Orissa High Court
Miss Jyotsnarani Sahoo vs State Of Orissa & Others on 18 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO Nos.185 and 220 of 2011
In the matter of an application under Section
24-C of the Orissa Education Act, 1969 and under
Articles 226 and 227 of the Constitution of India.
..................
Miss Jyotsnarani Sahoo .... Appellant
-versus-
State of Orissa & Others .... Respondents
For Appellants :M/s. Dr. J.K.Lenka, Advocate
For Respondents :M/s. S.K.Samal,A.G.A
(for Respondent Nos.1 & 2)
Mr. D.K. Panda, Advocate
(for Respondent No.3)
Mr. D.K. Mohapatra, Adv.
(for Respondent No.4)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
--------------------------------------------------------------------------------
Date of Hearing: 23.03.2023 and Date of Order: 11.04.2023
-------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J. Since in both the
appeal, the common order passed by the learned State
Education Tribunal (in short, <Tribunal=) on 23.03.2011 is
under challenge, the same was heard analogously and
disposed of by the present common order.
// 2 //
2. While the appellant in both the cases herein seeking
approval of her services as against the 3rd post of lecturer in
English in Sishu Ananta Mahavidyalaya, Balipatna in the
district of Khurda approached the Tribunal in GIA Case
No.216 of 2007, Respondent No.4 in both the appeals
seeking similar approval of her services as against the self-
same post of 3rd post of Lecturer in English, approached the
Tribunal in GIA Case No.286 of 2007. Since the issue
involved in both the GIA cases in GIA Case No.216 of 2007
and GIA Case No.286 of 2007 revolves around the claim of
appellant and Respondent No.4 with regard to approval of
their services as against the 3rd post of Lecturer in English in
the above said College, the Tribunal vide the impugned order
dated 23.03.2011 while allowed the claim of Respondent
No.4 in GIA Case No.286 of 2007, but rejected the claim of
the present appellant as made in GIA Case No.216 of 2007.
The appellant, therefore, filed the present two appeals
challenging the common order passed in 23.03.2011 in GIA
Case Nos.216 of 2007 and 286 of 2007.
3. The factual matrix giving rise to filing of the present
appeal is that the College in question, taking into account
the students strength as well as the work load in the
Department of English during the academic session 1991-92,
// 3 //
found that the number of posts required to be filled up taking
into account the students strength though is <3= but two
numbers of Lecturers in English are continuing as against
the two approved posts of Lecturer in English.
4. Taking into account the requirement to fill up the 3rd
post of Lecturer in English along with other Departments, an
advertisement was issued by the College on 11.07.1991
inviting applications from intending candidates for different
posts of Lecturers, which also includes the post of Lecturer
in English. In the said advertisement, the minimum
qualifying mark was prescribed as <55%= at P.G level.
Pursuant to the advertisement issued on 11.07.1991,
interview for the post of Lecturer in English was conducted
on 21.07.1991 and in the said interview while the present
appellant was placed at Sl. No.3 of the merit list, Respondent
No.4 was placed at Sl. No.5. The selection of the candidates
as against the post of Lecturer in English so made by the
interview Board on 21.07.1991 was duly approved by the
Governing body of the College in its resolution dated
31.07.1991.
5. As the candidates placed at Sl. No.1 & 2 of the merit list
so prepared on 21.07.1991, did not join in spite of being
provided with the order of appointment, the Principal-cum-
// 4 //
Secretary of the College issued the order of appointment in
favour of the present appellant who was at Sl. No.3 of the
said list vide order No.3059 dated 09.09.1991. Pursuant to
the order of appointment issued on 09.09.1991, the
appellant herein joined as against the 3rd post of Lecturer in
English on 16.09.1991.
6. But while continuing as such, when Respondent No.4
made a rival claim as against the 3rd post of Lecturer in
English, inter alia contending that she was initially appointed
as a Lecturer in English on adhoc basis vide Office Order
No.2871 dated 18.05.1991 and was subsequently regularized
as against the said post vide order No.2914 dated
29.07.1991, dispute arose with regard to the continuance of
the present appellant vis-à-vis Respondent No.4 as against
the 3rd Post of Lecturer in English. Though various enquiries
were conducted at different level in order to verify the
genuineness of the appointment of the Appellant as well as
Respondent No.4 and the eligibility to be appointed as
against the 3rd Post of Lecturer in English, but when nothing
materialized and the approval as against the said 3rd post of
Lecturer in English was not made by Respondent Nos.1 & 2,
the appellant in the present appeal moved the Tribunal in
G.I.A Case No.216 of 2007. Similarly, Respondent No.4 also
// 5 //
approached the Tribunal seeking similar relief in G.I.A Case
No.286 of 2007. The Tribunal vide the impugned order dated
23.03.2011 while disposing both the appeals by a common
order while rejected the claim of the present appellant so
made in G.I.A Case No.216 of 2007, but allowed the claim of
Respondent No.4 as against the 3rd post of Lecturer in
English so made in G.I.A Case No.286 of 2007.
