Afr Keshab Chandra Behera vs State Of Odisha & Another
2022 Latest Caselaw 5346 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                           FAO No. 124 of 2011
       An application under Section 24-C of Odisha Education Act.
                                 ---------------
AFR    Keshab Chandra Behera                       ......    Appellant

                             -Versus-

       State of Odisha & another                   .......   Respondents

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Appellant       :    M/s. S.K. Das & S.K. Mishra,
                                  Advocate.

          For Respondents:        Mr. B.P. Tripathy,
                                  Addl. Govt. Advocate.

                                  M/s. K.K. Swain, R.N. Mohanty,
                                  R.P. Das.
                                  [ R-4]

                                  M/s. D.P. Dhal & C.R. Panda
                                  [ R-3]
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

11th October, 2022

SASHIKANTA MISHRA, J.

The judgment passed by the Presiding Officer, State

Education Tribunal, Odisha in GIA Case No. 214 of 2007 on

17.01.2011 is under challenge in the present appeal.

2. The GIA Case was filed by one Purusottam Sethi,

the present Respondent No.4. It is his case that he was

appointed against the 2nd post of peon by the Governing

Body of Trupti Women's College, Basudevpur in the district

of Bhadrak on 02.11.1988 pursuant to which he joined on

03.11.1988. Prior to his appointment, one Brundaban Palei

was appointed against the 1st post of peon and

subsequently, one Keshab Chandra Behera, the present

appellant was appointed against the post of 4th Peon on

01.01.1989. Therefore, in all records of the College including

the recommendation form, the petitioner was shown against

the 2nd post of peon. When the College was notified to

receive grant-in-aid w.e.f. 01.06.1994, the then Secretary of

the Governing Body, manipulated the records to show

favour to the said Keshab Chandra Behera by

recommending his name against the 2nd post of peon and

basing upon such recommendation, the Director of Higher

Education, Odisha approved the appointment of Keshab

Chandra Behera against the 2nd post of peon. It is alleged

that at the time of his appointment, Keshab Chandra

Behera was a regular student of Upendranath Academy in

the district of a Balasore and he passed his HSC

examination in the year 1989. His date of birth, being

11.10.1971, he was aged less than 18 years at the time of

his so-called appointment, which is illegal.

3. A joint counter was filed by the Governing Body of

the College and Keshab Chandra Behera. It was stated that

the petitioner-Purusottam Sethi was issued with

appointment order on 15.02.1989 pursuant to which he

joined on 16.02.1989 and not on 03.11.1988 as claimed by

him. On the contrary, Keshab Chandra Behera was given

appointment on 31.12.1988 against the vacancy caused by

the resignation of one Prafulla Kumar Agasti, who was

appointed against the 2nd post of peon on 09.10.1988. As

regards the allegation regarding his underage, it was

clarified that the rules do not prescribe any minimum age

limit and since he is senior to the petitioner, the Governing

Body rightly recommended his name and the Director,

Higher Education, Odisha, considering all aspects had

approved his appointment.

4. A rejoinder was filed by the petitioner- Purusottam

Sethi insisting that his appointment was against the 2nd

post of peon and that of Keshab Chandra Behera against 4th

post of peon and further that the Keshab Chandra Behera

was underage at the time of his appointment.

5. Basing on the rival pleadings, learned Tribunal

framed the following questions for consideration.

(i) Whether the petitioner was appointed against the 2nd post of Peon w.e.f. 2.11.1988 pursuant to which he joined on 3.11.1988,

(ii) Whether the petitioner is entitled to grant in aid w.e.f. 1.6.1994 as per Grant in Aid Order 1995,

(iii) Whether release of grant in aid in favour of O.P. No.4 as per Annexure-3 is liable to be set aside."

After considering the materials on record, learned Tribunal

held that there is no dispute that Keshab Chandra Behera

was a minor on the date of appointment i.e. on 01.01.1989

and even on 31.12.1988 as per his own case. Referring to

Para-16(2) of the Grant-in-Aid Order, 1994, Rule-9 of the

Odisha Education (Management of Private College) Rules

1979 and Rule 7(C) of Odisha Recruitment Rules, 1974, it

was held that the age and qualification for appointment of

staff of recognized unaided colleges have been prescribed as

being the same as that of Government servants and as per

Rule 52-A (iii) of Odisha Service Code, the minimum age

limit for Class-IV staff is 18 years. Therefore, under no

circumstances a Class-IV staff could have been appointed

even in an unaided college, who is below 18 years of age.

