The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET NO. 234 OF 2012, RVWPET NO. 264 OF 2012, RVWPET NO. 275 OF 2012 AND RVWPET NO. 276 OF 2012, From judgment dated 31.07.2012 passed by a learned Single Judge of this Court in FAO No. 177 of 2011. -------------- In RVWPET No. 234 of 2012 Sri Sugyan Choudhury ...… Petitioner -Versus- State of Odisha & Ors. .…. Opp. Parties Advocate(s) appeared in this case:- ____________________________________________________________ For Petitioner : Mr. Budhadev Routrary, Sr. Advocate with M/s D.Routrary, P.K. Sahoo, S. Das, S. Jena, S.K. Samal & S. Rout, Advocates For Opp. Parties : Mr. D. Lenka, Addl. Government Advocate [OP Nos.1 &2] Mr. S. Ghosh, Advocate [OP No.3] Mr. J.K. Rath, Sr. Advocate with M/s S.N. Rath, P.K. Rout & D.N. Rath, Advocates [OP Nos.4 to 7 & 10 to 14] Mr. K. Mohanty, Advocate [OP Nos.17 to 22] ____________________________________________________________ In RVWPET No. 264 of 2012 Sri Sachindra Dalei & Ors. ...… Petitioners Page 1 of 18 -Versus- State of Odisha & Ors. .…. Opp. Parties Advocate(s) appeared in this case:- ____________________________________________________________ For Petitioner : M/s. S.K. Das & S.K. Mishra, Advocates For Opp. Parties : Mr. D. Lenka, Addl. Government Advocate [OP Nos.1 &2] M/s. S. Ghosh, Advocate [OP No.3] Mr. J.K. Rath, Sr. Advocate with M/s S.N. Rath, P.K. Rout & D.N. Rath, Advocates [OP Nos.4 to 7 & 10 to 14] ____________________________________________________________ In RVWPET No. 275 of 2012 Sri Srustidhar Jena ...… Petitioner -Versus- State of Odisha & Ors. .…. Opp. Parties Advocate(s) appeared in this case:- ____________________________________________________________ For Petitioner : M/s S.K. Das, S.K. Mishra & P.K. Behera, Advocates
Legal Reasoning
For Opp. Parties : Mr. D. Lenka, Addl. Government Advocate [OP Nos.1 &2] Mr. S. Ghosh, Advocate [OP No.3] ____________________________________________________________ In RVWPET No. 276 of 2012 Natabara Behera ...… Petitioner Page 2 of 18 -Versus- State of Odisha & Ors. .…. Opp. Parties Advocate(s) appeared in this case:- ____________________________________________________________ For Petitioner : M/s S.K. Das, S.K. Mishra & P.K. Behera, Advocates For Opp. Parties : Mr. D. Lenka, Addl. Government Advocate [OP Nos.1 &2] Mr. S. Ghosh, Advocate [OP No.3] ____________________________________________________________ CORAM: HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD ------------------------------------------------------------------------------------------------------------ Date of Hearing: 22.08.2025 :: Date of Judgment : 25.08.2025 ------------------------------------------------------------------------------------------------------------ PER DIXIT KRISHNA SHRIPAD,J. All these Review Petitions seek to recall a Coordinate Bench order dated 31.07.2012 whereby petitioners’ FAO No.177 of 2011 filed under Section 24-C of the Orissa Education Act, 1969 has been dismissed. In the said FAO, a challenge was laid to the order dated 15.03.2011 passed by the State Education Tribunal, Bhubaneswar in their GIA Case No.36 of 2004 was negatived. In the said GIA filed under Section 24B, they had sought for a direction to Page 3 of 18 the official OPs to approve their appointment and to release the necessary Grant-in-Aid in their favour from the dates of their entitlement. 2. A brief fact matrix of the case: 2.1. Shantilata Mahavidyala, Uitikiri, in Balasore district, having been founded in the year, 1980 vide Registration Certificate dated 09.01.1981 under the provisions of the Societies Registration Act 1860, secured concurrence of the State Government and affiliation at the hands of Utkal University for Intermediate Arts Course. The CHSE affiliated the +2 college which received Grant-in-Aid with effect from 01.06.1988 vide Government Orders dated 27.02.1999 & 12.03.1999. In the meanwhile, the Governing Body of +3 Wing was registered separately on 25.04.1994 with one Mr. Satrughna Jena as the Secretary. It is claimed that even this Institution received Grant-in-Aid. 2.2. It was the case of petitioners that subsequently Smt. Shantilata Jena became the Secretary of the Governing Body and all they came to be appointed in teaching & non- Page 4 of 18 teaching posts. However, OP Nos.4 to 14 (in REVWPET No. 234 of 2012), in connivance with a section of the Management fabricated certain records to portray their appointment to the posts in question. This, they did hand in glove with OP Nos.1 to 3, as well. They had filed OJC No.10891 of 2001 seeking a direction to the Director of High Education for the approval of their appointments and release of Grant-in-Aid. The Director having favoured their claim, petitioners had filed GIA Case No.36 of 2004, which came to be negatived by the Tribunal vide order dated 15.03.2011. That was the subject matter of further challenge in FAO No.177 of 2011. A Coordinate Bench of this Court dismissed the said FAO by the order that is sought to be recalled in these Review Petitions. 3. Contentions of the parties: 3.1. Learned Senior Advocate Mr. Routray and the Advocate-on- Record appearing for the petitioners contended that both the Tribunal & the Coordinate Bench orders have error apparent on their face; both they overlooked the fraud & fabrication with which OP Nos. 4 to 14 hand in glove with Page 5 of 18 the OP Nos.1 to 3 had perpetrated to the prejudice of petitioners and therefore, review of Coordinate Bench order is eminently warranted for setting at naught the injustice meted out to their clints. 3.2. Per contra, learned AGA Mr. Lenka appearing for the official OPs and learned Advocates representing the private OPs resist the review petitions contending that: Firstly, this Court has no review jurisdiction; the issue relating to appointment of staff members was the subject matter in OJC No.347 of 1989 wherein a mandate was issued to the Director of Higher Education to examine all questions; accordingly, the Director, having accomplished the task, submitted his report dated 24.06.1989 recommending, inter alia, the case of OP Nos.4 to 14, who were working in the college in teaching & non-teaching posts. The Director also had mentioned about irregularities/ illegalities committed by Sachidananda Jena. This resulted into Mr. Jena filing OJC No.880 of 1991, which too was dismissed placing imprimatur on the order of Tribunal. Page 6 of 18 3.3. The Review Petitioners filed GIA Case No.36 of 2004 seeking for approval of their appointment and for the release of consequential Grant-in-Aid in Shantilata Mahavidyalaya. They were duly selected and appointed by the competent Governing Body. OP Nos.1 to 14 having entered appearance through their counsel resisted the GIA Case contending that the Review Petitioners were never appointed and that they had no requisite qualification at all. The matter relating to the dispute is liable to be res judicated because of the lis having been attained finality in the earlier rounds of litigations. The Tribunal upheld the contention of OPs and dismissed the subject GIA Case vide order dated 15.03.2011. The challenge to said order has been negatived by the Coordinate Bench by the order now put in review. 4. At the suggestion of learned counsel appearing for the parties, all these Review Petitions were taken up for final hearing together, since common questions of law and facts are involved. I have heard learned counsel appearing for the parties. I have perused pleadings and the records. I have also duly adverted to the provisions of law and to relevant of the Page 7 of 18 rulings cited at the Bar. In fact, it was too long a hearing. Since intricacies were involved, the petitions were reserved for judgment. Having done on that, this Court declines indulgence in the matter for the following reasons: 4.1. As to maintainability of Review Petitions: (a) It has long been settled from the days of Privy Council that Court, Tribunals & Quasi-judicial Authorities ordinarily do not have power to review their decisions unless the statute clothe them with such power. Rulings in this regard galore in Law Reports. However, this is subject to a very few exceptions like the cases of fraud/fabrication & gross violation of principles of natural justice. Here again, procedural constrains do obtain. The scope of review, where law vests such power, is ordinarily very restrictive qua the appeal. Of course, the extent of review power depends upon the purpose and policy content of the statute in question and then terminology of its provision that bestows such power. The grand rule