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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 283 of 2007 (An application under Article 226 & 227 of the Constitution of India) --------------- Satrughana Mohanty ...… Petitioner -Versus- State of Odisha and others .... Opposite Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner For Opp. Parties : : Mr.B.Satapathy, Advocate. Mr. S.N.Pattnaik, Additional Government Advocate _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 1st May, 2024 . The petitioner has approached this Court with the following prayer; “It is therefore, prayed that this Hon’ble Court may be graciously pleased to: (i) Admit the writ application, (ii) Call for the records, (iii) Issue Rule Nisi calling upon the Opp.Parties to show cause as to why they shall not be directed to approve the appointment of the Page 1 of 9 further why
Decision
petitioner as an Assistant teacher and to release the salary w.e.f. 7/6/94 as per the in the direction of this Hon’ble Court previous orders and the impugned order dtd. 20.04.00 under Annexure-8 issued by the Inspector of Schools, Puri Circle, Puri shall not be quashed which amounts to over reaching the previous orders of this Hon’ble Court. If the Opp. Parties do not show cause or shows insufficient cause the writ be made absolute and the impugned order under Annexure-8 be quashed. iv) Further a writ of Mandamus be issued to Opp. Parties to approve the appointment of the petitioner w.e.f. 7/6/94 within a stipulated time. order And order(s)/writ(s)/direction(s) as this Hon’ble Court deem fit and proper for ends of Justice. And the petitioner as in duty bound shall ever pray. this act of kindness further pass any for 2. The brief facts of the case are that the petitioner was appointed as Assistant Teacher in Kanti Gram Panchayat High School in the district of Puri on 17.04.1991 by the Managing Committee of the School. At the relevant time, the school was an Aided Educational Institution within the meaning of Section 3(b) of the Odisha Education Act. The petitioner joined in the post on 22.04.1991. The Headmaster of the School submitted proposal on 25.06.1993 for approval of the appointment of the petitioner. As such proposal was not acted upon the petitioner approached this Court in OJC Page 2 of 9 No. 3887 of 1996, which was disposed of by order dated 10.09.1997 directing the authorities to approve his appointment w.e.f. 07.06.1994 and to pay him the scale of pay as Assistant Teacher (Untrained Graduate) alongwith arrears. Accordingly, by order dated 18.05.1999, the Inspector of Schools granted necessary approval to the appointment of the petitioner w.e.f. 07.06.1994 with direction to acquire BEd. qualification within 2 years. 3. Shortly thereafter, by office order dated 30.06.1999, the Inspector of schools withdrew the order of approval on the ground that the claim of the petitioner does not come within the ratio of the judgment in OJC No. 1012 of 1997 as his date of appointment. Challenging such order the petitioner again approached this Court in OJC No. 9635 of 1999. By order dated 28.10.1999, a Division Bench of this Court held that the order dated 10.09.1997 passed in OJC No. 3887 of 1996, had become final whereby the Inspector of Schools was directed to approve the appointment of the petitioner with effect from 07.06.1994. It was held that on the face of that order, the Inspector of Schools clearly erred in passing the Page 3 of 9 impugned order. Accordingly, the order dated 30.06.1999 was set aside and the office order dated 18.05.1999 was restored. Notwithstanding such order, the Inspector of schools by office order dated 20.04.2000 held that the appointment of the petitioner has not been made as per Rule 5 of the Odisha Education (Recruitment and Conditions of the service of Teachers and Members of the staff of Aided Educational Institutions, Rules 1974 and as such, the claim of the petitioner held to be without merit and therefore, was rejected. The petitioner has filed the present writ application impugning the aforesaid order, copy of which has been enclosed as Annexure-8. 4. The case of the Opposite Parties as revealed from the affidavit filed by the District Education Officer (Opposite Party No.3) is that in the earlier order granting approval the petitioner was directed to acquire BEd qualification within two years but he did not acquire such qualification. Further, the School came into Grant-in-Aid with effect from 01.03.1986 and was taken over by the Government with effect from 07.06.1996. The petitioner’s case did not come Page 4 of 9 within the ratio of the judgment passed in OJC No. 1012 of 1997. The claim of the petitioner was rejected since he had been appointed by the then Managing Committee and had joined in the school on 19.04.1991, i.e. after 05.01.1991. As on the date of his appointment, the school was an Aided Educational Institutions and therefore, the appointment is to be regulated by 1974 Rules, particularly, as per Rule 5 thereof. The petitioner’s appointment was not made in terms of said rule for which his claim was rightly rejected. 5. Heard Mr. Banshidhar Satapathy, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State. 