The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No. 202 of 2019 FAO No. 203 of 2019 & W.P.(C) No. 31932 of 2022 (From the judgment and order dated 01.02.2019 passed by the Tribunal, Learned Bhubaneswar in GIA Case No. 152/2013 and 149/2018 and an application under Articles 226 & 227 of Constitution of India) Presiding Officer, State Education FAO No. 202 of 2019 --------------- AFR Sanjaya Kumar Nayak ... Appellant -Versus- State of Odisha and others FAO No. 203 of 2019 Sanjaya Kumar Nayak .... Respondents ... Appellant -Versus- State of Odisha and others … Respondents W.P.(C).No. 31932 of 2022 Sanjaya Kuumar Nayak … Petitioner -Versus- State of Odisha and others … Opposite Parties Advocate(s) appeared in these cases:- _______________________________________________________ For Appellant : M/s. J.K.Rath, Sr. Advocate with M/s. D.N. Rath, A.K.Saa & S.Padhi, Advocates. For Respondents : Mr. S. Das, (Addl. Government Advocate) M/s. S.K.Das, P.K.Behera & N.Jena, Advocates (for Respondent No.4) [in FAO No. 202 of 2019 ] Page 1 of 19 For Appellant : M/S. J.K.Rath, Sr. Advocate with D.N.Rath, A.K. Saa, & Mr. S.Padhi, Advocates. For Respondents
Legal Reasoning
: Mr. S. Das, Addl. Government Advocate M/s. S.K. Das, P.K. Behera, N.Jena, Advocate (for Respondent No.4) [in FAO No. 203 of 2019 ] For Petitioner : M/S. J.K.Rath, Sr. Advocate with M/s. D.N. Rath, A.K.Saa, & S.S.Rath, Advocates. For Opp. Parties : Mr. S. Das, Addl. Government Advocate, M/s. Mr. S.K. Das, B. Mishra (for Opp. Party No.4) [in W.P.(C).No. 31932 of 2022] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 2nd March, 2023 Both the appeals as above have been preferred against the common judgment passed by the learned State Education Tribunal, Bhubaneswar in GIA Case Nos. 152 of 2013 and 149 of 2018 dated 01.02.2019. The writ petition is preferred against order dated 05.11.2022 passed by the Director, Higher Education, Odisha pursuant to the aforementioned judgment passed by the Tribunal. All Page 2 of 19 the three cases therefore, involve the same facts and common question of law. As such, all three were heard together and
Decision
are being disposed of by this common judgment. 2. The facts of the cases are that Fashimal Anchalika College/Higher Secondary School, Fashimal in the district of Sambalpur was established in the year 1993 and thereafter received necessary permission, recognition and affiliation from the competent authority for opening of +2 Arts and Science stream with 128 seats each during the academic session 1993-94. The appellant (petitioner in the writ application) and respondent No.4 (opposite party No.4 in the writ application) were selected in one selection process held for the post of Junior Clerk-cum-Typist in the year 1993. Appointment letters were issued to both on 05.05.1993 but while the appellant joined on 12.05.1993, respondent No.4 joined on 13.05.1993. The appellant sought permission for study leave to prosecute higher study from the then President of Governing Body on 05.07.1993 and to allow him to take admission in the very same College as a regular +2 Arts student for a period of two years. The President of the Governing Body permitted him to take admission as regular Page 3 of 19 +2 Arts student on 20.12.1993. The appellant took admission and completed such course in the year 1995. During such period he continued to work in the 2nd post of Junior Clerk - cum-Typist. Long after, i.e. on 16.09.2009, the Secretary of the College passed an order stating that the Governing Body in its meeting held on 15.09.2009 passed resolution that the appellant was placed in the 3rd post of Junior Clerk -cum- Typist and respondent No.4 was placed against the 2nd post. It is claimed by the appellant that he never received such letter nor any prior notice was issued to him before passing the resolution dated 15.09.2009. The respondent No.4 filed GIA case No. 152 of 2013 before the State Education Tribunal with prayer to direct the opposite party authorities to approve his appointment and release Block Grant to him in the 2nd post of Junior Clerk -cum-Typist w.e.f. 20.01.2009 in accordance with Grant-in-Aid order, 2008. A document was attached to the said GIA case as Annexure-5 showing that on 06.07.1993, the President of the College had cancelled the permission order dated 05.07.1993 granted to the appellant to take admission in +2 Arts stream of the College on the ground that his application shall be Page 4 of 19 considered only after passing resolution in the Governing Body in the next meeting. After receiving notice in the said GIA case, the appellant, who was impleaded as opposite party No.4 therein, filed GIA case No. 149 of 2018 challenging the purported decision of the Governing Body to approve the present respondent No.4 against the 2nd post and the present appellant against the 3rd post. As such it was prayed to direct the opposite party authorities to approve his appointment against the 2nd post w.e.f. 20.01.2009. 