Orissa High Court
An Appeal Under Sec. 24-C Of The ... vs State Of Odisha & Ors on 19 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 117 of 2012
An appeal Under Sec. 24-C of the Orissa Education
Act, 1969.
Mahendranath Mohanta :::: Appellant
-:: VERSUS ::-
State of Odisha & Ors. :::: Respondents
FAO No. 215 of 2009
State of Odisha & Ors. :::: Appellants
-:: VERSUS ::-
Ananta Narayan Mohanta :::: Respondents
& Ors.
Appeared in this case by Hybrid (Physical/Video Conferencing)
Mode.b
FAO No. 117 of 2012
For Appellant :::: Ms. Madhumita Panda, Advocate
For Respondents :::: Mr. S.K. Samal, AGA
(appearing for Respondent Nos.1
& 2)
Mr. Jagannath Bhuyan, Advocate
(appearing for Respondent No. 3)
Mr. P.K. Satapathy, Advocate
(appearing for Respondent No. 4)
Page 1 of 22
// 2 //
FAO No. 215 of 2009
For Appellants :::: Mr. S.K. Samal, AGA
For Respondents :::: Mr. P.K. Satapathy, Advocate
(appearing for Respondent No.1)
Mr. Jagannath Bhuyan, Advocate
(appearing for Respondent No. 2)
Ms. Madhumita Panda, Advocate
(appearing for Respondent No.3)
.........
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 12.04.2023 and Date of Order: 19.04.2023
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B.P. Satapathy, J. Since both the appeals have been filed
challenging the Judgment dtd.23.06.2007 passed by the State
Education Tribunal (hereinafter called as "the Tribunal") in GIA
Case No. 29 of 2004, both the appeals were heard analogously and
disposed of by the present common order. While FAO No. 215 of
2009 has been filed by the State, FAO No. 117 of 2012 has been
filed by one Mahendranath Mohanta. For the shake of brevity &
convenience, the Parties described in FAO No. 117 of 2012, are
described accordingly in this order.
// 3 //
2. It is the case of the Appellant in FAO No. 117 of 2012 that
pursuant to the advertisement issued by the Secretary, Ridayanath
College, Barbil in the district of Mayurbhanj on 09.04.1991, the
Appellant made his application for the post of Clerk-cum-Typist
on 11.04.1991 under Annexure-3. In the interview held by the
College on 14.05.1991 while the Appellant stood 1st in the merit
list, the Private Respondent No. 4 who had also participated in the
same interview stood in the 2nd position. Basing on the merit list
so published by the College under Annexure-4, the Appellant was
appointed as a Clerk vide order of appointment issued by the
Secretary of the College on 18.05.1991 under Annexure-5 and the
Appellant joined in the College on 01.06.1991 as against the post
of Clerk.
2.1. It is also contended that the Private Respondent No. 4 was
also issued with the order of appointment on 19.05.1991 under
Annexure-10 and he also joined on 01.06.1991 as against the post
of Clerk. The joining of the Appellant as well as the Respondent
No. 4 as against the post of Clerk was also approved by the
Governing Body in its proceeding dtd.09.06.1991 under
Annexure-7. Since as per the yardstick one post of Clerk is
// 4 //
admissible to get the benefit of grant-in-aid, the Appellant having
been appointed as against the 1st post of Clerk of the College, was
eligible to get the benefit of grant-in-aid.
2.2. While the matter stood thus, Respondent No. 4 claiming
extension of the benefit of grant-in-aid on the plea that he was
appointed as against the post of Head Clerk on 02.04.1991 and the
present Appellant as Jr. Clerk with date of appointment as
02.04.1991, moved the Tribunal in GIA Case No. 29 of 2004
under Sec. 24-B of the Odisha Education Act.
