The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK F.A.O. No. 399 of 2023 (In the matter of an appeal under Section 24-C of the Odisha Education Act). Sudhir Kumar Rout … Appellant -versus- State of Odisha and others … Respondents For Appellant : Mr. S.K. Das, Advocate For Respondents : Mr. M.K. Khuntia, AGA (For R-1to 3) Mr.D.K. Mohapatra, Advocate(For R-5) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :02.11.2023 DATE OF JUDGMENT:20.12.2023 G. Satapathy, J. 1. Instant appeal stated to be filed U/S 24-C of the Odisha Education Act, 1969 (in short “the Act”) seeks for quashing of order passed on 02.09.2022 by the learned Presiding Officer, State Education Tribunal, Bhubaneswar (SET) in G.I.A Case No. 106 of 2020 allowing the intervener-petitioner(R-5) to be arrayed as a party “OP No.5” in the said proceeding F.A.O. No. 399 of 2023 Page 1 of 17 and consequently, refusing to review such order by way of another order passed on 04.08.2023. 2. Shorn of unnecessary details, the facts in precise are the appellant was appointed as a Lecturer in History in Abhimanyu Samanta Singhar College, Balia and he joined in service on 27.04.1992 and his post was approved by the Director on 12.11.2012 and the appellant being the senior most Lecturer of the College was allowed to function as the Principal- in-charge-cum-Secretary of the College by an order of approval of Director passed on 12.01.2017, but due to institution of W.P.(C) No. 22530 of 2012 by the Principal of said College challenging the separation of Degree College and Junior College, the appellant could not function as Principal-in-charge of the Degree College. However, on disposal of the writ petition on 08.04.2016, the appellant was once again approved as a Principal-in-charge-cum-Secretary of College by the order of Director passed on 02.08.2019. While the matter stood thus, due to some unverified allegation, the Regional Director F.A.O. No. 399 of 2023 Page 2 of 17 caused an enquiry behind the back of the appellant and directed withdrawal of Grain-in-Aid (GIA) of the appellant by an order passed on 29.10.2020 which is the subject matter of challenge in GIA Case No.106 of 2020 and accordingly, the learned State Educational Tribunal (in short “SET”) granted interim stay of operation of the impugned order passed on 29.10.2020 of Regional Director of Education, Odisha and during the pendency of GIA case, the State Government brought a guideline for appointment of Principal-in-charge and Head of the Department of Aided College to fix the inter-se seniority amongst the Lecturer in Block Grant Institution on the basis of their date of birth, but not on the basis of their date of joining and since there are other staff who are senior to him(appellant) in age, but joined later in
Facts
service, the appellant challenged the aforesaid guideline in W.P.(C) No. 33716 of 2020 to allow him to continue as Principal-in-charge, but despite the interim order passed in the writ petition, the State Government passed order on 19.01.2021 to remove F.A.O. No. 399 of 2023 Page 3 of 17 the appellant from the post of Principal and allowed OP No. 5 to function as Principal-in-charge notwithstanding to the fact that OP No.5 is not the immediate junior to the appellant, rather one Pravakar Jena was his immediate junior. Accordingly, the appellant filed Contempt Petition in CONTC No. 573 of 2021 and when notice was issued in the contempt petition, the State Government voluntarily restored the appellant to the post of Principal on 30.06.2021, but OP No.5(R-5) taking advantage of his illegal continuance as Principal of the Institution has filed an intervention application in GIA Case No. 106 of 2020 which was allowed by the P.O., SET and therefore, the appellant is before this Court in this appeal. 3.