7. Dr. J.K. Lenka, learned counsel appearing for the
Appellant in both the appeals contended that during the
academic session 1991-92, taking into account the students
strength as well as the workload in the Department of
English, it was found that as against three (3) Posts of
Lecturer in English so required, taking into account the
students strength since two nos. of Lecturer are continuing
as against the approved posts, one post is required to be
approved by the Government as against the Department of
English. Taking into account such requirement to fill up
another post of Lecturer in English, the College issued an
advertisement on 11.07.1991 by inviting applications to fill
up the posts of Lecturer in different Department which
includes the Department of English. In the said
advertisement, the minimum requirement was prescribed at
55% of mark at PG level.
// 6 //
7.1. It is contended that while appellant had secured
58% mark in M.A in English, the Respondent No.4 had
secured 53% mark. Accordingly, it is contended that even
though Respondent No.4 was not eligible to make her
application in terms of the advertisement issued on
11.07.1991, but she was allowed to take part in the interview
which was held on 21.07.1991. In the interview held on
21.07.1991, while the present appellant with 38 marks was
placed at Sl. No.3, Respondent No.4 with 34 marks was
placed at Sl. No.5. As the candidates placed at Sl. Nos.1 & 2
did not join in spite of being provided with their appointment
as against the 3rd post of Lecturer in English, the appellant
was appointed as Lecturer in English vide order dated
09.09.1991 of the Principal-cum-Secretary of the College.
Prior to such appointment of the appellant, the Governing
body of the College also approved the select list so prepared
on 21.07.1991 in its proceeding dated 31.07.1991.
7.2. It is contended that in terms of the order of
appointment issued on 09.09.1991, the appellant joined as
against the 3rd post of Lecturer in English on 16.09.1991.
Even though Respondent No.4 also participated in the
interview pursuant to the advertisement issued under
Annexure-2 and she was placed at Sl. No.5, but she raised a
// 7 //
claim as against the 3rd post of Lecturer inter alia contending
that vide Office Order dated 18.05.1991, she was appointed
as a Lecturer in English on adhoc basis and such adhoc
appointment was regularized vide Office Order dated
29.07.1991. Dr. Lenka, learned counsel appearing for the
appellant contended that during the time the Respondent
No.4 was so appointed on adhoc basis, her services was
already approved as against the trade English in the
Vocational stream by the Director Secondary Education vide
Office Order dated 19.04.1991. In the said order dated
19.04.1991, the name of Respondent No.4 finds placed at Sl.
No.4 as against the trade English. It is also contended that
Respondent No.4 in terms of the order of approval made on
19.4.1991 also received her salary as due and admissible
from April, 1991 to February, 1996.
7.3. It is also contended that when Respondent No.4 raised
her claim as against the 3rd post of Lecturer in English inter
alia taking the stand that she was initially appointed on
adhoc basis vide Office Order dated 18.11.1991 and the said
adhoc appointment was subsequently regularized vide Office
Order dated 21.07.1991, enquiry was conducted in order to
know the veracity of the claim so made by Respondent No.4.
As per the Office order issued by the Principal of the College
// 8 //
on 23.07.1999, a sub-committee was constituted and the
said sub-committee conducted an enquiry with regard to the
genuineness of the appointment of Respondent No.4. In the
report submitted by the Sub-committee on 11.09.1999, it
was indicated as follows:-
< That the cases of the above mentioned teaching
staff are very complicated. They have got two (2)
numbers of appointment order. In Despatch Register,
the letter numbers have been inserted and even in
Resolution Book, their cases have been tampered and
over written. Since their cases are under the
investigation of Crime Branch & Department of Higher
Education, Govt. of Orissa, the Principle is requested
to put forth these cases before Governing Body for
consideration. That, the appointment of Sujata Das,
Lec. In English is creating a lot of confusion to know
the actual incumbent of 3rd post in English
Department as because her date of joining has been
pre-dated & her case needs further investigation by
the Principal
That from the verification of attendance
Register, it is found that, Sujata Das has inserted her
signature from 18.05.1991 to 01.08.1991. In
continuance with the Head Clerk & the Head Clerk
has already admitted that, she has signed in the
attendance register taking from his table her financial
benefits. How it is possible ? The conduct &
functioning of Head Clerk is questionable.
7.4. It is also contended that since the sub-committee in its
report dated 11.09.1999 held the Head Clerk and Ex-
Principal of the College responsible for tampering with and
manipulating the College records with regard to appointment
of Respondent No.4 as against the 3rd post of Lecturer in
English, an enquiry was made by the Deputy Director,
Department of Higher Education. The Dy. Director in his
// 9 //
report so conducted pursuant to the direction of the
Department on 31.12.1999 held as follows:-
<On examination of the Dak Despatch register
Volume - IV maintained at that time, it is evident that
no appointment order was issued to Smt. S. Das
though she was placed at the 4th position in order of
merit drawn by the interview Board. On examination
of the attendance register of vocation volume -1,
1990-91 and volume-II, 1990-91-92, it is found that
Smt. S. Das had been serving as a part time teacher
in the vocational stream running in that college and
the principal of the college was in-charge of the said
vocations stream. From the pay acquaintance of
vocational stream available in the college office Smt.
