The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.133 of 2012 In the matter of an application under Section 24-C of the Orissa Education Act, 1963. ……………… Subash Chandra Panda …. Appellant -versus- State of Odisha & Others …. Respondents For Appellant : Mr. K.K. Swain, Adv. For Respondents: Mr. P.K. Panda, ASC Mr. J. Biswal, Adv. (for Resp. No.4) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------- Date of Hearing:11.07.2025 and Date of Judgment:05.08.2025 ----------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The present appeal has been filed by the appellant inter alia challenging judgment dt.04.02.2012 so passed by the learned State Education Tribunal (in short, “the Tribunal”) in G.I Case No.137 of 2010 under Annexure-4. Vide the said judgment, the Tribunal dismissed the // 2 // application filed by the present appellant seeking approval of his services as against the post of Peon by quashing the approval of the services of the private Respondent No.4 in G.I.A Case No.137 of 2010. 2. It is the case of the appellant that basing on the advertisement issued by Khetramohan Science College, Narendrapur-Respondent No.3, on 10.09.1991 under Annexure-1, for appointment to various non-teaching posts, Appellant as well as Respondent No.4 made their applications as against the post of Peon. Pursuant to such advertisement issued under Annexure-1, Appellant was called to attend the interview on 29.09.1991 vide letter dt.24.09.1991 under Annexure-2. Appellant having been found eligible and on being selected was appointed as against the post of Peon vide order of appointment issued by Respondent No.3 on 04.10.1991 under Annexure-3. Pursuant to such order of appointment issued on 04.10.1991, Appellant joined as a Peon on 05.10.1991. 2.1. It is contended that Respondent No.4 was also appointed as a Peon pursuant to the advertisement Page 2 of 21 // 3 // issued under Annexure-1 vide order of appointment issued on 05.10.1991. In terms of such order, Respondent No.4 also joined as a Peon on 05.10.1991. 2.2. It is contended that the date of joining of the Appellant as well as Respondent No.4 was shown as 05.10.1991 in various documents available under Annexure-5 series. Even though both Appellant and Respondent No.4 joined as Peon on 05.10.1991, but since Appellant is older by age, his date of birth being 20.03.1964, vis-(cid:224)-vis 10.06.1971 of Respondent No.4, Appellant was required to be treated as senior to Respondent No.4 as against the post of Peon. 2.3. But when the College became eligible and was notified to receive Grant-in-aid w.e.f 01.06.1994 as per G.I.A order 1994 and services of Respondent No.4 was approved against the 3rd post of Peon by taking his date of joining as 11.01.1989 vide the order of approval dt.20.03.1996 under Annexure-2 series, Appellant challenging the same, approached this Court by filing OJC No.8718 of 1997. Page 3 of 21 // 4 // 2.4. It is contended that since both the Appellant and Respondent No.4 joined on 05.10.1991 basing on the advertisement issued under Annexure-1, Appellant being senior in age, his services should have been approved as against the 3rd post of Peon, when the College was notified to receive Grant-in-aid under G.I.A Order, 1994. However, by taking the date of joining of Respondent No.4 as 11.01.1989, when his services was approved vide order dt.20.03.1996 under Annexure-2 series, the matter was carried to this Court in OJC No.8718 of 1997. 2.5. It is contended that during pendency of the Writ Petition before this Court and vide order dt.10.03.2010, the matter was transferred to the Tribunal and the same was re-numbered as G.I.A Case No.137 of 2010. However, prior to such transfer of the matter to the Tribunal by this Court vide order dt.10.03.2010, counter affidavits had already been filed by the State. In the said counter, a stand was also taken that since Respondent No.4 joined as a Peon on 11.01.1989, his services was approved and Grant-in-aid was released as Page 4 of 21 // 5 // against the 3rd post of Peon in terms of order dt.20.03.1996. 2.6. It is also contended that during pendency of the matter before this Court, a counter affidavit by Respondent No.4 was also filed (Opp. Party No.5 in OJC No.8718 of 1997). In the said counter, a stand was taken by the present Respondent No.4 that he was appointed on 27.12.1988 as against the 3rd post of Peon where he joined on 11.01.1989. Such order of appointment dt.27.12.1988 was also filed as Annexure- A/5 to the counter affidavit filed by Respondent No.4 in the Writ Petition in question. A further stand was also taken that taking into account his date of appointment as 27.12.1988 and date of joining as 11.01.1989, his services has been approved as against the 3rd post of Peon vide order dt.20.03.1996.
