The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36028 of 2022 In the matter of an application under Article 226 of the Constitution of India. ……………… Marry Tigga …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Ms. S. Jena, Adv. For Opp. Party : Mr. P.K. Panda, Addl. Standing Counsel (for O.P. Nos.1 to 3) Mr.A.K. Mishra-2, Advocate (for O.P. No.4) PRESENT: THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 14.05.2025 and Date of Judgment:14.05.2025 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement(Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. // 2 // 3. The present Writ Petition has been filed inter alia with the following prayer: It is therefore, prayed that this Hon’ble Court may graciously be pleased to admit this Writ Petition and notices be issued to the Opp. Parties and after hearing the parties appropriate writ/writs be issued with following direction; (a) Memo NO.2013 dtd.28.01.2021, vide Annexure-6 be quashed. (b) to the Opp. Party No.1 & 2 to approve the appointment of the Petitioner as an Asst. Techer at St. Joseph Girls Primary School, Hamirpur, Rourkela with effect from the date of joining i.e. dtd.08.08.1998. (c ) further direction be issued to extend the service as well as financial benefits as admissible under the law. (d) And pass such other order/orders, direction/directions as deems fit under the facts and circumstances of the case. And for this act of kindness the Petitioner shall as in duty bound ever pray. 4. Learned counsel appearing for the Petitioner contended that Petitioner was appointed as an Asst. Teacher in St. Joseph’s Girls Primary School, Hamirpur, Rourkela against a vacancy created due to retirement of one Christina Kullu vide order of appointment issued on 07.08.1998 under Annexure-2 series. Petitioner in terms of the said order joined in her services on 08.08.1998. After such joining of the Petitioner against an existing vacant sanctioned post duly approved by the State, when proposal was sent by the School seeking Page 2 of 13 // 3 // approval of the services of the Petitioner, the same was processed at the level of Opp. Party No.3. But vide letter dt.17.07.2001 under Annexure-3 series, Opp. Party No.4 was requested to submit the equivalency certificate of the training qualification from the Board of Secondary Education for the purpose of approval of her services. 4.1. Learned counsel appearing for the Petitioner contended that equivalency of the certificate so desired by Opp. Party No.3 vide letter dt.17.07.2001 was issued by the Board of Secondary Education on 05.06.2008 vide Annexure-4 series. After such receipt of the equivalency certificate from the Board when the proposal was again processed, Opp. Party No.2 vide letter dt.06.05.2009 under Annexure5 series requested the D.I of School, Rourkela (Opp. Party No.3 at present) to furnish various information for approval of the services of the Petitioner and for release of Grant-in-aid. Vide another letter issued on 27.03.2018, Opp. Party No.3 was again requested to submit various documents for approval of the services of the Petitioner for the purpose of release of Grant-in-aid. However, vide the impugned order dt.07.12.2020 under Annexure-6, claim of the Petitioner was rejected on the ground that prior approval since has not been taken by the Managing Committee of the School for appointment of the Petitioner against the post in question, Petitioner is not Page 3 of 13 // 4 // eligible to get her services approved for the purpose of release of grant-in-aid. 4.2. Learned Counsel appearing for the Petitioner contended that prior approval of the Government was made a requirement in terms of the resolution issued by the Government in the Department of School and Mass education on 28.02.2003 vide Annexure-E/3. As provided under Para 5(3) of the 2003 order which came into force from 01.04.2003, prior approval was made a requirement for appointment to any post admissible as per the prescribed yardstick. It is accordingly contended that since by the time the aforesaid Order namely; the Orissa Education (Minority Managed Aided Educational Institutions (Employees’ method of Recruitment and Conditions of Service) Order 2003 came into force w.e.f 01.04.2003, Petitioner had already been appointed vide order of appointment issued on 07.08.1998, the said rule cannot be made applicable to the claim of the Petitioner. It is accordingly contended that since Petitioner prior to coming into force of the aforesaid order was already appointed vide order of appointment issued on 07.08.1998 with date of her joining as 08.08.1998, no prior approval was required for the purpose of appointment of the Petitioner and that too against a vacancy caused due to retirement of an employee continuing against an approved sanctioned post. Page 4 of 13 // 5 // 4.3. In support of the aforesaid submission, reliance was placed to a recent decision of the Hon’ble Apex Court in the case of R. Ranjeet Singh & Others Vs. State of Tamil Nadu & Others, SLP (C) NOs.5137- 38 of 2021. Hon’ble Apex Court in its judgment dt.01.05.2025 in para 23 has held as follows: 23. The State Government after realizing its mistake has gone to the extent of giving retrospective effect in the matter of seniority meaning thereby giving a preferential treatment to the in-service candidates who are less meritorious and who have already been granted a concession by permitting them to appear under the 20% quota earmarked for them. In the considered opinion of this Court, the action of the State Government in amending the recruitment rules with retrospective effect is certainly violative of Articles 14,16 & 21 of the Constitution of India. A statute which takes away the right of an individual with retrospective effect deserves to be set aside by this Court. 4.4. It is further contended that since by the time Petitioner was appointed, no such prior approval was a requirement which came into force from 01.04.2003, the said provision cannot be made applicable to the claim of the Petitioner for approval of her services and consequential release of Grant-in-aid. It is also contended that Petitioner was appointed as against a vacancy caused due to the retirement of an employee, who was continuing against an approved sanctioned post. It is also contended that after retirement of the said employee, he has been sanctioned with pension by the Controller of Accounts vide PPO No.42732 w.e.f 01.04.2003. It is accordingly contended that rejection of Page 5 of 13 // 6 // the Petitioner’s claim on the ground indicated in Annexure-6 is not sustainable in the eye of law and the same is liable for interference of this Court.
