Afr Gayadhar Mishra vs State Of Odisha & Others
2022 Latest Caselaw 6212 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No. 1722 of 2020

        An application under Articles 226 & 227 of Constitution of India.
                                        ---------------
AFR     Gayadhar Mishra                                   ......      Petitioner

                              -Versus-

        State of Odisha & Others                          .......   Opp. Parties

        Advocate(s) appeared in this case:-
        _______________________________________________________

           For Petitioner     :        Mr. P.C. Chhinchani, Advocate.

           For Opp. Parties :    Mr. N.K. Praharan,
                                 Addl. Government Advocate.
        ________________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                        JUDGMENT

st 1 November, 2022

SASHIKANTA MISHRA, J. The petitioner was initially appointed as

Laboratory Attendant in the Department of Zoology in D.D.

College, Keonjhar vide order dated 19.10.1990 of the

Principal of the said College. By order dated 21.02.1997, he

was promoted to the post of Library Assistant on the

recommendation of the DPC. His pay was fixed at Rs.950/- in

the scale of Rs.950/- to Rs. 1500/- vide order dated

22.03.1997. While working as such, the petitioner and one

Birendra Kumar Panda were directed to perform the work of

Asst Librarian in addition to the normal duties of Library

Assistant due to shortage of staff caused by the retirement

and death of the previous incumbents. It is stated that the

petitioner has the requisite qualification for the post of Asst.

Librarian. The Principal, by letter dated 19.04.2008 sought

for necessary instructions from the Commissioner-cum-

Secretary to Government in the Department of Higher

Education regarding promotion of the petitioner to the post of

Asst. Librarian. The Principal also submitted a reminder on

25.06.2008. By order dated 01.10.2008, the petitioner was

promoted to the post of Asst. Librarian in the scale of pay of

Rs.4750/- to Rs.7500/- on the recommendation of the DPC.

Surprisingly by order dated 06.03.2009, the Principal

referring to certain previous correspondence made with the

Government, reverted the petitioner to his original post of

Laboratory Attendant. Challenging such reversion, the

petitioner approached the erstwhile Odisha Administrative

Tribunal in O.A. No. 759(C) of 2009 (since transferred to this

Court and registered as WPC(OAC) No. 759 of 2009). In said

O.A., the petitioner sought for an interim relief of stay of the

order of reversion but the same was disallowed. The

petitioner therefore, approached this Court in W.P.(C) No.

8327 of 2009 challenging the refusal of the Tribunal to grant

interim relief. By order dated 08.06.2009 passed in the above

writ application, this Court, while issuing notice held that

the petitioner shall be allowed to continue in the post of Asst.

Librarian till next listing of the case. The case was adjourned

thereafter on several occasions and ultimately by order dated

08.03.2022, a Division Bench of this Court observing that

since the main O.A. has been transferred to this Court being

registered as a separate writ petition and is before the roster

Bench of the single judge, disposed of the writ application

with the direction to maintain status quo as on the said date.

In the meantime, the opposite party authorities again

reverted the petitioner to his original post of Laboratory

Attendant by order dated 15.07.2019 (Annexure-10) basing

on the Government Order dated 28.6.2019 (Annexure-9). The

petitioner has therefore approached this Court yet again in

the present application seeking the following relief:

"Under the above facts and circumstances, this Hon'ble Court may be graciously pleased to quash the impugned orders at Annexure-9 and Annexure- 10 by declaring the same as absolutely illegal, void and unsustainable in the eye of law And/or any other order (s) as deemed fit and proper may be passed in the interest of justice."

2. A detailed counter affidavit has been filed on

behalf of the Higher Education Department. Though the

counter contains several replies to the writ petition on merits

of the case relating to the correctness of the original order of

reversion against the petitioner, the same need not be gone

into in detail having regard to the fact that it is a matter to be

decided in the pending writ application wherein the original

order of reversion is under challenge. It has however been

stated that though this Court passed the interim order on

08.06.2009, yet the case was not listed for adjudication for

more than 10 years and the petitioner managed to continue

in the post of Asst Librarian. Since the Apex Court as well as

the High Court of Orissa have held that stay orders granted

by High Courts in all cases would automatically lapse after

six months unless extended by speaking order, the impugned

orders under Annexures-9 and 10 were rightly passed. Since

the orders were passed basing on the directives issued by the

Apex Court as well as this Court, there was no need to issue

any prior notice or of asking the petitioner to show cause.

