The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.10577 of 2015 Santosh Kumar Sahoo ..... Petitioner Dr. J.K. Lenka, Advocate -versus- ..... 1) State Of Orissa 2) Director, Secondary Education, Odisha 3) DEO 4) Rabindra Ku Nayak Opposite Parties Mr. M.K. Balabantaray, AGA Mr. M. Pratap, Advocate (Opp. Party No. 4) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 01.05.2024 Order No. 10 1. This matter is taken up through hybrid mode. 2. Heard Dr. J.K. Lenka, learned counsel for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State and Mr. M. Pratap, learned counsel appearing for Opp. Party No. 4. 3. The present writ petition has been filed inter alia challenging order dtd.04.04.2015 so passed by Opp. Party No. 2 vide Annexure- 7A and order dt.03.08.2013, 22.04.2015 and 15.05.2015 passed by Opp. Party No. 3 under Annexure-4, 6 and 11 respectively. 4. It is the case of the Petitioner that Petitioner was appointed as against the post of Clerk vide order of appointment issued in his favour on 08.08.2007 under Annexure-1. Pursuant to the said order Petitioner joined on 20.08.2007. Page 1 of 10.
Legal Reasoning
benefit of Grant-in-aid, Petitioner approached this Court in W.P.(C) No. 15050 of 2009. This Court vide order dtd.14.10.2009 while not entertaining the prayer, allowed the Petitioner to approach the State Education Tribunal. Pursuant to the order so passed, Petitioner claiming approval of his services as against the post of Clerk approached the State Education Tribunal (in short Tribunal) by filing GIA Case No. 352 of 2009. The Tribunal vide order dtd.31.03.2011 under Annexure-B to the counter while disposing the matter, directed Opp. Party Nos. 1, 2 & 3 therein to enquire into the validity of appointment of the present Petitioner vis-a-vis present Opp. Party No. 4 as against the post of Jr. Clerk in the School in question by giving reasonable opportunity of hearing to both the Parties. 5.1. Learned counsel for the Petitioner contended that pursuant to the order passed by the Tribunal in the aforesaid GIA Case, basing on the request made by the then C.I. of Schools, Khodha Circle, Khordha on 30.08.2011 vide Annexure-1 series, the then D.I. of Schools, Nayagarh caused an enquiry and vide letter dtd.30.09.2011 held the appointment of the Petitioner to be a genuine one and such a report was submitted, basing on the report furnished by the concerned Headmaster of the School vide letter dtd.24.09.2011 under Annexure-1 series. 5.2. After receipt of the report dt.30.09.2011, Opp. Party No. 3 vide his letter dt.16.12.2011 under Annexure-1 series, directed the present Petitioner and Opp. Party No. 4 to attend his office on 26.12.2011 with regard to enquiry of the appointment of the Page 2 of 10. Petitioner and Opp. Party No. 4. Both were also directed to attend the enquiry along with relevant documents relating to their claim for appointment as against the post of Clerk. 5.3. Learned counsel for the Petitioner contended that in terms of the order passed by the Tribunal, an enquiry was conducted by the D.I. of Schools, Nayagarh with submission of report on 30.09.2011 and further enquiry was also made by Opp. Party No. 3 in terms of letter dt.16.12.2011. In view of the same and taking into account the fact that in terms of the direction issued by the Tribunal, enquiry was not only conducted but report was also submitted. Execution Case so filed by the Petitioner in Execution Case No. 13 of 2012 was dropped vide order dtd.15.12.2012. After disposal of the execution case and basing on the enquiry report submitted in favour of the Petitioner by the then D.I. of Schools as well as further enquiry conducted by Opp. Party No. 3, Opp. Party No. 3 vide his order dtd.23.03.2013 approved the services of the present Petitioner as against the post of Clerk under Annexure-2 w.e.f.01.04.2008. 5.4. It is contended that subsequently vide Office order dtd.03.08.2013 under Annexure-4 order of approval so issued vide order dtd.23.03.2013 was cancelled on the ground that the Execution Case is pending before the Tribunal. It is however contended that by the time order dtd.03.08.2013 was so passed, the execution case was already dropped vide order dt.15.12.2012. 5.5. Challenging such order of cancellation of approval so issued on 03.08.2013, Petitioner approached this Court in W.P.(C) No. 28679 of 2013. Petitioner also filed another writ petition in W.P.(C) No. 28678 of 2013 seeking release of his salary from 01.04.2008 to 28.02.2013. Both the writ petitions were disposed of by this Court Page 3 of 10. vide order dtd.11.09.2014 with a direction on the D.E.O., Nayagarh- Opp. Party No. 3 to reconsider the case of the Petitioner to get the benefit of Grant-in-aid. 5.6. It is contended that while the matter stood thus, Petitioner when was issued with the notice by Opp. Party No. 2 to take part in the proceeding in Appeal Case No. 2 of 2014 vide letter dt.27.10.2014 under Annexure-12 series, Petitioner duly appeared and contended that no such appeal was ever filed by the Petitioner before Opp. Party No. 2, which culminated with registration of Appeal Case No. 2 of 2014. Petitioner while taking such a stand also contended that since basing on the enquiry report submitted on 30.09.2011 and further enquiry conducted by Opp. Party No. 3 in terms of letter dt.16.12.2011, the Execution Case so filed seeking execution of the order passed by the Tribunal in GIA Case No. 352 of 2009 was dropped on 15.12.2012 and his services was approved vide order dt.23.03.2013 under Annexure-2, there is no occasion to re-hear the matter in Appeal Case No. 2/2014. 