Legal Reasoning
Division Bench of this Court in W.A. No. 424 of 2018 wherein a Division Bench while distinguishing the decision in Management of D.A.V. Public School(supra) by relying upon the decision of a three Judge Bench of Apex Court in Shah Babulal Khimji v. Jayaben D.Kania and another; AIR 1981 SC 1786 has held that the order passed by the learned Single Judge in not granting any interim order in favour of the appellant being an interlocutory order is not appealable one. What is an interlocutory order has not been defined precisely in CPC or in this Act, but it logically means that any order which is not F.A.O. No. 399 of 2023 Page 12 of 17 a final order and thereby, an interlocutory order does not decide the lis finally, however, orders deciding the right and liability affecting substantially the parties may be an appealable one notwithstanding to the fact that it was passed during the pendency of the proceeding which is in very essence provided in Section 104 of the CPC and Order 43 Rule 1 of the CPC. However, Section 105 of the CPC lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction. In this case, the appellant challenges the order passed by the Tribunal allowing the intervention application appears to be an interlocutory order and thereby, no appeal would lie against such order. 8. Even on merits, accepting but not admitting the contention of the appellant that the impugned order is an appealable one, it has to satisfy the provision of Section 24-C of the Act which starts with the sentence “any person aggrieved by an order or decision or judgment of the Tribunal may prefer an F.A.O. No. 399 of 2023 Page 13 of 17 appeal”, but the appellant has failed to demonstrate as to how he was aggrieved by the impugned order which never decides the lis between the parties, rather it has allowed the intervener to contest the case which is in the interest of public policy that there should be an end to the litigation. Had the intervener being not impleaded as a party, he would have come with another proceeding before the Tribunal. Besides, it appears from the impugned order that after removal of the applicant as a officiating Principal-in- charge, he had challenged the same before the Tribunal in GIA Case No. 106 of 2020 and the intervener was working in the post of Principal-in- charge-cum-Secretary of Abhimanyu Samanta Singhar Degree College, but according to the applicant the appointment of intervener has no legal basis, however, the learned Tribunal finding the intervener to have subsisting interest in the lis in GIA Case No. 106 of 2020 has allowed the intervention application by the impugned order. A careful perusal of the impugned order would no where go to disclose F.A.O. No. 399 of 2023 Page 14 of 17 about the final decision in the lis nor it decides the right and liability conclusively affecting the applicant(Appellant) and by the impugned order, the intervener who is Respondent No.5 herein has been allowed to contest the proceeding. Further, the appellant could not reasonably demonstrate as to how prejudice is caused to him by mere adding the intervener as a party to the GIA case by the Tribunal. Further, the appellant has also preferred an application before the Tribunal to recall the order on the ground that he was absent at the time of hearing of the intervention application, but that too, was rejected by the Tribunal. The sequence of events described in the facts of the case would go to disclose that the impugned order does not suffer any infirmity; rather the same is otherwise in consonance with the public policy to put an end to the litigation by adjudicating the interse dispute between the parties. This Court, however, has failed to understand as to why the applicant is aggrieved by mere adding of the intervener as a party to the proceeding before F.A.O. No. 399 of 2023 Page 15 of 17 the Tribunal since the admitted facts disclose about keeping the intervener to the post earlier held by the appellant who can scrupulously pursue the litigation before the Tribunal to get his right adjudicated. In Vidur Impex and Traders Private Limited and others v. Tosh Apartments Private Limited and others; (2012) 8 SCC 384, the Apex Court has held that the Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 9. In view of the discussions made hereinabove coupled with conspectus of the sequence of events and on going through the materials placed on record together with the impugned orders, this Court does not persuade itself to hold the impugned orders to be illegal or arbitrary. F.A.O. No. 399 of 2023 Page 16 of 17 10.
Arguments
Mr. S.K. Das, learned counsel for the appellant has submitted that although R-5 is not a necessary party, but the learned P.O., SET has passed order allowing him to intervene in the GIA case as OP No.5, but the fact remains that no opportunity of hearing was provided to the appellant F.A.O. No. 399 of 2023 Page 4 of 17 and the impugned order was passed without hearing the appellant and OP No.4 the Governing Body of the College and thereby, the impugned order allowing the intervention application of OP No.5 is unsustainable in the eye of law. Mr. Das has further submitted that when the impugned order came to the knowledge of the appellant, he filed a review application which was also rejected by the P.O. SET vide Annexure-15 by holding that the Tribunal lacks jurisdiction to review its own order. On the aforesaid submissions, Mr.Das has prayed to allow the appeal by quashing the impugned orders of the Tribunal. In reply, Mr.Khuntia, learned AGA appearing for R-1 to 3, however, by supporting the impugned order has submitted that since no prejudice is caused to the appellant by addition of R-5 as a party to the GIA case, the present appeal being unmerited is liable to be dismissed. Mr. D.K. Mohapatra, learned counsel appearing for O.P. No.5-cum-Intervener by taking this Court through intervention petition and the objection of the appellant to such intervention F.A.O. No. 399 of 2023 Page 5 of 17 petition has submitted that the impugned order does not suffer from any illegality or infirmity and thereby, calls for no interference. Further, Mr.D.Mohapatra, while vehemently opposing the prayer of the appellant has submitted that since R-5 being a necessary party to the proceeding, his impletion in GIA case cannot be questioned and accordingly, he has prayed to dismiss the appeal. Since none has appeared for R-4 in the Tribunal, it was not heard by the Tribunal and therefore, the present appeal was taken up without issuing notice to R-4. 