3. Both the GIA cases were heard analogously by the learned Tribunal. By a common judgment dated 01.02.2019, the Tribunal held that there being no resolution of the Governing Body at the relevant time approving the permission granted by the President in favour of the present appellant for prosecuting studies, the period of his study leave cannot be counted towards service period and that his regular appointment can be taken into consideration from the year 1995 but not prior to that. It was therefore held that the Governing Body rightly took a decision in its resolution dated 15.09.2009 to adjust the present respondent No.4 against the 2nd post and the present appellant against the 3rd Page 5 of 19 post of Junior Clerk. Thus, while GIA Case No. 152 of 2013 filed by the present respondent No.4 was allowed, GIA case No. 149 of 2018 filed by the present appellant was rejected. The said judgment, as already stated, is impugned in the appeals. Pursuant to such judgment, the Director of Higher Education, Odisha vide order dated 14.12.2021 approved payment of Block Grant in favour of the present respondent No.4 against the 2nd post w.e.f. 20.01.2009 subject to result of the present FAOs. The said order of the Director is under challenge in W.P.(C). No. 31932 of 2022. 4. Heard Mr. J.K.Rath, learned Senior Counsel along with Mr. D.N.Rath, learned counsel for the appellant- petitioner, Mr. S. Das, learned Addl. Govt. Advocate for the State and Mr. S. K. Das, learned counsel for the respondent No.4 (Opposite Party No.4 in the writ petition). 5. Mr. J.K. Rath, learned Senior Counsel has argued that the order passed by the Tribunal is contrary to the rules inasmuch as despite assertion by the appellant that the documents filed by the respondent No.4 are false and forged, the Tribunal did not consider the same even though the said documents were not supported by any affidavit. On the other Page 6 of 19 hand, the appellant submitted several affidavits and documents which falsifies the case of the respondent No.4, but the Tribunal did not consider the same. He further submits that the present respondent No.4 being held as senior to the appellant is factually incorrect. Since admittedly respondent No.4 had joined later than the appellant. As regards the resolution of the Governing Body dated 15.09.2009, it is argued by Mr. Rath, that neither the Governing Body nor the Director took a decision to treat the period of study leave of the appellant as discontinuation of service and therefore, the finding of the Tribunal in this regard is contrary to the actual facts. Since, the appellant despite prosecuting studies was duly discharging his work and also paid remuneration for the same, learned Tribunal committed material illegality in holding that such part of his service is not to be counted towards the service period. 6. Mr. S. Das, learned Additional Government Advocate has supported the impugned order by submitting that there being no resolution passed by the Governing Body permitting the appellant to prosecute higher studies, the Page 7 of 19 finding of the Tribunal that such period has to be treated as discontinuation of service, cannot be questioned. 7. Mr. S.K. Das, learned counsel appearing for the respondent No.4 submits that there is no provision for a non- teaching staff to obtain study leave. He further submits that only a teacher can be granted study leave as per Rule 13 of the Odisha Education (Leave of Teachers and other Members of the Staff of Aided Educational Institutions) Rules, 1977, subject to other requirements. Though in the instant case, permission was granted by the then President of the Governing Body yet on realising that he had no power to grant permission, rectified his mistake by cancelling the permission so granted on the very next date. Thus, admittedly the appellant was a regular student of +2 Arts in the same College from 1993 to 1995 and therefore, the Governing Body very rightly took a decision to treat the same as discontinuance in service. Mr. Das further argues that even otherwise, the appellant challenged the decision of the Governing Body taken on 15.09.2009 by filing GIA case in the year 2018, which is grossly barred by limitation. Even assuming that he had no knowledge of passing of the Page 8 of 19 resolution at the relevant time then also his application is to be treated as time-barred in view of the fact that he had appeared in the GIA case filed by the respondent No.4 (GIA No.152 of 2013) on receipt