The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.334 of 2022 Sabita Sahoo ..... Appellant Mr. S.S. Pratap, Advocate State Of Orissa & Ors. -versus- ..... Respondents Mr. S. Jena, AGA Mr. A. Swain, Advocate on behalf of Mr. S.B. Jena, Advocate (Respondent No. 4) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 26.07.2024 Order No. 10 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.S. Pratap, learned counsel appearing for the Appellant, Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State and Mr. Abinash Swain, learned counsel appearing on behalf of Mr. S.B. Jena, learned counsel for Respondent No. 4. 3. Appellant has filed the present appeal challenging the Judgment dtd.17.06.2022 so passed by the State Education Tribunal (in short Tribunal) in GIA Case No. 200 of 2014. Vide the said Judgment claim of the Appellant for quashing of order dtd.13.01.2011 and order dtd.11.10.1999 so passed by the Respondent No. 2 and for a direction on the State-Respondents to approve the appointment of the Appellant as against the 1st post of Lecturer in Odia in Kalinga Womens’ College, Tigiria was rejected. Page 1 of 8. 4. Learned counsel appearing for the Appellant contended that Appellant was appointed as against the 1st post of Lecturer in Odia in Kalinga Womens’ College, Tigiria vide order of appointment issued on 03.05.1997. Pursuant to the said order Appellant joined in the college on 02.06.1997. 4.1. Learned counsel for the Appellant contended that Private Respondent No. 4 who was earlier continuing as against the post in question, was subsequently terminated vide order dtd.09.09.1997 of the Secretary of the Governing Body of College. Challenging such order of termination, Private Respondent No. 4 moved the Director by filing an appeal on 15.09.1997. Respondent No. 2 vide order dt.30.08.1999, so forwarded vide letter dt.11.10.1999 under Annexure-9 allowed the appeal with a direction on the Governing Body to reinstate Private Respondent No. 4 in her former post of Lecturer in Odia in the College and to allow her to resume her duties.
Legal Reasoning
same, Appellant approached this Court in W.P.(C) No. 5885 of 2010 and this Court vide order dtd.31.03.2010 directed for expeditious disposal of the appeal. However, Respondent No. 2 vide order dtd.13.01.2011 when rejected the appeal, Appellant challenging the same once again approached this Court in W.P.(C) No. 4736 of 2011. This Court vide order dtd.02.04.2014 though on the one hand granted liberty to move the Tribunal under Sec. 24-B of the Odisha Education Act, but on the other hand directed the Registry to transfer the brief to the Tribunal for its disposal in accordance with law. However, in terms of the liberty granted by this Court, Appellant filed GIA Case No. 200 of 2014 before the Tribunal inter alia with the following prayer:- i) ii) iii) iv) “It is therefore prayed that this Hon’ble Tribunal may graciously be pleased to:- Admit the Grant-in-aid application; Call for the records; Issue necessary directions for set aside/quashed the Order dated 13.01.2011 of the Director, O.P. No. 2 passed in the appeal dated 30.01.2010 filed by the applicant vide Annexure No. 15 and also the Order No.47061 dated 11.10.1999 passed in the Appeal dated 11.11.1997 filed by Mrs. P. Sarangi (O.P. No. 4) vide Annexure-10; and also direction for the approval of appointment of Applicant shall be construed as only post in Oriya in the Kalinga Women’s College, Tigiria of Cuttack district. Issue necessary directions to the Opp. Parties, particularly Opp. Party No. 1 and 2 by quashing the approval of appointment O.P. No. 4 to approve the appointment of the applicant as against 1st post in Oriya in terms of GIA Order, 2008, with effect from his eligibility and to release all Page 3 of 8. consequential service benefits including the financial benefits in terms of the said Grant-in-Aid Order, 2008 with effect from his eligibility within a time stipulated by this Hon’ble Tribunal; pass And/or order/orders, such direction/directions as this Hon’ble Tribunal may deem fit and proper to the ends of natural justice; other And for this act of kindness the Applicant is in duty bound shall ever pray.” 4.3. It is contended that Appellant was not only appointed as against the post of Lecturer in Odia vide order of appointment issued on 03.05.1997, but also she was allowed to continue as against the said post on the face of the order passed by Respondent No. 2 in favour of Private Respondent No. 4 vide order dtd.30.08.1999. 