Orissa High Court
Afr Sanjaya Kumar Nayak vs State Of Odisha And Others on 2 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 202 of 2019
FAO No. 203 of 2019 &
W.P.(C) No. 31932 of 2022
(From the judgment and order dated 01.02.2019 passed by the
Learned Presiding Officer, State Education Tribunal,
Bhubaneswar in GIA Case No. 152/2013 and 149/2018 and an
application under Articles 226 & 227 of Constitution of India)
---------------
FAO No. 202 of 2019
AFR Sanjaya Kumar Nayak ... Appellant
-Versus-
State of Odisha and others .... Respondents
FAO No. 203 of 2019
Sanjaya Kumar Nayak ... Appellant
-Versus-
State of Odisha and others ... Respondents
W.P.(C).No. 31932 of 2022
Sanjaya Kuumar Nayak ... Petitioner
-Versus-
State of Odisha and others ... Opposite Parties
Advocate(s) appeared in these cases:-
_______________________________________________________
For Appellant : M/s. J.K.Rath, Sr. Advocate
with M/s. D.N. Rath, A.K.Saa &
S.Padhi, Advocates.
For Respondents : Mr. S. Das,
(Addl. Government Advocate)
M/s. S.K.Das, P.K.Behera & N.Jena,
Advocates (for Respondent No.4)
[in FAO No. 202 of 2019 ]
Page 1 of 19
For Appellant : M/S. J.K.Rath, Sr. Advocate
with D.N.Rath, A.K. Saa, &
Mr. S.Padhi, Advocates.
For Respondents : Mr. S. Das,
Addl. Government Advocate
M/s. S.K. Das, P.K. Behera,
N.Jena, Advocate (for Respondent No.4)
[in FAO No. 203 of 2019 ]
For Petitioner : M/S. J.K.Rath, Sr. Advocate
with M/s. D.N. Rath, A.K.Saa,
& S.S.Rath, Advocates.
For Opp. Parties : Mr. S. Das,
Addl. Government Advocate,
M/s. Mr. S.K. Das, B. Mishra
(for Opp. Party No.4)
[in W.P.(C).No. 31932 of 2022]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
2nd March, 2023
SASHIKANTA MISHRA, J.
Both the appeals as above have been
preferred against the common judgment passed by the
learned State Education Tribunal, Bhubaneswar in GIA Case
Nos. 152 of 2013 and 149 of 2018 dated 01.02.2019. The
writ petition is preferred against order dated 05.11.2022
passed by the Director, Higher Education, Odisha pursuant
to the aforementioned judgment passed by the Tribunal. All
the three cases therefore, involve the same facts and common
question of law. As such, all three were heard together and
are being disposed of by this common judgment.
2. The facts of the cases are that Fashimal Anchalika
College/Higher Secondary School, Fashimal in the district of
Sambalpur was established in the year 1993 and thereafter
received necessary permission, recognition and affiliation
from the competent authority for opening of +2 Arts and
Science stream with 128 seats each during the academic
session 1993-94. The appellant (petitioner in the writ
application) and respondent No.4 (opposite party No.4 in the
writ application) were selected in one selection process held
for the post of Junior Clerk-cum-Typist in the year 1993.
Appointment letters were issued to both on 05.05.1993 but
while the appellant joined on 12.05.1993, respondent No.4
joined on 13.05.1993. The appellant sought permission for
study leave to prosecute higher study from the then President
of Governing Body on 05.07.1993 and to allow him to take
admission in the very same College as a regular +2 Arts
student for a period of two years. The President of the
Governing Body permitted him to take admission as regular
+2 Arts student on 20.12.1993. The appellant took admission
and completed such course in the year 1995. During such
period he continued to work in the 2nd post of Junior Clerk -
cum-Typist. Long after, i.e. on 16.09.2009, the Secretary of
the College passed an order stating that the Governing Body
in its meeting held on 15.09.2009 passed resolution that the
appellant was placed in the 3rd post of Junior Clerk -cum-
Typist and respondent No.4 was placed against the 2nd post.