of notice, wherein the fact of passing of the resolution dated 15.09.2009 was clearly mentioned. He, however, chose to remain silent and filed GIA case in the year 2018. Summing up his argument, Mr. Das, submits that the conduct of the appellant in prosecuting higher studies and at the same time discharging the duties of Clerk-cum-Typist in the College is foreign to service jurisprudence and hence, is contrary to law. 8. Having considered the rival contentions as above it is evident that the basic dispute in the matters revolves around the correctness of the decision of the Governing Body taken on 15.09.2009 in respect of the appellant/petitioner. In other words, the dispute between the parties boils down to the legality of the decision of the management to treat the period of study undertaken by the appellant i.e. from 1993 to 1995 as discontinuation in service. 9. The basic facts of the case are not disputed in that both the appellant and respondent No.4 were appointed as Page 9 of 19 Junior Clerk-cum-Typist by order dated 05.05.1993 of the Governing Body of the College. It is also not disputed that the appellant joined on 12.05.1993, while the respondent No.4 joined on 13.05.1993. It is claimed by the appellant that on his application dated 01.05.1993, the then President of the Governing Body permitted him to take admission in the +2 Arts stream of the very same College. A copy of such application has been enclosed being part of the document enclosed in Annexure-1 series to FAO No. 202 of 2019. However, by another letter issued on the next date i.e., on 06.07.1993, the President of the Governing Body cancelled his earlier permission and stated that the same shall be considered only after taking resolution in the Governing Body in the next week. The appellant questions the genuineness of such documents. There is no other document showing consideration of the appellant’s application for permission by the Governing Body. It is admitted that the appellant undertook higher study that is, +2 Arts course in the same College from 1993 to 1995. Long after, i.e. on 5.09.2009, the Governing Body passed a resolution to the effect that as the appellant had undertaken higher studies without due Page 10 of 19 permission, his period of service was extended by 2 years and the present respondent No.4 was adjusted against the 2nd post. The appellant has seriously objected to the document purporting to be the resolution dated 15.09.2009 on several grounds. However, for the reasons to be amplified hereinafter, this Court does not deem it necessary to delve into the controversy regarding genuineness or otherwise of the documents referred above. The admitted position, as has already been stated is that the appellant while discharging his duties also prosecuted his studies in the same College in the +2 Arts course. The question that arises for consideration is, whether such dual performance is permissible under law. As it appears, the appellant submitted an application on 01.07.1993 to the President through the Principal of the College seeking study leave for a period of 2 years which was forwarded by the Principal to the President for necessary action. The President permitted the appellant by directing the Principal to admit him in +2 Arts course. Thus, what the appellant intended to obtain as study leave for 2 years is nothing but a different kind of leave. Page 11 of 19 10. It is well settled that leave cannot be claimed as of right but can be granted as per rules. It is further well settled that the purpose of the granting study leave with salary and other benefits is in the interest of the employer as well as the employee so that once the employee comes back from study leave, the employer will be benefitted by the knowledge and expertise acquired by the employee. The decision of the Apex Court in the case of Sant Longowal Instt. Of Engg. And Tech. and another. Vs. Suresh Chandra Verma, reported in (2013) 10 SCC 411 can be referred to in this regard. Rule 3 of the Odisha Education (Leave of Teachers and other members of the staff of Aided Educational Institutions) Rules, 1977 reads as under: “Leave cannot be claimed as matter of right. When the exigencies of work so require discretion to refuse or revoke or curtail leave is reserved to the authority competent to grant it.” Study leave is governed under Rule 13 of the 1997 Rules and reads as under; (1) Study leave may be granted to a teacher of Aided College to enable him study scientific, technical or similar problems or to undergo a special course of instruction such leave is not debited against the leave account. (2) Study leave will not ordinarily be granted to a teacher of an aided College of less than five years service or to