Purusottam Swain vs State Of Odisha And Others
2023 Latest Caselaw 8885 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK
  W.P (C) No. 29187 of 2019 & W.P (C) No. 18128 of 2009

An application under Sections 226 and 227 of the Constitution of
India)
                         ---------------

  Purusottam Swain      ......                      Petitioner

                      -Versus-

  State of Odisha and others          .......   Opp. Parties

  W.P (C) No. 29187 of 2019

  Purusottam Swain                  ......          Petitioner

                      -Versus-

  State of Odisha and others          .......   Opp. Parties


  Advocate(s) appeared in these cases :-
  _______________________________________________________
   For Petitioner     : M/s. C.R. Pattnaik, S.Ch. Padhi,
                        R. Das & S.P. Sahoo, Advocates
   For Opp. Parties   : M/s. K. Mohanty, S.K. Samal
                        S.P. Nath, S.D. Routray,
                        B.R. Pattanayak, S.S. Routray &
                        S. Sekhar & J. Biswal,
                                           Advocates
                        Mr. Suvashish Pattanaik
                        Additional Government Advocate
                        [ in WP(C) No. 29187 of 2019]
   For Petitioner     : M/s. J.K. Mishra, R.N.Mishra
                        N.K. Behera & P.K.Mishra,
                        Advocates

  For Opp. Parties    : M/s.D.K. Mohapatra,


                                              Page 1 of 13
                             D. Routray, S.Jena, K. Mohanty,
                            S. Das and S.K. Samal,
                            Advocates.
                            Mr. Suvashish Pattanik,
                            Additional Government Advocate
                           [ in WP(C) No. 18128 of 2009]
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                            JUDGMENT

9th August, 2023 SASHIKANTA MISHRA, J.

Both these writ petitions involve by and large, the

same issues of fact and law. Hence, both were heard

together and are being disposed of by this common

judgment.

2. The fact of the case, briefly stated are that the

petitioner was appointed as second Peon by the Managing

Committee of Nanda Kishore High School, Tilada and

joined as such on 18.01.2001. His appointment was

approved with effect from 01.04.2008 by the erstwhile

Inspector of Schools, Balasore Circle. The said order of

approval was subsequently modified vide order dated

13.10.2009 by approving his post as Night Watchman-

cum-Sweeper (3rd post) with effect from 01.04.2008 by

substituting it with that of Gayadhar Nayak, who was

approved as Science Attendant (2nd post) being earlier

approved as Night Watchman-cum-Sweeper. The

petitioner challenged such modification of the order of

approval in this Court by filing writ petition being W.P.(C)

No.18128 of 2009 with prayer to quash the same. By

order dated 05.02.2010 passed in Misc. Case No.15679 of

2009, this Court directed that the order dated 13.10.2009

shall not be implemented until further orders. It is

relevant to note that the writ petition was dismissed for

non-prosecution by order dated 11.07.2017.

Subsequently, as per order dated 10.01.2019 passed in

CMAPL No.344 of 2018, the order passed by this Court in

dismissing the writ petition for non-prosecution was

recalled and the writ petition was restored to file. In the

meantime, an FIR came to be lodged against the petitioner

by the Headmaster of the school on 26.09.2018. On

28.09.2018, the Headmaster issued a show cause notice

to the petitioner asking him to reply as to why action shall

not be taken against him for disobeying the order of the

authority directing him to work as Night Watchman-cum-

Sweeper in the school. On 10.10.2018, the Managing

Committee passed a resolution to suspend the petitioner

which was sent to the District Education Officer (DEO) for

approval. The petitioner was in jail and was released on

bail on 18.10.2018. He submitted his show cause reply on

20.10.2018. But on 28.11.2018, the DEO, Balasore

approved the order of suspension. Accordingly on

18.12.2018, the Headmaster put him under suspension

retrospectively from 05.10.2018 fixing his Headmaster at

Mituali Girl's High School. Challenging the order of

suspension the petitioner approached this Court in

W.P.(C) No.122 of 2019. By order dated 07.03.2019, this

Court taking note of the fact that the petitioner had

submitted a representation before the DEO, disposed of

the writ petition directing him to take a decision on such

representation and to pass orders in accordance with law.

