The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No. 517 of 2020 ..... State of Odisha & Anr. Appellants Mr. S.P. Das, ASC Srinibash Tripathy & Anr. -versus- ..... CORAM: Respondents Mr. S.K. Das, Advocate THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 02.01.2025 I.A. No. 1029 of 2024 Order No. 05 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.P. Das, learned Addl. Standing Counsel appearing for the State and Mr. S.K. Das, learned counsel appearing for Respondent No. 1. 3. Considering the grounds taken, the prayer for substitution is allowed. 4. Consolidated copy of the cause title already filed be placed in the appropriate place.
Decision
5. I.A. is disposed of. 06. I.A. No. 384 of 2020 & FAO No. 517 of 2020 (BIRAJA PRASANNA SATAPATHY) Judge 1. This is an application filed by the State seeking condonation of delay of around 704 days. Page 1 of 8. 2. In support of the condonation of delay, learned ASC relied on the stand taken in Para 2, 3 & 5 of the interim application which are reproduced hereunder:- “2. That, the statutory provisions of Section 24-C of the Orissa Education Act, 1969 requires for filing of Appeal within 60 days from the date of passing of the order. In the present GIA case, the learned Tribunal disposed of the same vide order dtd.13.04.2018. However, though the case was disposed of on 13.04.2018 the same in view of miscommunication / communication gap could not reach the appellants till the month of December, 2018. A copy of the judgement dtd.13.04.2018 in the captioned matter was communicated to the Appellant No. 1 during the 1st week of December, 2018 by the Respondent No. 1 for implementation of the order. Basing on the same Director, Higher Education was requested vide Letter No. 33983/HE, dtd.13.12.2018 to submit a report in shape of memorandum reflecting the eligibility of the Respondent for approval of his appointment as PET in the college in question. 3. That, Director, Higher Education after verifying the eligibility of the Respondent No. 1 vide his Letter No. 14713, dtd.16.04.2019 submitted a report in shape of memorandum in favour of the Respondent No. 1 which was received in the office of the Appellant No. 1 on 17.04.2019. Soon after receipt of the memorandum from the Director, Higher Education the Administrative Branch in the office of the Appellant No. 1 processed the file on 27.04.2019 and finally the matter was examined at the level of the Branch Officer on 22.05.2019. When some queries were raised by the Branch officer, the same were met by the Administrative Branch on 23.05.2019. However, a certified copy of the impugned judgement was obtained from the Govt. Advocate on 25.05.2019. The issue was finally examined at the level of the Branch officer on 27.06.2019 and basing on the eligibility of the Respondent No. 1, he Page 2 of 8. proposed for approval of the post of the Respondent No. 1 in the concerned college for release of Grant-in-Aid @1/3rd, 2/3rd and full from 01.06.1994, 01.06.1996 and 01.06.1998 respectively and such file was endorsed to the Appellant No. 1 to take a decision on 27.06.2019. The Appellant No. 1 thereafter agreed to the proposal and submitted the file to the Hon'ble Minister on 28.06.2019. However, Govt. approval was accorded for such approval on 28.06.2019. Accordingly, post approval order was issued in favour of the Respondent No. 1 vide Letter no. 15106, dtd.29.07.2019 and Director, Higher Education was requested to issue post approval order. 5. That, in view of the aforesaid orders of the Hon'ble Supreme Court dtd.16.09.2019 the issue of approval granted to the Respondent was again examined in the Administrative Branch of the office of the Appellant No. 1 on 03.01.2020 and the appellant No. 1 took decision on the same very day to cancel the post approval already accorded in favour of the Respondent No. 1. Accordingly, Govt. orders were issued vide office order No. 2457/HE, dtd.16.01.2020 cancelling the approval issued in favour of the Respondent No.1” 2.1. In support of his submission, learned Addl. Standing Counsel appearing for the Appellants relied on the order passed by the Hon’ble Apex Court on 22.11.2019 in SLP (Civil) Diary Nos.33245 of 2018 and similar SLPs. It is contended that in all the aforesaid orders, Hon’ble Apex Court was pleased to condone the delay in filing the Special Leave Petition by imposing a cost of Rs.50,000/- on the State. Order Page 3 of 8. passed in SLP (Civil) Diary No.33245 of 2018 and similar SLPs are reproduced hereunder:- “Delay condoned. Subject to the Petitioner-State depositing a sum of Rs.50,000/- (Rupees fifty thousand only) in the Registry of this Court within four weeks from today, issue notice, returnable on 13.01.2020, Dasti service, in addition, is permitted. If the amount is not deposited within the stipulated time, the special leave petition shall stand dismissed without further reference to the Court. Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility. xxx xxx xxx Diary No.33248/2018; Diary No.33650/2018; Diary No.39345/2018; Diary No.39309/2018; Diary No.39347/2018; Diary No.39352/2018 Diary NO.31098/2019; and Diary No.33665/2019 Mr. Ashok Parija, learned Senior Counsel invited out attention to the judgment and order dated 16.09.2019 passed in Civil Appeal No.7295 of 2019 and all other connected matters. The issue involved in the matter was set out in para 1 of the said judgment as under: “1. The question involved in the appeals is whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 (hereinafter referred to as the „ the order of 1994), after its repeal in the year 2004 by virtue of provisions contained in Orissa (Non-government Coleges, Junior Colleges and Higher secondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to as the „the order of 2004‟). The order of 2004 has Page 4 of 8. also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008.” The conclusion drawn by the Court as set out in para 31 was as under: “31. It is apparent on consideration of Paragrapha 4 of order of 2004 that only saving of the right is to receive the block grant and only in case grant in aid had been received on or before the repeal of the Order of 2004, it shall not be affected and the Order of 1994 shall continue only for that purpose and no other rights are saved. Thus, we approve the decision of the High Court in Lok Nath Behera (supra) on the aforesaid aspect for the aforesaid reasons mentioned by us.” Relying on the aforesaid observations, it is submitted that the only right that was saved was to receive the block grant and only in case the grant-in-aid was received on or before the repeal of the Order of 2004. It is further submitted that the decision of the High Court in Loknath Behera was approved by this Court. Exactly contrary situation has now been accepted by the High Court in the orders presently under appeal. We must however state that the matters were disposed of by the High Court as the petition in every case was delayed by at least 800 days. In the circumstances, we pass following order:- a) Delay condoned. Subject to the petitioner-state depositing a sum of Rs.50,000/- (Rupees fifty thousand only), to the account of every petition in the Registry of this Court within four weeks from today, let notices be issued to the respondents, returnable on 13.01.2020. Dasti service, in addition, is permitted. b) If the amount is not deposited within the stipulated time, the special leave petitions shall stand dismissed without further reference to the Court. c) Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility. Mr. Subhasish Mohanty, learned Advocate-on-Record, who has appeared on behalf of Caveator/ Sole respondent in SLP (Civil) Diary No.31098 of 2019, accepts notice on behalf of sole respondent. He prays for and is granted three weeks‟ time to put in affidavit in reply. Page 5 of 8. Rejoinder, if any, be filed within two weeks‟ thereafter. List all the matters on 213.01.2020”. 2.2. Learned State Counsel also relied on the decision rendered by the Hon’ble Apex Court on 09.10.2023 in Civil Appeal No.5867 of 2015 (Sheo Raj Singh (Deceased) Through Lrs. & Ors. vs. Union of India &Anr.). Placing reliance on the decision in Sheo Raj Singh as provided under Section-5 of the Limitation Act, it is contended that, the term sufficient cause is elastic enough for Courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one and another, the former would prevail. Since in the present case the Tribunal allowed the claim of the respondent without following the decision of this Court in the case of LaxmidharPati vs. State of Orissa & Others (1996)(I) OLR- 152 as well as other decisions rendered by this Court, in view of the ratio decided in the case Sheo Raj Singh and the order passed by the Hon’ble Apex Court in SLP (Civil) Diary No.33245 of 2018, 38574 of 2015 and 11604 of 2020 in condoning the delay, subject to payment of cost of Rs.50,000/- the delay in filing of the present appeal is required to be condoned as substantial question of law is involved. Page 6 of 8. 2.3. Hon’ble Apex Court in Para-31(b) and 37 of the Judgment in Sheo Raj Singhhas held as follows:- “31.b. The expression sufficient cause is elastic enough for courts to do substantial justice. Further, when substantial justice and technical considerations are pitted against one another, the former would prevail”. xxx xxx xxx 37. Having bestowed serious consideration to the rival contentions, we feel that the High Court‟s decision to condone the delay on account of the first respondent‟s inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a illiberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests”. 3. Mr. S.K. Das, learned counsel appearing for Respondent No. 1 on the other hand contended that the Tribunal allowed the claim of Respondent No. 1 vide Judgment dtd.13.04.2018 in GIA Case No. 714/2013. The order passed by the Tribunal was also complied vide order dtd.29.07.2019 and 22.10.2019. After compliance of the order, the appeal has been filed challenging the order passed the Tribunal on 13.04.2018. Page 7 of 8. 3.1. It is also contended that similar prayer to condone the delay has been rejected by this Court vide Judgment dtd.20.02.2024 in FAO No. 504 of 2020. It is accordingly contended that in view of the detailed order passed in FAO No. 504 of 2020, the present I.A. is also liable for dismissal. 4. Having heard learned counsel appearing for the Parties and considering the submissions made and the fact that the FAO has been filed after compliance of the order passed by the Tribunal, this Court placing reliance on the Judgment passed on 20.02.2024 in FAO No. 504 of 2020 is not inclined to condone the delay in filing the appeal. 5. I.A. accordingly stands rejected. Consequentially the appeal also fails and stands dismissed. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Jan-2025 17:18:09 Page 8 of 8.