Das is found to have been paid from January 1991 to
February 1996. Annexure-III (A,B.C,D)
(The appointment of Smt. Das as Part-time teacher n
the Vocational) stream do not available in the College
Office).
In view of the above facts, it is clear that after the
conduct of the said interview held on 21.7.91. Smt.
Das was working as a Part-time techer and her such
service was approved by the then Director, Secondary
Education, Orissa vide his Letter NO.14957, dated
19.4.91(Annexure-IV). Smt. Das had never been
issued any appointment order during the period when
such orders were issued to Ms. Sahoo and Mr. Ray.
Therefore, the two Posts of Lecture-in-English created
by the Governing Body on 31.7.91 were filled up by
Ms. J.R. Sahoo and Sri S.K. Ray.
The Governing Body of the College, in its meeting
NO.18, dated 18.9.94, in resolution No.11 has been
pleased to regularize and confirm the services of Sri
S.K. Ray and Ms. J.R. Sahoo since the date of their
joining on 1.11.91 and 16.9.91 respectively,
(Annexure-V)
On scrutiny of the pay acquaintance register from
6/1987 to 5/1992 volume V-3(2) Page 23 it is found
that Ms. J.R. Sahoo received her first Salary of
Rs.1250/- at the rate of Rs.500/- per month from the
date of her joining against Serial No.19 and Sri S.K.
Ray, Rs.500/- per month against Serial NO.21.
Whereas Smt. Das received her first salary Rs.500/-
per month against Sl. No.22. From the maintenance
of the Serial number and the amount disbursed
towards the first salary in the acquaintance register,
it is evident that Smt. Das joined as a Lecturer after
Ms. J.R. Sahoo and Sri S.K. Ray had joined
(Annexure-VI).
// 10 //
Regarding the appointment order and the date of
joining of Smt. Das, two appointment orders bearing
(1) 2871/SAM, dt.18.5.91 and (2)
2914/SAM/dt.29.7.1991 are available in her
personal file. The first appointment order singed by
the then principal on 18.5.1991 directed Smt. Das to
join immediately as a Lecturer-in-English on adhoc
basis. On the basis of the aforesaid appointment
order her joining report is found in her personal file
for which Smt. Das claims to have joined as a
Lecturer with effect from 18.5.1991.
The justify the reasons why she was not given
salary fro mthe date of her so called appointment on
18.5.91, Smt. Das gave an application to the Principal
on 18..91 to the effect that she would work on
honorary basis, since the financial condition of the
institution was not sound (Annexure-VII).
As regards the second appointment order
(2914/SAM, dt.29.7.91)-it was issued to Smt. Das
and was signed by the Principal on the same day i.e.
29.7.91, stating in the said order < the post is
regularized from the date of ad-hoc appointment i.e.
18..5.91.=
It is not out of place to mention that
(a) Both the appoitmen t orders issued to Smt. Das are
within the academic year 1990-91, when no post in
the Department of English was created by the G.B. of
the College. Two such posts were creatd by the G.B.
only during the session 1991-92 as stated in the
Annexure-1.
(b) The Governing Body of the College, in its meeting
NO.6 held on 31.7.91, authorized the Principal to
appoint candidates from the interview panel to fill up
the posts in English. But both the appointment orders
issued to Smt. Das were found to have been signed
and issued by then Principal prior to the date he was
authorized by the Governing Body to do so. Such
authorization was given by the Govnerning Body to
the Principal on 31,7,91(Ref.Annexure-1).
(c) On the scrutiny of the attendance register (for
teaching staff) Volume - VII, January to November, it
is found that the first appointment letter in favour of
Smt. Das was served two days before the
commencement of the summer vaction of the college
when the regular classes of the College usually
remains suspended for the conduct of C.H.S.E and
University Examinations.
Thus in view of the above facts, the appointment letter
issued to Smt. Das is irregular and it contravene the
creation of post by the Governing Body.
On verification of the Dak Despatch register Volume-
IV, both the serial numbers found in the appointment
// 11 //
orders issued to Smt. Das are found to be tampered
with and manipulated.
(a) The Sl. NO.2871 dt.18.5.91 and its columns like
name, address, subject matter etc. written earlier
have been struck of completely and rewritten with
some other names. But there is no reference to Smt.
Das against the (7) of 2871, dated 18.5.91 and thus
remains blank(Annexure-VIII)
(b) The Sl. NO.2914, dated 29.7.91 in the Dak Register is
also found to be tampered with.(Annexure-IX)
The tampering and manipulation found in the Dak
Register amply justify that the appointment letters
issued to Smt. Das were later creations.
ON verification of the resolution relating to the
appointment of Smt. Das, it is found that the
resolution is tampered with and manipulated to
favour her appointment and her date of joining. The
Resolution no.6 of the meeting no.6 dated 21.4.94
read as
(Resolution Book Vol.II, Page - 38)(Annexure-X)
On examination of the above resolution, it is found
that the said resolution of 21.4.91 intends to give ad-
hoc appointment to Smt. Das from 18.5.91 as her
name is specified in the resolutions.
Hence, there is every reason to doubt that this
resolution is inserted in the G.B. Resolution Book at a
later date. Further, no post in the Department of
English existed on the day i.e 18.5.91 when the said
appointment order was to be issued.
