The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22059 of 2017 Bipin Bihari Jal …. Petitioner Mr. S.K. Das, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. B.P. Tripathy, AGA Mr. M. Pati, Advocate (Opp. Party No. 7) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 04.04.2024 Order No 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
Since there is no dispute with regard to appointment and joining of Opp. Party No. 7 as against the post of Junior Clerk on 13.09.1995, the Tribunal has rightly directed for approval of his services as against the post of Junior Clerk. 6. To the submission made by Mr. Pati, Mr. Das, learned counsel for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. Placing reliance on the stand taken in the rejoinder affidavit vis-a-vis Annexure-11, learned counsel for the Petitioner contended that in terms of the advertisement issued by the College on 01.02.1994 under Annexure-11 Petitioner faced the selection process on 01.03.1994 and accordingly was selected and appointed vide order of appointment issued on 15.03.1994. It is accordingly contended that since Petitioner by facing due recruitment process was appointed as against the post of Junior Clerk, where he joined on 18.03.1994, finding of the Tribunal that the Petitioner was not validly appointed is not sustainable in the eye of law. Page 6 of 8 // 7 // 7. Mr. B.P. Tripathy, learned Addl. Govt. Advocate on the other hand contended that the order in question has been passed by the Tribunal after being remitted twice by this Court. Since the Tribunal after due verification of the documents has come to a conclusion that the Petitioner was not validly appointed, no illegality or irregularity can be found with the said Judgment. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner though claims to have been appointed in terms of the resolution issued by the Governing Body on 13.03.1994 with order of appointment issued on 15.03.1994 and joining report accepted on 18.03.1994 vide Annexure-1 series, but it is found that at the instance of the present Petitioner the matter was remitted by this Court vide order dtd.21.03.2017 in W.P.(C) No. 838 of 2014. After such remittance of the matter vide order dtd.21.03.2017, present Petitioner filed a preliminary counter affidavit before the Tribunal on 04.09.2017, which is annexed as Annexure-7 to the present writ petition. In the said counter Petitioner never enclosed the advertisement so issued by the Governing Body on 01.02.1994, which has now been placed before this Court vide Annexure-11 to the rejoinder affidavit. 8.1. Since at no point of time Petitioner produced the advertisement basing on which he was so appointed before the Tribunal, the said advertisement now produced before this Court cannot be accepted. Not only that it is also found from the record that by the time Petitioner was allowed to join in the College on 18.03.1994, Ms. Sangeeta Mishra was not the Principal of the College as evident from Annexure-I/7 to the counter affidavit filed by Opp. Party No. Page 7 of 8 // 8 // 7. It is also found that the order of appointment has been issued by the President of the Governing Body, who is not competent to issue such order of appointment. 8.2. It is also found that the advertisement issued vide Annexure-11
Arguments
2. Heard Mr. S.K. Das, learned counsel for the Petitioner, Mr. B.P. Tripathy, learned Addl. Govt. Advocate appearing for the State- Opp. Parties and Mr. M. Pati, learned counsel appearing for Opp. Party No. 7. 3. The present writ petition has been filed inter alia challenging the Judgment dtd.07.10.2017 so passed by the State Education Tribunal (in short Tribunal) in Appeal Case No. 24 of 2011. Vide the said Judgment and order the Tribunal allowed the claim of Private Opp. Party No. 7 by holding Opp. Party No. 7 as senior to the present Petitioner and with a further direction on Opp. Party Nos. 1 & 2 to approve his appointment as against the post of Junior Clerk of the College. // 2 // 4. It is the case of the Petitioner that Petitioner was appointed in terms of the resolution issued by the Governing Body of the College on 13.03.1994 and the order of appointment issued in his favour vide office order dtd.15.03.1994 under Annexure-1 series. It is contended that in terms of the order of appointment issued on 15.03.1994, Petitioner joined as against the post of Junior Clerk of the College with due acceptance on 18.03.1994. It is also contended that appointment of the Petitioner and Opp. Party No. 7 as Jr. Clerk was duly ratified by the Governing Body in its proceeding dtd.03.11.1996 under Annexure-3 and in the said proceeding of the meeting; name of the Petitioner was indicated at Sl. No. 3 with his date of joining as 18.03.1994 and that of Opp. Party No. 7 as 13.09.1995. 4.1. It is contended that even though Petitioner was appointed earlier than Opp. Party No. 7 as against the post of Junior Clerk, but when the College became eligible to get the benefit of Grant-in- Aid, Opp. Party No. 7 approached the Tribunal by filing Education Appeal No. 24 of 2011 inter alia with the following prayer:- “It is, therefore, prayed that this Hon’ble Court may graciously be pleased to admit this application, call for the records and issue notice to the O.Ps and the appointment letters of OP-7 vide Annexure-9 series be quashed, the appointment details table vide Annexure-7 &8 be corrected showing the petitioner as senior appointee to the OP-7 and the Opp. Parties be directed to give the post of Head clerk to the petitioner with consequential service benefits. And may further be pleased to pass any other order(s), direction(s), as deem fit and proper; And for this act of your kindness, the appellant in duty bound, shall ever pray.” Page 2 of 8 // 3 // 4.2. It is contended that the Tribunal initially vide Judgment dtd.29.06.2012 under Annexure-5 series when held the appeal as not maintainable, the matter was carried to this Court by Opp. Party No. 7 in W.P.