The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WA No.729 of 2024 An application under Section 10 of the Letter Patent read with Article-4 of the Orissa High Court Order, 1948. Sk. Sirajuddin …. Appellant -Versus- State of Odisha & Others …. Respondents Advocates appeared in this case: For Appellant : Mr. Krushna Ch. Dash, Advocate For Respondents : Mr. Subha Bikash Panda, AGA CORAM: THE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK AND THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO J U D G M E N T -------------------------------------------------------------------------------- DECIDED ON 11.08.2025 -------------------------------------------------------------------------------- PER MRUGANKA SEKHAR SAHOO, J. The writ appeal has been filed challenging the order passed by learned Single Judge in dismissing the WPC(OAC) No. 207 of 2016 by order dated 03.11.2022. In Page 1 of 12 the writ appeal, further challenge has been to the order passed in the review petition i.e. RVWPET No. 309 of 2023, that has dismissed by order dated 15.03.2024. The matter was heard extensively on 05.08.2025. Thereafter, it was listed again on 08.08.2025 at the instance of learned counsel for appellant, when learned counsel for the appellant was not available. Thereafter, the matter has been heard extensively today i.e. on 11th August, 2025. 2.
Facts
The facts of the case in brief without unnecessary details is that the appellant-petitioner was working in “Balianta Ucha Vidyalaya” (High School) as an Urdu teacher. After he had worked for some time, by order dated 26.04.2012 issued by the Government of Odisha School & Mass Education Department under captioned subject “Adjustment of Urdu/Persian Teachers working in 8 New Govt. High Schools (Taken Over)”. The contents of the said order is reproduced herein:- “Sub: Adjustment of Urdu/Persian Teachers working in 8 New Govt. High Schools (Taken over). As per the Articles 532 and 533 of the Orissa Education Code, there is provision to provide Urdu Teachers in Secondary Schools where sufficient Muslim students are desirous or reading the subject. There is no Urdu/ Persian Teachers as per the yardstick for Secondary Schools as prescribed in erstwhile E&YS Department letter No. 28465 dated 07.08.1981. However, the Managing Committee of WA No.729 of 2024 Page 2 of 12 in their Schools keeping some High Schools have appointed Urdu (Persian Teachers in view the requirement of such teachers for the Urdu language students who are continuing beyond approved post without GIA/Salary. These High Schools have been subsequently taken over by the Government. Govt. after careful consideration have been pleased to decide to adjust 8 Urdu/ Persian Teachers working in existing eight new Govt. High Schools (taken over) (as per list Annexure-1) as one the dispension against the existing vacant posts of Urdu / Persian / Classical teachers in Govt. High Schools as a special case. 2. The order will take effect from the date of issue. 3. This has been concurred in by Finance Department vide their U.O.R. No.165-SS-I dated 21.10.2011.” [underlined by us] 3. In the Annexure to the notification dated 26.04.2012, the petitioner’s name finds place at Sl. No.2 indicating his date of appointment/joined as 27.07.1991/27.07.1991, qualification being “ALIM”, the year of qualification being 1991. The petitioner filed Original Application before the Orissa Administrative Tribunal (OAT). After abolition, the matter was transferred to this Court renumbered as WPC(OAC) No.207 of 2016, registered on 5th of February, 2021. In the writ petition the following prayers have been made as referred to in the paragraph 7 (of the Original Application): - WA No.729 of 2024 Page 3 of 12 “7.RELIEF SOUGHT FOR : In view of the facts stated above in Para-6, the applicant prays for the following relief(s) : i) To direct the respondents to approve the post of applicant from 27.07.1990/ 27.07.1990 ii) To direct the respondents to grant / release the salary from 27.07.1990 from the date of approval of his post. iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice.” 4. In Paragraph 6.7 of the OA the following has been stated: “6.6. That, the Government as sanctioned post of Urdu Teacher for Balibandha High School and it is for this reason Deputy Secretary, School and Mass Education Department in Letter No.4186 dated 12.02.2001 addressed to the Director, Secondary Education, Odisha, Bhubaneswar to take immediate steps to provide the sanctioned post of an Urdu Teacher even though Government have sanctioned post of Urdu Teacher and the applicant is working as Urdu Teacher in Balianta High School since 27.07.1990.*** (sic) 6.7. That being aggrieved by such action the applicant approached in W.P.(C) the Hon’ble High Court No.171/2011 with a prayer to approve the date of his appointment as a Urdu Teacher with effect from [underlined by us] 05.08.1992.