2.3. It is the case of the Respondent No. 4 that while submitting
the list of appointed non-teaching staff of the College in question
to the concerned Employment Officer by the Principal of the
College on 30.03.1993, Respondent No. 4 was shown appointed as
against the post of Head Clerk on 02.04.1991 and the Appellant as
against the post of Jr. Clerk with date of appointment as
02.04.1991. When both of them were continuing as Head Clerk
and Jr. Clerk respectively, Respondent No. 4 as was not allowed to
discharge his duty by the Governing Body of the College, the said
Respondent approached this Court in OJC No. 18169 of 1997 and
pursuant to the order passed by this Court, moved the Director,
// 5 //
Secondary Education by filing an appeal. This Court when
directed the Director, Secondary Education to decide the appeal,
the Director after hearing the matter passed an order on
25.01.2000 inter alia holding that Respondent No. 4 has been
illegally prevented by the Secretary of the College to discharge his
duty and accordingly direction was issued to the Governing Body
to allow the Respondent No. 4 to resume his duty in his post of
Head Clerk. As the order passed by the Director was not
implemented by the Governing Body, Respondent No. 5
approached this Court in OJC No. 2849 of 2000. But during
pendency of the matter, Governing Body allowed Respondent No.
4 to join in the College on 06.09.2000 to discharge his duty as
against the post of Head Clerk. Pursuant to such action of the
Governing Body, Respondent No. 4 submitted his joining before
the Secretary of the College on 07.09.2000 as against the post of
Head Clerk.
2.4. Subsequently, proposal was also submitted by the Governing
Body for release of grant-in-aid in favour of Respondent No. 4.
When the College was notified to receive the block-grant
w.e.f.01.01.2004 vide Notification dtd.20.02.2004, RespondentNo.
// 6 //
4 claiming extension of the benefit of grant-in-aid in his favour,
moved the Tribunal in GIA case No. 29/2004. But the Tribunal
without proper appreciation of the materials placed by the
Appellant as well as by the Governing Body of the College,
allowed the claim of Respondent No. 4 for his approval as against
the post of Clerk-cum-Typist vide the impugned Judgment
dtd.31.06.2007. Accordingly, FAO No. 117 of 2012 was filed by
the Appellant challenging such direction of the Tribunal. But prior
to filing of the present appeal, Respondent Nos. 1 & 2 had also
approached this Court in FAO No. 215 of 2009 challenging the
self-same Judgment passed in GIA Case No. 29 of 2004.
3. Ms. M. Panda, learned counsel for the Appellant contended that
pursuant to the advertisement issued by the Governing Body of the
College on 09.04.1991, the Appellant submitted his application for
the post of Clerk on 11.04.1991 under Annexure-3. In the
selection held on 14.05.1991 for the post of Clerk while the
Appellant stood in the 1st place, the Respondent No. 4 who had
also taken part in the said selection process stood in the 2nd place
as per the merit list published under Annexure-4. Basing on the
merit list so prepared under Annexure-4, the Appellant was issued
// 7 //
with the order of appointment on 18.05.1991 under Annexure-5
and the Appellant joined in his post on 01.06.1991. Similarly,
Respondent No. 4 was also issued with the order of appointment
on 19.05.1991 and he also joined as a Clerk on 01.06.1991. The
appointment of the present Appellant as well as of the Respondent
No. 4 as against the post of Clerk was also approved by the
Governing Body in its proceeding dtd.09.06.1991 under
Annexure-7 and in the said proceeding the Appellant while was
placed at Sl. No. 11, Respondent No. 4 was placed at Sl. No. 12
taking into account their position in the merit list.
3.1. It is contended that even though the Appellant as well as
Respondent No. 4 were appointed as against the post of Clerk in
the College in question in terms of the selection process initiated
and merit list published under Annexure-4 and both of them joined
on 01.06.1991, but the Respondent No. 4 by taking a plea that he
is not being allowed to discharge his duty as Head Clerk of the
College in terms of the order of appointment issued on
02.04.1991, moved an appeal before the Director, Higher
Education-Respondent No. 2. When the said appeal was not
disposed of by the Respondent No. 2, Respondent No. 4
// 8 //
approached this Court and this Court vide order dtd.04.02.1998
directed the Respondent No. 2 to dispose of the appeal. Pursuant
to the said order passed by tis Court, Respondent No. 2 heard the
appeal and passed the final order on 25.01.2000 by holding the
action of the Governing Body in not allowing Respondent No. 4 to
discharge his duty as unlawful and direction was issued to the
Governing Body to permit Respondent No. 4 to resume his duty.
