Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.784 of 2022 In the matter of an Appeal under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948 1. State of Odisha *** represented through Commissioner-cum-Secretary (Now Principal Secretary) School and Mass Education Department Lokseva Bhawan, At/P.O.: Bhubaneswar, District: Khurda. 2. Director, Secondary Education Heads of the Department Building At/P.O./P.S.: Bhubaneswar District: Khurda. 3. District Education Officer, Balasore, At/P.O./P.S./ District: Balasore Appellants. … (Opposite Party Nos. 1, 2 & 3 in the Writ Petition.) -VERSUS- Himanshu Sekhar Das Aged about 61 years Son of Late Haris Chandra Das W.A. No.784 of 2022 Page 1 of 37 At/P.O.: Putina, Via: Kamarda … Dist- Balasore. Respondent (Petitioner in the Writ Petition) Counsel appeared for the parties: For the Appellants : Sangram Keshari Jena, Additional Government Advocate : M/s. Kunal Kumar Swain, and Soubhagya Chandra Devdash, Advocates For the Respondent P R E S E N T: THE HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 27.02.2024 :: Date of Judgment : 05.03.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE PRAYER IN THE INTRA-COURT APPEAL: Assailing Judgment dated 08.09.2021 delivered by the learned Single Judge in the Writ Petition bearing W.P.(C) No.2701 of 2014 in the matter of Articles 226 and 227 of the Constitution of India, the functionaries of State of W.A. No.784 of 2022 Page 2 of 37 Odisha-appellant, preferred this intra-Court appeal beseeching to invoke provisions of Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948, with the following relief(s): “It is, therefore, most humbly and respectfully prayed that this Hon’ble Court may graciously be pleased to admit the appeal, call for the records of the writ petition, issue notice to the respondent and after hearing the parties; this Hon’ble Court may graciously be pleased to set aside/reverse the order passed by the Hon’ble Single Judge dated 08.09.2021 passed in WPC (OAC) No.2701 of 2014 thereby holding that the claim of the respondent is not entitled for the relief as prayed for; And may pass such other order/orders as may be deemed just and proper; And for this act of kindness the appellants as in duty bound shall ever pray.” THE UNDISPUTED FACT AS CULLED OUT FROM THE IMPUGNED JUDGMENT OF THE LEARNED SINGLE JUDGE AND PLEADINGS: 2. The respondent, being appointed against the post of 4th peon in Putineswar High School, Putina in the district of Balasore on 14.12.1991 by the erstwhile Managing Committee, entered into service on 16.12.1991. His post got duly approved as per the roll strength of the school vide Letter No.5950, dated 27.05.1995 issued by the Inspector of Schools, Balasore Circle, Balasore. But, in W.A. No.784 of 2022 Page 3 of 37 the meantime, the school was taken over by the State Government on 07.06.1994 by virtue of the Resolution dated 16.12.1994 of the Government. 2.1. A post of 4th peon being duly sanctioned/created and having fallen vacant since 01.12.1997 on account of
Legal Reasoning
transfer of one Sri Subrat Behera, 4th peon to Town High School, Balasore, the respondent was adjusted in Heramba Chandra Academy, Bhograi vide Office Order No.11343, dated 07.09.1998 of the Inspector of Schools, Balasore Circle, Balasore with effect from 01.12.1997. As his post was duly approved in the said School, he was allowed to draw monthly salary with effect from 09.09.1998 by virtue of Office Order No.14305, dated 16.10.2000. While the matter stood as such, said order of approval was cancelled/withdrawn by issue of Office Order No.13172, dated 25.06.2001 of the Inspector of Schools, Balasore on the ground that his appointment was void/invalid. 2.2. Challenging the said Order dated 25.06.2001, the respondent approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing O.A. No. 2693 (C) of 2001. The Tribunal vide Order dated 04.11.2010, quashed the Order dated 25.06.2001 and observed that the respondent shall not be entitled to any salary or other related benefits other than seniority on the principles of ‘no work no pay’ and also observed that W.A. No.784 of 2022 Page 4 of 37 the authorities are at liberty to rectify such error in procedure and issue appropriate order observing principles of natural justice. 2.3. Since said Order of the Tribunal was not complied with, the respondent filed contempt petition being C.P. No. 382 (C) of 2011. In response to the notice issued therein, the Inspector of Schools, Balasore Circle, Balasore filed show cause taking a stand that he has already moved the Government/Director, Secondary Education, Odisha giving details of service particulars of the respondent and sought for necessary order/approval for his adjustment pursuant to the order passed by the Tribunal in O.A. No. 2963 (C) of 2001. When the Tribunal insisted for compliance of its order, the authorities filed affidavit disclosing that by virtue of the Order No.4016, dated 11.03.2013 of the District Education Officer, Balasore the approval already accorded in favour of the respondent has been withdrawn. FURTHER MATERIAL ON RECORD: 3. Aggrieved by Order dated 11.03.2013 of the District Education Officer, Balasore the respondent preferred Original Application which was registered as O.A. No.2701 (C) of 2014 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of W.A. No.784 of 2022 Page 5 of 37 the Administrative Tribunals Act, 1985 seeking following relief(s): “Under the above circumstances, it is humbly prayed that the Original Application be allowed: And (a) The impugned order dated 11.03.213 which was communicated later to the applicant by serving a copy of the compliance affidavit in C.P. No.382(C) of 2011 under Annexure-8 may be quashed/set aside and the applicant may be allowed to continue in his former post with all service and consequential benefits and his salary for the intervening period and his current salary may also be paid; And (b) Any other order/orders or direction/directions be issued so as to give complete relief to the applicant.” 4. After notices were issued to the opponents, the said Original Application has been converted to Writ Petition, being re-registered in this Court as WPC (OAC) No.2701 of 2014, after abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019). 5. The learned Single Judge upon hearing the counsel for the writ petitioner and the Standing Counsel for the School and Mass Education Department and taking into consideration the pleadings exchanged between the parties, discussed the material on record threadbare and