Legal Reasoning
2.7. Learned counsel appearing for the appellant raised a preliminary objection to the effect that date of birth of Respondent No.4 being 10.06.1972, Respondent No.4 could not have been appointed vide order of Page 5 of 21 // 6 // appointment issued on 27.12.1988. It is contended that since the date of birth of Respondent NO.4 was 10.06.1972, by the time he was appointed on 27.12.1988 since he had not attained the age of 18 years, the very appointment of Respondent No.4 is not sustainable in the eye of law. 2.8. It is contended that by the time, Respondent No.4 was so appointed, Orissa Education (Management of Private Colleges) Rules, 1979 was in force. As provided under Rule-9(1) of the Rules, the Governing Body has the power to appoint teaching and non-teaching staff in accordance with the provisions contained in the Orissa Education (Recruitment and Conditions of Service of Teachers and members of the Staff of Aided Educational institution) Rules, 1979. Rule 9(1) of the 1979 Rules reads as follows: 9. (1) to appoint teaching and non teaching staff in accordance with the provisions contained in the Orissa Education (Recruitment and Conditions of Service of Techers and Members of the Staff of Aided Educational Institutions) Rules, 1974 and instructions of the Department 2.9. It is contended that as provided under Rule-7(C ) of 1974 Rules, the age and qualification for appointment Page 6 of 21 // 7 // as Teacher and for other posts would be same as for similar or corresponding posts in educational institutions established and maintained by the Government. Rule-7(C) of the 1974 Rules reads as follows: 7. Condition of eligibility of candidates: xxx xxx xxx (C) The age of qualifications for appointment as teacher and for other posts would be the same as for similar or corresponding posts in educational institutions established and maintained by Government; Provided that upper age-limit may be relaxable in respect of candidates belonging to Scheduled Castes, Scheduled Tribes and such other categories as may be specified by Government to such extent as may be determined by Government from time to time for recruitment to the similar or corresponding post under the Government. xxx xxx xxx 2.10. Placing reliance on the Rules contained under Rule 9(1) of the 1979 Rules read with Rule-7(C ) of 1974 Rules, learned counsel appearing for the Appellant contended that since the age for appointment to any other posts is similar to corresponding posts in Educational Institutions Established and Maintained by the Government, as provided under Rule 52(A) of the Page 7 of 21 // 8 // Orissa Service Code, the minimum age for such appointment was 18 years. Since on the date of appointment of Respondent No.4 on 27.12.1988, he had not attained the age of 18 years, his appointment is per se illegal and basing on such order of appointment, Respondent No.4 could not have been allowed to continue with approval of her services vide order dt.20.03.1996. 2.11. A further submission was also made that since services of Respondent No.4 was approved under GIA Order, 1994 as provided under Para16 (2) of the said order, no person shall be eligible to receive Grant-in-aid against an aided post unless he has been lawfully and validly appointed to the post by the competent authority in accordance with the Rules and the instruction. Para 16(2) of the GIA order, 1994. “16(2). No person shall be eligible to receive grant-in-aid against an aided post unless:- the competent authority (i) he has been lawfully and validly appointed to that post by in accordance with the law, rules and instructions in force at the time of his appointment and has been continuing to hold that post on and beyond the date of eligibility of the post to receive grant- in-aid; and Page 8 of 21 // 9 // (ii) he possessed educational qualifications and experience required holding that post at the time of his recruitment or on the date of the post was admissible to grant-in-aid, whichever is later.” 