As the said order passed by the Respondent No. 2 was not
complied, Respondent No. 4 moved this Court in OJC No. 2849 of
2000. But during pendency of the matter, Respondent No. 4 was
allowed to join on 06.09.2000 and joining of the Respondent No. 5
was also accepted by the Secretary of the Governing Body on
07.09.2000 as against the post of Head Clerk.
3.2. It is contended that the Appellant was never impleaded as a
Party either in the appeal so filed by the Respondent No. 4 or in
the writ petition filed by Respondent No. 4 in OJC No. 18169 of
19977 and OJC No. 2849 of 2000. Accordingly, the Appellant had
no occasion to know about the plea raised by the Respondent No.
4 in the appeal and consequential order passed by the Respondent
No. 2 on 25.01.2000. The Appellant had also no occasion to know
// 9 //
about the subsequent petition filed by the Respondent No. 4 in
OJC No. 2849 of 2000 and the acceptance of the joining report of
the Respondent No. 4 as Head Clerk of the College on 07.09.2000.
3.3. It is vehemently contended that since the present Appellant
was never a Party in the appeal so decided by the Respondent No.
2 vide order dtd.25.01.2000, the said order is not binding on the
Appellant. It is also contended that even though the Respondent
No. 4 claims to have been appointed as against the post of Head
Clerk on 02.04.1991 basing on the communication issued by the
Secretary of the College on 30.09.1993 under Annexure-B/4 to the
counter filed by the Respondent No. 4, but it is contended that the
Respondent No. 4 was never appointed as Head Clerk of the
College and the present Appellant as Junior Clerk of the College
with date of appointment as 02.04.1991. It is contended that even
though the Respondent No. 4 claims to have been appointed as
against the post of Head Clerk with date of appointment as
02.04.1991, but no such order of appointment was ever produced
by the Respondent No. 4 before the Tribunal nor any document
showing the initiation of the selection process undertaken by the
Governing Body to make appointment as against the post of Head
// 10 //
Clerk, Jr. Clerk, Librarian and PET etc. on 02.04.1991. It is also
contended that no such resolution of the Governing Body was also
filed by the Respondent No. 4 showing his approval as against the
post of Head Clerk on 02.04.1991.
3.4. Ms. Panda, learned counsel for the Appellant also contended
that since the Respondent No. 4 is claiming the benefit of grant-in-
aid as against the post of Head Clerk basing on his appointment on
02.04.1991, Respondent No. 4 was supposed to produce the order
of appointment so issued in his favour on 02.04.1991. Since no
such order of appointment was ever produced by the Respondent
No. 4, his claim to get the benefit of grant-in-aid as against the
post of Head Clerk with date of appointment 02.04.1991 is not at
all entertainable. But the Tribunal basing on the order passed by
the Respondent No. 2 in the appeal so filed by the Respondent No.
4 challenging the in action of the Governing Body in not allowing
him to discharge his duty as Head Clerk, allowed the claim of
Respondent No. 4 vide the impugned Judgment dtd.23.06.2007
under Annexure-1. Accordingly, it is contended that the impugned
Judgment so passed by the Tribunal is not based on facts as well
// 11 //
as based on records and the said Judgment is not sustainable in the
eye of law.
4. Mr. S.K. Samal, learned AGA on the other hand made his
submission basing on the stand taken by the Respondent Nos. 1 &
2 in FAO No. 215 of 2009. It is contended that pursuant to the
advertisement issued by the Governing Body on 09.04.1991 the
Selection Committee of the College drawn up a merit list on
14.05.1991 for the post of Clerk and in the said merit list, the
Appellant stood in the 1st place and the Respondent No. 4 in the
2nd place. Pursuant to such selection list published on 14.05.1991
while the Appellant was issued with the order of appointment vide
letter No. 23 dtd.18.05.1991, Respondent No. 5 was so appointed
vide letter No. 24 dtd.19.05.1991. Both of them joined as against
the post of Clerk on 01.06.1991 and the services of both of them
were approved by the Governing Body in its proceeding
dtd.09.06.1991.
4.1. It is contended that Respondent No. 4 by raising a plea that he
is not being allowed to discharge his duty as against the post of
Head Clerk, approached this Court in OJC No. 18169 of 1997.
