 under GIA Order, 2009. Only after approval of his services as against the post of Watchman making him entitled to receive Block Grant under GIA Order, 2009, O.P. No.5 Page 3 of 21 // 4 // raised objection against the continuance of O.P. No.4 as a Peon in the College and his continuance and approval as Watchman of the College by making a representation on 03.11.2011. 3.3. After making such application, O.P. No.5 when made an application on 04.11.2011 seeking leave of 1 (one) month w.e.f. 08.11.2011, the said leave was never sanctioned. However, after making such application for leave, O.P. No.5 when did not resume his duty w.e.f. 08.11.2011, a show-cause was issued by the College on 24.11.2011. Even though such show-cause was duly received by O.P. No.5, but he declined to file his reply on the ground that no communication has been made by the College with regard to his objection to the continuance of O.P. No.4 as Peon of the College so made on 03.11.2011. 3.4. While declining to file his reply to the show-cause vide his letter dated 04.12.2011, O.P. No.5 made another application on the same date for extension of leave for another one month on 04.12.2011 Page 4 of 21 // 5 // 3.5. Learned counsel for the petitioners contended that by alleging that joining of O.P. No.5 so made on 07.01.2012 is not being accepted by the College, O.P. No.5 made a representation before O.P. No.2 on 09.01.2012. Thereafter, when another application was made by O.P. No.5 before the Director on 19.01.2012, alleging therein that his joining is not being accepted so submitted on 07.01.2012, petitioner-College vide letter dated 25.01.2012, directed O.P. No.5 to join in his duty and to show-cause for his unauthorized absence w.e.f. 08.11.2011. 3.6. It is contended that on the face of such show- cause and direction issued, O.P. No.5 neither joined in his duty nor submitted his reply to the show-cause for his unauthorized absence w.e.f. 08.11.2011. However, alleging prevention from discharging his duty w.e.f. 07.01.2012, O.P. No.5 approached this Court by filing W.P.(C) No.7766 of 2012. But the said Writ Petition was withdrawn vide order dated 17.07.2012 with liberty to approach the Tribunal. Page 5 of 21 // 6 // 3.7. Basing on such liberty granted by this Court, O.P. No.5 initially filed Appeal No.03 of 2013 inter alia alleging therein that he was prevented to discharge his duty in the College w.e.f. 07.01.2012. In Appeal Case No.03 of 2013, O.P. No.5 made the following prayer:- issuing appropriate order(s) directing “The appellant therefore prays that this Hon’ble Tribunal may be graciously pleased to admit this appeal and after hearing the Appellant’s advocate allow the same, the Respondent Nos.1 to 4 to ….. and so much so to regularise the appellant’s services as and in the post of Peon of Soro Women’s college, Soro of Balasore district from the date of his joining with effect from 01.10.1986 and more so to pay him his GIA salary components under the direct payment scheme in terms of 1994 GIA Rules from the back due date with all consequential financial and service benefits. Be further pleased to direct the Respondents Nos.1 to 4 to allow the appellant to do and discharge his duty as and in the post of Peon in the College instead of Respondent No.5. Be further pleased to direct the Respondents Nos.1 to 4 to release the Appellant’s unpaid arrear year back salary outstanding since March, 2011 within a specified time limit as may be fixed by the Hon’ble Tribunal. Pass such other order(s)/direction(s) as may be deemed fit, just and proper in the bonafide interest of justice and equity.” 3.8. Learned counsel for the petitioners contended that in the appeal in Appeal Case No.03 of 2013, petitioners-College while filing its counter affidavit, took a specific stand that O.P. No.5 was never prevented Page 6 of 21 // 7 // from discharging the duty w.e.f. 07.01.2012 but he remained unauthorized absent w.e.f. 08.11.2011. 3.9. A further stand was also taken that O.P. No.5 since is working as a Pump Driver under Odisha Left Irrigation Corporation w.e.f. 01.10.1982 and the same having been suppressed, O.P. No.5 is not eligible and entitled to get any relief. It is contended that on the face of such counter affidavit filed by the petitioner-
Decision