4.4. It is contended that only when the College became eligible and entitled to get the benefit of Grant-in-aid under GIA Order, 2008, Private Respondent No. 4 though was not continuing as against the post in question, but her name was illegally recommended by the Governing Body for approval for the purpose of release of Grant-in- aid. Even though challenging such action of the Governing Body, Appellant moved Respondent No. 2 by filing an application on 30.01.2010, but without proper appreciation of the same, Respondent No. 2 rejected the same vide order dtd.13.01.2011. Accordingly, Appellant challenging earlier order passed by the Respondent No. 2 in favour of Private Respondent No. 4 on 30.08.1999 so communicated on 11.10.1999 and the subsequent order passed on 13.01.2011, wherein claim of the Appellant was rejected, approached the Tribunal by filing GIA Case in terms of the liberty granted by this Court. Page 4 of 8. 4.5. It is however contended that the Tribunal without proper appreciation of the claim of the Appellant so made and without verifying as to whether Respondent No. 4 after being allowed to be reinstated vide order dt.30.08.1999 continued in the said post on the face of the recommendation mad by the Governing Body as well as by the Principal of the College, rejected the claim vide impugned Judgment dtd.17.06.2022. It is accordingly contended that the impugned Judgment is not sustainable in the eye of law. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made submission in support of the impugned Judgment so passed by the Tribunal. It was preliminary contended that though there is no dispute that the Appellant was appointed as against the post of Lecturer in Odia vide order of appointment issued on 03.05.1997, but by that time Private Respondent No. 4 was continuing as against the said post, as only on 09.09.1997 Private Respondent No. 4 was terminated from her services. It is accordingly contended that since by the time Appellant was appointed as against the 1st post of Lecturer in Odia Respondent No. 4 was holding the post, the very appointment of the Appellant is not sustainable in the eye of law and such an order of appointment was issued against a non-existent post. 5.1. It is also contended by the learned Addl. Govt. Advocate appearing for the State that pursuant to the order passed by the Director on 30.08.1999, Private Respondent No. 4 was not only reinstated but also was allowed to continue. Taking that thing into account and after the College became eligible to get the benefit of Grant-in-aid, her name was recommended by the Governing Body for her approval as against the post of Lecturer in Odia. Respondent No. 2 vide office order dtd.22.08.2015 also approved the services of Page 5 of 8. Private Respondent No. 4 as against the 1st post of Lecturer in Odia. But the order of approval was never challenged by the Appellant at any point of time. By virtue of order passed on 22.08.2015 Private Respondent No. 4 is continuing as against the post of Lecturer in Odia and getting the benefit of Grant-in-aid as due and admissible. 5.2. Learned Addl. Govt. Advocate also raised an objection with regard to maintainability of the GIA case in view of the provisions contained under Sec. 24-B (2) & (4) of the Odisha Education Act. It is contended that since the GIA case was filed challenging an order passed by Respondent No. 2 in the year 1999 and another order passed in the year 2011, in view of the provisions contained under Sec. 24-B (2) & (4) of the Act, such an application is not entertainable. Sec. 24-B (2) & (4) of the Act reads as follows:- “(2) Any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressal of his grievance. xxxx xxxx xxxx (4) The Tribunal shall not admit an application under Sub-section (2), unless it is made within one year from the date of expiry of the period of two months referred to in Sub-section (3).” 5.3. Making all these submissions learned Addl. Govt. Advocate contended that the Tribunal has rightly rejected the claim of the Appellant and it requires no interference. 