Legal Reasoning
5. Mr. P.K. Panda, learned Addl. Standing Counsel on the other hand placing reliance on the stand taken in the counter affidavit contended that prior to such appointment of the Petitioner vide order of appointment issued on 07.08.1998, since prior approval of the Government was never taken in terms of the provisions contained under Para 5(3) of the aforesaid 2003 order so enclosed vide Annexure-E/3, claim of the Petitioner has been rightly rejected. Para 5(3) of the Order reads as follows:- “(3) The appointing authority shall obtain prior approval of the Government whenever any post becomes admissible as per prescribed yardstick, and thereafter may make appointment against such post. Appointment without prior approval of the post will be considered ineligible only for availing grant-in-aid.” 5.1. It is contended that no such document is available, showing prior approval having been taken by the Managing Committee of the School to appoint the Petitioner with issuance of order of appointment on 07.08.1998. It is also contended that as provided under Para-37 of the 2003 Order, the Rule though was notified w.e.f 01.04.2003, but it is made applicable to all such appointees, made prior to commencement of the Rule. Para 37 of the 2003 Order reads as follows: Page 6 of 13 // 7 // 37(1) All nonstatutory rules, instructions, orders, resolutions, corresponding to these orders and in force immediately before the commencement of these orders are hereby repealed. (2) All appointments made, orders issued or action taken against the employees of the institutions managed by the minority community prior to the commencement of these orders shall be deemed to have been made, issued of taken under these orders. 5.2. It is accordingly contended that since in terms of the provisions contained under para 5(3) r/w para 37 of the order, prior approval of the Government was never taken by the Managing Committee, appointment of the Petitioner is not legal and justified and accordingly Petitioner is not eligible to get the benefit of approval for the purpose of release of grant-in-aid. It is accordingly contended that Petitioner’s claim has been rightly rejected. 6. Considering the stand taken in the Writ Petition and the counter affidavit, this Court passed the following order dt.19.02.2025
Decision
Order 19.02.2025 1. This matter Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. taken up through Hybrid is 3. It is contended that claim of the Petitioner to get the benefit of approval with consequential release of grant-in-aid when was rejected by the Government in the Department of School & Mass Education on the ground that since the Managing Committee prior to appointing the Petitioner has not taken the approval of the Government, no approval can be extended. 4. Learned counsel appearing for the Petitioner contended that no such approval was required as the Page 7 of 13 // 8 // Petitioner was appointed vide order dtd.07.08.1998 under Annexure-2-Series. 5. Relying on the provisions contained under The Odisha Education (Minority Managed Aided Institutions Employees, Method of Educational Recruitment & Conditions of Services) Order, 2003, more particularly Para-5.3 of the said order, learned Addl. Standing Counsel for the State contended that such a prior approval is a requirement and the same having not been followed, claim of the Petitioner to get the benefit of approval has been rejected vide the impugned order. 6. To the submission made by learned Addl. Standing Counsel for the State, learned counsel for the Petitioner contended that the aforesaid order was notified in the Gazette Extra-Ordinary on dtd. 04.03.2003 and since Petitioner was appointed much prior to the said date, Para-5.3 is not applicable to the case of the Petitioner. 7. Learned Addl. Standing Counsel for the State prays for some time to obtain further instruction with regard to such requirement being in force at the time of appointment of the Petitioner. 8. As requested, list this matter in the week commencing 10th March, 2025. 7. Pursuant to the aforesaid order, learned Addl. Standing Counsel produced the instruction provided by the Opp. Party No.2. Basing on the instruction, it is contended that subsequent to coming into force of the 2003 order w.e.f 01.04.2003 vide notification dt.27.07.2016 so issued by Opp. Party No.1, it was made mandatory that Managing Committee of those minority managed institutions are to be approved by the concerned Directorate i.e. Directorate of Secondary Education and Directorate of Elementary Education, depending upon the category of school. Vide another notification issued on 07.10.2016, it was intimated that Page 8 of 13 // 9 // the Managing Committee of Minority Managed Educational Institution though are not required to take prior approval of Govt. before filling up the vacant sanctioned post, but such prior approval is required to be obtained, before issue of appointment order in order to get the required grant-in-aid. Stipulation contained in letter dated 07.06.2016 reads as follows:- 1 (i) the Managing Committees of Minority managed educational institutions need not take prior approval of Government before filling up of vacant sanctioned posts. (ii) However, Managing Committees need to obtain Government approval before issue of appointment orders to the selected candidates to enable them to get required Grant-in-Aid. The selected candidates will be entitled for G.I.A with effect from the date of Government approval. the 7.1. Basing on