The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A Nos.1398 and 1399 of 2024 Sri Pratap Kumar Pahi, Son of late Nabakishore Pahi, At present working as an Asst. Teacher (CBZ), in Govt. High School, Panikoili, At/P.O.Panikoili, Dist.-Jajpur -Versus- …Appellant. 1. State of Odisha, represented through the Commissioner-cum- Secretary, Department of School and Mass Education, Odisha, Bhubaneswar, At-Lokseva Bhawan, Bhubaneswar, Dist.- Khurda. 2. Director, Secondary Education, Odisha, Bhubaneswar, Dist- Khurda. 3. District Education Officer, Jajpur, At/P.O/Dist.- Jajpur. 4. Kumarsen Senapati, at present selected as District Science Supervisor in the office of DEO, Jajpur, At/P.O/Dist.- Jajpur. …Respondents Advocates appeared in the cases: For the Appellant: Jitendra Kumar Mishra
Legal Reasoning
Mr. Advocate (2), For Respondents No.1 to 3: Mr. Saswat Das, Additional Government Advocate W.A Nos.1398 and 1399 of 2024 Page 1 of 8 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 29.07.2024 Chakradhari Sharan Singh, CJ. 1. These two intra-Court appeals filed by the same appellant have been heard together in the facts and circumstances delineated hereinbelow. 2. The appellant-petitioner had filed W.P.(C) No.42079 of 2023 putting to challenge an order dated 05.09.2023 passed by the Director, Secondary Education, State of Odisha (respondent No.2). It was his claim that in terms of guidelines issued by the Government of Odisha in the School & Mass Education Department on 07.07.2021, the selection and appointment to the post of District Science Supervisor (‘DSS’ for short) had to be made. However, without following the guidelines, the name of respondent No.4 was approved by respondent No.2 by the impugned order dated 05.09.2023 based on a recommendation made by the District Education Officer, Jajpur (‘DEO’ for short) on 28.06.2023. It was his contention that since the said recommendation by the DEO and the approval by respondent No.2 were contrary to the guidelines issued on 07.07.2021, the same were not sustainable in the eye of law. 3. It is pertinent to note that respondent No.4 had also filed a writ application giving rise to W.P.(C) No.32130 of 2023 asserting that W.A Nos.1398 and 1399 of 2024 Page 2 of 8 based on the aforesaid recommendation dated 28.06.2023 and approval dated 05.09.2023 for his posting as DSS was not being carried out by DEO. The said writ application was disposed of by an order dated 03.10.2023 requiring respondent No.2 to take a decision on the claim of respondent No.4. Pursuant to the aforesaid order dated 03.10.2023, respondent No.2 vide order dated 18.12.2023 affirming his earlier order dated 05.09.2023, directed DEO to transfer respondent No.4 and post him as DSS within one week from the date of the interim order. 4. In the meanwhile, an interim order was passed on the writ application i.e. W.P.(C) No.42079 of 2023 filed by the appellant, because of which the said order of respondent No.2-Director, Secondary Education, Odisha dated 18.12.2023 could not be complied with by respondent No.3. Respondent No.4 having learnt that in the meantime a fresh notice had been issued by respondent No.3 on 22.09.2023 for selection and recommendation from amongst eligible teachers for their posting as DSS, he approached this Court again by filing another writ application, which gave rise to W.P.(C) No.42661 of 2023. It was the case of respondent No.4 in the said writ application that the appellant’s plea of applicability of the guidelines issued on 07.07.2021 was completely misconceived as they were only draft guidelines, not at all enforceable. Respondent No.4 took a plea that the appellant had never objected to the recommendation made by respondent No.3 on 28.06.2023 nor the approval made by respondent No.2 on 05.09.2023. The respondent No.4 pleaded that pursuant to this Court’s order dated 03.10.2023, the order passed by respondent No.2 W.A Nos.1398 and 1399 of 2024 Page 3 of 8 on 05.09.2023 was upheld by an order dated 18.12.2023. Accordingly, he contended that the prayer made by the appellant in W.P.(C) No.42079 of 2023 was not tenable. As both the cases i.e. W.P.(C) No.42079 of 2023 and W.P.(C) No.42661 of 2023 related to the same dispute concerning posting as DSS, they were heard together by the learned Single Judge. 5. It was the stand of the State Government before the learned Single Judge that the guidelines dated 07.07.2021 relied on by the appellant were merely draft guidelines, which had not been approved and, therefore, based on the guidelines issued by respondent No.2 on 13.06.2017, respondent No.3 had recommended the name of respondent No.4 for his posting as DSS, which was approved by respondent No.2 by an order dated 05.09.2023. 6. During the course of hearing before the learned Single Judge, the appellant refuted the plea of non-applicability of guidelines dated 07.07.2021 taken on behalf of the respondents. He also contended that in terms of the guidelines issued by respondent No.2 on 13.06.2017 though respondent No.3 was required to suggest five names, he recommended the name of respondent No.4 only, which was approved by respondent No.2 on 05.09.2023. 7. The fact remained however that the appellant had never assailed the recommendation made by respondent No.3 on 28.06.2023 nor the approval made in favour of respondent No.4 on 05.09.2023. W.A Nos.1398 and 1399 of 2024 Page 4 of 8 8. Learned Single Judge, after having examined the rival pleadings of the parties and having taken into account the submission advanced on their behalf, reached a conclusion that the so-called guidelines dated 07.07.2021 were merely draft guidelines in the absence of any material to show that the said draft guidelines had been approved. Accordingly, the guidelines issued by respondent No.2 on 13.06.2017 were required to be followed in the matter of posting as DSS. Learned Single Judge further noted that though the said guidelines dated 13.06.2017 required the DEO to suggest five names but only one name of respondent No.4 was suggested, which was approved by respondent No.2 also. Subsequently, in the light of the order dated 03.10.2023 passed in W.P.