Holding thus, learned Tribunal held that the approval of

appointment of Keshab Chandra Behera and the

consequential release of grant-in-aid in his favour is illegal

and is liable to be set aside. It was further held that as per

the staff position, the petitioner (Purushottam Sethi) had

joined on 16.03.1689, where as Keshab Chandra Behera

joined on 20.05.1989, which is inconsistent to his own

stand that he had joined on 01.01.1989. This is also

inconsistent with his own stand taken in the additional

counter that he had joined on 31.12.1988 as also on

17.12.1990. The approval order shows that he had joined on

01.01.1989. Taking note of these inconsistencies, learned

Tribunal held that the same suggest manipulation and

undue favour being shown to Keshab Chandra Behera only

to bring him within the grant-in-aid fold. It was further held

that not only that the petitioner is senior to Keshab

Chandra Behera and is entitled to approval of his

appointment and consequential release of grant-in-aid

against the 2nd post of peon but also the appointment of

Keshab Chandra Behera per se and approval of his

appointment as well as release of grant-in-aid in his favour

is illegal as he was minor at the time of appointment and

such period of minority cannot be taken into consideration

towards his qualifying service. On such findings, the

petitioner's case was allowed and the authorities were

directed to approve his appointment against the 2nd post of

Peon and consequential release of grant-in-aid w.e.f.

01.06.1994 within a period of three months. The approval of

the appointment and consequential release of grant-in-aid

in favour of Keshab Chandra Behera was set aside and since

the approval his of appointment was made illegally, the

grant-in-aid released in his favour was directed to be

recovered either from him or the authority concerned

responsible for such manipulation.

6. Heard Mr. Sameer Kumar Das, learned counsel

for the appellant, Mr. B.P.Tripathi, learned Addl.

Government Advocate and Mr.K.K. Swain, learned counsel

for the private respondent No.4.

7. Mr. Das has assailed the impugned judgment on

the ground that learned Tribunal decided the case on the

premise of negative equality by holding that there is

manipulation of College records to show undue favour to the

appellant and hence, respondent No.4 is to be approved

against the 3rd post of peon of the college and to get grant-

in-aid from 01.06.1994. Learned Tribunal did not go into

the facts with regard to validity of the appointment and

claim of respondent No.4 for the 2nd post of peon of the

College nor considered whether the Governing Body had

ever appointed and adjusted him against the 2nd post. It is

further contended by Mr. Das that respondent No.4 was not

in service of the institution since 06.07.2010 which

amounts to termination of service. By suppressing such

facts, respondent No.4 misled the learned Tribunal to pass

the impugned judgment in his favor which is nothing but an

act of fraud. In this context it is submitted by Mr. Das that

respondent No.4 had approached the learned Tribunal

during pendency of the GIA case by filing Appeal Case No.

39 of 2010 challenging the decision of the Governing Body

preventing him to discharge his duty with effect from

06.07.2010 which amounts to termination of service. As on

the date of passing of the impugned judgment in GIA Case

No. 214 of 2007, the said appeal was pending but such fact

was never disclosed before the Tribunal. Had he disclosed

such fact, the appeal could have been heard along with the

GIA case or the GIA case would have waited till finalization

of the appeal because he had himself admitted that he was

no longer an employee of the institution due to his

termination from service with effect from 06.07.2010.