Referring to the service matter of Smt. Das at
another place of the resolution Book (Vol.II, Page-50) a
resolution bearing NO.4 of the meeting No.9,
dtd.8.9.91 reads.
A list of employees of the College found in
the said resolution, mentions regularization of the
services of Miss Sujata Das, Lecturer-in-English w.e.f
189.5.91 against the Sl. NO.5 of the said list and
subsequent serial numbers after Sl.No.5 have been
changed to 6,6 to 7 so on and so forth. This
manipulation might have been done at a later date to
insert the name of Ms. Sujata Das against the Sl.NO.5
which was previously for Smt. Sabitanjali Senpati,
Lecturer-in-Botany (Annexure-XI)
Regarding the involvement of Sri B.C. Das, the
present Head Clerk (G.I.A staff) and the Ex-Principal
in tampering with and manipulating the vital College
records, as alleged by the Petitioner, to the extent of
affecting her seniority in the Department of English.
Verification of the services of the members of the staff
of S.A. Mahavidyalaya, including Ms. J.R. Sahoo and
Smt. S. Das, was done by three senior teachers of the
college and the Head Clerk on 10.2.99. At the time of
// 12 //
verification the signatures of Smt. S. Das was seen
from 1.8.91 onwards on the daily staff attendance
register. But latr on, it was discovered that Smt. S.
Das has put her signature from 18.5.91 (from the date
she claims her seniority).
When the Head Clerk was asked about such
manipulation, he explained in his note sheet NO.1
dtd.27.6.99 <that Smt. Das managed to sign the
attendance register in his absence while it was kept
on the table=. The Head Clerk is the custodian of the
staff attendance register and such an explanation
from the Head Clerk is not convincing.
That on examination of the hand writing of the
Head Clerk, the enquiring officer felt that there is a
close resemblance of the Head Clerk's hand writing
with that of the over writing on the Dak Register. The
Head Clerk happens to be the custodian of the Dak
Register. So such a manipulation at the Head Clerk's
level cannot be ruled out. For confirmation it needs
the opinion of a hand writing expert.
The ex-Principal who has been alleged to have
manipulated the records of the college could not
contacted. However, since he was the custodian of
the Governing Body resolution Book and other
documents of the college of during his tenure as the
Principal, he should be brought into the range of
suspicion and be interrogated to find out further
details in this regard.
Conclusions
1. Tampering with and manipulation of college records
have been made to establish the pre-dated
appointment of Smt. S. Das, Lecturer-in-English of S.A
Mahavidyalaya and thus making her senior to the
Petitioner Smt. J.R. Sahoo, Smt. J.R. Sahoo joined in
her service as a Lecturer-in-English on 16.9.91.
Where as Smt. S. Das joined in her post on a later
date.
2. Further investigation is necessary to fix responsibility
on the Head Clerk and the Principal and to draw
proceedings against them.=
7.5. It is also contended that basing on the order
passed by the Department of Higher Education, enquiry was
also conducted against the Head Clerk and ex-principal of
the College and in the enquiry conducted by the Additional
// 13 //
Director, Department of Higher Education, the report of the
Additional Director dated 16.12.2006 is as follows:
<As per RDE's report NO.220/02.03.2020,
tampering with and manipulation of College records have
been made to establish the pre-dated appointment of Smt.
Das, Lecturer in English of S.A. Mahavidyalaya and thus
making her senior to the petitioner, Ms. Jyotasnarani Sahoo,
Lecturer in English, Ms. J.R. Sahu joined her service as a
Lecturer in English on 16.09.1991, whereas Smt. S. Das
joined her post on a later date. The Regional Director
Education recommended further investigation against the
complicity of the then Principal, and the involvement of B.C.
Das, the Head Clerk in tampering with and manipulation of
vital College records, as alleged by the Petitioner to the
extend of affecting her seniority. Accordingly, B.C. Rath
was suspended w.e.f 13.07.2000 as per decision of
Governing Body.
After taking the approval of the Sub-Collector,
Bhubaneswar, the Principal of S.A. Mahavidyalaya,
Balipatna re-instated Sri B.C. Das, Head Clerk, vide his
letter NO.802/6.12.2000m pending finalization of
disciplinary proceedings against him. These records
pertaining finalization of disciplinary proceedings have been
furnished to the undersigned by the present Principal, Sri
Kshirod Kumar Ray Mohapatra (As annexed) was present
himself before the undersigned at 12.30 P.M on 16.12.2006.
As per D.O of Deputy Secretary to Government of Higher
Education Department vide D.O No.3904/dt.24.1.2004, the
then Director Higher Education, Ms. Kalpana Manjari Das,
in her letter No.12971/dated 4.3.2004(copy enclosed)
requested Government to kindly issue necessary
instructions regarding further investigation upon the Head
Clerk and the Ex-Principal as suggested in RDE's Report.
No reply was received from the Government till date.
However, a second D.O has been issued from Government
No.49106/24.11.06 for a detailed report pertaining to the
above matter. The above mentioned letter carries no
reference to the former Government D.O letter
No.3904/dtd.24.01.2004 or to the reply of the DHE letter
NO.12971/4.3.2004.