It is claimed by the appellant that he never received such
letter nor any prior notice was issued to him before passing
the resolution dated 15.09.2009. The respondent No.4 filed
GIA case No. 152 of 2013 before the State Education
Tribunal with prayer to direct the opposite party authorities
to approve his appointment and release Block Grant to him
in the 2nd post of Junior Clerk -cum-Typist w.e.f. 20.01.2009
in accordance with Grant-in-Aid order, 2008. A document
was attached to the said GIA case as Annexure-5 showing
that on 06.07.1993, the President of the College had
cancelled the permission order dated 05.07.1993 granted to
the appellant to take admission in +2 Arts stream of the
College on the ground that his application shall be
considered only after passing resolution in the Governing
Body in the next meeting. After receiving notice in the said
GIA case, the appellant, who was impleaded as opposite party
No.4 therein, filed GIA case No. 149 of 2018 challenging the
purported decision of the Governing Body to approve the
present respondent No.4 against the 2nd post and the present
appellant against the 3rd post. As such it was prayed to direct
the opposite party authorities to approve his appointment
against the 2nd post w.e.f. 20.01.2009.
3. Both the GIA cases were heard analogously by the
learned Tribunal. By a common judgment dated 01.02.2019,
the Tribunal held that there being no resolution of the
Governing Body at the relevant time approving the
permission granted by the President in favour of the present
appellant for prosecuting studies, the period of his study
leave cannot be counted towards service period and that his
regular appointment can be taken into consideration from
the year 1995 but not prior to that. It was therefore held that
the Governing Body rightly took a decision in its resolution
dated 15.09.2009 to adjust the present respondent No.4
against the 2nd post and the present appellant against the 3rd
post of Junior Clerk. Thus, while GIA Case No. 152 of 2013
filed by the present respondent No.4 was allowed, GIA case
No. 149 of 2018 filed by the present appellant was rejected.
The said judgment, as already stated, is impugned in the
appeals. Pursuant to such judgment, the Director of Higher
Education, Odisha vide order dated 14.12.2021 approved
payment of Block Grant in favour of the present respondent
No.4 against the 2nd post w.e.f. 20.01.2009 subject to result
of the present FAOs. The said order of the Director is under
challenge in W.P.(C). No. 31932 of 2022.
4. Heard Mr. J.K.Rath, learned Senior Counsel along
with Mr. D.N.Rath, learned counsel for the appellant-
petitioner, Mr. S. Das, learned Addl. Govt. Advocate for the
State and Mr. S. K. Das, learned counsel for the respondent
No.4 (Opposite Party No.4 in the writ petition).
5. Mr. J.K. Rath, learned Senior Counsel has argued
that the order passed by the Tribunal is contrary to the rules
inasmuch as despite assertion by the appellant that the
documents filed by the respondent No.4 are false and forged,
the Tribunal did not consider the same even though the said
documents were not supported by any affidavit. On the other
hand, the appellant submitted several affidavits and
documents which falsifies the case of the respondent No.4,
but the Tribunal did not consider the same. He further
submits that the present respondent No.4 being held as
senior to the appellant is factually incorrect. Since admittedly
respondent No.4 had joined later than the appellant. As
regards the resolution of the Governing Body dated
15.09.2009, it is argued by Mr. Rath, that neither the
Governing Body nor the Director took a decision to treat the
period of study leave of the appellant as discontinuation of
service and therefore, the finding of the Tribunal in this
regard is contrary to the actual facts. Since, the appellant
despite prosecuting studies was duly discharging his work
and also paid remuneration for the same, learned Tribunal
committed material illegality in holding that such part of his
service is not to be counted towards the service period.
6. Mr. S. Das, learned Additional Government
Advocate has supported the impugned order by submitting
that there being no resolution passed by the Governing Body
permitting the appellant to prosecute higher studies, the
finding of the Tribunal that such period has to be treated as
discontinuation of service, cannot be questioned.
7. Mr. S.K. Das, learned counsel appearing for the
respondent No.4 submits that there is no provision for a non-
teaching staff to obtain study leave. He further submits that
only a teacher can be granted study leave as per Rule 13 of
the Odisha Education (Leave of Teachers and other Members
of the Staff of Aided Educational Institutions) Rules, 1977,
subject to other requirements. Though in the instant case,
permission was granted by the then President of the
Governing Body yet on realising that he had no power to
grant permission, rectified his mistake by cancelling the
permission so granted on the very next date. Thus,
admittedly the appellant was a regular student of +2 Arts in
the same College from 1993 to 1995 and therefore, the
Governing Body very rightly took a decision to treat the same
as discontinuance in service. Mr. Das further argues that
even otherwise, the appellant challenged the decision of the
Governing Body taken on 15.09.2009 by filing GIA case in
the year 2018, which is grossly barred by limitation. Even
assuming that he had no knowledge of passing of the
resolution at the relevant time then also his application is to
be treated as time-barred in view of the fact that he had
appeared in the GIA case filed by the respondent No.4 (GIA
No.152 of 2013) on receipt of notice, wherein the fact of
passing of the resolution dated 15.09.2009 was clearly
mentioned. He, however, chose to remain silent and filed GIA
case in the year 2018. Summing up his argument, Mr. Das,
submits that the conduct of the appellant in prosecuting
higher studies and at the same time discharging the duties of
Clerk-cum-Typist in the College is foreign to service
jurisprudence and hence, is contrary to law.