2.12. Making all these submissions, learned counsel appearing for the Appellant contended that since by the time Respondent No.4 was appointed on 27.12.1988, he was not having the required minimum age as provided under Rule-7(C ) of the 1974 Rules read with Rule 52(A) of the Orissa Service Code, the approval of the services of Respondent No.4 as against the 3rd post of Peon under GIA Order, 1994 vide order dt.20.03.1996 is illegal and not sustainable in the eye of law. But without proper appreciation of the aforesaid provisions, the Tribunal declined to interfere with the order of approval of Respondent No.4, so challenged by the appellant in GIA Case No.137 of 2010. It is accordingly contended that the impugned judgment is not sustainable in the eye of law. 3. Mr. J. Biswal, learned counsel appearing for Respondent No.4 on the other hand contended that while approaching this Court, challenging the order of approval approving the services of Respondent No.4 as Page 9 of 21 // 10 // against 3rd post of Peon of the College in OJC No.8718 of 1997, subsequently re-numbered as GIA Case No.137 of 2010 before the Tribunal, it was never the stand of the Appellant that Respondent No.4 being a minor, his very appointment is illegal. It is contended that since no such stand was ever taken by the appellant before the Tribunal, the Tribunal had no occasion to know about the age of Respondent No.4. while he was appointed vide order dt.27.12.1988. It is contended that since no such stand was ever taken by the Appellant in the GIA Case, such a stand cannot be taken in the present appeal. 3.1. It is also contended that since Respondent No.4 was appointed as against the post of Peon on 27.12.1988 with his date of joining as 11.01.1989 and the date of joining of the Appellant being 05.10.1991 with his date of appointment as 04.10.1991, Respondent No.4 being senior to the Appellant, no illegality or irregularity can be found with the impugned order and services of Respondent No.4 has been duly approved vide order dt.22.03.1996 as against the 3rd post of Peon. Page 10 of 21 // 11 // 3.2. It is also contended that in the College in question, one Harihar Behera was appointed as against the 1st post of Peon and one Dama Nayak as against the 2nd post. Respondent No.4 was appointed as against the 3rd post of Peon with his date of appointment as 27.12.1988. Accordingly in the order approval issued by the Director on 20.03.2016, services of Respondent No.4 was approved as against the 3rd post of Peon and that of Harihar Behera and Dama Nayak as against the 1st and 2nd Post of Peon. In such order issued by the Director on 20.03.1996, Respondent No.4 was placed at Sl. No.24 and Harihar Behera and Dama Nayak was placed at Sl. No.20 and 21 respectively. 3.3. It is also contended that in the meantime, on attaining the age of superannuation, both Harihar Behera and Dama Nayak holding the 1st Post and 2nd post of Peon have already retired on 31.07.2020 and 30.12.2015 respectively and both the posts are lying vacant at present save and except Respondent No.4 who is continuing as against the 3rd post of Peon. It is also contended that in the meantime, the appellant has also Page 11 of 21 // 12 // attained the age of superannuation. It is accordingly contended that since services of Respondent No.4 has been approved as against the 3rd Post of Peon vide order of approval issued on 20.03.1996 and he is continuing as such till date, any interference with such approval of services of Respondent No.4 at the present stage will cause serious prejudice to him. 3.4. It is also contended that since in the meantime two (2) posts of Peon have fallen vacant because of the superannuation of the holder of 1st and 2nd Post of Peon w.e.f 31.07.2020 and 30.12.2015 respectively, services of Appellant can be approved as against one such vacant post without disturbing the approval of the services of Respondent No.4. 4. To the submission made by the learned Counsel appearing on behalf of Respondent No.4, learned counsel appearing for the Appellant contended that in the Writ Petition filed by the Appellant in OJC No.8718 of 1997 so transferred and re-numbered as GIA Case No.137 of 2010, the Appellant had taken a specific stand Page 12 of 21 // 13 // that the date of birth of Respondent No.4 being 10.06.1972, he had not attained the required minimum age by the time he was appointed on 27.12.1988. It is contended that such a specific stand was taken by the
Decision