Pursuant to the order passed by this Court on 02.04.1998,
// 12 //
Respondent No. 4 was permitted to move an appeal before the
Respondent No. 2. Respondent No. 2 after hearing the Parties,
directed the Management of the College to reinstate Respondent
No. 4 in the post of Head Clerk vide order dtd.25.01.2000.
Subsequently, during pendency of the matter in OJC No. 2849 of
2000 so filed by Respondent No. 4 seeking a direction for
compliance of the order dtd.25.01.2000, Governing Body allowed
Respondent No. 4 to join in the post of Head Clerk on 07.09.2000.
4.2. But, when the College become eligible to receive the benefit
of grant-in-aid, as per GIA Order, 2004 Respondent No. 2 vide
letter dtd.17.05.2001, 19.08.2002 and 16.12.2003 when called for
the report with regard to appointment of the Appellant and
Respondent No. 4, the Secretary of the College vide letter
dtd.28.12.2003 indicated that while Respondent No. 4 was
appointed as against the 2nd post of Clerk with date of joining as
01.06.1991, the Appellant was appointed as against the 1st post of
Clerk vide order dtd.18.05.1991 with date of joining as
01.06.1991. It is also contended that in letter dtd.28.12.2003, the
Secretary of the College also indicated that the Respondent No. 4
was never appointed as Head Clerk. It is also contended that as per
// 13 //
the Grant-in-aid order, 1994 since only one post of Jr. Clerk-cum-
Typist is admissible to the College, the 1st post of Jr. Clerk-cum-
Typist being held by the Appellant, he became eligible to get the
benefit of block-grant. But Respondent No. 4 claiming the benefit
of grant-in-aid on the plea that he was appointed as against the
post of Head Clerk with date of appointment as 02.04.1991 moved
the Tribunal in GIA Case No. 29 of 2004 claiming approval of his
service as against the post of Head Clerk and consequential release
of grant-in-aid. The Tribunal basing on the order passed by the
Respondent No. 2 in the appeal so filed by the Respondent No. 4,
allowed the claim of Respondent No. 4 vide the impugned
Judgment dtd.23.06.2007. Mr. Samal however fairly contended
that the Appellant was never a party in the appeal so decided by
the Respondent No. 2 and allowed vide order dtd.25.01.2000.
5. Mr. Jagannath Bhuyan, learned counsel appearing for the
Governing Body-Respondent No. 3 on the other hand made his
submission basing on the stand taken in the counter affidavit so
filed in FAO No. 117 of 2012. It is contended that pursuant to the
selection process undertaken by the College in terms of
advertisement dtd.09.04.1991, the Selection Committee conducted
// 14 //
the interview for the post of Clerk on 14.05.1991. In the said
interview while the Appellant stood in the 1st position, Respondent
No. 4 stood in the 2nd position. While the Appellant was issued
with the order of appointment on 18.05.1991, Respondent No. 5
was issued with the order of appointment on 19.05.1991.
However, both of them joined as against the post of Clerk on
01.06.1991 and their services were approved by the Governing
Body in its proceeding dtd.09.06.1991. But since the Appellant
was appointed taking into account his position in the merit list, the
Appellant while was placed at Sl. No. 11 of the proceeding of the
Governing Body dtd.09.06.1991, Respondent No. 4 was placed at
Sl. No. 12 of the said resolution.
5.1. Mr. Bhuyan contended that Respondent No. 4 was never
appointed as against the post of Head Clerk on 02.04.1991 and no
such order of appointment was ever issued by the Governing
Body. It is also contended that the services of Respondent No. 4 as
against the post of Head Clerk was never approved by the
Governing Body and in view of the order passed by the
Respondent No. 2 in the appeal and to avoid legal complication,
he was allowed to join on 07.09.2000. But the fact remains that
// 15 //
Respondent No. 4 was never appointed as against the post of Head
Clerk nor he was at any point of time was deprived to discharge
his duty in the College. By raising a false plea before the
Respondent No. 2 that he is not being allowed to discharge his
duty as against the post of Head Clerk, Respondent No. 4 moved
an appeal and Respondent No. 2 in the appeal when passed an
order directing the Governing Body to allow him to discharge his
duty, he was allowed to join on 07.09.2000. Mr. Bhuyan also
contended that the Appellant was never a Party either before the
Tribunal or before this Court in OJC No. 18169 of 1997 or OJC
No. 2849 of 2000.