6. Learned counsel appearing on behalf of Private Respondent No. 4 also contended that in terms of the order passed on 30.08.1999, not only Private Respondent No. 4 was reinstated but also she is continuing as against the post in question with due approval of her services so issued vide order dtd.22.08.2015. It is also contended that Respondent No. 4 was duly appointed as against the post of Page 6 of 8. Lecturer in Odia vide order dt.26.08.1993, where she joined on the same date as reflected from Annexure-4 series. Respondent No. 4 was only terminated from her services vide order dt.09.09.1997 under Annexure-7. But prior to such termination of Respondent No. 4, the Appellant was appointed as against the post in question vide order dt.03.05.1997, where she joined on 02.06.1997 under Annexure-6 series. 6.1. It is accordingly contended that since the Appellant was appointed during the subsistence of the appointment of Respondent No. 4, the same is not only illegal but also non-existent in the eye of law. Not only that during pendency of the GIA case, services of Respondent No. 4 though was approved vide order dt.22.08.2015, but the same was never challenged at any point of time. 6.2. It is accordingly contended that in view of the order of approval issued on 22.08.2015, in favour of Respondent No. 4 and the continuance of the Respondent No. 4 as against the post of Lecturer in Odia as on date, Appellant is not entitled to get any relief. Learned counsel appearing for Respondent No. 4 also raised the question of maintainability of the GIA case on the face of the provisions contained under Sec. 24-B(2) & (4) of the Act. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Appellant was appointed against the post of Lecturer in Odia vide order of appointment issued on 03.05.1997. It is not disputed that by the time Appellant was so appointed, Respondent No. 4 was in service having been duly appointed vide order dt.26.08.1993 under Annexure-4 series as against the said post. It is also not disputed that Respondent No. 4 was only terminated from her services by the Page 7 of 8. Governing Body of the College vide order dtd.09.09.1997 under Annexure-7. As per the considered view of this Court, since Appellant was appointed on 03.05.1997 during subsistence of the appointment of Private Respondent No. 4, such order of appointment could not have been issued and such order of appointment issued in favour of the Appellant is per se illegal. 7.1. It is also found that Private Respondent No. 4 when was terminated vide order dtd.09.09.1997, the matter was carried before the Respondent No. 2 and her claim was allowed by Respondent No. 2 vide order dtd.30.08.1999 under Annexure-9. Appellant never challenged the said order till the GIA case was filed in the year 2014. Not only that order rejecting the claim of the Appellant was also passed by Respondent No. 2 on 13.01.2011. Therefore, in view of the provisions contained under Sec. 24-B (2) & (4) of the Act, the GIA case filed in the year 2014 was not maintainable. 7.2. It is also found from the record that during pendency of the GIA case, services of Private Respondent No. 4 though was approved vide office order dtd.22.08.2015, Appellant never chose to challenge the said order. In terms of the order Respondent No. 4 is not only continuing as against the post of Lecturer in Odia but also in receipt of Grant-in-aid. 8. In view of the aforesaid analysis, this Court finds no illegality or irregularity with the impugned Judgment and dismiss the appeal accordingly. Signature Not Verified Digitally Signed Sneha Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Aug-2024 18:22:46 (BIRAJA PRASANNA SATAPATHY) Judge Page 8 of 8.
Arguments
4.2. Learned counsel for the Appellant contended that even though claim of the Private Respondent was allowed vide order dtd.30.08.1999, but in the documents submitted by the College before the Council of Higher Secondary Education, Odisha, name of the present Appellant was indicated as against the post of Lecturer in Odia with his date of joining as 06.05.1997. It is also contended that Principal of the College vide letter dtd.10.08.2007 while moving the Controller of Examination, Council of Higher Secondary Education, Odisha also clearly indicated that Private Respondent No. 4 is not in service in the College. It is contended that while the matter stood thus and the College became eligible to get the benefit of Grant-in-aid under Grant-in-aid Order, 2008, the Page 2 of 8. Governing Body of the College when recommended the claim of Private Respondent No. 4 to get the benefit of approval as against the post of Lecturer in Odia, Appellant filed an appeal before the Respondent No. 2 on 30.01.2010. As no decision was taken on the