5.7. It is contended that without proper appreciation of the stand taken by the Petitioner in his memo submitted in Appeal Case No. 2 of 2014 under Annexure-12 series, Opp. Party No. 2 passed the impugned order on 04.04.2015 by holding the appointment of Private Opp. Party No. 4 as a genuine one and the appointment of the Petitioner to have been made with manipulation of the records by the Managing Committee and the Headmaster of the School. Subsequent to such order passed on 04.04.2015, Opp. Party No. 3 vide order dt.22.04.2015 under Annexure-6 not only upheld the order issued on 03.08.2013 vide Annexure-4, but also approved the services of Opp. Party No. 4 vide order dtd.15.05.2015 under Page 4 of 10. Annexure-11, during pendency of this petition. Petitioner being aggrieved by such order dtd.04.04.2015 passed by Opp. Party No. 2 in Appeal Case No. 2/2014 and order passed by Opp. Party No. 3 on 03.08.013, 22.04.2015 and 15.05.2015 under Annexure-4, 6 and 11 is before this Court in the present writ petition. 5.8. Learned counsel for the Petitioner contended that in terms of the order passed by the Tribunal in the GIA Case No. 352 of 2009 and basing on the enquiry report submitted by the then D.I. of Schools on 30.09.2011, so also the enquiry conducted by Opp. Party No. 3 in terms of letter dt.16.12.2011 vide Annexure-1 series, services of the Petitioner was duly approved vide order dtd.23.03.2013. Taking into account such submission of the enquiry report, Execution Case filed by the Petitioner in Execution Case No. 13 of 2012 since was dropped, there was no occasion to cancel the order of approval vide order dtd.03.08.2013 under Annexure-4 so upheld vide order dtd.22.04.2015 under Annexure-6. 5.9. It is also contended that since in terms of the order passed by the Tribunal the enquiry was duly conducted and services of the Petitioner was approved, there was no occasion on the part of Opp. Party No. 2 to initiate the appeal in question in Appeal Case No. 2/2014, with passing of the impugned order on 04.04.2015 and consequential order of approval passed in favour of Private Opp. Party No. 3 on 15.05.2015 vide Annexure-11. It is accordingly contended that order dtd.04.04.2015 so passed by Opp. Party No. 2 under Annexure-7A, consequential order passed by Opp. Party No. 3 on 22.04.2015 under Annexure-6 as well as order dtd.03.08.2013 under Annexure-4 and order dtd.15.05.2015 under Annexure-11 are Page 5 of 10. not sustainable in the eye of law and requires interference of this Court. 6. Even though notice of the writ petition has been issued since 10.06.2015, but no counter affidavit has been filed by the State. However, Mr. Balabantaray, learned Addl. Govt. Advocate basing on the materials available on record contended that subsequent to approval of the Petitioner’s services vide order dtd.23.03.2013 under Annexure-4, basing on the letter issued by Opp. Party No. 2, a fresh enquiry was conducted by Opp. Party No. 3 with submission of a report on 29.01.2014 under Annexure-C to the counter filed by Opp. Party No. 4. In the said report Opp. Party No. 3 clearly held that Petitioner’s appointment has been wrongly made and it deserves no merit for consideration. In the said report Opp. Party No. 3 held the appointment of Opp. Party No. 4 having been made by the Managing Committee properly. On receipt of the said report submitted by Opp. Party No. 3 on 29.01.2014 and in terms of the order passed by the Tribunal, Opp. Party No. 2 registered Appeal No. 2/2014. Opp. Party No. 2 after giving due opportunity of hearing to both the Petitioner and Opp. Party No. 4, passed the impugned order on 04.04.2015 under Annexure-7 A. 6.1. It is also contended that since the Tribunal vide its order dt.31.03.2011 in GIA Case No. 352 of 2009 had directed Opp. Party Nos. 1, 2 & 3 to cause an enquiry basing on the report submitted by Opp. Party No. 3 on 29.01.2014 vide Annexure-C, Opp. Party No. 2 - Director took up the matter by registering Appeal No. 2/2014 after receipt of the report dt.29.01.2014 from Opp. Party No. 3. Since Opp. Party No. 2 by following due procedure of law and by following the principle of natural justice has passed the order on Page 6 of 10. 04.04.2015, no interference is called for. However, learned Addl. Govt. Advocate does not dispute the report submitted by the D.I. of Schools on 30.09.2011 basing on which services of the present Petitioner was approved vide order dtd.23.03.2013 and basing on which Execution Case was dropped vide order dt.15.12.2012. 