6. Mr. Satapathy would argue that after passing of the order by the Division Bench of this Court in OJC No. 9635 of 1999, which is in line with the earlier order also passed by a Division Bench in OJC No. 3887 of 1996, it is not open to the authorities to pass any order contrary to such directions as it would tantamount to sitting in appeal over the order of this Court. That apart, the earlier orders passed by this Court had attended finality. The State had never raised the Page 5 of 9 question of so-called irregular appointment of the petitioner in the earlier writ application and therefore, it is not permissible for it to do so on the face of the direction issued by this Court to approve the appointment of the petitioner and in quashing the order withdrawing the order of approval of the petitioner. 7. Mr. Pattnaik on the other hand would argue that the question of appointment goes to the root of the matter inasmuch as if the same is found to be contrary to the rules no subsequent order can validate the same. Mr. Pattnaik, further submits that the petitioner was absent from school after 05.05.2000 by not coming to the school nor signed in the attendance register. 8. Having considered the rival submissions and on going through the pleadings of the parties carefully, it is seen that the earlier writ application filed by the petitioner, i.e. OJC No. 3887 of 1996, was disposed of by observing as follows: “2. It is fairly agreed at the bar that this case is covered by the judgment of this Court in OJC No. 1012 of 1996 disposed of on 27.06.1997 (Bibekanand Das vrs. State of Orissa) and the subsequent order No.14 dated 03.09.1997 passed in that case. 3. For the reasons stated in the aforesaid judgment dated 27.06.1997 and the subsequent order dated 03.09.1997, we direct the Inspector of schools to approve the appointment of the petitioner with effect from 7.06.1994 and pay in the scale Page 6 of 9 of pay all assistant teacher (untrained graduate) with effect from the said due. The arrears, if not already paid, may be calculated and paid to him within a period of four months of receipt of writ. The Inspector of Schools will continue to pay to the petitioner the current salary in the untrained graduate scale of pay. We make it clear that the Inspector of Schools will give the petitioner reasonable time to acquire the BED qualification (unless he gets exemption under the relevant rules). Annexure-3 so far as it relates to the petitioner is accordingly quashed.” Nothing was raised as regards the mode of appointment of the petitioner in the said writ application. In the subsequent writ application filed by the petitioner that is OJC No. 9635 of 1999, the Division Bench of this Court referred to the earlier order and set aside the order withdrawing the approval granted by the Inspector of the Schools. Significantly, no question was raised by the State before the Division Bench as the order dated 28.10.1999 is entirely silent in this regard. 9. Thus, this Court finds that after passing of the order by this Court, the plea of appointment of the petitioner being contrary to the provisions of 1974 Rules was taken belatedly. The impugned order was passed on 24.09.2000 whereas the petitioner joined on 19.04.1991. This implies the plea was taken for the first time 9 years after joining of the petitioner in the school. Firstly, this plea was available to be raised in the writ application also, but as already stated, the same was Page 7 of 9 not raised. It was therefore, impermissible to raise the plea at this belated stage. Since the orders passed by this Court in the earlier writ applications had attained finality inasmuch as same have not been challenged before the higher forum, there is no other option available for the State but to comply with the same. If, according to the State the orders were passed without considering the legality of the initial appointment of the petitioner, the same could also have been brought to the notice of this Court either by filing review application or by challenging the said order before the higher forum. Neither of the option was exercised. Thus, it is stated at the cost of repetition that the orders passed by this Court having become final it was not open to the Inspector of Schools to take a different plea apparently to circumvent the order of this Court. It goes without saying that such an action cannot be countenanced in law. The impugned order under Annexure-8 is therefore, rendered unsustainable and warrants interference. 10. For the foregoing reasons therefore, the writ application is allowed. The impugned order dated 20.04.2000 passed by Page 8 of 9 the Inspector of Schools, Puri (Annexure-8) is hereby quashed. Further, as directed by this Court in OJC No. 9635 of 1999 the order dated 18.05.1999, passed by the Inspector, approving the appointment of the petitioner w.e.f. 07.06.1994 is restored. The consequential benefits as admissible to the petitioner under law shall be released in his favour within a period of three months. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 1st May, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 09-May-2024 12:49:10 Page 9 of 9