appellant in para-15 of the Writ Petition which reads as follows” xxx xxx that while and Opp. Party No.5 had applied for appointment for the post of Peon, he has indicated his date of birth to be dt.10.06.1972 in his application form.” 4.1. It is contended that on the face of such specific stand taken in the pleadings, the Tribunal never take the said fact into consideration while rejecting the GIA application of the appellant by upholding the approval of the services of Respondent No.4. It is accordingly contended that on the face of such plea being taken that Respondent No.4 was a minor at the time of his appointment, since the same issue was never taken up by the Tribunal while dismissing the GIA application, the Appellant can not be found fault with the same. It is also contended that on the face of such plea being taken by the appellant, no document has been filed by Respondent No.4 showing that he was having the Page 13 of 21 // 14 // minimum prescribed age of 18 years, when he was so appointed as against the 3rd post of Peon on 27.12.1988 with his date of joining as 11.01.1989. 4.2. Since in spite of opportunity being given, Respondent No.4 has failed to produce any document showing that his date of birth is not 10.06.1972 and he had attained the age of 18 years by the time he was appointed vide order of appointment issued on 27.12.1988, it is to be held that Respondent No.4 was a minor by the time he was so appointed and accordingly his very appointment and consequential approval of his service is illegal and not sustainable in the eye of law. 5. Learned Addl. Standing Counsel on the other hand contended that basing on the proposal submitted by the Governing Body of the College and on being satisfied that Respondent No.4 was holding the 3rd post of Peon with his date of joining as 11.01.1989, his services was approved along with other teaching and non-teaching staff of the College vide order dt.20.03.1996 of Respondent No.2. In the said order, services of Harihar Page 14 of 21 // 15 // Behera was approved as against the 1st Post, that of Dama Nayak as against the 2nd post and that of Respondent No.4 as against the 3rd post of Peon. 5.1. It is contended that since claim of Respondent No.4 was duly recommended by the Governing Body and it was found that Respondent No.4 was an earlier appointee as against the 3rd post of Peon vis-(cid:224)-vis the Appellant, his services was duly approved by the Director vide order dt.20.03.1996. However, it is not disputed that on the face of the plea taken by the Appellant that Respondent No.4 was a minor at the time of his appointment, but the same has not been dealt with by the Tribunal. It is also contended that since the dispute is inter se in between the Appellant and Respondent No.4, this court basing on the available materials may pass appropriate order as deem fit and proper. 6. Having heard learned counsel for the parties and considering the submission made and the materials available on record, this Court finds that pursuant to Page 15 of 21 // 16 // the advertisement issued by the College-Respondent No.3 on 10.09.1991, Appellant after facing the interview and on being duly selected was appointed as against the post of Peon vide order of appointment issued on 04.10.1991. As found from the documents available on record, the date of joining of the Appellant as well as Respondent No.4 as against the post of Peon was reflected as 05.10.1991. 6.1. However, by taking his date of appointment as 27.12.1998 with his date of joining as 11.01.1989, when the services of Respondent No.4 was approved as against the 3rd Post of Peon by Respondent No.2 in his order dt.20.03.1996, challenging such approval of the services of Respondent No.4 and seeking a direction on the State-Respondents to approve the services of the Appellant as against the said 3rd post of Peon, the Appellant approached this Court by filing OJC No.8718 of 1997. The Writ Petition after being kept pending, was ultimately transferred to the Tribunal vide order dt.10.03.2010 and accordingly the same was re- numbered as GIA Case No.137 of 2010. Page 16 of 21 // 17 // 6.2. This Court after going through the pleadings made in OJC No.8718 of 1997 so enclosed as Annexure-1 finds that pursuant to the advertisement issued on 10.09.1991 and after facing the interview in terms of letter dt.24.09.1991 on 29.09.1991, Appellant was appointed as a Peon vide order dt.04.10.1991. As further found from Annexure-1, the date of joining of the Appellant as well as Respondent No.4 in various documents was reflected as 05.10.1991. This Court also finds that in Para-15 of the Writ Petition, Appellant took a specific stand that the date of birth of Respondent No.4 is 10.06.1972 and the date of birth of the present Appellant is 20.03.1964. 