Therefore, the impugned order inasmuch as it treats the

respondent No.4 as an employee of the institution is a

nullity. Similarly respondent No.4 had also filed another

Education Appeal Case No. 13 of 2011 under section 10-A

challenging the order of termination dated 03.03.2011. Both

the appeals, i.e., Education Appeal Case No. 39 of 2010 and

Education Appeal Case No. 13 of 2011 were disposed of by

common judgment passed by the learned Tribunal on

16.03.2012. So, while the GIA case was disposed of during

pendency of the appeal without disclosing the fact of filing of

these appeals, the appeals were disposed of by taking note

of the result of the GIA case. On merits of the case it is

argued by Mr. Das that respondent No.4 had never been

appointed/adjusted against the 2nd post of peon nor had

challenged the appointment and continuance of the present

appellant against the second post of peon at any time from

1990 to 2007 i.e., for a period of 17 years. Only when he

was terminated from service for unauthorized absence from

duty he came up with this plea that his case was to be

considered for approval in light of the judgment in the case

of the Simanchal Panda vs. State of Orissa and Ors,

reported in 2002 SCC (L&S) 369. In any case, respondent

No.4 cannot get the benefit of GIA order 1994 because he

has already retired from service and in the case of State of

Odisha and another vs. Anup Kumar Senapati and

another (Civil Appeal No.7295 of 2019) and batch of cases,

the Supreme Court held that if a person's appointment has

not been approved under GIA Order 1994 on the date of the

decision i.e., 16.09.2019, irrespective of his eligibility, he

will get Block Grant. At best respondent No.4 may get Block

Grant from 01.02.2009 if the Governing Body recommends

his case but he cannot be paid grant-in-aid from

01.06.1994. Learned Tribunal committed manifest error in

not considering these vital aspects of the matter.

8. Per contra, Mr. Swain has supported the

impugned order by submitting that fraud was practiced not

by the respondent No.4 but by the appellant himself in

connivance of the members of the Governing Body which

had wrongly recommended his case for approval against the

2nd post. Insofar as the appellant is concerned, his date of

joining is shrouded with serious doubts. At one place, i.e., in

its counter filed before the learned Tribunal, the date of

joining of the appellant is said to be 01.01.1989 against the

resignation vacancy of one Prafulla Kumar Agasti, while at

another place, that is, in the additional counter filed by the

present appellant before the learned Tribunal, the said date

is said to be 16.12.1990. If the said Prafulla Kumar Agasti

resigned prior to 31.12.1988 from the 2nd post of peon and

the appellant was appointed against the said post on

31.12.1988 and joined on 01.01.1989 then, the question of

resignation of Prafulla Kumar Agasti again on 26.10.1990 as

per resolution dated 26.11.1995 (Annexure-A/4 to the

additional counter), does not arise at all. All this, according

to Mr. Swain, strongly suggests manipulation of records and

falsifies the claim of the appellant of having been appointed

against the 2nd post of peon against the consequential

vacancy of Prafulla Kumar Agasti. Again, in the staff

position submitted by the College, enclosed as Annexure-2

to the GIA case before the learned Tribunal, the date of

joining of the appellant has been shown as 20.05.1989. In

the approval order passed by the Director, Higher

Education, the date of joining of the present appellant has

been shown as 01.01.1989. Thus, three different dates

namely, 01.01.1989, 20.05.1989 and 16.12.1990 have been

projected as the dates of joining of the appellant. Therefore,

learned Tribunal rightly held that there was manipulation of

records. Ultimately learned Tribunal accepted the date of

joining of the appellant as 01.01.1989 as reflected in the

approval order. However, by such date the appellant had not

completed 18 years of age and therefore such appointment

was ab initio void as per the relevant rules. Since the very

appointment of the appellant was unlawful, invalid and ab

initio void, he is not liable to get grant-in-aid from the State

Government. On the other hand, learned Tribunal rightly

held that the respondent No.4 is senior to the present

appellant having been appointed on 15.03.1989. Therefore,

notwithstanding the claim of the respondent that he was

actually appointed on 03.11.1988, even accepting the

version of the Governing Body that he was appointed on

15.03.1989 then also, he is senior to the appellant and as

such entitled to get grant-in-aid as per the GIA order 1994.