Decision
came to hold as follows while allowing the writ petition: W.A. No.784 of 2022 Page 6 of 37 “8. issued providing In the light of the judgment in Rajendra Kumar Das, mentioned supra [State of Odisha Vrs. Rajendra Kumar Das, AIR 2003 SC 1009 = (2003) 10 SCC 411], after lapse of five years of implementation of the said judgment of the apex Court, an office order dated 07.05.2008 was the modalities for promotion to the post of ‘Daftary’ and consequential approval of 4th peon in that School as per the prevalent yardstick, which is evident from Annexure-10 to the rejoinder affidavit filed by the petitioner. Thereby, as per the law laid down by the apex Court read with the modalities provided by the State Government, vide order dated 07.05.2008, large number of 4th Peons have been approved in those Schools. This fact is elucidated in Annexure-10 to the rejoinder affidavit filed by the petitioner. As such, there is no denial of such document by filing any reply by the opposite parties. After approval of in consequential vacancy, this Court 4th peon the directed interregnum period as per the judgment of this Court in Prasanna Kumar Rout Vrs. State of Odisha and others (WP (C) No. 3472 of 2014 disposed of on 30.10.2017). for payment of their salary in 9. So far as the case in hand is concerned, instead of approving the post of the petitioner as a 4th peon in the consequential vacancy, his appointment was cancelled in gross violation of principle laid down by the apex Court in Rajendra Kumar Das and Deepak Kumar Sahoo [Dipak Kumar Sahoo Vrs. State of Odisha, 1999 (II) OLR 176], mentioned supra, which cannot sustain in the eye of law. 10. In view of the law laid down by the apex Court, as well as this Court and as per the resolution passed W.A. No.784 of 2022 Page 7 of 37 by the Government, on the point in issue, the order dated 11.03.2013 passed by the District Education Officer in Annexure-8 cancelling approval of the post held by the petitioner, cannot sustain in the eye of law. Thereby, the said order is liable to be quashed and is accordingly, quashed. The matter is remitted back to the District Education Officer, Balasore with a direction to approve the appointment of the petitioner against the post of 4th peon as per the yardstick laid down in order dated 08.07.1981, which was in force, and since the roll strength of the school was more than 100, the post of 4th peon, against which the petitioner was appointed, was justified as per the yardstick. The entire action shall be taken as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment.” THE WRIT APPEAL: 6. The functionaries of the State of Odisha as appellants preferred this intra-Court appeal on the grounds inter alia that the learned Single Judge committed gross error by allowing the writ petition inasmuch as there was no concept of post of 4th peon and as such he should have upheld the decision of the authorities in withdrawing the approval accorded to an invalid appointment. It is further ground of attack that initially the roll strength of School as per yardstick specified in G.O. No.28465/EYS of the Education & Youth Services Department of the Government of Odisha was required to be 100 students, so as to justify one post of “daftary”, but said number W.A. No.784 of 2022 Page 8 of 37 was enhanced to 500 in the year 1992. Therefore, it is submitted by the appellants that “since the post is non- existent and beyond yardstick, therefore the Office Order No.11343 dated 07.09.1998 and No.9501 dated 10.07.1999 were withdrawn”. HEARING OF THE WRIT APPEAL: 7. This matter was on board on 27.02.2024 under the heading “Admission”. Counsel for the both sides conceded that this case has a chequered career and the dispute has been continuing since long. Therefore, this Court took up the matter for final hearing and heard Sri Sangram Keshari Jena, learned Additional Government Advocate for the appellants and Sri Kunal Kumar Swain assisted by Sri Soubhagya Chandra Devdash, learned Advocates for the respondent. SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES: 8. Stemming on the grounds of appeal, Sri Sangram Keshari Jena, learned Additional Government Advocate urged that since there was no concept of appointing 4th peon in School, the authorities, upon scrutiny of records after taking over of the aided school by the Government of Odisha by virtue of Resolution dated 16.12.1994, have taken right decision vide Order dated 25.06.2001 withdrawing/revoking the approval accorded to such post on 07.09.1998, inasmuch as the 4th post is a non- existent post and beyond the yardstick specified by the W.A. No.784 of 2022 Page 9 of 37 Government of Odisha in Education & Youth Services G.O. No.28465/EYS, dated 08.07.1981, as modified in 1992. 8.1. Drawing distinction on facts which turned on rendering of decision in State of Odisha Vrs. Rajendra Kumar Das,