6.3. However, while approving the services of Respondent No.4 as against the 3rd post of Peon vide order dt.20.03.1996, so available under Annexure-2 series, the date of joining of Respondent No.4 was taken as 11.01.1989 and his date of appointment as 27.12.1988. On the face of such specific pleadings available in the Writ Petition with regard to date of birth of Respondent No.4 as 10.06.1972, this Court is unable Page 17 of 21 // 18 // to accept the contention of the learned counsel appearing for Respondent No.4 that such a plea was never raised before the Tribunal in GIA Case No.137 of 2010. In the counter affidavit so filed by Respondent No.4 (Opp. Party No.5) in the Writ Petition, Respondent No.4 also enclosed his order of appointment as having been made on 27.12.1988 and such a document was enclosed as Annexure-A/5 to the counter affidavit so filed before this Court. 6.4. This Court placing reliance on the provisions contained under Rule-9(1) of the 1979 Rules read with Rule -7(C) of the 1974 Rules vis-(cid:224)-vis Rule 52(A ) of the Orissa Service Code and Para 16(2) of GIA Order 1994 is of the view that the minimum age as prescribed for similar employees, appointed in Government institutions is required to be followed by the Governing Body of the College. This Court finds that the minimum age for such appointment in Government institutions as provided under Rule-52(A) of the Orissa Service Code is 18 years. Page 18 of 21 // 19 // 6.5. As further found from Para-16(2) of the GIA Order, 1994, unless an employee has been duly appointed in terms of the relevant recruitment Rules, his services cannot be approved under GIA Order, 1994. 6.6. Since on the face of such pleadings made by the Appellant that the date of birth of Respondent No.4 is 10.06.1972 and as on the date of his appointment as 27.12.1988, he had not attained the age of 18 years, placing reliance on the aforesaid provisions contained under Rule-9(1) read with Rule-7(c) vis-(cid:224)-vis Rule 52(A) of the Orissa Service Code, it is the view of this Court that on the date of appointment on 27.12.1988, Respondent No.4 had not attained the age of 18 years and accordingly he was not eligible to get the benefit of appointment as against the post of Peon by the Governing Body of the College. 6.7. Not only that, on the face of such pleadings available in the case record, no document has been filed by Respondent No.4 inter alia showing that by the time he was appointed vide order dt.27.12.1988, he had Page 19 of 21 // 20 // attained the minimum age of 18 years. In absence of any such documents being provided by Respondent No.4, this court is unable to take any other view than that Respondent No.4 was a minor at the time of his appointment on 27.12.1988. 6.8. Since as on the date of appointment on 27.12.1988 with his date of joining as 11.01.1989, Respondent No.4 had not attained the minimum age of 18 years, it is the view of this Court that the very appointment of Respondent No.4 with his date of joining as 11.01.1989 so approved by Opp. Party No.2 vide his order of appointment dt.20.03.1996 is not sustainable in the eye of law. 6.9. Since the very appointment of Respondent No.4 is per se illegal and he had not attained the age of 18 years, his services could not have been approved as against the 3rd Post of Peon vide Order dt.20.03.1996. Therefore, this Court is inclined to quash the order of approval of the services of Respondent No.4 as against the 3rd post of Peon so made by Respondent No.2 vide Page 20 of 21 // 21 // order dt.20.03.1996. While quashing the same, this Court directs Respondent No.2 to consider the approval of the services of the Appellant as against the 3rd post of Peon taking into account his date of appointment as 04.10.1991 and date of joining as 05.10.1991 in terms of GIA order 1994. 6.10. It is however open for the State-Respondents to consider the claim of Respondent No.4, taking into account the vacancy available at present as against the 1st and 2nd post of Peon as both of them have already retired on attaining the age of superannuation on 31.08.2020 and 30.12.2015. However, this Court expresses no opinion on the same. 6.11. The appeal accordingly stands allowed with the aforesaid observation and direction. Orissa High Court, Cuttack Dated the 5th August, 2025/sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 05-Aug-2025 18:20:30 Page 21 of 21