(C) No.32130 of 2023 by this Court on the writ application filed by respondent No.4, respondent No.2 upon due consideration had upheld his order dated 05.09.2023 by an order dated 18.12.2023. Learned Single Judge further noted that the appellant had never assailed the recommendation made by the DEO on 28.06.2023 nor the approval made on 05.09.2023, before passing of the order dated 18.12.2023. Learned Single Judge, in that background, found that the appellant did not have any locus standi to question the said order dated 05.09.2023, which was reiterated subsequently by respondent No.2 by an order dated 18.12.2023. 9. Learned Single Judge dismissed W.P.(C) No.42079 of 2023
Decision
filed by the appellant and disposed of W.P.(C) No.42661 of 2023 filed by respondent No.4 with a direction to act upon the order dated 05.09.2023 and 18.12.2023 issued by respondent No.2. W.A Nos.1398 and 1399 of 2024 Page 5 of 8 10. After disposal of the aforesaid two writ applications, the appellant filed another writ application giving rise to W.P.(C) No.8161 of 2024. This time, on the basis of the information which he had received under the Right to Information Act (‘RTI’ Act for short), asserted that the appellant after receipt of letter dated 05.09.2023 and 15.09.2023, he had requested respondent No.2 on 30.09.2023 for re- verification of the approval orders, their being irregularity in issuance of the proposal dated 28.06.2023. For the first time, in the second writ application, the appellant alleged mala fide against respondent No.3 without impleading him in his individual capacity. He asserted that not only the appellant but the association of the employees had also complained to the successor respondent No.3 for necessary action. 11. Evidently, the appellant sought review of this Court’s order dated 04.01.2024 passed in W.P.(C) No.42079 of 2023 in the garb of writ application i.e. W.P.(C) No.8161 of 2024 based on the subsequent information, which he had received under the RTI Act impugning the same proposal dated 28.06.2023 of respondent No.3, approval made by respondent No.2 dated 05.09.2023 and the confirmation of the order dated 05.09.2023 by an order dated 15.09.2023. He took a plea before the learned Single Judge that since certain relevant facts could not be brought to the notice of this Court, the order was passed in the earlier proceeding on 04.01.2024. He accordingly requested reviewing of the earlier order. The said W.P.(C) No.8161 of 2024 has been dismissed by the learned Single Judge by an order dated 01.05.2024 in view of the earlier adjudication made in W.P.(C) No.42079 of 2023 and W.P.(C) No.42661 of 2023. W.A Nos.1398 and 1399 of 2024 Page 6 of 8 12. Assailing the order dated 04.01.2024, the appellant has preferred W.A. No.1398 of 2024. The order dated 01.05.2024 is under challenge in W.A. No.1399 of 2024. 13. These are the background facts in which both the intra-Court appeals have been heard together and are being disposed of by the present common judgment and order. 14. Leaned counsel appearing on behalf of the appellant has vehemently argued that the learned Single Judge has committed an error by holding that the guidelines issued on 07.07.2021 were merely draft guidelines and the earlier guidelines issued on 13.06.2017 by respondent No.2 were applicable. He has submitted that in any case, even according to 13.06.2017 guidelines, five names were required to be proposed by respondent No.3, but in the present case only one name was recommended, which was approved by respondent No.2, which is contrary to the guidelines. He has submitted that learned Single Judge ought to have entertained the second writ application wherein the appellant had brought on record all the relevant materials, which were not earlier available to him, but could be obtained later under the RTI Act. 15. It is apparent that the matter relates to posting of a science teacher as the DSS based on certain guidelines issued by respondent No.2. Respondent No.2 is apparently the competent authority to post a science teacher on that post. The guidelines so issued have no statutory force. In any view of the matter, the respondent No.2 posted W.A Nos.1398 and 1399 of 2024 Page 7 of 8 respondent No.4 as DSS on the proposal made by respondent No.3. There was no allegation of mala fide against anyone in the earlier round of litigation. In the second round of litigation, the appellant, for the first time, alleged mala fide against respondent No.3 without impleading him in his individual capacity. Further, conduct of the appellant by filing second writ application for the selfsame relief based on information he subsequently obtained under the RTI Act is deplorable. We strongly condemn the conduct of the appellant for filing the second writ application. 16. In view of the above, we do not find any reason to interfere with the order passed by the learned Single Judge dated 04.01.2024 passed in W.P.(C) No.42079 of 2023, as we do not find any such legal infirmity requiring this Court’s interference in an intra-Court appeal i.e. W.A. No.1398 of 2024. Keeping in mind the conduct of the appellant, W.A. No.1399 of 2024 is totally misconceived. Filing of W.P.(C) No.8161 of 2024 and W.A. No.1399 of 2024, in the Court’s opinion, is an abuse of the process of the Court and accordingly WA No.1399 of 2024 is dismissed with a cost of Rs.5,000/- to be deposited in the High Court’s Bar Association Advocates’ Welfare Fund. (Chakradhari Sharan Singh) Chief Justice M. Panda, Secy. Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2024 17:37:42 (Savitri Ratho) Judge W.A Nos.1398 and 1399 of 2024 Page 8 of 8