Giridhari Gaana (Since Dead) vs State Of Odisha And Others
2021 Latest Caselaw 12308 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              WRIT PETITION (CIVIL) NO.15672 of 2016

(An application under Articles 226 & 227 of the Constitution of India)


Giridhari Gaana (since dead)
substituted by his wife Basanti Gaana .......            Petitioner

                                           Versus

State of Odisha and others               .........         Opposite Parties


Advocate(s) appeared in this case:-

       For Petitioner              : Mr. D.N. Pattnaik-1, Advocate

       For Opposite Parties        : Additional Government Advocate


              CORAM : THE CHIEF JUSTICE
                      JUSTICE B.P. ROUTRAY

                             JUDGMENT

st 1 December, 2021

B.P. Routray,J.

1. The present writ petition has been filed in the nature of Public Interest Litigation.

2. It is submitted that the original Petitioner served as an Engineer under Water Resources Department, Government of Odisha and retired from service in the year 1995. The Petitioner has prayed as follows:

"I. All the posts of Heads of Departments/Sr. Lecturers and Principals of Govt. Engineering Schools and Polytechnics of Odisha may be filled by open selection process strictly as per AICTE norms-2010.

II. Norms, qualifications and guidelines of AICTE-2010 may be implemented in toto in Govt. Engineering Schools and Polytechnics of Odisha to enhance the quality of education like Government Engineering colleges and Government Management Colleges of Odisha.

III. The qualifications of all the Heads of Departments/Sr. Lecturers (including Deputy Directors/Deputy Secretaries/ Principals of Govt. it is (Class-I Jr.)/Vice Principals/Training Superintendents) of all the disciplines of all the Govt. Engineering Schools and Govt. Polytechnics of Odisha may be verified strictly as per AICTE norms-2010 and the under qualified persons promoted may be suitably replaced in the interest of law and equity as well as society and justice.

IV. The Heads of Departments/Sr. Lecturers, Deputy Directors (at Directorate of Technical Education and Training, Cuttack), Deputy Secretaries (at State Council for Technical Education and Vocational Training, Bhubaneswar), who have completed 06 years at Cuttack and Bhubaneswar, may be transferred to KBK and other remote/backward districts of Odisha and the Heads of Departments/Sr. Lecturers continuing as Principal of it is (class-I Jr. posts) since last 06 years or more, may be returned back to the Govt. Polytechnics.

V. To pass such other order/direction as deem fit and proper to the fact and circumstance of the case."

3. It is contended on behalf of the Petitioner that the posts of Heads of Department (Engineering/Technology) should be filled up by direct recruitment as per the norms fixed by All India Council for Technical Education (AICTE), Government of India and not by promotion as per Orissa Technical Education and Training Service Rules, 1985

(hereinafter stated as "OTE & TS Rules, 1985"). It is further contended that AICTE Act came into force in 1987 and it has published the norms from time to time with regard to qualification and conditions of service with regard to different posts relating to technical education. The said Act being a Central Legislation is binding and has overriding effect on the said Rules. But unfortunately the Government of Odisha neither changed the cadre rule nor followed the norms prescribed by AICTE for recruitment of Senior Lecturers and Heads of Department in different disciplines of Government Engineering Schools and Polytechnics in Odisha. In contravention to the conditions and norms prescribed by AICTE, the posts of Heads of Department/Senior Lecturers have been filled up in a faulty way of promotion by Government of Odisha following OTE&TS Rules, 1985. The Petitioner has named several persons in the body of the writ petition to say that they have been appointed as Principals, Deputy Secretaries and Senior Lecturers in different Polytechnics Schools in the State of Odisha, who have not acquired qualification as per AICTE norms. It is further stated that those appointments have been made like political appointments. It is thus submitted that the present promotional system under the OTE&TS Rules, 1985 being a faulty one, the AICTE norms/guidelines should be implemented to get better incumbents in the technical education service, particularly in the field of Polytechnics education.