a teacher within three years of the date on which he will attain the age of compulsory retirement. (3) The grant of study leave will be made with a regard to the interest of the College. In no case will the grant of than this in combination with leave other leave Page 12 of 19 extraordinary leave or leave on medical certificate involve an absence or over thirty months during the whole period of his service nor will it be granted with such frequency as to remove him from contract with his regular work or to cause difficulties owing to absence on leave. (4) Study leave sanctioned in favour of a teacher of an Aided College will be limited to the actual period required for the completion of the courses of study. If the courses of study involves a period less than the period of study leave sanctioned the excess period of leave will be treated to absence from study unless he produces the assent of the sanctioning authority to his taking it as ordinary leave. (5) Study leave will count as services for all purposes but shall not be set off against any which may be due to a teacher of an Aided College. (6) During study leave a teacher of Aided College shall be entitled to leave salary at the rate admissible to the counterpart in Government College only for a maximum period of two years. It is evident that study leave can be granted only to a teacher on fulfilment of the conditions stipulated in the provision quoted above. 11. There is no provision in 1997 Rules to grant study leave to a non-teaching staff. Thus, the application dated 01.07.1993 submitted by the appellant to the President was not maintainable at all. Presumably, in acknowledgement of the absence of any statutory provision for grant of study leave to a non-teaching staff, the appellant appears to have submitted another application on 05.07.1993, this time simply seeking permission to take admission into +2 Arts stream, which was allowed on the same day. The petitioner thereafter appears to have taken admission in the +2 course Page 13 of 19 and surprisingly, discharged his duties as Clerk-cum-Typist in the College simultaneously for which he was also remunerated. It is not understood as to under which law the same could be permitted by the management. Be that as it may, fact remains that the appellant prosecuted his studies and at the same time discharged his duties by receiving remuneration which implies that he was not on leave but on duty. However, as an employee on duty he could not have prosecuted higher studies as a regular student. Since law does not permit taking of such dual assignments, such act of his would amount to misconduct in employment. But surprisingly, no action whatsoever was taken against the appellant for the same. Neither any show cause notice was issued nor any disciplinary proceeding was conducted against him. 12. In this regard it would be apposite to refer to the provisions of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Institutions) Rules, 1974. Rule 11 of the said Rules lays down the Rules of Conduct of employees. Rule 15 Page 14 of 19 provides for Penalty for Breach of conduct rule. Both the rules are quoted herein below: the integrity of times absolute “Rule 11. Rules of conduct of employees-(1) The following shall be the rules of conduct of employees of Aided Educational Institutions namely: (a) They shall exercise academic freedom towards promotion of an intellectual climate conducive to the pursuit of scholarship; (b) they shall at all character, devotion to duty and decorum of conduct; (c) they shall carry out the instructions of Headmaster or the Principal and act according to the instructions or directions of university or the Board of the Secondary Education Department authorised to inspect the institution in respect of their academic functions. (d) they shall carry out the orders of the Education Department and of the President or Secretary of the Managing Committee or of the Governing Body, as the their administrative case may be, functions; (e) they shall not except with the previous approval of the Managing Committee or the Governing Body. As the case may be, their administrative functions; (f) communal party; Rule 15- Penalty for breach of conduct rule- For breach of any of the rules of conduct described in Rule 11 an employee shall be liable to disciplinary action in the manner provided in Chapter IV of these Rules”. they shall not be members of any political or in respect of in respect of 13. Chapter VI deals with Disciplinary Action. Rule 20 refers to Nature of Penalties, Rule 21 refers to the Disciplinary Authorities, Rule 22 relates to procedure for imposing major penalties, Rule 23 relates to Special procedure in case of minor penalties. None of these Rules were followed in the present case. Therefore, the appellant Page 15 of 19 could not have been punished by way of lowering his service from the 2nd post to the 3rd post by wiping out 2 years from his service period. 