However, the fact that manipulations have been made
to adversely affect the seniority of Ms J.R. Sahoo, the
Petitioner's case is under personal investigation of Hon'ble
Commissioner-cum-Secretary Higher Education,
Government of Orissa as reported by the present Principal
vide his letter No.1144/12.12.06.
The undersigned makes a humble submission that this
report along with the clarification of DHE and enquiry report
of R.D.E may kindly be sent to the Government for the final
disposal of the case.=
// 14 //
7.6. Learned counsel for the appellant contended that
in the meantime when Respondent No.4 approached this
Court in W.P.(C ) No.10754 of 2005 for regularization of her
service as per the provisions contained under the Validation
Act, 1998 and this Court vide order dated 04.10.2005,
directed the Respondent Nos.1 & 2 to take a decision on the
Petitioner's claim. Respondent No.1 vide order dated
24.02.2007 rejected the claim of Respondent No.4 on the
ground that the order of appointment issued in favour of her
on 18.05.1991 and the approval of the same made vide
Resolution dated 08.09.1991 are all manipulated and
Respondent No.4 has also been appointed in contravention to
Section 10(2) & ( 3) of the Orissa Education Act,1969.
7.7. Dr. J.K. Lenka, learned counsel for the appellant
also contended that the Governing body of the College i.e.
Respondent No.3 in the counter filed in the present appeal
has also admitted about the illegal appointment of
Respondent No.4 vide order dated 18.5.1991 and subsequent
order issued on her favour on 29.07.1991. Respondent No.3
in its counter has also indicated that the order dated
18.05.1991 and 29.07.1991 are no order in the eye of law as
the Principal of the College at the relevant point of time was
// 15 //
not authorised by the Governing body to issue any such
order of appointment in favour of Respondent No.4. It is also
contended that the services of Respondent No.4 was never
approved by the Governing body in its resolution dated
31.07.1991, as alleged. The stand taken by Respondent No.3
in Para 5,6,7 & 12 of the counter are reproduced hereunder :
"5. That again Advertisement was made by the
principal on 11.7.91 at Annexure-2 to the F.A.O petition
in the daily leading Odiya News Paper, <The Samaj=
for filing up different posts of Lecturer including
Lecturer in English. As per the said Advertisement
dated 11.7.91, the required percentage of marks at P.G
level was 55% as the college is a composite college.
The Appellant has secured 58% of marks in P.G, where
as the Resp. NO.4 had secured 53% of in P.G. Level,
(Annexure-3 series to the F.A.O). In the said
Advertisement, it has been clearly mentioned that the
interview will be held on 21.07.91. The Appellant,
Resp. NO.-4 and others had applied and participated
in the interview on 21.07.1991 before the selection
committee. It reveals from the merit list of the selection
committee dated 21.07.91 at Annexure-4 to the F.A.O
petition that the Appellant secured 3rd position and
Resp. NO.-4 placed 5th postion in order of merit. The
Appellant secured 38 marks and Resp. NO.-4 secured
34 marks. Appearance of Res. No-4 joined as a
lecturer in English after the interview held on 21.7.91
but not before that i.e. 18.05.91. The so called
regularization by the principal who is not competent
dated 29..7.91 (at Annexure-9 at page-29) w.e.f
18.5.91 is no order in the eye of law as he was not
authorized by the G.B. to do so.
6. That the G.B. as per resolution dated 31.07.91
at Annexure-5 to the F.A.O petition
approved/confirmed the merit list and
authorized/empowered the principal to issue
appointment order on the basis of merit list dated
21.07.91 and also after taking into consideration the
work load of composite college created two more posts
of Lecturer in English that is 3rd and 4th poist
respectively. Therefore, the question of appointment of
Res. NO-4 prior to 31.07.91 did not arise. Had the
Res. No-4 was appointed prior to 31.07.91, the G.B
could have reflected the said fact in the resolution
// 16 //
dated 31.7.91. Appointments orders were issued to
Serial numbers 1 and 2 in the merit list dated 21.7.91
against 3rd and 4th post so far as lecturer in English is
concerned. But they did not join by 09.09.91. Hence,
the Appellant who placed 3rd position became NO.-1 in
the merit list and was issued appointment order on
09.09.91 at Annexure-6 to the F.A.O petition which
post the Appellant joined on 16.09.91. Sri S.K. Ray
who was placed at Sl. NO-6 in the panel dated
21.07.91 was also issued appointment order which
post he joined in Nov. 1991. As the Rs.No-4 was
ineligible to hold the post she was not issued any
appointment order. Two posts created by the G.B i.e.
3rd and 4th in its resolution dated 31.07.91 have been
filled up by the Appellant and Sri9 S.K.Ray. The G.B
as per Resolution dated 18.09.94 approved the
appointment of the Appellant w.e.f 16.9.91 and S.K.
Ray w.e.f 01.11.91. At the relevant time the Resp. No.-
4 was appointed as part time Teacher in another
institution/school under Director of Secondary
Education. The said fact is established from the
approval order issued by the Director of Secondary
Education as per order datedf 19.04.91 at Annexure-7.