is, the adjudicatory bodies become functus officio once the cause brought before them is resolved finally, subject to all just exceptions. Existence per se is no ground Page 8 of 18 for exercise. There are frugal case laws wherein the review is undertaken in the exercise of inherent power, if such power is granted or recognized by the statute. Added, the existence of review power is one thing and its exercise is another. All this is a prelude to the discussion infra. (b) The vehement submission of learned Senior Advocate Mr. Routray and learned counsel Mr. Das that this Court has, as of necessity, the power of review in matters like this, is bit difficult to countenance and reasons for this are not far to seek: (i) Section 24-A of the 1969 Act provides for establishment of Education Tribunal(s) by the State Government. Sub-section (3) of this section empowers the Tribunal to call for the records of all proceedings relating to the dispute and dispose of ‘the appeals preferred to it’. Thus, what Tribunal entertains is ‘appeal’ and therefore, it is not an original proceeding like suit. This has some relevance which will be discussed hereinafter. Sub-section (5) makes decision of the Tribunal final. Sub-section (6) provides for enforcement of Tribunal’s order under the Code of Civil Procedure, 1908 as if it were a decree of the Civil Court. That would not make the proceedings before the Tribunal either a suit or an original proceeding. It is always open to the legislature to Page 9 of 18 treat the end product of adjudication as a decree as distinguished from order, if it so desires. Learned AGA Mr. Lenka is right in telling that this sub-section selectively makes provisions of CPC applicable and it is for the limited purpose of enforcement of Tribunal’s decision. Therefore, what is selective cannot be made an all-pervasive invocation of CPC in a wholesale way. (ii) Learned AGA & Advocates representing the OPs are justified in drawing attention of the Court to Sub- section (5) of Section 24-B of the 1969, Act which reads as under: “(5) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to any rules made by the Government, shall have power to regulate its own procedure.” This provision excludes the application of CPC and enables the Tribunal to have its own procedure subject to the Rules that may be promulgated by the Government, for regulating the procedure. The text & context makes the legislative intent as clear as Gangetic waters that the CPC is not applicable and as a corollary of this the provisions of Order XLVII of CPC are also not applicable. The contention of Mr. Das that the application of CPC is excluded for the proceedings before the Tribunal only and therefore, such statutory exclusion is not intended by the legislature largely accords with the maxim expressio unius est exclusio alterius (r). This Page 10 of 18 contention is difficult to countenance. The very maxim involves too broad a generalization and therefore, cannot be readily invoked when intent of the legislature runs counter to it. ‘Legal Maxims’ by Herbert Broom, 10th Edition at page 444 says as under: “Great caution is necessary in dealing with the maxim expressio unius est exclusio alterius (r), for, as Lord Campbell observed in Saunders v. Evans (s), 8 H.L. Cas. 721, at p.729, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction;…” (c) Petitioners’ counsel vehemently submitted that under Article 225 of Constitution of India read with Letters Patent, a set of Rules have been promulgated. Under Part-II of the Rules of High Court of Orissa, 1948, Chapters-VII & VIII appear; they inter alia provide for review; the text of Clause- 11 speaks of review in so many words. This submission does not merit acceptance and reasons are obvious: Whatever be their genesis, these Rules are of general character/nature qua the provisions of 1969 Act and the Orissa Education (Tribunal) Rules, 1977 which are a piece of special law. Mr. Lenka is right in telling the Court that the law enacted in Sections 24-A, 24-B & 24-C in 1969 Act creates a special Page 11 of 18 machinery for adjudication of peculiar disputes and therefore, the legislature in its wisdom has prescribed a special procedure to be adopted in the adjudicatory process. The maxim "generalibus specialibus non