8. Having considered the rival contentions as above it
is evident that the basic dispute in the matters revolves
around the correctness of the decision of the Governing Body
taken on 15.09.2009 in respect of the appellant/petitioner. In
other words, the dispute between the parties boils down to
the legality of the decision of the management to treat the
period of study undertaken by the appellant i.e. from 1993 to
1995 as discontinuation in service.
9. The basic facts of the case are not disputed in that
both the appellant and respondent No.4 were appointed as
Junior Clerk-cum-Typist by order dated 05.05.1993 of the
Governing Body of the College. It is also not disputed that
the appellant joined on 12.05.1993, while the respondent
No.4 joined on 13.05.1993. It is claimed by the appellant that
on his application dated 01.05.1993, the then President of
the Governing Body permitted him to take admission in the
+2 Arts stream of the very same College. A copy of such
application has been enclosed being part of the document
enclosed in Annexure-1 series to FAO No. 202 of 2019.
However, by another letter issued on the next date i.e., on
06.07.1993, the President of the Governing Body cancelled
his earlier permission and stated that the same shall be
considered only after taking resolution in the Governing Body
in the next week. The appellant questions the genuineness of
such documents. There is no other document showing
consideration of the appellant's application for permission by
the Governing Body. It is admitted that the appellant
undertook higher study that is, +2 Arts course in the same
College from 1993 to 1995. Long after, i.e. on 5.09.2009, the
Governing Body passed a resolution to the effect that as the
appellant had undertaken higher studies without due
permission, his period of service was extended by 2 years and
the present respondent No.4 was adjusted against the 2nd
post. The appellant has seriously objected to the document
purporting to be the resolution dated 15.09.2009 on several
grounds. However, for the reasons to be amplified
hereinafter, this Court does not deem it necessary to delve
into the controversy regarding genuineness or otherwise of
the documents referred above. The admitted position, as has
already been stated is that the appellant while discharging
his duties also prosecuted his studies in the same College in
the +2 Arts course. The question that arises for consideration
is, whether such dual performance is permissible under law.
As it appears, the appellant submitted an application on
01.07.1993 to the President through the Principal of the
College seeking study leave for a period of 2 years which was
forwarded by the Principal to the President for necessary
action. The President permitted the appellant by directing the
Principal to admit him in +2 Arts course. Thus, what the
appellant intended to obtain as study leave for 2 years is
nothing but a different kind of leave.
10. It is well settled that leave cannot be claimed as of
right but can be granted as per rules. It is further well settled
that the purpose of the granting study leave with salary and
other benefits is in the interest of the employer as well as the
employee so that once the employee comes back from study
leave, the employer will be benefitted by the knowledge and
expertise acquired by the employee. The decision of the Apex
Court in the case of Sant Longowal Instt. Of Engg. And
Tech. and another. Vs. Suresh Chandra Verma, reported
in (2013) 10 SCC 411 can be referred to in this regard. Rule
3 of the Odisha Education (Leave of Teachers and other
members of the staff of Aided Educational Institutions) Rules,
1977 reads as under:
"Leave cannot be claimed as matter of right. When
the exigencies of work so require discretion to refuse
or revoke or curtail leave is reserved to the authority
competent to grant it."
Study leave is governed under Rule 13 of the 1997 Rules and
reads as under;
(1) Study leave may be granted to a teacher of Aided
College to enable him study scientific, technical or
similar problems or to undergo a special course of
instruction such leave is not debited against the leave
account.
(2) Study leave will not ordinarily be granted to a teacher
of an aided College of less than five years service or to a
teacher within three years of the date on which he will
attain the age of compulsory retirement.