4. The State-Opposite Parties have filed their counter refuting the contention of the Petitioner. It is submitted that AICTE Act has been framed under Entry 66, List-I of 7th Schedule of the Constitution whereas OTE&TS Rules, 1985 has been framed under Article 309 of the

Constitution as per Entry 25 in List-III of the 7th Schedule. Therefore, the Petitioner is under misconception that AICTE Act has overriding effect on the State Rules. It is further contended that the State has brought amendments to the OTE&TS Rules, 1985 from time to time to bring more clarity in its Rules, particularly in Rules 9 and 10. A common gradation list has been prepared under the provisions of OTE&TS Rules, 1985 and promotions to the higher ranks like Senior Lecturers, Principals, Joint Directors and Additional Directors are made in terms of the said provisions with due regard to the seniority in the common gradation list and there is no irregularity in such postings. It is submitted in course of hearing that the present writ petition in the nature of PIL is a proxy petition in reality by a group of employees who have lost their case before the Odisha Administrative Tribunal. There are disputes between different groups relating to the gradation list in different branches in OTE&TS cadre and they fought long drawn legal battles in OA No.521 (C) of 2016, OA No.672 (C) of 2016 and batch of cases. In the guise of Public Interest Litigation, the whole purpose of the Petitioner is to protect a group of individuals holding different posts. A preliminary objection has been raised with regard to maintainability of the writ petition in service matters.

5. The AICTE has filed its reply saying that it has no comments on the factual aspects of the writ petition. So far as the OTE&TS Rules, 1985 is concerned, the same is to be answered by the State authorities.

6. Perusal of the averments made in the writ petition shows that the grievance of the Petitioner in substance is to bring effective changes in

the service conditions of the employees governed under the OTE&TS Rules, 1985 by incorporating the norms prescribed by the AICTE. The entire contention of the Petitioner is to bring changes in the recruitment procedure in the senior posts like Principals, Senior Lecturers, etc. So the nature of averments made in the writ petition reveals that, it is concerning service conditions of employees under the OTE&TS Rules, 1985 and as such, the preliminary objection raised by the State Council that the present writ petition is a PIL relating to service matters is found justified.

7. In Ashok Kumar Pandey v. State of W.B., reported in (2004) 3 SCC 349, the apex Court in paras 11, 12, 14, 15, 16 held as follows:

"11. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express out opinion that while genuine litigants with legitimate grievances relating to civil matters, persons suffering from undue delay in service matters" government or private, persons awaiting the disposal of tax cases are all standing in a long serpentine queue for years with the found hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for

any other extraneous motivation or for glare of publicity, break the queue muffling their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions of luxury litigants who have nothing to lose but trying to gain for nothing and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants.

12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, courts must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.

14. The court has to be satisfied about : (a) the credentials of the applicant; (b) the prima facie

correctness or nature of information given by him; and

(c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests : (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public- spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.

15. Today people rush to courts to file cases in profusion under this attractive name of public interest. Self-styled saviours who have no face or ground in the midst of public at large, of late, try to use such litigations to keep themselves busy and their names in circulation, despite having really become defunct in actual public life and try to smear and smirch the solemnity of court proceedings. They must really inspire confidence in courts and among the public, failing which such litigation should be axed with a heavy hand and dire consequences.

16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations, whereas only a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this

Court in a large number of cases, yet unmindful of the real intentions and objectives, courts at times are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1998) 7 SCC 273, this Court held that in service matters PILs should not be entertained, the inflow of the so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. This tendency is being slowly permitted to percolate for setting in motion criminal law jurisdiction, often unjustifiably just for gaining publicity and giving adverse publicity to their opponents. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out whether it was a bona fide venture. Whenever such frivolous pleas are taken to explain possession, the court should do well not only to dismiss the petitions but also to impose exemplary costs, as it prima facie gives impression about oblique motives involved, and in most cases shows proxy litigation. Where the petitioner has not even a remote link with the issues involved, it becomes imperative for the court to lift the veil and uncover the real purpose of the petition and the real person behind it. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts."

8. In Girjesh Shrivastava v. State of Madhya Pradesh, reported in (2010) 10 SCC 707, appointments were challenged in PIL, on the grounds of contravention of rules, regarding reservation of ex- servicemen. The High Court allowed the writ petition and ordered cancellation of appointments, and dismissed the review petitions also. While considering the issue, as to whether the matter ought to have been taken, as service dispute and not PIL, the Hon‟ble Supreme Court, after considering a catena of decisions, at paragraph 14 to 19 has held as follows:-

"14. However, the main argument by the appellants against entertaining WP(C) 1520/2001 and WP (C) 63/2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention.