the notification issued on 07.10.2016, learned Addl. Standing Counsel contended that though the Managing Committee was authorised to fill up the vacant sanctioned post without prior approval, but such prior approval is a requirement for the purpose of release of Grant-in-Aid in favour of the petitioner. Basing on the said instruction, it is further contended that since prior approval has not been taken, even though services of the Petitioner will be approved, but she will not be eligible to get the benefit of grant-in-aid. 7.2. A further submission was also made that the institution in question since was notified as a minority managed institution vide notification issued by the Page 9 of 13 // 10 // Government in the Department of School and Mass Education on 26.10.2017, and at the time of appointment of the Petitioner, the Managing Committee was neither a valid one nor a approved one, the very appointment of the Petitioner is not legal and justified. 7.3. Making all these submissions, learned Addl. Standing Counsel contended that claim of the Petitioner has been rightly rejected and it requires no interference. 8. Basing on the affidavit filed by the Petitioner in Court today, learned counsel appearing for the Petitioner contended that in view of the decision of the Hon’ble Apex Court so passed in the case of R. Ranjeet Singh as cited (supra), Petitioner since was appointed prior to coming into force of 2003 order, right accrues in favour of the Petitioner cannot be taken away. It is also contended that since Petitioner was appointed as against an approved and sanctioned vacant post and the employee in whose vacant post Petitioner was appointed, is in receipt of pension vide PPO No.43732, Petitioner is eligible and entitled to get her services approved and also eligible and entitled to get the benefit of grant-in-aid from the date of her appointment. 9. Learned counsel appearing on behalf of Opp. Party No.3 on the other hand basing on the stand taken in the counter affidavit, supported the claim of the Petitioner and contended that Petitioner is eligible to get all the Page 10 of 13 // 11 // benefits as prayed for, as she was appointed against an approved vacant sanctioned post due to retirement of the earlier incumbent. 10. Having heard learned counsel for the parties and considering the submission made, this Court finds that Petitioner was appointed as an Asst. Teacher vide order of appointment issued on 07.08.1998 under Annexure-2 series by Opp. Party No.4. In terms of the said order, Petitioner joined in the school on 08.08.1998. After such appointment of the Petitioner when approval was sought for, vide letter dt.17.07.2021, the then D.I of school, Rourkela requested the Managing Committee to submit the equivalency certificate with regard to the training qualification acquired by the Petitioner from Board of Secondary Education, Orissa. 10.1. As found from the record, such equivalency was issued by the Board in favour of the Petitioner on 11.08.2008. After such issuance of the equivalency Certificate, claim of the Petitioner for approval of her services was further processed and various communication were made in between Opp. Party Nos. 2 & 3 as found from Annexure-5 series. However, vide the impugned order dt.07.12.2020, claim of the Petitioner was rejected by the Government-Opp. Party No.1 on the ground that prior approval since has not been taken by the Managing Committee before issuance of the Page 11 of 13 // 12 // appointment order, Petitioner is not eligible and entitled to get her services approved for the purpose of release of grant-in-aid. 10.2. As found such a stand was taken by the Opp. Party No.1 placing reliance on the provisions contained under Para 5(3) vis-(cid:224)-vis Para 37 of the 2003 order and further notification issued by the Government-Opp. Party No.1 on 27.07.2016 as well as on 07.10.2016. 10.3. Placing reliance on the decision of the Hon’ble Apex Court so cited supra in the case of R. Ranjeet Singh as cited supra, it is the view of this Court that since by the time Petitioner was appointed, no such rule was there requiring prior approval of the Government, it is the view of this Court that provisions contained under Para 5(3) read with Para 37 cannot be made applicable to the claim of the Petitioner as it takes away the right already accrued in her favour. It is also the view of this Court that since Petitioner was appointed as against an approved vacant sanctioned post and the said employee after taking retirement is enjoying the benefit of pension, Petitioner is eligible and entitled to get the benefit as prayed for. 10.4. Therefore, this Court is inclined to quash the impugned rejection so made by the Government-Opp. Party NO.1 on 07.12.2020 under Annexure-6. While quashing the said order, this Court directs Opp. Party Page 12 of 13 // 13 // Nos.1 to 3 to approve the services of the Petitioner and release the grant-in-aid as due and admissible from the date of her holding the post. 10.5. Since in the meantime, Petitioner has already retired from her services, Petitioner be also sanctioned pension and other pensionary benefits as due and admissible. This Court directs Opp. Party Nos.1 to 3 to take all possible steps and complete the entire exercise as directed within a period of four (4) months from the date of receipt of this order. 10.6. The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the, 14th May 2025/Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 23-May-2025 16:09:13 Page 13 of 13