It is the settled position of law that if one post is admissible

for grant-in-aid then the senior person will be approved

against that post. The contention that respondent No.4 had

suppressed material facts before the learned Tribunal and

had practiced fraud is sought to be repelled by Mr. Swain

that law is well settled that termination is a lis between the

terminated employee and employer and therefore the

substitute appointee in the termination vacancy has no role

to play and is hence, not a necessary party to that

proceeding. The cause of action for filing the Education

Appeal Case Nos. 39 of 2010 and 13 of 2011 by respondent

No.4 arose after filing of the GIA case and in any case,

relates to his termination from service, in which the

appellant has no role to play. Even otherwise, the

termination having been found to be unlawful in the end by

the learned Tribunal and the respondent No.4 being directed

to be reinstated in service, the argument advanced by the

appellant no longer has any force. As regards the

applicability of the case of Anup Kumar Senapati (supra)

it is contended by Mr. Swain that the judgment of the

learned Tribunal was passed prior to judgment of the Apex

Court and in any case as per the yardstick dated

08.07.1977 two posts of peon were admissible and since the

petitioner is the senior, he is entitled to get grant-in-aid

against the said post.

9. From the rival contentions noted above, it is

evident that the following points are required to be

determined in the present appeal:

1. Whether the appellant is entitled to receive grant-

in-aid as per GIA order 1994.

2. Whether respondent No. 4 practiced fraud by way

of suppression of relevant facts.

3. Does the impugned judgment warrant any

interference by this Court?

10. Of the three points noted above, the one at Serial

No.2 deserves consideration at the outset because it is well

settled that fraud and justice never dwell together. If it is

established that respondent No.4 has indeed practiced fraud

the whole perspective would change and the consideration

for this Court would be entirely different.

It has been argued that respondent No.4 filed the

GIA case in 2007. During pendency of the said case,

challenging the order of the Governing Body refusing him to

discharge his duties, he approached the Tribunal in

Education Appeal Case No. 39 of 2010. Further, he was

terminated from service on 03.03.2011 which he also

challenged before the learned Tribunal in Education Appeal

Case No. 13 of 2011. Both the appeals were disposed of by

the learned Tribunal on 16.03.2012 i.e., after passing of the

impugned order which was on 17.01.2011. So as on

17.01.2011 both the appeals were pending. Admittedly, the

appellant was not a party to the said appeals. It is also

common ground that the fact of pendency of the appeals

was not brought to the notice of the Tribunal. The question

is, does it amount to suppression of relevant facts. Viewed

differently, whether non-mentioning of the fact of pendency

of the appeals in the GIA case by respondent No.4 amounts

to suppression of relevant facts? The answer to this question

obviously would depend upon whether the pendency of the

appeals had any material bearing on the outcome of the GIA

case. The GIA case, as already stated was filed by

respondent No.4 with the following prayer:

"Under the above circumstances, it is humbly prayed that the aforesaid grant-in-aid may be admitted and records be called for and upon hearing the parties, the impugned order dated 06.04.1996 passed by the Director, Higher Education, Orissa, under Annexure-3 may be quashed/set aside and necessary direction be made to the O.Ps. more particularly to the O.P. Nos. 1 and 2 to approve the appointment of the applicant against the post of second Peon and to release grant-in-aid in his favour w.e.f. 01.06.1994 and the arrear dues may be calculated and be paid to him within a time to be stipulated by this Hon'ble Tribunal"