derogant" is as old as mountains. Law reports are replete with the proposition that the special law overrides the general law. Contention of petitioners, if countenanced, would run counter to the jurisprudential principle of centuries. (d) The last contention of the petitioners as to maintainability of Review Petitions is that the Tribunal has inherent power under Rule 26 of 1977 Rules and that would include power of review. The said Rule reads as under: “26. Inherent Powers- The Tribunal may exercise inherent powers for the ends of justice as contemplated under Sections 151, 152 and 153 of the Code of Civil Procedure.” True it is, that in seldom cases that involve fraud/fabrication, Courts & Tribunals recall their orders in their inherent power. However, there is a subtle difference between ‘power to recall’ and the ‘power to review’, although arguably they are not poles apart. It was Lord Edward Coke who roared Page 12 of 18 centuries ago that "Fraud avoids all judicial acts, ecclesiastical or temporal," establishing that any judgment or decree obtained through fraudulent means is a nullity, or legally nonexistent, and can be challenged in any court. He also noted the concept of six "marks" or "presumptions" of fraud, drawn from Roman law. It is on that premise, Courts & Tribunals recall orders that are snatched by fraud/fabrication essentially perpetrated on them. It is on the principle of ex debito justitiae. However, that is not the case here. (e) Learned Senior Advocate Mr. Routray drew attention of the Court to the following rulings in support of his contention that review is admissible at the hands of Tribunal and therefore, the appeal proceedings being continuation of the same, the review power should avail to this Court as a corollary of that. In support of said proposition he pressed into service the following decisions: (i) Industrial Credit and Investment Corporation Ltd. V. Grapco Industries Ltd., Reported in (1999) 4 SCC 710: Page 13 of 18 (ii) Allahabad Bank, Calcutta v. Radha Krishna Maity, reported in (1999) 6 SCC 755: (iii) Standard Chartered Bank v. India Glycols Ltd., Reported in (2014) SCC Online Delhi 3859. The first two rulings do not discuss the power of review under the provisions of 1969 Act or a pari materia statute. It hardly needs to be stated that a decision is an authority for the proposition laid down in a given fact matrix, and not for all that which logically follows from what has been so laid down vide Lord Halsbury in Quinn v. Leathem,1. The third decision arose under the provisions of law relating to debt recovery, that is, popularly known as DRT Act. The purpose & policy content of this Act and of the 1969 Act are miles away from each other. Merely because certain provisions relating to dispute resolution machinery have textual resemblance, that per se would not make the Rule of pari materia readily applicable. 4.2. As to merits of the matter: (a) I have very carefully turned the pages of review petitions and the related material on record. Fraud & 1 [1901] UKHL 2 Page 14 of 18 fabrication within the parameters of S.P. Chengalvaraya Naidu v. Jagannath,2 has not been there, as rightly contended by learned Advocates representing the private OPs. As already mentioned above, the proceedings at the hands of the Tribunal are treated by the legislature as one of appeal vide Sub-section (3) of Section 24-A of 1969 Act. Ordinarily, the First Appeal as the one at the hands of Tribunal has wide scope of examination both on law and facts. Though Section 24-C does not in so many words say of Second Appeal, it is indisputable that it is a Second Appeal. Ordinarily, the scope of Second Appeal is not as wide as the First Appeal. This position does not change merely because the provision does not say about substantial question of law as enacted in Section 100 of CPC or question of law, either. Therefore, appeal is both on law & facts, though the examination is comparatively restrictive. (b) The Tribunal was invoked by the review petitioners in GIA Case No.36 of 2004 under Section 24-B of 1969 Act seeking a direction for approval of their appointment and 2 AIR 1994 SC 853 Page 15 of 18 consequential release of Grant-in-Aid. The Tribunal, having considered rival contentions of the parties, negatived the GIA