State Of Odisha & Ors vs Ankura Mahanta
2021 Latest Caselaw 8604 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                FAO No.453 of 2016

            State of Odisha & Ors.                  ....            Appellants
                                                             Mr. Sonak Mishra,
                                                 Standing Counsel for S & M.E.

                                      -versus-
            Ankura Mahanta                                       Respondent
                                                    ....
                                                            Mr. L.K. Mohanty,
                                                 Advocate for Respondent No.2

                     CORAM:
                     JUSTICE BISWANATH RATH
                                        ORDER

17.08.2021 Order No.

02. 1. Heard Mr. S. Mishra, learned Standing Counsel for School

and Mass Education Department appearing on behalf of appellants

and Mr. L.K. Mohanty, learned counsel for the respondent

2. This appeal involves a challenge to the order of the State

Education Tribunal, Bhubaneswar dated 6.4.2016 passed in G.I.A.

Case No.24 of 2006. Taking this Court to the serious objection

involving the GIA case involved herein, Mr. Mishra, learned

Standing Counsel appearing for the State-Department submitted that

on appearance of the department, the department objected the G.I.A.

Case No.24 of 2006 of the petitioner solely on the premises that

initial appointment of the petitioner since based on a fraudulent

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certificate as find place at Annexure-7 herein, petitioner cannot be

treated as an employ so as to be entitled to grant-in-aid. It is taking

this Court to the discussion held by the State Education Tribunal in

deciding G.I.A. Case No.24 of 2006, Mr. Mishra, learned Standing

counsel appearing for the State-Department in connection with

paragraph-7 of the judgment contended that even though the

Tribunal took note of the serious objection of the application

involved on the premises of appointment being obtained on fraud

certificate and alleged unfortunately the Tribunal has not taken any

decision on the same and simply allowed the grant-in-aid application

therein. Mr.Mishra, learned counsel for the State-Department further

submitted that based on the plea of the department challenging the

entitlement of the petitioner involved therein on the premises of

appointment obtained on production of fraud certificate contended

that unless this issue is adjudicated upon, there was no possibility of

taking decision in the matter of entitlement of grant-in-aid. Taking

this Court to the impugned order involved herein vide Annexure-5,

Mr.Mishra attempted to substantiate the department's allegation.

3. Mr.L.Mohanty, learned counsel appearing for the respondent

in his opposition taking this Court to the earlier decision of this

Court involving petitioner as decided in FAO No.615/2009

// 3 //

contended that the issue raised by State-Department has come to be

closed by the decision of this Court in FAO No.615/2009. Further

taking this Court to the materials through paragraph-9 onwards

submitted that it is wrong to claim that Tribunal has not taken into

consideration the dispute raised herein. On detailed discussion

therein, Mr. Mohanty submitted that the question raised by State-

Department does not require any further consideration.

4. Considering the rival plea of the respective counsels, this

Court finds there should not be any dispute that the G.I.A. Case

No.24 of 2006 by the petitioner herein involved a request for

extending the grant-in-aid benefit to the petitioner from the date by

approving the petitioner therein as Assistant Teacher and as a

consequence for release of arrear dues.

5. From the perusal of the materials and the plea of the parties,

this Court finds the application was also earlier rejected by the

Tribunal by order dated 17.11.2009, which order visited this Court

in FAO No.615/2009. Going through the previous order of the

Tribunal vide Annexure-3, this Court finds Tribunal had earlier

occasion recalled the grant-in-aid application involved therein on the

ground that the applicant was not a trained graduate being appointed

on 2.8.1993 and therefore the plea assigned therein he was not

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entitled to grant-in-aid. This Court here finds the earlier rejection

order of the Tribunal vide Annexure-3 being FAO No.615/2009,

disposed of vide Annexure-4 setting aside the order of the Tribunal

indicated hereinabove and thereby remitting the matter for re-

adjudication. For the discussion from the order at Annexure-3 and

for the issue raised herein, this Court nowhere find there is any

discussion on the allegation of the State-Department that the

appointment of the petitioner was based on a fraudulent certificate

being produced by the petitioner. This Court observes such

contemptuous issue though agitated has never been adjudicated. It is

in this view of the matter this Court finds the decision in FAO

No.615/2009 under Annexure-4 has no relevance.

6. Now coming to consider the case and counter response on

the issue if there is consideration on the allegation of fraud

certificate being produced in the initial appointment of the petitioner

in the impugned order at least, this Court while keeping in view the

submission of respective counsels in this regard perused the

discussion of the Tribunal from paragraph-9 and till end finds the

Tribunal though taken note of the cases of respective parties, the

background involving the previous round of litigation between the

parties but after taking note of the decision involving FAO No.615

// 5 //

of 2009, the Tribunal straightway jumped to the order portion. Entire

reading of the order part, this Court nowhere finds there was any

consideration on the question raised by the State-Department. It is in

view of the matter and for involvement of a serious allegation the

petitioner obtaining appointment on fraud certificate, for the opinion

of this Court unless this issue is adjudicated upon effectively in the

involvement of the parties likely to be affected there is no room for

taking into account the claim on entitlement for grant-in-aid and thus

the order at Annexure-5 is not sustainable in the eye of law, which is

set aside for requirement of further adjudication involving the

dispute raised by the State-Department, the matter is remitted back

to the State Education Tribunal for reconsideration of the issue

involving G.I.A. Case No.24 of 2006 along with the question raised

by the State-Department involving petitioner obtaining appointment

on production of fraud certificate. Parties are directed to appear

before the State Administrative Tribunal, Bhubaneswar on 8.9.2021

and take the further date of the proceeding involved. It is open to

both parties to file any further materials and/or plea on the allegation

of the State-Department to substantiate their respective case. The

proceeding involved herein shall be concluded within a period of

four months from the date of communication of copy of this order

// 6 //

along with copy of the Appeal Memorandum by the State-

Department.

7. FAO thus stands disposed of but with the directions and

observations made hereinabove.

8. Issue urgent certified copy on proper application.

(Biswanath Rath) Judge

U.K.Sahoo