6. Mr. P.K. Satapathy, learned counsel appearing for Respondent
No. 4 on the other hand made his submission basing on the stand
taken in the counter affidavit. It is contended that the Respondent
No. 4 was appointed as against the post of Head Clerk with his
date of appointment as 02.04.1991. The Principal of the College
while moving the Junior Employment Officer, Karanjia vide letter
dtd.30.09.1993 under Annexure-A/4, indicated the date of
appointment of the Respondent No. 4 as against the post of Head
Clerk on 02.04.1991 and that of the Appellant as against the post
// 16 //
of Junior Clerk with similar date of appointment as 02.04.1991. It
is contended that even though Respondent No. 4 was appointed as
against the post of Head Clerk on 02.04.1991, but when he was
not allowed to discharge his duty as against the said post, he
approached this Court in OJC No. 18169 of 1997. It is contended
that in the said writ petition Governing Body of the College while
filing the counter affidavit, never disputed the appointment of the
Respondent No. 4 as against the post of Head Clerk. But the
Governing Body of the College when did not allow Respondent
No. 4 to join and discharge his duty as against the post of Head
Clerk, pursuant to the order passed by this Court in OJC No.
18169 of 1997, Respondent No. 4 moved an appeal before
Respondent No. 2. Respondent No. 2 passed an order on
25.01.2000 by holding the action of the Governing Body in not
allowing Respondent No. 4 to discharge his duty as illegal and
while holding so, directed the Governing Body to allow
Respondent No. 4 to resume his duty in the College.
6.1. Pursuant to the order passed by the Director on 25.01.2000,
joining of the Respondent No. 4 as against the post of Head Clerk
was accepted by the Secretary of the College on 07.09.2000. It is
// 17 //
also contended that claiming extension of the benefit of grant-in-
aid when the Respondent No. 4 moved an application before the
Respondent No. 2 on 06.12.2003. Respondent No. 2 vide letter
dtd.16.12.2003 directed the Secretary of the College to furnish the
report. It is contended that when the College became eligible to
receive the block-grant w.e.f.01.01.2004 as per Grant-in-aid order,
2004, Respondent No. 4 claiming extension of such benefit as
against the post of Head Clerk, approached the Tribunal in GIA
Case No. 29 of 2004.
6.2. It is contended that the Tribunal after hearing all concerned
and after perusing all the materials placed by the respective
Parties, came to a conclusion by holding Respondent No. 4 to get
the benefit of grant-in-aid as against the post of Clerk-cum-Typist.
It is accordingly contended that the Tribunal has rightly
adjudicated the matter in favour of Respondent No. 4 and the
present appeals filed by the Appellant as well as the State bears no
merit and liable for dismissal.
7. I have heard Ms. Madhumita Panda, learned counsel for the
Appellant, Mr. S.K. Samal, learned Addl. Govt. Advocate
appearing for the Respondent Nos. 1 & 2, Mr. Jagannath Bhuyan,
// 18 //
learned counsel appearing for the Respondent No. 3 and Mr. P.K.
Satapathy, learned counsel appearing for Respondent No. 4. On
the consent of the learned counsel appearing for the Parties with
due exchange of pleadings, both the appeals were heard
analogously and disposed of by the present common order.
8. Having heard learned counsels appearing for the Parties and
after going through the materials available on record, it is found
that pursuant to the advertisement issued by the College on
09.04.1991 the Appellant as well as Respondent No. 4 participated
in the selection process for the post of Clerk. In the interview held
by the College on 14.05.1991, the Appellant while was placed in
the 1st position, Respondent No. 4 was placed in the 2nd position.
Basing on the merit list so prepared under Annexure-4 on
14.05.1991, the Appellant was appointed as against the pot of
Clerk vide order of appointment issued on 18.05.1991 under
Annexure-5, where he joined on 01.06.1991. Similarly,
Respondent No. 4 was so appointed vide order dtd.19.05.1991
under Annexure-10 and he also joined on 01.06.1991. The
services of both the Appellant and Respondent No. 4 with date of
joining 01.06.1991 was approved by the Governing Body in its
// 19 //
proceeding dtd.09.06.1991 under Annexure-7. In the said
proceeding under Annexure-7 the Appellant was placed at Sl. No.