7. Mr. M. Pratap, learned counsel appearing for Opp. Party No. 4 on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that basing on the order passed by the Tribunal in GIA Case No. 352 of 2009, Opp. Party No. 3 submitted a report on 29.01.2014 under Annexure-C to the counter. In the said report Opp. Party No. 3 clearly held that Opp. Party No. 4 has been rightly appointed by the Managing Committee and the appointment of the Petitioner as Jr. Clerk in the School has been made by manipulating record. Basing on such report submitted by Opp. Party No. 3 on 29.01.2014, Opp. Party No. 2 initiated the proceeding in Appeal No. 2/2014 and after giving due opportunity of hearing to all concerned, Opp. Party No. 2 passed the order dtd.04.04.2015 under Annexure-7A. Vide the said order since Opp. Party No. 2 held the appointment of Opp. Party No. 4 as a genuine one and basing on that order, services of Private Opp. Party No. 4 was approved vide order dtd.15.05.2015 under Annexure-11 and Opp. Party No. 4 is continuing in the School as against the post of Jr. Clerk with receipt of salary in the shape of Grant-in-aid. 7.1. It is contended that since in terms of the order passed by the Tribunal, Opp. Party No. 3 caused an enquiry and found the appointment of Opp. Party No. 4 as a genuine one, basing on which Opp. Party No. 2 passed the order on 04.04.2015 under Annexure- Page 7 of 10. 7A, it requires no interference and Opp. Party No. 2 has rightly passed the order. 8. Having heard learned counsel appearing for the Parties and considering the materials available on record, this Court finds that pursuant to the order passed by the Tribunal on 31.03.2011 in GIA Case No. 352 of 2009 and basing on the request made by Opp. Party Nos. 2 & 3, D.I. of Schools, Nayagarh caused the enquiry. Basing on the report submitted by the then Headmaster of the School on 24.09.2011, D.I. of School submitted the report on 30.09.2011 under Annexure-1 series holding therein that Petitioner has been duly appointed as against the post of Clerk. Basing on such report submitted on 30.09.2011 and further enquiry conducted by Opp. Paty No. 3 in terms of his letter dt.16.12.2011 under Annexure-1 series, services of the Petitioner was not only approved vide order dt.23.03.2013, but by taking the report to be a final one, the Tribunal dropped the Execution Case vide order dtd.15.12.2012. 8.1. But as found from the record after such approval of the services of the Petitioner, basing on the enquiry report submitted by Opp. Party No. 3 on 29.01.2014 under Annexure-C, Opp. Party No. 2 initiated the proceeding in Appeal Case No. 2/2014. In the said report Opp. Party No. 3 held that the Petitioner’s appointment has not been made properly and Opp. Party No. 4 has been rightly appointed by the Managing Committee. 8.2. After initiation of the proceeding in Appeal Case No. 2/2014 when the Petitioner was noticed to appear vide letter dtd.27.10.2014 under Annexure-12 series, Petitioner on his appearance took a plea that after approval of his services vide order dtd.23.03.2013 under Annexure-2 basing on the report submitted by the D.I. of Schools on Page 8 of 10. 30.09.2011 and further enquiry conducted by the Inspector of Schools in terms of letter dtd.16.12.2011, execution proceeding so filed was dropped vide order dt.15.12.2012. After such approval of his service vide order dt.23.03.2013, no further enquiry report was required to be submitted by Opp. Party No. 3 on 29.01.2014 basing on which the Appeal Case No. 2/2014 was initiated. But as found from the record Opp. Party No. 2 while dealing with the issue in Appeal Case No. 2/2014 has not taken into consideration the stand taken by the Petitioner in his memo dtd.24.12.2014 vide Annexure- 12 series. 8.3. In view of such material irregularity, which is apparent on the face of the record, this Court is inclined to quash order dtd.03.08.2013, 22.04.2015 and 15.05.2015 so passed by Opp. Party No. 3 under Annexure-4, 6, 11 and so also order dtd.04.04.2015 passed by Opp. Party No. 2 under Annexure-7A. While quashing all those orders, this Court remits the matter to Opp. Party No. 2 to take a fresh decision on the claim of the Petitioner vis-à-vis Opp. Party No. 4. This Court directs Opp. Party No. 2 to call for the record from the concerned School and after due verification of the record by giving due opportunity of hearing to both the Petitioner and Opp. Party No. 4 as well as the School authority, Opp. Party No. 2 shall take a fresh decision with regard to eligibility of the Petitioner vis-à- vis Opp. Party No. 4 for continuance as against the post of Junior Clerk of the School. 8.4. Since the dispute is of the year 2009, this Court directs Opp. Party No. 2 to take a fresh decision as directed within a period of six (6) months from the date of receipt of this order. For early disposal of the matter Petitioner and Opp. Party No. 4 are directed to appear Page 9 of 10. before Opp. Party No. 2 along with a copy of this order on 18.05.2024. On receipt of the order Opp. Party No. 2 shall fix a date of hearing and conclude the same within the time stipulated by this Court. Petitioner as well as Opp. Party No. 3 are also permitted to file relevant documents and citation, if any in support of their claim in course of hearing.
Arguments
5. It is contended that in spite of his continuance as against the post of Clerk, when the Petitioner’s name was not approved to get the
Decision
9. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-May-2024 18:41:08 Page 10 of 10.