Evidently, the lis involved in the GIA case is a

claim for grant of grant-in-aid which involves inter se

dispute between respondent No.4 on one hand and the

appellant and Governing Body of the institution on the

other. Though it is claimed that respondent No.4 was no

longer an employee of the institution having been

terminated from his service in the year 2010, it is not the

case of the appellant that as on the date of filing of the GIA

case respondent No.4 was not an employee of the

institution. The appeals were filed during pendency of the

GIA case. In the first appeal namely, Education Appeal Case

No. 39 of 2010 the refusal of the Governing Body to the

respondent No. 4 to discharge his duties was under

challenge. In the second appeal namely, Education Appeal

Case No. 13 of 2011, the order of the Governing Body

terminating the respondent No.4 from service dated

03.03.2011 was under challenge. Obviously, the lis involved

in the GIA case and the lis involved in the two appeals are

entirely different. In the appeals the relief is sought for

against the Governing Body and the appellant has no role

whatsoever to play in the matter. To such extent therefore,

non-impletion of the appellant in the appeals is of no

consequence. If the fact of pendency of the appeals would

have been brought to the notice of the tribunal, it is

contended, the learned Tribunal would have awaited

finalization of the said appeals without disposing of the GIA

case. This is being said in view of the fact that in the

common judgment passed in the appeals, the judgment

passed in the GIA case has been taken note of. This is

undoubtedly a reasonable submission but in the facts and

circumstances of the case, this Court is unable to persuade

itself to accept that not mentioning of the fact of pendency of

the appeals filed by respondent No.4 was a deliberate act of

suppression. Be that as it may, this argument loses much of

its steam in view of the fact that the order of termination

has since been held to be illegal and set aside by the learned

Tribunal with direction to the authorities to reinstate the

petitioner in service. It goes without saying that if an order

of termination is held to be illegal, in the instant case for

want of compliance of Section 10-A of the Odisha Education

Act, it is as if the said order never existed and for such

reason the learned Tribunal directed reinstatement of the

respondent No.4 in service. Therefore, the argument made

on behalf of the appellant in this regard is only academic

having no material bearing on the present case. This Court,

in view of the foregoing discussion holds that respondent

No.4 cannot be held to have suppressed any material fact so

as to be treated as having practiced fraud.

11. Coming to the point at Serial No.1, a reading of

the impugned judgment shows that the learned Tribunal

held that respondent No.4 being admittedly senior to the

appellant is entitled to get grant-in-aid as per the GIA order

1994. The case of the appellant however is on the premise

that he was appointed against the consequential vacancy

caused by the resignation of Prafulla Kumar Agasti, who

was holding the 2nd post of peon. It would be proper to

examine the merits of the claim put forth by the appellant

by examining the relevant facts.

12. It is borne out from the record that pursuant to

the resolution dated 31.12.1988 of the Governing Body the

appellant was appointed as a peon on 01.01.1989. The

College was notified to receive grant-in-aid from the State

Government with effect from 01.06.1994 as per the GIA

order 1994. The Governing Body recommended the name of

the appellant against the 2nd post of peon. Basing on such

recommendation of the Governing Body, the Director of

Higher Education in his order dated 06.04.1996 approved

the appointment of the appellant against the 2nd post of

peon. Significantly in the said order, the date of joining of

the appellant has been mentioned as 01.01.1989.

Respondent No.4, on the other hand claims to have been

appointed against the 2nd post of peon by the Governing

Body after undergoing a due process of selection on

02.11.1988 in which he joined on 03.11.1988. Learned

counsels for both parties have argued at length with regard

to the actual date of joining of the appellant.

13. As already stated hereinbefore, there appears to

be considerable confusion and discrepancy with regard to

the date of joining of the appellant inasmuch as three dates

namely, 01.01.1989, 20.05.1989 and 16.12.1990 are being

put forth in this regard at different places. Learned Tribunal

has placed reliance on the date mentioned in the approval

order of the Director i.e., 01.01.1989. In the circumstances,

this Court also would like to place reliance on the date

mentioned in the order of approval passed by the Director

that is, 01.01.1989 because the appellant was given the

benefit of grant-in-aid on such basis. If such be the case,

the question is, whether the appellant was appointed

against the 2nd post of peon and if so, since when.

From the School Leaving Certificate issued by Upendra Nath

Academy in favour of the appellant it appears that his date

of birth as recorded in the Admission Register is

11.10.1971. It has been strenuously argued by learned

counsel for the respondent No.4 that the appellant was a

minor as on the date of his appointment i.e., 01.01.1989

inasmuch as he was aged below 18 years. Reliance has been

placed on the provisions of Odisha Education (Management

of Private Colleges) Rules, 1979 ( in short "1979 Rules"),

Odisha Education (Recruitment and Conditions of Service of

Teachers and Members of Staff of Aided Educational

Institutions) Rules, 1974 (in short "1974 Rules") and Rule

52-A of the Odisha Service Code in this regard. As per rule

9(1) of the 1979 Rules, the Governing Body shall appoint

teaching and non-teaching staff in accordance with the

provisions contained in the 1974 Rules. Rule 7(c) of the

1974 Rules provides that the age and qualifications for

appointment as teachers and other posts would be the same

as for similar or corresponding posts in the educational

institutions established and maintained by the Government.

Rule-52-A (iii) of the Odisha Service Code lays down the

minimum age limit for entry into Government service as 18

years in case of non-gazetted Class-III Ministerial Servants

and Class-IV Government servants. Learned Tribunal has

also relied upon the aforementioned rules in the impugned

judgment.