4. In the course of argument, an important question of maintainability of the present appeal against the impugned orders arose, but Mr. S.K. Das by relying upon the provision of Section 24-C of the Act and some decisions has submitted that the impugned order is not an interlocutory order so as to bar an appeal from order. On the other hand, Mr. M.K. Khuntia, learned AGA by relying upon the order passed on 04.12.2018 by a Division Bench of this Court in W.A. No. 424 of 2018 has submitted that the F.A.O. No. 399 of 2023 Page 6 of 17 impugned order is an interlocutory order and thereby, appeal against such interlocutory order is not maintainable. Further, Mr. Mohapatra has submitted that the impugned order being an interlocutory order, appeal against such interlocutory order is not maintainable. 5. After having considered the rival submissions upon perusal of record, this Court at the inception considers it appropriate to deal with the preliminary objection as to the maintainability of the appeal. For answering the issue of maintainability of the appeal, this Court considers it apt to refer to the provision contained in Section 24-C of the Act which reads as under: “24-C. Appeal to High Court- any person aggrieved by an order or decision or judgment of the Tribunal may prefer an appeal before the High Court within a period of sixty day’s from the date of such order or decision or judgment.” As noticed above, the word “order”, or “decision” or “judgment” has been referred to in Section 24-C of the Act, but it is contended on behalf F.A.O. No. 399 of 2023 Page 7 of 17 of the appellant that the aforesaid three words individually has not been defined either under the Act or under the Odisha Education (Tribunal) Rules, 1977 (in short “the Rules”). Further, it is advanced on behalf of the appellant that Section 24-B (5) of the Act stipulates that the Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, (in short, “CPC”), but Rule 26 of the Rules provides that the Tribunal may exercise inherent powers for the ends of justice as contemplated under Sections 151, 152 and 153 of the CPC and therefore, the definition as provided for judgment or decision or order of CPC has no application in the present case in hand. Although it is contended on behalf of the appellant that the provisions of CPC except the provision contained in Section 151 to 153 of the CPC has no application to the Act, but this Court cannot countenance or accept the aforesaid contention as advanced for the appellant inasmuch as no provisions contained in the Act or Rules has been brought to the notice of the F.A.O. No. 399 of 2023 Page 8 of 17 Court to exclude the applicability of CPC to the Act, more particularly in absence of any provision contrary to the Act. Additionally, the provisions as couched in Rule 26 of the Rules confers powers on the Tribunal to exercise inherent powers for the ends of justice as contemplated U/Ss. 151 to 153 of the CPC and there is no ambiguity in use of power U/S. 151 of the CPC which starts with a non-obstante clause with regard to exercise of inherent power by the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. Hence, this Court is of the conscious view that the provision of Section 151 of the CPC can be used for the ends of justice. 6. It is, however, contended on behalf of the appellant that the words used in Section 24-C of the Act denote that all the orders of the Tribunal are appealable one, but it appears to the Court that the very use of word “order” or “decision” or “judgment” in Section 24-C of the Act has to be considered in a pragmatic and realistic manner. Obviously, the word F.A.O. No. 399 of 2023 Page 9 of 17 “order” has not been defined in the Act, but the word “order” has been defined in CPC as the formal expression of any decision of a Civil Court which is not a decree. It is of course true that the Tribunal is not a Civil Court, but it has been provided with statutory powers U/S. 151 of the CPC and thereby, the definition as provided in order can be considered while interpreting the provision of Section 24-C of the Act which provides that any person aggrieved by an order or decision or judgment of the Tribunal may prefer an appeal before the High Court within the statutory period. It cannot be disputed that there must be an end to the litigation, but if we stretch the meaning of “order” as used in Sec.24-C of the Act to all the orders to be appealable one, there would be multiplicity of proceedings which is contrary to the intention of the law. Further, the very use of word “order” in the aforesaid section along with the word “decision” or “judgment” in alternative itself denote the meaning of final order, but the same must not include the interlocutory order which is not F.A.O. No. 399 of 2023 Page 10 of 17 appealable one. Learned counsel for the appellant has of course relied upon paragraph-14 of the decision in Union of India and another v. Deoki Nandan Aggarwal; AIR 1992 SC 96, but the same appears to be not applicable to the case at hand since this Court is not reading down any provision of the Act or Rules, rather it is considered by this Court that the provision of Section 24-C of the Act and Rule 26 of the Rules are plain and unambiguous and it confers power on the Court to exercise inherent jurisdiction U/s. 151 of the CPC for the ends of justice or to prevent abuse of process of Court. Further, since this Court is not interpreting any provision of the Act or Rules, the decision as relied on by the appellant in Union of India and another v. Hansoli Devi and others; AIR 2002 SC 3240 is of no avail for the appellant. Moreover, the decision relied on by the appellant in ERMC Mine Planning and Design Institute Limited v. Union of India and another; AIR 2001 SC 883 being on the point of intra Court appeal has no application in this case since the F.A.O. No. 399 of 2023 Page 11 of 17 appellant herein challenges the order passed by the Tribunal allowing intervention application of the intervener. 7. Further, the learned counsel for the appellant has albeit relied upon the decision in the Management of D.A.V. Public School, Chandrasekharpur v. State Government of Orissa; 2010(II) OLR 85, whereas the learned AGA has relied upon order passed on 04.12.2018 by a
Decision
In the result, the FAO sans any merit stands dismissed on contest, but in the circumstance there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 20th of December, 2023/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 20-Dec-2023 14:42:52 F.A.O. No. 399 of 2023 Page 17 of 17