Pursuant to such order, the DEO, by order dated

20.09.2019 rejected the representation of the petitioner

for being permitted to join against the 2nd post of Peon

instead of the 3rd Post, i.e.. Night Watchman-cum-

Sweeper. The DEO held that the 1st order of approval had

been modified with effect from 01.04.2008 whereby the

petitioner being the junior most was rightly approved

against the 3rd post. But the order of suspension was

recalled by reinstating him in service with immediate

effect. The petitioner claims to have submitted his joining

report to the Headmaster on 19.10.2019, but the same

was refused for which, the said joining report was sent by

registered post with A.D. On 01.11.2019, the Headmaster

issued a letter directing him to join the school as 3rd Peon

(Watchman-cum-Sweeper). In course of hearing of the writ

petition, being directed by this Court an affidavit was filed

by the DEO, specifically stating that the petitioner has not

joined in school despite direction of the Headmaster.

3. On the above facts, the petitioner has filed this writ

petition seeking the following relief.:-

"It is therefore prayed that the Hon'ble Court may be graciously pleased to issue notice to the opposite parties under Article 226 of Constitution of India and moré particularly may issue writ of certiorari/order/direction /declaration as follows:-

(i) Writ of certiorari quashing the orders/letters of Headmaster in Anx-5 (show cause Notice), Anx-6 (Suspension order) and Anx-7 (C) (HM's order to petitioner to join in 3rd

past) as illegal an unlawful as HM is neither the appointing authority nor the Disciplinary authority.

(ii) Writ of certiorari quashing the part of order of DEO, Balasore OP. No.3 which affects the petitioner as the same is violative of Court's order dt.05.02.2010.

(iii) Declaration declaring the show cause notice and suspension order issued by HM are invalid and to quash the proceeding for its non- initiation till date.

(iv) Direction to the management /HM to accept the joining of the petitioner to in his former post of 2nd peon, as the petitioner had been suspended from the post and would be re- instatement in that post.

(v) Order directing the O.P. No.3 to allow all service benefits including entire salary from the date of suspension, as the suspension is bad and violativ of Court's order and he has been re-instated."

4. Be it noted that the order of suspension having since

been revoked and he being reinstated in service, the relief

claimed for quashing the show cause notice vide

Annexure-5 and order of suspension vide Annexure-6, no

longer survives for adjudication. The stand of the opposite

parties as reflected in the counter affidavits filed in both

the writ petitions is that the service of the petitioner was

approved with effect from 01.04.2008. Since the service of

one Gayadhar Nayak, who is admittedly senior to the

petitioner was approved as Night Watchman-cum-

Sweeper, the order of approval dated 08.12.2008 was

required to be modified appropriately. It is also stated that

the modification of the order of approval in respect of the

petitioner against the 3rd Post (Watchman-cum-Sweeper)

is fully justified having regard to the order dated

08.12.2008 of the Government in School and Mass

Education Department as per which the aided non-

Government High Schools are entitled to non-teaching

employees as follows one Junior Clerk, one Office Peon,

one Science Attendant and one Watchman-cum-Sweeper.

It is further stated that Gayadhar Nayak was appointed on

16.04.1988 whereas the petitioner was appointed on

18.11.2001 and therefore, Gayadhar Nayak is senior to

the petitioner for which he is entitled to the 2nd post

(Science Attendant). The petitioner has no right to claim

the 2nd post. The order of modification of approval is

entirely in consonance with the guidelines fixed by the

Government.

5. Heard Mr. C. R. Pattanaik, learned counsel for the

petitioner, Mr. Suvashish Pattanaik, learned Additional

Government Advocate for the State and Mr. S. Sekhar,

learned counsel appearing for the opposite Nos. 5 and 6.

6. Mr. Pattanaik submits at the outset that the opposite

party-authorities could not have acted upon the order of

modification of approval as this Court had specifically

directed that said order should not be implemented. He,

therefore, submits that asking the petitioner to join as

Night Watchman-cum-Sweeper runs entirely contrary to

the direction of the Court.