***” (sic) 5. In response to para 6.6 and 6.7, the following has been stated by the State-respondents at pra-3 of their counter: - WA No.729 of 2024 Page 4 of 12 “3. That, in reply to averments made in para 6.6 & 6.7, it is respectfully submitted that the applicant has mentioned in para 6 of the present O.A. regarding sanctioned of post of an Urdu Teacher in Balianta High School as per annexure-8 which is totally false. The present applicant was appointed by the M.C. in Balianta High School. The Govt. in School and Mass Education Department in order no. 10995/SME Dt. 26.04.12 (as at annexure 3 to the OA) have issued order as a special case deciding therein to adjust 08 Urdu teachers working in existing eight new Govt. High Schools (taken over) (as per the enclosed list the present applicant at SI. No. 2) who are continuing beyond approved post without GIA /Salary as one time dispensation against the existing vacant post of Urdu / Persian / Classical teachers in Govt. High Schools and the order will take effect from date of its issue. After receipt of the decision of the Govt. vide order dated 26.4.12 the appointment of the applicant has been approved and adjusted in existing vacancy of Classical post in S.D. High School Taraboi as per annexure 10 to the O.A.” [underlined by us] 6. In response to the contentions raised by the appellant, the learned AGA for respondents-State submits that the writ petition proceeded in the premises of accepting the Government notification dated 26.04.2012, the appellant either has to stand with the said notification or in contrast has to challenge the same, it cannot be the case of the appellant that the notification dated 26.04.2012 by which Government has granted him full salary from
Legal Reasoning
the said date should be interfered with by this Court in WA No.729 of 2024 Page 5 of 12 exercise of the writ jurisdiction. The order passed in the writ application is otherwise based on proper reasons, both in facts and law. It is further contended that the review application has been dismissed by the learned Single Judge giving correct reasons as in the review application certain facts / issues were raised for the first time which are not relevant for adjudication. No case was made out for review. 7. Learned AGA relies on the counter affidavit filed in the writ petition / O.A. to contended that the averments regarding prior approval and creation of post as stated in the paragraph-6 and 7 of the application have been stoutly denied by the answering opposite parties. He also brings to the notice of this Court that though and statements have been made in paragraph-6 and 7 of O.A./ W.P.C.(OAC) regarding creation of posts and approval of the same, but those assertions are consciously not supported by any document; rather the documents annexed are contrary to such contention. 8. After going through the judgment rendered by the learned Single Judge, we find that all the issues raised in the writ petition have been answered. The reasons have been well discussed and also in detail. WA No.729 of 2024 Page 6 of 12 Apart from correct appraisal of the facts on the records before the learned Single Judge, the questions of law have been dealt with. For convenience of reference relevant paragraphs of the judgment are reproduced:- facto approval of “5. Having given anxious consideration to the rival contentions, this Court takes cognizance of the fact that even though there was no sanctioned post of the yardstick Urdu/Persian Teachers as per prescribed by the Government vide Letter No.28465, dated 07.08.1981, Managing Committee of Syed Mumtaz Ali High School, Jadupur appointed the petitioner as Urdu Teacher on 30.08.1991 and sought the Government. for post Nonetheless, considering such sort of appointments made by the Managing Committee of different High Schools, which were subsequently taken over by the Government, as one time measure a policy decision has been taken to adjust such teachers who are continuing beyond approved post without Grant-in- Aid/Salary for Urdu language students. It is in its wisdom, the Government have notified that the Office Order dated 26.04.2012 would take effect from the date of issue after having concurrence of Finance Department. 5.2 Even in case where this Court has shown indulgence on humanitarian ground, the Hon’ble Supreme Court in the case of Director, Elementary Education Vrs. Dibakar Pradhan, Civil Appeal No.2104 of 2004, vide Order dated 16.02.2010 laid down as follows: - “*** We have perused the said order. In our opinion, the direction in the aforesaid appeal was given solely on humanitarian grounds and not on any principle of law and hence it is not a WA No.729 of 2024 Page 7 of 12 precedent. Apart from this, there is no statute which directs the State Government to take over all the Primary Schools/Hindi Primary Schools situated in different collieries of the Mahanadi Coalfields Ltd. In our view, the Courts are meant only to enforce the law, if it exists, but they cannot create a law and start enforcing it. To make a law is the domain of the Legislature and not of the in the discretion of the State Courts. Government to take over a School or not, and it cannot be compelled to do so. After all, taking over a School has financial and other implications.” is It tantamount the petitioner would 5.3 From the above decisions it is clear that taking over of schools is a policy decision involving financial burden on the State Exchequer. In the same breath it can be stated that creation of post to adjust teacher like the present petitioner would involve financial is the wisdom of the it implication. Therefore, Government to fix a date from which the approval is to be accorded. Therefore, seeking a writ in the nature of mandamus to ante-date the approval of the past of to intermeddling with the policy decision of the State, which power is not vested with. Nevertheless, in the instant circumstances