The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No. 309 of 2022 An application under Order XLVII, Rule-I Code of Civil Procedure and under the Orissa High Court Rules. Chandan Pradhan …. Petitioner --------------- -versus- State of Odisha and others …. Opp. Parties Advocate(s) appeared in these cases:- For Petitioner
Legal Reasoning
: Mr. S. Mohanty, S.S. Mohapatra, A.K. Jena, A.P. Rath, P. Sinha, P.K. Das A. Biswal and C.K. Panda, Advocates. For Opp. Parties : Mr. B.P. Tripathy, [Additional Government Advocate] __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16th May, 2023 SASHIKANTA MISHRA, J. Heard Mr. Satyabrata Mohanty, learned counsel for the petitioner and Mr. B.P. Tripathy, learned Additional Government Advocate for the State. Page 1 of 7 2. Mr. Mohanty submits that the present application for review has been filed on the ground that a decision of the Apex Court rendered in the case of Saktipada Mohapatra vs. State of Odisha and others (Civil Appeal No. 1215 of 2022), decided on 02.02.2022, was inadvertently not placed before this Court at the time of final hearing of the writ petition. As a result, this Court, though granted relief to the petitioner, yet taking note of the fact that the post of Sikshya Sahayak has been abolished, directed the authorities to consider his case sympathetically by considering his case for appointment against any equivalent post. Mr. Mohanty submits that on an identical fact situation, the Apex Court in the case of Saktipada Mohapatra (supra) granted relief to the petitioner therein by directing the concerned authorities to appoint him as Sikshya Sahayak on notional basis, since the post of Sikshya Sahayak has been abolished. Mr. Mohanty further contends that after abolition of the post of Sikshya Sahayak the incumbents have been regularized as Assistant Teacher and since this Court found the petitioner to have been wrongly left out of appointment as Sikshya Page 2 of 7 Sahayak, he should also be granted similar relief notionally so that he can be absorbed as Assistant Teacher. 3. Mr.B.P. Tripathy, on the other hand, has opposed the prayer of the petitioner by submitting that the relief claimed is no longer available to be granted, once the post is abolished. 4. By judgment dated 29.09.2022, this Court found that the petitioner, despite being selected for appointment as Sikshya Sahayak was deprived of such appointment as a Sports identity card had not been issued in his favour though he was eligible for the same. After analyzing the relevant Government Circulars/resolutions and the point of law involved, this Court further found that the decision of the Government justifying non-issue of the Sports identity card in favour of the petitioner cannot be countenanced in law and therefore, the same was quashed, But as regards the relief to be granted, this Court found that the scheme of Sikshya Sahayak had been abolished by the Government in 2019. Thus taking note of a decision of the Apex Court in the case of Balakrushna Behera v. Satya Prakash Page 3 of 7 Dash, reported in (2008) I SCC 318, this Court did not grant him the relief sought for. 5. A reading of the decision in Balakrushna Behera (supra) reveals that the same was issued generally restraining Courts from directing appointments to be made where the post in question had been abolished. On the other hand, the decision in Saktipada Mohapatra (supra) specifically relates to the effect of abolition of the post of Sikshya Sahayak. To the above extent therefore, this Court is persuaded to hold that the decision in Balakrushna Behera can be distinguished on the facts of the present case and that the decision in Saktipada Mohapatra (supra) would squarely apply to the case. Since the decision in Sakitapada Mohapatra (supra) was not brought to the notice of the Court at the time of hearing of the case, the direction to the opposite parties to consider the case of petitioner for appointment against any equivalent post is obviously an error apparent on the face of the record. This Court, therefore holds that this is a fit case to exercise its power of review in respect of Page 4 of 7 the judgment dated 29.09.2022 only to the extent of the relief granted therein. 6.
Decision
In the result, the application for review is allowed. The judgment dated 29.09.2022 passed by this Court in W.P. (C) No. 9243 of 2018 is modified only to the extent of substituting paragraphs-20 to 22 therein with the following paragraphs:- “20. Given the facts of the case and the law involved therein the question that now arises is what relief can be granted to the petitioner. Obviously, this Court having held that the impugned order dated 03.05.2018 followed by order dated 11.05.2022 cannot be sustained in the eye of law for the reasons spelt out in detail in the preceding paragraphs, resultantly, the said orders are quashed. The opposite party No.5 is directed to issue Sports identity card in favour of the petitioner within a period of four weeks. The petitioner has also prayed for direction to appoint him a Sikshya Sahayak. It is stated at the bar that the Scheme of Sikshya Sahayak has in the meantime been abolished by the Government since Page 5 of 7 the year, 2019. This Court however, finds that in the case of Saktipada Mohapatra vs. State of Odisha and others (Civil Appeal No. 1215 of 2022), decided on 02.02.2022, the Apex Court, despite taking note of the fact of abolition of the post of Sikshya Sahayak directed the authorities to consider the case of appellant and appoint him as Sikshya Sahayak on notional basis and also held that he shall be entitled for all notional benefits including pay scale and seniority, to which he is entitled to under law. Since the same issue is involved in the present case, this Court is also persuaded to issue similar directions to the concerned authorities. 21. For the foregoing reasons therefore, the authorities are directed to consider the case of the petitioner for his appointment as Shikshya Sahayak on notional basis. It is made clear that the petitioner shall be entitled to pay scale and seniority only notionally and shall not be entitled to any salary for the period, he has not worked. His services shall be reckoned from the Page 6 of 7 date persons lower in order of merit than him were appointed as Sikshya Sahayak and the period of service notionally shall be considered as qualifying service for all purposes including regularization of his services w.e.f. the date similarly placed, Sikshya Sahayaks were made regular Assistant Teachers. 22. The writ petition is disposed of accordingly. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack Dated 16th May, 2023, B.C. Tudu/Sr.Steno Page 7 of 7