The name of Resp. No-4 finds place at Sl.No-3 in the
said order. The Resp. NO-4 received her
salary/remuneration from the said school from April,
1991 to Feb.1996. The appointing authority is
Governing Body but not the principal. The so called
appointment orders at Annexures-8 and 9 to the F.A.O
petition were neither issued nolr did the G.B.
empower/authorize the principal to issue said
appointments orders in favour of Res.No-4.
7. That it is revealed from the report of the Sub-
Committee dated 11.09.99 at Annexure-10 to the F.A.O
petition that Smt. Sujata Das(Resp.No-4) had inserted
her signature from 18.05.91 in the attendance register
in connivance with the Head Clerk. As per order of the
Director, Higher Education, the Dy. Director conducted
an enquiry. It is further clearly revealed from the
enquiry report of the Dy. Director dated 03.03.2000 at
Annexure-11 to the F.A.O peititon that both the
appointment letters dated 18.05.91 and 29.07.91 were
signed by then Principal prior to the date he ws
authorized by G.B and on verification of Dak Despath
register, the serial numbers found in both the
appointment letters were tampered with and
manipulated by the Ex-principal. The issue NO.2871
dated 18.5.91 (Annexure-8) and its subject matter
written earlier have been struck off completely and
over and above the said struck off was re-written
again with some other names. But there is no
reference in respect of Res. NO-4 against the Issue
// 17 //
NO.2871(7) dated 18.5.91 and the issue number 29`14
dated 29.07.91(Annexure-9) in the Dak Despatch
Register was also tampered with. In the findings, the
Dy. Director has held that tampering with and
manipulation have been made to establish pre-dated
appointment of Resp. No-4 making her senior to the
Appellant, although the Resp. NO-4 joined on a latter
date. Copy of the relevant extract of the Dak Despatch
register is filed here with as Annexure-E/3.
12. That there is no such resolution on 29.7.91.
Hence the question of regularization of the service of
the Resp. NO-4 and giving seniority as per resolution
dated 20.12.2003 by mentioning that her services has
been regularized by the G.B on 29.07.91 is wrong.
After verification and as desired by the Director, Higher
Education the present Principal(deponent) has
submitted the report on dated 10.11.200 at Annexure-
24. In the said report the present principal(Deponent)
has reported in details regarding illegality in respect of
the appointment of Res.No-4.=
7.8. It is accordingly contended that even though the
Governing body of the College did not accept the
appointment of Respondent No.4 as against the 3rd post of
Lecturer in English and in various enquiry report, it was also
found that Respondent No.4 was never appointed in terms of
order dated 18.05.1991 and 29.07.1991, but the learned
Tribunal on the face of such report submitted by different
authority as well as the stand taken by the Governing body of
the College, illegally, arbitrarily allowed the claim of
Respondent No.4 while rejecting the claim of appellant No.1
vide its order dated 23.03.2011. It is accordingly contended
that the impugned judgment is not sustainable in the eye of
law.
// 18 //
8. Mr. Dillip Kumar Mohapatra, learned counsel appearing
for Respondent No.4 on the other hand made his submission
basing on the stand taken in the counter affidavit filed by
Respondent No.4.
Mr. Mohapatra contended that as the 3rd post of
Lecturer in English was made available as per the workload
and prevailing yardstick, the Governing body in its resolution
dated 19.09.1990 decided to appoint one Lecturer in English
as against the 3rd Post. Pursuant to the said decision of the
governing body taken on 19.09.1990, the Governing body in
its resolution dated 21.04.1991 resolved to appoint
Respondent No.4 on adhoc basis w.e.f 18.05.1991. Pursuant
to the decision taken in its proceeding dated 21.04.1991, the
Respondent No.4 was appointed on adhoc basis as a lecturer
in English vide Officer order dated 18.5.1991 and the said
adhoc appointment was treated as a regular appointment
w.e.f 18.05.1991 vide subsequent order issued on
29.07.199. The appointment of Respondent No.4 on regular
basis w.e.f 18.05.1991 vide order dated 29.07.1991 was also
approved by the Governing body in its resolution dated
31.07.1991.
8.1. Mr. Mohapatra further contended that since in
spite of being appointed on regular basis w.e.f 18.05.1991
// 19 //
vide order dated 29.07.1991, Respondent No.4 was not paid
with her salary and she was instead paid with the salary
w.e.f 01.11.1991 and the appellant from the date of her
joining i.e. 16.09.1991, the Governing body in its resolution
dated 20.12.2003 resolved to extend the benefit of salary in
favour of the appellant w.e.f 18.05.1991.
8.2. It is also contended that in terms of the Resolution
dated 20.12.2003, the seniority of Respondent No.4 though
was treated on notional basis w.e.f 18.05.1991, but the
arrear salary from 18.05.1991 to 31.10.1991 was not paid
due to the poor financial condition of the College. It is also
contended that even though pursuant to the order passed by
this Court in W.P.(C ) No.10754 of 2005, the claim of the
appellant as well as Respondent No.4 for regularization of
their services as against the 3rd post of Lecturer in English
under the provisions of the Validation Act, 1998 was
considered, but the claim of Respondent No.4 as well as that
of the appellant was rejected by the Government. The
Respondent No.4 accordingly moved the Tribunal in G.I.A
Case No.286 of 2007 and the said claim has been rightly
allowed by the Tribunal after due verification of all the
relevant records.