14. After about 16 years, the Governing Body passed a resolution i.e., on 15.09.2009 extending the services of the appellant by 2 years, meaning thereby that the period during which he prosecuted studies for the +2 course shall not count towards service and the period thereafter only shall be taken into consideration. The petitioner was thus artificially made junior to opposite party No.4 and thereby disentitled to receive Grant-in-Aid. This, by itself, is highly surprising as it is not known under what law such action could be unilaterally taken to the detriment of the appellant. In any case, the same amounts to punishment which was not preceded by any disciplinary proceeding against him. On such score alone the resolution passed by the Governing Body is rendered unconscionable in the eye of law. 15. Another aspect needs to be considered at this stage. The respondent No.4 also never objected to the position vis-à-vis the appellant as narrated in the preceding paragraph. All action appears to have been taken only after Page 16 of 19 the institution was notified as an aided educational institution and became eligible for aid as per Grant-in-Aid Order, 2008. It would be relevant to note that one Bibhuti Kumar Nayak was holding the 1st post of Clerk and the appellant, as already stated, was appointed on 12.05.1993 against the 2nd post. As per Grant-in-Aid order 2008, only two persons were eligible to get Grant-in-Aid. The incumbent of the 1st post was extended Grant-in-Aid and therefore, the question arose as to who was to receive Grant-in-Aid in respect of the 2nd post. It is more than evident that everyone, that is, the management as well as respondent No.4 woke up from their deep slumber at this stage to find fault with an act the appellant had committed more than 16 years before ostensibly to deprive him from the benefit of Grant-in-Aid. Learned Tribunal has not focused its attention to these vital aspects while considering the GIA application of respondent No.4. In the fitness of things, learned Tribunal should have examined the entitlement of respondent No.4 to receive Grant-in-Aid under GIA Order, 2008 after thoroughly examining the facts of the case vis-à-vis the inter-se seniority between him and the appellant. On the contrary, the Page 17 of 19 Tribunal appears to have been swayed away by the consideration that the prosecution of study by the petitioner was without permission of the Governing Body. It is reiterated that the same may be a misconduct for which the appellant could have been proceeded against and punished, but no such action was ever taken against him. It is therefore, not open to the management to simply wipe out the service rendered by the appellant during the relevant period unilaterally. If the action of the management as contained in the resolution dated 15.09.2009 is treated as a punishment, which in effect it is, the same would be entirely illegal and contrary to law for the reasons indicated hereinbefore and hence, no sanctity can be attached to it. Learned Tribunal must therefore, be held to have committed manifest error in placing reliance on the said Resolution to reject the prayer of the appellant. 16. Some argument has been made by the parties relating to seniority vis-à-vis their ages but then in view of the admitted fact that the appellant had joined on 12.05.1993 and respondent No.4 on 13.05.1993, there is no way by which the latter can be treated as senior to him. Page 18 of 19 17. Thus, from a conspectus of the analysis of facts and law involved in the case and the rival contentions put forth, this Court is of the view that the impugned judgment passed by the Tribunal cannot be sustained in the eye of law. 18. Resultantly, both the Appeals, FAO Nos. 202 of 2019 and 203 of 2019 are hereby allowed. The impugned judgment in so far as it relates to allowing GIA case No.152 of 2013 is hereby set aside. GIA case No. 149 of 2018 is allowed. The opposite party authorities are directed to approve the appointment of the appellant, Sanjaya Kumar Nayak as Junior Clerk –cum-Typist against the 2nd post and to release block-grant/Grant-in-Aid within a period of three months. Consequently, W.P.(C). No.31932 of 2022 is also allowed. The impugned order under Annexure-13 is hereby quashed. The Director, Higher Education is directed to pass necessary orders in terms of this judgment in favour of the appellant within the stipulated period. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 2nd March, 2023/ Deepak 9* Page 19 of 19