After perusing the relevant provisions of the Rules, this

Court is in complete agreement with the learned Tribunal

that the appellant was a minor as on 01.01.1989 and hence,

not eligible for appointment. Once the appointment itself is

held to be void, no vested right can be claimed by the

appointee. Obviously with a view to nullify the above facts, a

stand was taken by the appellant before the learned

Tribunal subsequently by filing an additional counter that

he was engaged by the Governing Body looking at his poor

financial condition as he was literate and a local inhabitant.

Surprisingly, this is contrary to the stand taken in the

original counter which again was filed jointly by the

Governing Body and the appellant wherein it was stated

under oath that the petitioner was appointed by order dated

31.12.1988 and joined in his duty on 01.01.1989. At the

same time it is mentioned that the respondent No.4 was

appointed on 15.03.1989 and joined the duties on

16.03.1989 and therefore the appellant is senior to

respondent No.4. Even if this much is accepted without

entering into the factual controversy any further, it becomes

evident that the appellant having been born on 11.10.1971

could have been eligible for appointment only after

10.10.1989 and not before. So his appointment, if at all,

prior to such date can have no legal sanction. If the date of

appointment of respondent No.4 is accepted as 15.03.1989

as per the counter filed by the Governing Body and the

appellant, he obviously becomes senior in service to the

appellant in view of the fact that the appointment of the

latter at any rate prior to 10.10.1989 cannot have any legal

recognition. In short, when the very appointment of a person

is invalid he cannot be held entitled to grant-in-aid.

14. It is thus seen that the appellant had no legal

right to be allowed grant-in-aid under the GIA Order 1994.

On the contrary, respondent No.4 is found to be entitled to

receive grant-in-aid against the 2nd post of peon under the

GIA Order, 1994. Consequently, there is no infirmity much

less illegality in the impugned judgment passed by the

Tribunal.

15. A feeble argument was advanced on behalf of the

appellant that in view of the retirement of respondent No.4

in the meantime, he cannot be given the benefit of grant-in-

aid. Further, in view of the ratio of the case of Anup Kumar

Senapati (supra), the case of the respondent No.4 cannot

be considered in relation to the GIA Order 1994. This is

argued by taking a cue from the judgment in Anup Kumar

Senapati that since GIA 1994 has already been repealed,

no further claims under the said order can be entertained.

Learned counsel appearing for the appellant appears to have

missed the point that this is not a case of claiming GIA

under the 1994 Order per se, but of non-grant of GIA to the

respondent No.4 at the relevant time. In fact, the

appointment of the appellant was approved against the 2nd

post by order dated 06.04.1996 but such order was

challenged by respondent No.4 in this Court in OJC No.

3868 of 1996, which was disposed of on 04.09.2007

directing him to approach the Learned Tribunal whereupon

he filed the GIA Case in question in 2007. The Learned

Tribunal passed the impugned judgment on 17.01.2011.

The appellant challenged the said judgment in the present

appeal filed in 2011. It must be kept in mind that the

judgment in Anup Kumar Senapati's case was delivered

on 16.09.2019. Therefore, the inter-se dispute was decided

much before the said judgment was delivered. The ratio of

Anup Kumar Senapati bars the raising and/or

entertaining claims under the 1994 Order after its repeal

but the case at hand stands on a different footing. The

dispute arose right from the time when the appointment of

the appellant was approved and admittedly, when the GIA

1994 Order was still in force. The dispute was finally

decided by the Learned Tribunal in 2011. There is thus a

factual distinction between the cases referred to in the ratio

of Anup Kumar Senapati and the case at hand. For the

same reason, the respondent No. 4, irrespective of the fact of

his retirement from service in the meantime, is held entitled

to the claimed benefit as he had validly raised the same

during his period of employment and not thereafter. This

court therefore holds that the appellant is not entitled to

receive grant-in-aid as per GIA order 1994.

16. For the foregoing reasons therefore, this Court is

of the considered view that the impugned judgment suffers

from no infirmity or illegality to warrant any interference

whatsoever. Resultantly, the appeal being devoid of merit is

therefore, dismissed. There shall be no order as to costs.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 11th October, 2022/ A.K. Rana, P.A.