6. Responding to the above argument Mr. Suvasish

Pattanaik, learned Additional Government Advocate

submits that the writ petition [W.P.(C) No.18128 of 2009]

was dismissed for non-prosecution on 11.07.2017 and

was restored to file by order dated 10.01.2019. Therefore,

the petitioner was called upon to join his duties as per the

modified order of approval which he did not and therefore,

was placed under suspension. So by the time the writ

petition was restored to file, he had already been placed

under suspension which he challenged in WP.(C) No.122

of 2019. This Court disposed of W.P. (C) No.122 of 2019

directing the DEO to dispose of his representation in

accordance with law. According to Mr. Pattanaik therefore,

there has been no violation of this Court order.

7. After hearing learned counsel for the parties on the

preliminary point, this Court is also of the view that

under the peculiar facts and circumstances referred to in

the preceding paragraph, it cannot be said that the order

of this Court had been deliberately violated. On the

contrary, there being no prohibitory order in operation at

the relevant time as a consequence of dismissed of the

writ petition, the petitioner was called upon to join in his

duty as per the modified order of approval.

8. Mr. Pattanaik next argues that once the service of

the petitioner had been approved against a particular

post, the same cannot be subsequently modified and that

too with retrospective affect. He further submits that the

opposite party No.6 had never challenged the original

order of approval whereby the petitioner was approved

against the 2nd post.

9. In response, Mr. Suvashish Pattanaik has argued

that an employee cannot claim any vested right to a

particular post. As per order of the Government, the

School was entitled to three peons-one Office Peon, one

Science Attendant and one Night Watchmen-cum-

Sweeper. It is obvious that the posts are to be filled up on

the basis of seniority of the employees. It is not disputed

that Gayadhar Nayak (O.P. No.6), is senior to the

petitioner as per the date of his joining (16.04.1988) as

also in age (10.11.1963). The petitioner, on the other

hand, had joined on 18.01.2001 and his date of birth is

14.11.1974. The 1st post was filled up by one Trilochan

Senapati, whose date of joining was 21.03.1987.

Therefore, by no stretch of imagination can the petitioner

be posted against the 2nd post. As regards the order of

approval dated 28.03.2009, Mr. Pattanaik submits that

the same was done inadvertently which necessitated

modification thereof. Therefore, no right can be said to

have accrued in favour of the petitioner against the 2nd

post.

10. This Court has taken note of the date of joining of

all the three peons, namely, Trilochan Senapati, Gayadhar

Nayak and the petitioner. There is no dispute that the

petitioner is the junior most among them having joined

last. Therefore, he is entitled to the 3rd post and not the

second. Only because the order or approval was wrongly

issued approving his service against the 2nd post cannot

confer any inviolable right on him in respect of such post.

Going by the norms of the Government, it can only be

treated as an inadvertent mistake on the part of the

concerned authority. Such mistake having come to light

was rectified and according to this Court, rightly so. There

can be no estoppel against the authorities in this regard.

It is trite that no person can take advantage of a mistake

committed by the authority whereby certain benefit/

status was conferred upon him. It is also trite that there

can be no estoppel against law. If the action of the

authorities is intended to give effect to the order of the

Government, which had earlier wrongly not been done, it

cannot be estopped from doing so subsequently. It is the

settled position of law that the Government cannot be

debarred by promissory estoppel from enforcing a

statutory prohibition. Reference in this regard may be had

to the decision of Union of India and others v. Godfrey

Philips India Ltd., reported in (1985) 4 SCC 369, the

following observations of the Apex Court in the said case

are highly relevant:-

"There can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it."

11. The petitioner does not challenge the legality of the notification dated 08.12.2008 of the Government in School and Mass Education Department. Therefore, the petitioner having joined later than opposite party No.6 cannot claim any right over the 2nd post. This Court therefore finds nothing wrong in the action of the Headmaster vide Annexure-7(C) directing the petitioner to attend the school as 3rd Peon (Watchman-cum-Sweeper) so as to interfere therewith.

12. In the result, the writ petitions are found to be devoid of merit and are therefore, dismissed. There shall be no order as to costs.

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

Sashikanta Mishra, Judge

B.C. Tudu

Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Aug-2023 17:53:32