College, Appeal No.3 of 2013 was disposed of vide order dated 22.11.2016 with an observation that if so advised, O.P. No.5 may file a properly constituted application if any cause of action still survives in his favour. Relevant extract of order dated 22.11.2016 reflected in Para-7 read as follows:- is “7. Respondent No.4 the Principal-in-charge-cum- Secretary of the College, which indicates that he is one of the representatives of the Governing Body of the College. But then he has denied the truth of the allegations raised by the appellant in the appeal memo against him He has also cited some documents to show that he has taken some steps to call upon the appellant to join his post as he was not performing his duties. Therefore, this appeal does not appear to be maintainable in its present form. Further, all the prayers contained in the appeal petition do not appear to be entertainable in the present appeal.” Page 7 of 21 // 8 // 3.10. Learned counsel for the petitioners contended that even though the appeal in Appeal No.3 of 2013 was disposed of vide order dated 22.12.2016 with the liberty as indicated hereinabove, O.P. No.5 in absence of any new cause of action having been accrued in his favour after 22.12.2016, filed Appeal No.9 of 2018 with the following prayer:- “The appellant therefore prays that this Hon’ble Tribunal may be graciously pleased to admit this Appeal and after hearing the Appellant’s Advocate, allow this Appeal directing the Respondents No.1 to 5 to allow this Appellant to join that back in his duty in Soro Women’s College, Soro, Balasore and to pay him his salary including the unpaid arrear salary within the stipulated time frame as may be fixed by this Hon’ble Tribunal. Pass such other order(s)/direction(s) as may be deemed fit and proper in the bonafide interest of justice and equity. Be further pleased to hold and to declare that the deemed termination of this Appellant’s service is illegal, inoperative and void and that the Appellant shall be treated to be in continuance in service althrough this period with full back wages w.e.f. from 8.11.2011 onwards.” 3.11. It is contended that while in Appeal No.3 of 2013, O.P. No.5 raised the plea of prevention from discharging his duty w.e.f. 07.01.2012 as well as the approval of the services of O.P. No.4 as against the post of Peon under GIA Order, 1994 vide order dated Page 8 of 21 // 9 // 15.03.1996, in Appeal No.9 of 2018, O.P. No.5 only challenged the action of the College in preventing him from discharging his duty w.e.f. 07.01.2012, as his joining letter was not accepted. 3.12. Learned counsel for the petitioners contended that since Appeal No.9 of 2018 was filed challenging the action of the Management in not allowing the O.P. No.5 to join in his duty w.e.f. 07.01.2012 which amounts to termination, in terms of the provisions contained U/s.10-A of the Odisha Education Act (in short Act) such application should have been filed within a period of 30 days from the date of such prevention. It is contended that even though such appeal was filed beyond the period of limitation as provided under Section 10-A of the Act, but along with the appeal no application was filed by the O.P. No.5 seeking condonation of delay. Not only that taking into account the liberty granted by the tribunal in its Order dtd.22.11.2016 in Appeal No.3 of 2013, no new cause of action had arisen to file Appeal No.9 of 2018. Page 9 of 21 // 10 // 3.13. Even though such plea of delay was raised by the petitioners’-College but in absence of any application for condonation of delay, the Tribunal not only admitted the appeal but also without condoning the delay, allowed the appeal vide the impugned judgment dated 07.01.2023 under Annexure-5. It is vehemently contended that since as provided under Section 10-A of the Odisha Education Act, the prescribed period of limitation to file an appeal is 30 days, Appeal No.9 of 2018 could not have been entertained in absence of any application being filed by O.P. No.5 seeking condonation of delay. 3.14. It is also contended that Appeal No.3 of 2013 so filed by the petitioners since was disposed of vide order dated 22.12.2016, with the observation that O.P. No.5 may file properly constituted application, if any cause of action still survives in his favour, on the face of such observation, no appeal with the prayer as made in Appeal No.9 of 2018 could have been filed by the O.P. No.5 and it should not have been entertained by the Tribunal. But the Tribunal not only entertained the Page 10 of 21 // 11 // appeal on the face of order dated 22.11.2016 passed in Appeal No.3 of 2013, but also in absence of any application seeking condonation of delay, not only entertained Appeal No.9 of 2018, but also allowed the same vide the impugned judgment. 3.15. It is also contended that while dealing with the issue in allowing the claim made by O.P. No.5, the plea taken by the petitioners-College regarding continuance of the petitioner in OLIC w.e.f. 01.10.1982 was also not appreciated in absence of any contrary documents being filed by O.P. No.5. It is also contended that since O.P. No.5 is continuing in OLIC w.e.f. 01.10.1982, on the face of such continuance, he could not have made his application to get the benefit of appointment as a Peon of the College where he joined on 01.10.1986, basing on the order of appointment issued on 15.09.1986. Such action of O.P. No.5 amounts to suppression of material facts. But the Tribunal also did not take into consideration such stand of the petitioners. Page 11 of 21 // 12 // 3.16. Making all these submissions, learned counsel for the petitioners contended that the impugned judgment is not sustainable in the eye of law and requires interference of this Court. 