Orissa High Court
Rabindranath Jena vs State Of Odisha & Ors on 1 December, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.284 of 2012
Rabindranath Jena .... Appellant
Mr. J. Biswal, Advocate
-versus-
State of Odisha & Ors. .... Respondents
Mr. S. Jena, AGA
Mr. S.K. Das, Advocate
(Respondent No. 5)
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
30.11.2023
Order No
09. I.A. No. 958 of 2023
1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. All the I.As. have been filed for substitution of the legal heirs of
deceased Respondent No. 6 with setting aside the order of
abatement and condonation of delay.
4. At the outset Mr. Jena, learned Addl. Govt. Advocate raised a
preliminary objection with regard to filing of such I.As. in the
present appeal.
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5. It is contended that Respondent No. 6 was the Applicant No. 1
before the Tribunal and the said Respondent died during pendency
of the matter before the Tribunal in GIA Case No. 21 of 2008.
During pendency of the matter before the Tribunal Applicant No.
1/Respondent No. 6 died on 07.04.2002 and no application for
substitution since was filed before the Tribunal, the order passed in
his favour by the Tribunal is a nullity in the eye of law.
Accordingly, it is contended that since the order passed in favour of
Applicant No. 1/Respondent No. 6 is a nullity in the eye of law as
by the time the order was passed he had already died, no application
for substitution is required to be allowed in the present appeal.
6. Having heard learned counsel appearing for the Parties and after
going through the materials available on record, it is found that
Applicant No. 1/Respondent No. 6 died on 07.04.2002 during
pendency of the matter before this Court in OJC No. 5113 of 1996,
which was subsequently transferred and registered as GIA Case No.
21 of 2008. In view of such position, this Court is not inclined to
substitute the legal heirs of Respondent No. 6/Applicant No. 1 in
the present appeal.
7. All these applications are rejected accordingly.
(Biraja Prasanna Satapathy)
Judge
P.T.O.
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1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. J. Biswal, learned counsel for the Appellant, Mr. S.
Jena, learned Addl. Govt. Advocate appearing for the State-
Respondents and Mr. S.K. Das, learned counsel appearing for the
substituted legal heirs of deceased Respondent No. 5.
3. The present appeal has been filed challenging the Judgment
dtd.31.10.2009 so passed by the Tribunal in GIA Case No. 21 of
2008.
4. It is the case of the Appellant that pursuant to the selection
process initiated initially by the authority of Khetramohan Science
College, Narendrapur in the district of Ganjam, the Appellant as
well as Respondent Nos. 5 & 6 were all appointed as against the
post of Head Clerk, Sr. Clerk and Jr. Clerk-cum-Typist respecticely
vide order dtd.27.12.1988 under Annexure-2 series.
4.1. It is contended that subsequently pursuant to a fresh selection
process initiated by the College under Annexure-4, the Appellant
was appointed as a Head Clerk, where he joined on 09.10.1991.
Similarly, Respondent No. 5 in pursuant to the said selection
process was appointed as a Sr. Clerk, where he joined on
05.10.1991 and deceased Respondent No. 6 was appointed as a Jr.
Clerk-cum-Typist, where he joined on 05.10.1991.
4.2. It is contended that taking into account the nature of
appointment so made by the Governing Body of the College, the
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services of the present Appellant and Respondent No. 5 were
approved by the Govt. vide order dtd.15.03.1996 under Annexure-
6. It is contended that even though the services of the Respondent
No. 5 was approved vide order dtd.15.03.1996 as against the post of
Jr. Clerk cum-Typist and the services of the present Appellant was
also approved as against the said post of Jr. Clerk -cum-Typist in
lieu of Sr. Clerk, but Respondent No. 5 along with Respondent No.
6 challenging the order of approval made in favour of the present
Appellant, approached this Court in OJC No. 5113 of 1996.
4.3. It is contended that during pendency of the matter before this
Court though Respondent No. 6 died on 07.04.2002, but no step
was ever taken to substitute him by filing appropriate application. It
is further contended that the writ petition in question was
transferred to the Tribunal vide order dtd.28.11.2007 and
consequentially the matter was registered as GIA Case No. 21 of
2008.
4.4. Learned counsel for the Appellant contended that since in
terms of the selection process initiated under Annexure-4, the
Appellant was appointed as against the post of Head Clerk and the
Private Respondent Nos. 5 & 6 were appointed as against the post
of Senior Clerk -cum-Typist and Jr. Clerk-cum-Typist, no illegality
was committed by the Govt. while approving the services of the
present Appellant as against the post of Junior Clerk-cum-Typist in
lieu of Senior Clerk vide order dtd.15.03.1996 under Annexure-6. It
is also contended that the services of Respondent No. 5 was also
duly approved as against the post of Junior Clerk-cum-Typist vide
the said order under Annexure-6. But Respondent No. 5 without
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having any grievance on the face of such approval, approached this
Court in OJC No. 5113 of 1996 along with the deceased
Respondent No. 6. The Tribunal without proper appreciation of the
fact that Respondent No. 6 died on 07.04.2002 during pendency of
the matter before this Court in OJC No. 5113 of 1996, held the legal
heirs of the said deceased Respondent entitled to get the benefit of
the order while allowing the claim vide the impugned Judgment
dtd.31.10.2009.
4.5. It is contended that since Respondent No. 6 during pendency of
the matter died on 07.04.2002 and no step was taken to substitute
his legal heirs, the order passed by the Tribunal in his favour is a
nullity in the eye of law. It is also contended that during pendency
of this appeal, Respondent No. 5 on the face of the order of
approval, also died on 01.09.2022. It is accordingly contended that
since Respondent No. 6 during pendency of his claim died on
07.04.2002, he is not entitled to get the benefit of approval of his
services. It is accordingly contended that in view of the order of
approval made in favour of the Appellant and Respondent No. 5
vide order dtd.15.03.1996, the appeal may be disposed of with due
modification of the direction so contained in the impugned
Judgment.
5. Learned Addl. Govt. Advocate as well as learned counsel
appearing for the Respondent Nos. 5 does not dispute the
submission made by Mr. Biswal, learned counsel appearing for the
Appellant.
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6. Having heard learned counsel appearing for the Parties and
taking into account the fact that Respondent No. 6 during
consideration of his claim died on 07.04.2002 and no step was
taken for substituting him at any point of time, the order passed by
the Tribunal with a direction to extend the benefit of approval in
favour of the legal heirs of deceased Respondent No. 6 is not
sustainable in the eye of law. Accordingly, this Court is inclined to
quash the direction of the Tribunal in that regard and quash the
same accordingly.
6.1. Considering the fact that the services of the Appellant as well
as the deceased Respondent No. 5 were already approved by the
Govt. vide order dtd.15.03.1996, this Court while disposing the
appeal, directs Respondent Nos. 1 & 2 to extend the benefit of order
dtd.15.03.1996 in favour of the Appellant and the legal heirs of the
deceased Respondent No. 5. Such an exercise shall be undertaken
and completed by the Respondent Nos. 1 & 2 within a period of
four (4) months from the date of receipt of this order.
7. The appeal is accordingly disposed of with the aforesaid
modification and clarification.
(Biraja Prasanna Satapathy)
Judge
Location: High Court of Orissa, Cuttack