15. It is common ground that dispute in this case is over selection and appointment which is a service matter.

16. In the case of Dr. Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273, a three Judge Bench please to hold a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and

227. This Court held "if public interest litigations at the instance of strangers are allowed to be entertained by the (Administrative) Tribunal, the very object of speedy disposal of service matters would get defeated" (para

18). Same reasoning applies here as a Public Interest Litigation has been filed when the entire dispute relates to selection and appointment.

17. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association, reported in (2006) 11 SCC 731 (2) (II), this Court held

that in service matters only the non-appointees can assail the legality of the appointment procedure (See para 61, page 755 of the report).

18. This view was very strongly expressed by this Court in Dattaraj Natthuji Thaware v. State of Maharashtra, reported in (2005) 1 SCC 590, by point out that despite the decision in Duryodhan Sahu (supra), PILs in service matters „continue unabated‟. This Court opined that High Courts should „throw out‟ such petitions in view of the decision in Duryodhan Sahu (supra). (Para 19, page

596).

19. Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B. reported in (2004) 3 SCC 349, at page 358 (para 16)."

9. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465. At paragraphs 14 and 15, the apex Court observed as follows:-

"14. This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court and that, "ordinarily meddlesome bystanders are not granted a Visa. Many social pollutants create new problems of non-redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it.

15. Even as regards the filing of a Public Interest Litigation, this Court has consistently held that such a course of action is not permissible so far as service matters are concerned. (Vide: Dr. Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273 : AIR 1999 SC 114; Dattaraj Natthuji Thaware v. State of Maharashtra, (2005) 1 SCC 590 : AIR 2005 SC 540; and Neetu v. State of Punjab, (2007) 10 SCC 614 : AIR 2007 SC 758)".

10. Thus looking into the nature of averments made, the present writ petition in the nature of PIL, which has been filed questioning the service conditions of different posts under the OTE&TS Rules, 1985 is not found maintainable. Otherwise it is also seen from the averments of the counter filed by the State-Opposite Parties that OA No.521 (C) of 2016 and batch of cases have been adjudicated by the learned Odisha Administrative Tribunal concerning dispute of inter-se service seniority between different groups of employees against which writ petitions in W.P.(C) No.2599 of 2018 and W.P.(C) No.2600 of 2018 filed by the State before this Court are pending adjudication.

11. Though the present writ petition is not found maintainable as a Public Interest Litigation but keeping in view some other averments made in the writ petition, it needs to be mentioned that the Hon‟ble Supreme Court in the case of Kalyani Mathivanan v. K.V. Jeyraj and others, (2015) 6 SCC 363, have held as follows:-

"(i) To the extent the state Legislature is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.

(ii) The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the universities ties to which it which applies.

(iii) The UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC.

(iv) The UGC Regulations, 2010 is directory for the universities, colleges and other higher educational institutions under the purview of the State legislation as the matter has been left to the State Government to adopt and implement the scheme.

12. Similar view has been taken in the case of Jagdish Prasad Sharma and others v. State of Bihar and others, (2013) 8 SCC 633, where it is held as follows:

"xx xx xx

"77. We are inclined to agree with such submission mainly because of the fact that in the amended provisions of section 67(a) it has been categorically stated that the age of superannuation of non teaching employees would be 62 years and, in no case, should the period of service of such non teaching employees be extended beyond 62 years. A different had been made in regard to the teaching faculty whose services could be extended upto 65 years in the manner laid down in the University statutes. There is no ambiguity that the final decision to enhance the age of superannuation teachers within a particular state would be that of the State itself. The right of the Commission to frame regulations having the force of law is admitted. However, the State Government are also entitled to legislate with matters relating to education under list III Entry 25. So long as the state legislation did not encroach upon the jurisdiction of Parliament, the State Legislation would obviously have

primacy over any other law. If there was any legislation enacted by the Central Government under List III Entry 25, the regulations framed by way of delegated legislation have to yield to the plenary jurisdiction of the State Government under list III Entry 25."

13. However, since the writ petition is not found maintainable for the reasons mentioned above, we refrain from giving any further opinion on the merits of the writ petition.

14. The writ petition is dismissed.

(B.P. Routray) Judge

(Dr. S. Muralidhar) Chief Justice

B.K. Barik/P.A.