4. Mr. K.P. Mishra, learned Senior Counsel appearing for O.P. No.5 on the other hand while supporting the impugned judgment, contended that O.P. No.4 though was appointed as a Watchman of the College vide order of appointment issued on 15.08.1986 with his date of joining as 01.09.1986, but O.P. No.5 was appointed as against the post of Peon vide order of appointment issued on 15.09.1986 with his date of joining as 01.10.1986. 4.1. It is contended that since O.P. No.4 was appointed as a Watchman of the College, his services could not have been approved as against the post of Peon while approving his services under GIA Order, 1994 vide order dated 15.03.1996 and approving the services of O.P. No.5 as against the post of Watchman under GIA Order, 2009. Page 12 of 21 // 13 // 4.2. However, it is contended that challenge made to the approval of the services of O.P. No.4 as against the post of Peon under GIA Order, 1994 so made in Appeal No.3 of 2013 was not reiterated by O.P. No.5 while filing Appeal No.9 of 2018. It is however fairly contended that O.P. No.5 has no grievance at present with regard to approval of the services of O.P. No.4 as against the post of Watchman under GIA Order, 1994. 4.3. It is contended that since on the face of his joining as a Peon of the College on 01.10.1986 in terms of the order of appointment issued on 15.09.1986 and approval of his services as a Watchman vide order dated 27.08.2010 under GIA Order 2009, O.P. No.5 when was not allowed to discharge his duty w.e.f. 07.01.2012, challenging such action of the Management, which amounts to termination, O.P. No.5 initially moved the Director, Higher Education-O.P. No.2 and thereafter this Court in W.P.(C) No.7766 of 2012. Pursuant to the liberty granted by this Court in its order dated 17.07.2012, O.P No.5 moved the Tribunal in Appeal No.3 of 2013. Page 13 of 21 // 14 // 4.4. However, the said appeal was disposed of vide order dated 22.12.2016, but with an observation that O.P. No.5 may file a properly constituted application if any cause of action survives in his favour. It is contended that since in order dated 22.12.2016 of the Tribunal so passed in Appeal No.3 of 2013, there was no time stipulation to make the properly constituted application, Appeal No.9 of 2018 was filed without filing any application seeking condonation of delay. 4.5. However, in Appeal No.9 of 2018, O.P. No.5 made a prayer to allow the appeal and to direct the Management to allow him to join in his duty in Soro Women’s College, Balasore and to pay his salary including arrear salary within a stipulated time. It is contended that even though such an application in Appeal No.9 of 2018 was filed in terms of the provisions contained under Section 10-A of the Odisha Education Act, 1969, but in view of the observation made by the Tribunal in its order dated 22.12.2016 in Appeal No.3 of 2013, there was no requirement to file any application seeking condonation of delay. Page 14 of 21 // 15 // 4.6. It is accordingly contended that no illegality of irregularity can be found with the action of the Tribunal in entertaining the appeal without having any application being filed by the O.P. No.5 seeking condonation of delay. 4.7. It is also contended that since on the face of his joining in the College on 01.10.1986 and approval of his services vide Order dated 27.08.2010, O.P. No.5 was not allowed to discharge his duty w.e.f. 07.01.2012 which amounts to termination, the Tribunal after going through the documents placed before it, rightly allowed the claim of O.P. No.5 vide the impugned judgment dated 07.01.2023 under Annexure-5. It is accordingly contended that no illegality of irregularity can be found with the order passed by the Tribunal and petitioner’s be directed to implement the order. 5. To the submissions made by the learned Senior Counsel appearing for O.P. No.5, learned counsel for the petitioners contended that since on the face of the plea taken by the petitioner regarding continuance of Page 15 of 21 // 16 // O.P. No.5 in OLIC w.e.f. 01.10.1982, no document has been filed disputing such stand of the petitioners, it has to be held that by suppressing material fact, O.P. No.5 get the benefit of appointment in the College vide order dated 15.09.1986. 5.1. Not only that on the face of such continuance in OLIC w.e.f. 01.10.1982, appointment of O.P. No.5 made by the College vide order dated 15.09.1986 is not legally permissible and no benefit accrues in favour of O.P. No.5 pursuant to such order issued by the College. 5.2. A further submission was also made that taking into account the date of birth of O.P. No.5 as 03.10.1965, O.P. NO.5 is going to attain the age of superannuation on 31.10.2025. It is also contended that O.P. No.5 was never prevented to discharge his duty and joining letter alleged to have been made on 07.01.2012, so relied on by O.P. No.5 is without any acknowledgement. Therefore, the same cannot be taken as the joining letter of O.P. No.5. Page 16 of 21 // 17 // 5.3. It is however contended that since the application in Appeal No.09 of 2018 was filed under Section 10-A of the Odisha Education Act, the same could have been filed within a period of 30 days from the date of such prevention or within 30 days of the liberty granted by the tribunal in its order dated 22.11.2016 in Appeal No.3 of 2013. 