taking into account that the petitioner has discharged his duty as Urdu Teacher (MAULVI), a considerate view has been taken by the Government and he is adjusted along with seven other Urdu Teachers in different Government High Schools after being taken over. Under the aforesaid premises, no fault can be attributed to the Government in according approval to eight Urdu Teachers working in existing eight new Government High Schools (taken over) with effect from 26.04.2012 as one time dispensation against the existing vacant posts of Urdu/Persian/Classical this Court WA No.729 of 2024 Page 8 of 12 Teachers in Government High Schools as special case. 5.4 It may be apt to add that the Government as a matter of policy had taken over the schools along with approved teaching and non-teaching staff as on 07.06.1994, but not the staff whose services were yet to be approved or not approved. On his own showing it is admitted in the writ petition vide paragraph 6.5 that the remarks column of the staff position data as furnished to the Inspector of Schools, Khurda Circle, Khurda reflected “approval is awaited”. Therefore, the claim of the petitioner for a direction to approve the position of the petitioner with effect from 30.08.1991, i.e., the date of appointment by way of Resolution passed by the Managing Committee of Syed Mumtaz Ali High School, Jadupur, cannot be granted.” [underlined to supply emphasis] 9. The concluding paragraphs 6.1 and 7 of the judgment rendered by the learned Single Judge are also reproduced herein: - “6.1 Careful reading of Resolution makes it clear that the terms of taking over inter alia contained decision to take over the management of these schools along with approved teaching and non-teaching staff and assets with effect from 07.06.1994. Since the post of the petitioner was not approved as on 07.06.1994, the contention of the counsel for the petitioner basing on the prayer made in the petition that the post of the petitioner is required to be approved with effect from 30.08.1991 is liable to be rejected. WA No.729 of 2024 Page 9 of 12 the foregoing reasoning assigned 7. On paragraphs, the writ petition/original application, being sans merit, is dismissed. However, there is no order as to costs.” in 10. We are conscious of the fact that we are in appeal and we need not go further to the facts as pleaded in the writ petition and the counter affidavit filed by the State in reply to the writ petition, but in view of the extensive arguments made by Mr. Dash, learned counsel for the appellant regarding past service of the appellant to be taken into consideration, in the sense that the benefits as granted by notification dated 26.04.2012 are to be given from a prior date, as contended by Mr. Dash, from the date of his first appointment. We give our anxious though to the contentions and the pleading in support of his
Decision
contentions made in the writ petition/ writ appeal and the response of the State-appellants to those contentions. 11. From the ‘joining letter’ as has been furnished, the petitioner suggests that he joined on 27.07.1990, pursuant to the order No.53 dated 17.08.1990 by the Managing Committee of the School. The Inspector of Schools, Khurda circle, Khurda wrote a letter to the Deputy-Director, (Hindi, Sanskrit and Special Education). By office letter dated 14.07.1992, copy of which has been annexed and marked as Annexurre-4 WA No.729 of 2024 Page 10 of 12 to the Writ Petition / O.A. and relevant extract therefrom is reproduced herein: - “I am to say that the authorities of the following aided High Schools have appointed Urdu teachers and submitted proposal for creation of Urdu teachers Post and approval of appointment of the Urdu teachers. In furnishing herewith the particulars of the above Urdu teachers, I am request you kindly to move the Govt. for creation of the Urdu teachers Posts.” (sic) [underlined by us] Thereafter, similar issue has been raised in the letter dated 10.02.1993 issued by the Inspector of Schools written to the Director, Secondary Education. Copy of which has been annexed to the writ petition marked as Annexure-5. 12. In view of the above discussions, it has to be held that appellant/petitioner on his own showing in the writ petition has conceded the fact that on the date of appointment, there was no approval of his appointment nor there was any creation of post by the appropriate authority of the Government. The letter of the Inspector of Schools dated 14.07.1992 (Annexure- 4), referred above, makes the factual position abundantly clear that he was “seeking creation of Urdu teachers post and approval of appointment of Urdu teachers”. WA No.729 of 2024 Page 11 of 12 Apart from contentions raised in the writ petition, we have taken note of the contentions raised in the appeal and also the review petition, as we have supplemented the above reasons to the judgment of the learned Single Judge. In our considered view no case is made out for our interference in appeal. The writ appeal is dismissed. The orders passed by learned Single Judge dated 03.11.2022 in W.P.C.(OAC) No.207 of 2016 and dated 15.03.2024 in RVWPET No.309 of 2023 are confirmed. Costs made easy. Manash Ranjan Pathak Judge Mruganka Sekhar Sahoo Judge Orissa High Court, Cuttack The 11th August, 2025/Narayan/Ranjeeta Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 20-Aug-2025 17:29:55 WA No.729 of 2024 Page 12 of 12