Case vide order dated 15.03.2012. At paragraph 6 of the order, it is observed as under: “Regarding the actual staff position of Shantilata Mahavidyalaya in pursuance to the direction of the Hon’ble High Court in O.J.C. 347 of 1989, the Director, Higher Education, Orissa on 24.6.1989 verified the same and found the O.P. Nos. 4 to 14 were the real staff of the College. Challenging the same, when the then Secretary Sri Satrughana Jena filed O.J.C. No.880 of 1991, the Hon’ble High Court accepted the report of the Director basing upon his verification on 24.6.1989 as correct. The said report of the Director does not reveal the names of the petitioners. Thus, there is no scope for this Tribunal to reopen the matter, other than to accept the report of the Director, Higher Education, Orissa submitted in pursuance to the order passed by the Hon’ble High Court in O.J.C. No.347 of 1989 and accepted in O.J.C. No.880 of 1991. Since the names of the petitioners do not find place in the said report submitted by the Director, Higher Education, Orissa in pursuance to the Writ Application O.J.C. No.347 of 1989 there is no scope to accept them as the staff of the college and their consequential claim for approval of appointment and release of grant in aid.” (c) The above order of the Tribunal was put in challenge by the petitioners in FAO No.177 of 2011 and the Coordinate Bench having examined all aspects of the matter penned the order dated 31.07.2012 running into 8‰ pages. A perusal of the same shows that learned Judge treated the matter more Page 16 of 18 than the usual, though the Second Appeal has its own limitations. At paragraph 7 what was the prayer in OJC No.880 of 1991 filed by Mr. Satrughna Jena is stated and it reads as under: “(a) That a Rule Nisi in the nature of a writ of Mandamus and/or any other writ or writs and/or order or orders and/or direction may be issued calling upon the opposite parties to show cause why the list of names of the members of the staff of Shantilata Mahavidyalaya at Utikiri submitted by the opposite party no.1 to the opposite party no.3 and eligible to get their pay shall not be quashed and the names submitted by the Governing Body shall not be accepted. (b) That if the opposite parties fail to show cause or show insufficient cause the Rule Nisi may be made absolute.” (d) The Division Bench while dismissing the said OJC vide order dated 02.02.1996 observed as under: “We have given the matter our anxious consideration and are of the view that the relief claimed cannot be granted to the petitioner. In compliance of the orders passed by this Court in the earlier writ petitions, an enquiry was conducted by the Director, who is a responsible officer in the Education Department. The enquiry report indicates that all possible efforts were made by the Director to notice and hear all who appear to be in some manner or the other connected with the dispute. Members of the staff, Sarpanch and the Headmaster of another institution were heard. But neither the petitioner nor his brother Rabindranath Page 17 of 18 Jena appeared in spite of repeated notice and even the Deputy Director had though Mr. A.K. Roy, personally approached the petitioner and tried to persuade him to participate in the enquiry. Request was also made to the members of the Governing Body and villagers to attend the inquiry and to make statements if they so desire. The fact that a Magistrate and the police had to be requisitioned gives an indication of the atmosphere which was prevailing at that time.” As long as the above findings which are decades old remain on record, this Court is at a loss to know, what purpose would be served by keeping these Review Petitions of 2012 pending any longer. In any circumstance, as rightly contended by Mr. Lenka, this Court cannot treat the Review Petitions as if they are appeals. In the above circumstances, these Review Petitions being devoid of merits and also lacking maintainability are liable to be dismissed and accordingly they are, costs having been reluctantly made easy. Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Reason: Authentication Location: Orissa High Court Date: 25-Aug-2025 20:31:30 Orissa High Court, Cuttack, The 25th August, 2025/Prasant ……..………………………. Dixit Krishna Shripad, Judge Page 18 of 18