5.4. Since the appeal was filed beyond the period of limitation in any case, in absence of any such application filed by O.P. No.5 seeking condonation of delay, the appeal could not have been entertained with passing of the impugned judgment. 6. Learned Addl. Standing Counsel on the other hand contended that since the dispute is inter se in between the petitioners and the O.P. No.5, this Court may pass appropriate order considering the materials available on record. It is however not disputed that services of O.P. No.4 was approved as against the post of Peon under GIA Order, 1994 vide order dated 15.08.1996 and that of O.P. No.5 as against the post of Page 17 of 21 // 18 // Watchman under GIA Order, 2009 vide order dated 27.08.2010. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that Appeal No.9 of 2018 was filed by O.P. No.5 challenging the action of the petitioners’-Management in preventing the O.P. NO.5 from discharging his duty w.e.f. 07.01.2012. As found, challenging such action of the Management in not allowing O.P. No.5 to discharge his duty w.e.f. 07.01.2012, O.P. No.5 approached this Court by filing W.P.(C) No.7766 of 2012. 7.1. Pursuant to the liberty granted by this Court in its order dated 17.07.2012, O.P. No.5 moved the Tribunal by filing Appeal No.3 of 2013 inter alia with 2 (two) prayers i.e. alleging prevention from duty on 07.01.2012 by the Management and challenging the order of approval of O.P. No.4 under GIA Order, 1994 as against the post of Peon. As found from the record, the said Appeal was disposed of vide order dated 22.12.2016 with the observation that O.P. No.5 may file Page 18 of 21 // 19 // a properly constituted application if any cause of action survives in his favour. 7.2. Since O.P. No.5 in Appeal No.3 of 2013 challenged the action of the Management in not allowing him to discharge his duty w.e.f. 07.01.2012 and the said appeal was disposed of vide order dated 22.12.2016 with the liberty, no appeal with similar prayer could have been made by O.P. No.5 in Appeal No.9 of 2018 as no cause of action survives in his favour after 22.12.2016. 7.3. Not only that Appeal No.9 of 2018 though was filed in terms of the provisions contained under Section 10-A of the Odisha Education Act challenging the action of the Management in not allowing O.P. No.5 to discharge his duty w.e.f. 07.01.2012, in view the provisions contained under Section 10-A of the Odisha Education Act, it is the view of this Court that the Appeal should have filed with an application seeking condonation of delay. Page 19 of 21 // 20 // 7.4. Even if admitting the fact that in terms of the observation made by the Tribunal in Appeal No.3 of 2013 vide order dated 22.12.2016, Appeal No.9 of 2018 was filed, but the same was also not been filed within the prescribed period of limitation as provided under Section 10-A of the Odisha Education Act. Therefore, it is the view of this Court that in absence of any such application filed by O.P. No.5, seeking condonation of delay, Appeal No.9 of 2018 could not have been entertained with passing of the impugned judgment. 7.5. Not only that since similar challenge made by O.P. No.5 in Appeal No.3 of 2013 was not interfered with but with the observation that O.P. No.5 may file properly constituted application if any cause of action survives, it is the view of this Court that O.P. No.5 while filing Appeal No.9 of 2018 under Section 10-A of the Act, challenging the action of the petitioners is not allowing him to discharge his duty w.e.f. 07.01.2012, should have sought for condonation of delay as the appeal was filed much after the period of limitation on either count i.e. 07.01.2012 or 22.12.2016. It is also the view Page 20 of 21 // 21 // of this Court that the plea taken by the petitioners regarding continuance of O.P. No.5 in OLIC w.e.f. 01.10.1982 having not been disproved by O.P. No.5 by filing any document in that regard, the very appointment of O.P. No.5 vide order dated 15.09.1986 also amounts to suppression of material fact. 7.5. In any view of the matter and in view of the aforesaid analysis, this Court is of the view that the Tribunal has completely erred in allowing the application in Appeal No.9 of 2018. Therefore, this Court is inclined to quash judgment dated 07.01.2023 so passed in Appeal No.9 of 2018 and while quashing the same, dismiss the appeal filed in Appeal No.9 of 2018. 8. The Writ Petition is accordingly allowed and disposed of, but without any cost. Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2025 19:15:36 Orissa High Court, Cuttack Dated the 4th August, 2025/Basudev (Biraja Prasanna Satapathy) Judge Page 21 of 21