3. Be it noted here that by order dated 21.01.2020

this Court in the present application has directed that

notwithstanding the impugned order, the petitioner shall be

allowed to continue in the post of Asst. Librarian till the next

date. The interim order has been continued from time to time.

4. Heard Mr. P.C. Chhinchani, learned counsel for

the petitioner and Mr. N.K. Praharaj, learned Government

Advocate.

5. It is argued by Mr. Chhinchani that the opposite

party authorities have completely misinterpreted the

directives issued by the Apex Court as well as by this Court

vide Standing Order No.1 of 2019 inasmuch as the same

applies only to proceedings pending before Courts and

Tribunals. In case such proceedings have been stayed for

more than six months by order of the High Court and the

same has not been extended by speaking order, the stay is

deemed to have automatically lapsed and the proceedings are

required to be continued. In the case at hand there was no

proceeding as such but only a direction issued to the

authorities to allow the petitioner to work as Asst. Librarian

during pendency of the writ application and therefore, the

directives of the Apex Court and this Court cannot be made

applicable.

6. Mr. Praharaj, on the other hand, has argued that

the petitioner was found to have been wrongly and illegally

promoted to the post of Asst. Librarian for which the

Government took a decision to revert him to his parent post.

In any case, the post of Laboratory Attendant is not the

feeder post for promotion to the post of Asst. Librarian and

therefore, the then principal of the College was found to have

committed gross illegality in promoting the petitioner to such

post. The Apex Court and this Court have time and again

held that any stay order passed, if not extended by speaking

order, must be deemed to have automatically expired. In the

instant case, the interim order was passed on 08.06.2009

and therefore the same cannot be held to be in operation at

this belated stage. Therefore the authorities rightly reverted

the petitioner to his original post.

7. After hearing the rival contentions, it becomes

evident that the only issue that arises for consideration in

the present writ application is, whether it was open to the

opposite party authorities to revert the petitioner to the post

of Laboratory Attendant despite operation of the interim

order dated 08.09.2009 purportedly basing on Standing

Order No. 1 of 2019 of this Court.

8. It would be relevant to point out at the outset that

the issue relating to automatic termination/vacation of

interim orders of stay passed by the High Courts emanates

from the decision of the Apex Court in the case of Asian

Resurfacing of Road Agency Private Ltd and Another vs.

Central Bureau of Investigation reported in (2018) 16 SCC

299. In the said case it was held that in all cases where stay

is granted the same will end on expiry of six months from the

date of such order unless similar extension is granted by a

speaking order. Basing on the directives issued in the

aforementioned case, this Court issued Standing Order No.1

of 2019 directing that in all pending matters before the High

Courts or other courts relating to P.C. Act or all other civil or

criminal cases, if the stay of proceedings in a pending trial is

operating, it shall automatically lapse after six months

unless extended by speaking order on above parameters.

What is relevant to note is, there must be an order directing

stay of proceedings which, unless extended, would

automatically lapse after six months thereof.

9. At this stage it becomes necessary to refer to a few

relevant dates relating to the case:

8.9.2009- This court in W.P.(C) 8327 of 2009 directed that

the petitioner shall be allowed to continue in the

post of Asst. Librarian till the next date of listing of

the case.

28.6.2019-Letter issued by Government in Department of

Higher Education to the Director Education and

Principal of the College requesting to take

necessary steps for reversion of the petitioner to

the original post of Laboratory Attendant

immediately referring to Standing Order No. 1 of

2019 issued by this Court.

15.7.2019-Order passed by the Principal cancelling the

promotion of the petitioner to the post of Asst

Librarian and by reverting him to the original post

of Laboratory Attendant with immediate effect.

21.1.2020-This Court in the present Writ application, i.e.,

W.P.(C) No. 1722 of 2020 directed that

notwithstanding the order dated 15.07.2019 the

petitioner shall be allowed to continue in the post

of Asst. Librarian till the next date.

8.3.2022- This Court disposed of W.P.(C) No. 8327 of 2009

directing that status quo as on today shall

continue during pendency of the said writ petition

(WPC(OAC) No. 759 of 2009).

10. Two things are evident from the above

enumeration; first, this Court passed a specific order on

08.06.2009 that the petitioner shall be allowed to continue in

the post of Asst Librarian till the next date of listing of the

case. Second, such order was never vacated specifically.