(C) No. 14693 of 2012. This Court vide its order dtd.27.06.2013 while setting aside the Judgment dtd.29.06.2012 remitted the matter to the Tribunal inter alia with the following finding:- “Since the main claim of the petitioner is that her should be considered as senior to the opposite party no. 7 and therefore, he should be entitled to Grant-in-aid, we set aside the impugned order of the Tribunal as at Annexure-13 and remit the matter back to it to decide the question of seniority of the petitioner and the question as to whether he was the Head Clerk and thereafter to decide as to whether he is entitled to receive Grant-in-aid or not. The Tribunal shall take a final decision by giving opportunity of hearing to all concerned within a period of three months from the date of production of the certified copy of this order before it by the petitioner. In the interregnum, till disposal of the matter by the Tribunal, the petitioner shall continue to discharge his duties in the college as he was doing earlier i.e. before the opposite party no. 7 was shown as senior to him and the Principal of the college shall allow him to discharge such duties. The Principal shall also act on production of the certified copy of this order.” 4.3. It is contended that on being remitted by this Court with framing of the issues involved, the Tribunal when without deciding the issue, disposed of the appeal vide Judgment dtd.29.12.2013 under Annexure-6 series, Petitioner challenged the same by filing W.P.(C) No. 838 of 2014. This Court vide order dtd.21.03.2017 Page 3 of 8 // 4 // once again set aside the Judgment passed by the Tribunal and remitted the matter and to decide it afresh in consonance with the order passed by this Court on 27.06.2013 in W.P.(C) No. 14693 of 2012. 4.4. Learned counsel for the Petitioner contended that since Petitioner was appointed as against the post of Junior Clerk earlier than Opp. Party No. 7 and this Court while disposing W.P.(C) No. 14693 of 2012 framed the issue in that regard i.e. to decide the seniority of the Petitioner vis-(cid:224)-vis Opp. Party No. 7 and thereafter to take a decision with regard to the entitlement of the Petitioner and Opp. Party No. 7 to receive Grant-in-Aid, but the Tribunal without following the order so passed by this Court allowed the appeal so filed by Opp. Party No. 7 vide the impugned Judgment dtd.07.10.2017 under Annexure-8. 4.5. It is the main contention of the learned counsel appearing for the Petitioner that since Petitioner was admittedly engaged as against the post of Junior Clerk earlier than Opp. Party No. 7, finding of the Tribunal that Petitioner was not validly appointed by facing due recruitment process and accordingly holding the appointment of Opp. Party No. 7 as a valid one, is not sustainable in the eye of law. It is also contended that claim of Opp. Party No. 7 was as against the post of Head Clerk. It is accordingly contended that the impugned Judgment so passed by the Tribunal is not sustainable in the eye of law and it requires interference of this Court. 5. Mr. M. Pati, learned counsel appearing for Opp. Party No. 7 on the other hand contended that Opp. Party No. 7 was appointed as Page 4 of 8 // 5 // against the post of Junior Clerk vide order of appointment issued in his favour on 01.09.1995 vide Annexure-B/7. Opp. Party No. 7 was so appointed in terms of the advertisement issued by the College on 25.05.1995 under Annexure-A/7. It is also the case of Opp. Party No. 7 that initially in terms of the advertisement issued by the College on 19.03.1993 two (2) posts of Junior Clerk were filled up from amongst lady candidates and Petitioner was appointed as Junior Clerk (Male) in terms of the advertisement issued on 25.05.1995 under Annexure-A/7. 5.1. It is contended that Petitioner was never appointed as against the post of Junior Clerk by facing due recruitment process and the order of appointment issued in his favour in terms of the resolution issued by the Governing Body on 13.03.1994 vide Annexure-1 series is not acceptable as no such advertisement was ever issued fixing the date of selection to 01.03.1994. 5.2. It is contended that Petitioner since was never validly appointed by facing due recruitment process and his order of appointment was issued by the President of the Governing Body on 15.03.1994 and his joining letter was also accepted by the Principal, who was not there when such joining report was so submitted, the Tribunal has committed no error in holding that Petitioner was never appointed as against the post of Junior Clerk on 15.03.1994. 5.3. In support of his submission, Mr. Pati brought to the notice of this Court the incumbency chart of the Principal of the College so issued by the Principal of the College on 03.05.2010 vide Annexure-I/7. Basing on the document it is contended that one Kiranbala Das was the Principal of the College for the period from Page 5 of 8 // 6 // 12.07.1993 to 22.05.1994 and thereafter Padmalaya Dash remained as Principal of the College for the period from 23.05.1994 to 05.09.1995. But joining of the Petitioner on dtd.18.03.1994 was accepted by one Ms. Sangeeta Mishra, who took charge of the Principal of the College only w.e.f.06.09.1995. It is accordingly contended that since Petitioner was never appointed by facing due recruitment process and the order of appointment was also issued by the President of the Governing Body in place of the Secretary, who is competent to issue such order of appointment, no illegality or irregularity has been committed by the Tribunal in holding that the appointment of the Petitioner on 15.03.1994 as not a valid one.
Decision
to the writ petition cannot be treated as an advertisement as it was never published in any news paper nor anything has been indicated that it was published to the general knowledge of the public. Therefore, this Court is unable to accept the plea of the Petitioner that basing on the advertisement issued on 01.02.1994, he was selected and appointed vide order dt.15.03.1994 under Annexure-1 series. 8.3. In view of the aforesaid analysis, this Court finds no illegality or irregularity with the impugned Judgment in question and accordingly is not inclined to interfere with the same and dismiss the writ petition. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2024 17:12:38 Page 8 of 8