// 20 //
9. Mr. Dinesh Kumar Panda, learned counsel
appearing for Respondent No.3-Governing body on the other
hand made his submission basing on the stand taken in the
counter affidavit.
9.1. Mr. Panda contended that Respondent No.4 was
never appointed on adhoc basis vide order dated 18.5.1991
nor she was appointed on regular basis vide order dated
29.07.1991. It is also contended that the approval of the
appointment of Respondent No.4 on regular basis w.e.f
18.05.1991 was also not approved by the Governing body in
its resolution dated 31.07.1991 as alleged by Respondent
No.4. It is contended that the then Head Clerk in connivance
with the then Principal of the College by manipulating the
records, issued the order of appointment in absence of any
resolution of the Governing body to that effect on 18.05.1991
as well as subsequent order issued on 29.07.1991.
9.2. Mr. Panda, learned counsel for Respondent No.3
further contended that the alleged order dated 18.05.1991
and 29.07.1991 were never issued vide letter Nos.2871 and
2914. It is the Head Clerk of the College who manipulated
the Dak Register by issuing such letter in favour of
Respondent No.4. It is also contended that in connivance
with the ex-Head Clerk and ex-Principal, Respondent No.4
// 21 //
managed to put her signature in the attendance Register
w.e.f 18.05.1991.
9.3. Mr. Panda contended that pursuant to the
decision taken by the Governing body in its proceeding dated
19.09.1990 though it was decided to fill up another post of
Lecturer in English with due issuance of advertisement and
an advertisement was also issued to that effect 17.10.1990
fixing 28.10.1990 as the date of interview, but the said
recruitment process was cancelled by the Governing body in
its proceeding dated 21.10.1990. Therefore, pursuant to the
Resolution dated 19.09.1990 and the advertisement dated
17.10.1990, no selection was conducted for appointment of
Lecturer in English. It is also contended that in the Dak
Register of the relevant date i.e. 18.05.1991, no such letter
was issued in favour of Respondent No.4 vide letter No.2871.
With regard to letter No.2914 dated 29.07.1991, the ex-Head
Clerk manipulated the Dak Register by interpolating therein
the name of Respondent No.4. But It is contended that the
appointment of the Respondent No.4 so made on 29.07.1991
was never approved by the Governing body in its resolution
dated 31.07.1991 as alleged by Respondent No.4 nor any
such order of appointment was issued in favour of Respondent
// 22 //
No.4 either on 18.05.1991 and 29.7.1991 with due approval
of the Governing Body.
9.4. On the other hand, Mr. Panda contended that
pursuant to the advertisement issued on 11.07.1991, the
present appellant as well as Respondent No.4 participated in
the interview held on 21.07.1991. In the said interview held
on 21.07.1991, for the post of Lecturer in English, the
present appellant was placed at Sl. No.3 and Respondent
No.4 at Sl. No.5. As the candidates placed at Sl. No.1 & 2 did
not join in spite of being provided with order of appointment,
the appellant was issued with the order of appointment on
09.09.1991 and she joined in the said post of Lecturer in
English on 16.09.1991. It is also contended that the stand
taken by Respondent No.4 that she was appointed on ad-hoc
basis vide Office Order dated 18.05.1991 and subsequently
on regular basis vide order dated 29.07.1991 are not
sustainable, as during the relevant time, the services of
Respondent No.4 was approved as against the trade English
in the Vocational stream of the College vide order of the
Director, Secondary Education dated 19.04.1991. The
Respondent No.4 as against the said trade was also paid with
her salary from April, 1991 to February, 1996. Therefore, by
no stretch of imagination, it can be held that Respondent
// 23 //
No.4 was appointed by the Governing body on adhoc basis on
18.05.1991 and on regular basis vide order dated 29.08.1991
as a Lecturer in English.
10. Mr. S.K. Samal, learned Addl. Govt. Advocate on
the other hand contended that since the issue involved is
with regard to appointment as against 3rd post of Lecturer in
English and the appellant as well as Respondent No.4 are
making rival claim, it is for the Court to decide that the inter
se claim of the Appellant and Respondent No.4. However, it is
contended that the prayer of the appellant as well as
Respondent No.4 for regularization of their services as
against the 3rd post of Lecturer under the Validation Act
1988 was rejected by the Government, taking into account
the report submitted by the Dy. Director as well as Asst.
Director with regard to the manipulation on the question of
appointment of Respondent No.4 vide order dated
18.05.1991 and 29.07.1991.
11. I have heard Dr. J.K. Lenka, learned counsel
appearing for the appellant and Mr. D.K. Mohapatra, leaned
counsel appearing for Respondent No.4, Mr. D.K. Panda,
learned counsel appearing for Respondent No.3 and Mr. S.K.
Samal, learned Additional Government Advocate appearing
on behalf of Respondent Nos.1 & 2.