11 and the Respondent No. 4 was placed at Sl. No. 12.
8.1. It is also found from the records that even though both
Appellant and Respondent No. 4 were appointed as against the
post of Clerk in terms of the selection process initiated by the
Governing Body on 09.04.1991, but while so continuing and
claiming his appointment as against the post of Head Clerk with
date of appointment as 02.04.1991, Respondent No. 4 approached
this Court in OJC No. 18169 of 1997 by making a plea that he is
not being allowed to discharge his duty as against the post of Head
Clerk by the Governing Body of the College. When this Court
directed the Director to consider the grievance so raised by
Respondent No. 4, Respondent No. 2 vide order dtd.25.01.2000
hold the action of the Governing Body in not allowing Respondent
No. 4 to discharge his duty as illegal. Respondent No. 2
accordingly directed the Governing Body to allow Respondent No.
4 to join in his post. Pursuant to the said order passed by the
Respondent No. 2 on 25.01.2000, Respondent No. 4 though was
allowed to join as Head Clerk on 07.09.2000, but it is found from
// 20 //
the record that the so called order of appointment of Respondent
No. 4 as against the post of Head Clerk on 02.04.1991 and that of
the present Appellant as against the post of Junior Clerk vide order
of appointment dtd.02.04.1991, were never produced before the
Tribunal. Respondent No. 4 neither in GIA Case No. 29 of 2004
nor while filing his counter in FAO No. 117 of 2012, has also
produced the so called order of appointment issued in his favour as
against the post of Head Clerk on 02.04.1991.
8.2. In absence of such order of appointment issued in favour of
Respondent No. 4 on 02.04.1991, as per the considered view of
this Court, the appointment of Respondent No. 4 as against the
post of Head Clerk cannot be accepted. It is also found from the
record that even though Respondent No. 4 claim himself to have
been appointed as against the post of Head Clerk with date of
appointment as 02.04.1991, but no document has been filed by
Respondent No. 4 showing the basis of such appointment as
against the post of Head Clerk by facing the selection process. No
document has also been produced showing the approval of the
services of Respondent No. 4 by the Governing Body as against
the post of Head Clerk on 02.04.1991. The document relied on by
// 21 //
the Respondent No. 4 in support of his appointment and reflected
in the letter issued by the Principal of the College on 13.09.1993
cannot be accepted, in absence of any such order of appointment
so issued on 02.04.1991 in favour of Respondent No. 4.
8.3. In service jurisprudence, the claim of any employee always
flows from the order of appointment so issued in his favour. Since
in the present case, no such order of appointment is in the record
showing the appointment of Respondent No. 4 as against the post
of Head Clerk on 02.04.1991, this Court is unable to accept the
stand of Respondent No. 4 to have been appointed as against the
said post of Head Clerk on 02.04.1991. It is also never the case of
the Appellant that he was appointed as a Junior Clerk on
02.04.1991 as reflected in the letter dtd.30.09.1993 so relied on by
the Respondent No. 4. It is also borne from the record that the
present Appellant was never a Party in the appeal so decided in
favour of Respondent No. 4 vide order dtd.25.01.2000. Since the
Appellant was never a Party to the appeal, the order passed on
25.01.2000 cannot be made applicable as against him.
8.4. It is also seen from the impugned order that the Tribunal
solely relying on the order passed by the Respondent No. 2 in the
// 22 //
appeal so filed by Respondent No. 4, allowed the claim of
Respondent No. 4 vide the impugned Judgment. But the Tribunal
has not allowed the claim of Respondent No. 4 as against the post
of Head Clerk.
Therefore, in view of such material irregularity with regard
to passing of the impugned Judgment, this Court is inclined to
interfere with the same and quash the impugned Judgment
dtd.23.06.2007 passed in GIA Case No. 29 of 2004. While
quashing the same, this Court directs the Respondent Nos. 1 & 2
to approve the appointment of the Appellant as against the post of
Jr. Clerk-cum-Typist and extend hm with the benefit of grant-in-
aid as due and admissible within a period of three (3) months from
the date of receipt of this order.
9. Both the appeals are accordingly disposed of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
The 19th April, 2023/Sneha