There was no motion by the opposite party authorities to

seek vacation of such order. Therefore, as on 15.07.2019, the

petitioner must be deemed to have been continuing as Asst.

Librarian on the strength of the order passed by this Court.

Such being the case, it is to be seen if the Standing Order

No. 1 of 2019 has any application. As has already been seen,

the ratio of Asian Resurfacing (supra) as reflected in the

Standing Order No.1 of 2019 refers to cases/proceedings

before Courts and Tribunals that have been stayed by order

passed by the High Court. In the instant case, there is no

such case/proceeding before any court or tribunal nor there

is any stay as such. Instead, there is a positive order passed

by this Court directing the authorities to allow the petitioner

to continue in the post of Asst. Librarian. Obviously, there is

a sea of difference between the matters referred to in Asian

Resurfacing (supra) and/or the Standing Order No. 1 of

2019 and the fact situation obtaining in the present case. To

reiterate, the interim order passed on 08.06.2009 did not

stay any action of the authorities as such much less any

proceeding, but conferred a positive relief on the petitioner. If

the authorities were aggrieved by such order, it was open to

them to challenge the same before the higher forum or to

seek variation/vacation thereof in the pending writ petition.

So, automatic resumption of the proceeding stayed by order

of the High Court as envisaged in the Standing Order No.1 of

2019 is not synonymous with taking a penal action against

an employee who has been granted a positive relief by the

High Court. The two situations are entirely distinct and

different and hence, cannot be equated in any manner

whatsoever. Therefore, reference to the Standing Order No. 1

of 2019 must be held to be entirely misconceived and

fallacious.

11. It is well settled that when the Court intends a

particular state of affairs to exist while it is in seisin of a lis,

that state of affairs is not only required to be maintained but

is presumed to exist till the court orders otherwise. The

above view was taken by the Apex Court in the case of

Surjeet Singh and others vs. Harbans Singh and others

reported in (1995) 6 SCC 50. It was also held in the case of

all Bengal Excise Licensees Associations vs.

Raghavendra Singh reported in (2007) 11 SCC 374 that a

party to the litigation cannot be allowed to take an unfair

advantage by committing breach of an interim order and

escape the consequences thereof.

12. Undisputedly, the challenge to the original order of

reversion of the petitioner to his parent post is pending

before this Court. While entertaining the writ application filed

against the refusal of the Tribunal to pass an interim order,

this Court was convinced enough to direct the authorities to

allow the petitioner to continue in the post of Asst. Librarian.

What the authorities have done by passing the impugned

order is to frustrate the petitioner's attempt to challenge the

correctness of the impugned order. As already stated, if

aggrieved, the authorities could have taken recourse to the

available remedies but it was entirely illegal as also unfair on

their part to act contrary to the positive direction of this

Court by harping upon technicalities, which incidentally has

also been found to be misconceived.

13. It must also be kept in mind that the Government

being a model employer cannot be seen to be taking steps to

second-guess its opponent in litigation like a private litigant.

In the case of Bhupendranath Hazarika and another vs.

State of Assam and others reported in (2013) 2 SCC 516,

the Apex Court held that being a model employer the state is

required to act fairly giving due regard and respect to the

rules framed by it. In short, the Government cannot be seen

to be adopting the attitude of a private litigant setting out to

frustrate its opponent's case by hook or by crook.

14. For the reasons indicated above, this Court has no

hesitation in holding that the impugned orders under

Annexures 9 and 10 are illegal and a nullity in the eye of law.

Coming to the relief to be granted to the petitioner, this Court

is of the view that the impugned orders being held to be

nullity, the natural corollary is to bring back the parties to

the same position as they were before the impugned orders

were issued. In other words, restoration of the status quo

ante is the appropriate relief to be granted in the case.

15. For the foregoing reasons therefore, the writ

petition succeeds and is, therefore, allowed. The impugned

orders under Annexures-9 and 10 are hereby quashed. The

opposite party authorities are directed to allow the petitioner

to continue as Asst. Librarian as directed by this Court in its

order dated 08.06.2009 passed in W.P.(C) No. 8327 of 2009

and order dated 21.01.2020 passed in the present Writ

Application till disposal of WPC (OAC) No. 759 of 2009. It is

made clear that non-compliance/violation of this order shall

be viewed seriously

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 1st November, 2022/ A.K. Rana, P.A.