// 24 //
On the consent of the learned counsels appearing
for the parties, the matter was heard at the stage of
admission and disposed of by the present common order.
12. Having heard learned counsel for the parties and
taking into account the stand taken by the appellant and
Respondent No.4, question to be decided by this Court is as
to whether prior to appointment of the appellant vide order
dated 09.09.1991, the Respondent No.4 as alleged was
appointed on adhoc basis vide office order dated 18.05.1991
and subsequently on regular basis w.e.f 18.05.1991 vide
order dated 29.07.1991.
12.1. From the records, it is found that even though the
Governing body in its resolution dated 19.09.1990 decided to
fill up another post of Lecturer in English as per the
yardstick by issuing an advertisement on 17.10.1990 fixing
the date of interview to 28.10.1990, but the Governing body
in its proceeding dated 21.10.1990 decided to cancel the said
selection process. It is also found that in the proceeding
dated 21.04.1991 annexed by Respondent No.4 in her
counter though the Governing body resolved to appoint the
Respondent No.4 as a Lecturer in English w.e.f 18.05.1991
on ad-hoc basis and vide Office Order No.2871 dated
28.07.1991 she was so appointed on regular basis w.e.f
// 25 //
18.05.1991, but in view of the decision taken by the
Governing body in its resolution dated 21.10.1990, no
interview was held for appointment of a Lecturer in English.
No document has also been annexed by the Respondent No.4
in her counter showing that the Respondent No.4 was so
appointed by facing a due selection process, pursuant to the
advertisement issued on 17.10.1990. It is also found from
the record as well as the enquiry report submitted by
different authority, that no such order of appointment was
ever issued in favour of Respondent No.4 vide Office order
No.2871 dated 18.05.1991 and Office order No.2914 dated
29.07.1991. No such document has also been filed by
Respondent No.4 disputing the report submitted by the
Enquiry Officers under Annexures-1 to 12 and 14.
12.2. Even if assuming the appointment of Respondent
No.4 so issued on 18.5.1991 and 29.07.1991 to have been
properly issued, but since the said Respondent No.4 never
faced any selection prior to her appointment as against the
post of Lecturer in English, and the advertisement so issued,
as admitted by the Governing body, was cancelled in its
proceeding dated 21.10.1990, the appointment of
Respondent No.4 cannot be treated as a valid appointment,
// 26 //
in view of the decision of this Court rendered in the case of
Jitendra Behera Vs Registrar (Admn), Orissa High Court
in W.P.(C ) No.4784/ 2005.
12.3. This Court after going through the materials
placed by the learned counsel appearing for the parties, is of
the view that the Tribunal while deciding the claim of the
Appellant vis-à-vis Respondent No.4 has not at all taken into
consideration the report submitted by the different
authorities under Annexures-10,11,12 & 14. From the said
report, it is manifestly clear that Respondent No.4 was never
appointed on adhoc basis on 18.5.1991 nor her services was
regularized w.e.f 18.05.1991 vide order dated 29.07.1991.
On the other hand, it is found from the record that
Respondent No.4 pursuant to the advertisement issued by
the College on 11.07.1991 participated in the selection
process and she was placed at Sl. No.5 as against the
position of the appellant at Sl. No.3. It is also found that
since persons placed at Sl. No.1 & 2 did not join, the
appellant was provided with the appointment vide Office
Order dated 09.09.1991, where she joined on 16.09.1991. In
the enquiry conducted by different authority, no allegation
has been made with regard to selection and appointment of
the Appellant as against the 3rd post of Lecturer. It is also
// 27 //
found that on her joining on 16.9.1991, the appellant was
released with her salary from the said date. But the
Respondent No.4 on the face of her alleged appointment w.e.f
18.05.1991 was never released with the salary w.e.f.
18.05.1991.
12.4. Therefore, it is the view of this Court that the
Tribunal while deciding the claim of the appellant vis-à-vis
Respondent No.4 has failed to take note of all the aforesaid
stand into consideration in its proper perspective. The
Tribunal has completely erred in accepting the order of
appointment issued in favour of Respondent No.4 on
18.05.1991 and 29.07.1991. Since Respondent No.4 was
never appointed as alleged by the Governing body and found
in different enquiry conducted by different authority, the
services of Respondent No.4 as directed by the Tribunal
cannot be approved as against the 3rd post of Lecturer in
English. This Court accordingly is inclined to quash the
order dated 23.03.2011 so passed by the Tribunal in GIA
Case No.216/2007 and 286 of 2007 and quash the same.
While rejecting the claim of Respondent No.4 so made in GIA
Case No.286/2007, this Court allows the claim of the
appellant for her approval as against the 3rd post of Lecturer
in English in SishuAnanta Mahavidyalaya, Balipatna. This
// 28 //
Court directs Respondent Nos.1 & 2 to take effective steps for
approval of the services of the appellant as against the 3rd
post of Lecturer in English from the date of her eligibility and
release the consequential grant-in-aid within a period of
three months from the date of receipt of this order.
Both the appeals are accordingly disposed of.
The Photo copy of this order be kept in the connected
case.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the, 11th April, 2023/sangita