(3) The grant of study leave will be made with a regard to
the interest of the College. In no case will the grant of
this leave in combination with leave other than
extraordinary leave or leave on medical certificate
involve an absence or over thirty months during the
whole period of his service nor will it be granted with
such frequency as to remove him from contract with his
regular work or to cause difficulties owing to absence on
leave.
(4) Study leave sanctioned in favour of a teacher of an
Aided College will be limited to the actual period
required for the completion of the courses of study. If the
courses of study involves a period less than the period
of study leave sanctioned the excess period of leave will
be treated to absence from study unless he produces
the assent of the sanctioning authority to his taking it as
ordinary leave.
(5) Study leave will count as services for all purposes but
shall not be set off against any which may be due to a
teacher of an Aided College.
(6) During study leave a teacher of Aided College shall be
entitled to leave salary at the rate admissible to the
counterpart in Government College only for a maximum
period of two years.
It is evident that study leave can be granted only to a teacher
on fulfilment of the conditions stipulated in the provision
quoted above.
11. There is no provision in 1997 Rules to grant study
leave to a non-teaching staff. Thus, the application dated
01.07.1993 submitted by the appellant to the President was
not maintainable at all. Presumably, in acknowledgement of
the absence of any statutory provision for grant of study
leave to a non-teaching staff, the appellant appears to have
submitted another application on 05.07.1993, this time
simply seeking permission to take admission into +2 Arts
stream, which was allowed on the same day. The petitioner
thereafter appears to have taken admission in the +2 course
and surprisingly, discharged his duties as Clerk-cum-Typist
in the College simultaneously for which he was also
remunerated. It is not understood as to under which law the
same could be permitted by the management. Be that as it
may, fact remains that the appellant prosecuted his studies
and at the same time discharged his duties by receiving
remuneration which implies that he was not on leave but on
duty. However, as an employee on duty he could not have
prosecuted higher studies as a regular student. Since law
does not permit taking of such dual assignments, such act of
his would amount to misconduct in employment. But
surprisingly, no action whatsoever was taken against the
appellant for the same. Neither any show cause notice was
issued nor any disciplinary proceeding was conducted
against him.
12. In this regard it would be apposite to refer to the
provisions of the Odisha Education (Recruitment and
Conditions of Service of Teachers and Members of the Staff of
Aided Institutions) Rules, 1974. Rule 11 of the said Rules
lays down the Rules of Conduct of employees. Rule 15
provides for Penalty for Breach of conduct rule. Both the
rules are quoted herein below:
"Rule 11. Rules of conduct of employees-(1) The
following shall be the rules of conduct of employees of
Aided Educational Institutions namely:
(a) They shall exercise academic freedom towards
promotion of an intellectual climate conducive to the
pursuit of scholarship;
(b) they shall at all times absolute integrity of
character, devotion to duty and decorum of conduct;
(c) they shall carry out the instructions of the
Headmaster or the Principal and act according to the
instructions or directions of university or the Board of
the Secondary Education Department authorised to
inspect the institution in respect of their academic
functions.
(d) they shall carry out the orders of the Education
Department and of the President or Secretary of the
Managing Committee or of the Governing Body, as the
case may be, in respect of their administrative
functions;
(e) they shall not except with the previous approval of
the Managing Committee or the Governing Body. As the
case may be, in respect of their administrative
functions;
(f) they shall not be members of any political or
communal party;
Rule 15- Penalty for breach of conduct rule- For
breach of any of the rules of conduct described in Rule
11 an employee shall be liable to disciplinary action in
the manner provided in Chapter IV of these Rules".
13. Chapter VI deals with Disciplinary Action. Rule 20
refers to Nature of Penalties, Rule 21 refers to the
Disciplinary Authorities, Rule 22 relates to procedure for
imposing major penalties, Rule 23 relates to Special
procedure in case of minor penalties. None of these Rules
were followed in the present case. Therefore, the appellant
could not have been punished by way of lowering his service
from the 2nd post to the 3rd post by wiping out 2 years from
his service period.
14. After about 16 years, the Governing Body passed a
resolution i.e., on 15.09.2009 extending the services of the
appellant by 2 years, meaning thereby that the period during
which he prosecuted studies for the +2 course shall not
count towards service and the period thereafter only shall be
taken into consideration. The petitioner was thus artificially
made junior to opposite party No.4 and thereby disentitled
to receive Grant-in-Aid. This, by itself, is highly surprising as
it is not known under what law such action could be
unilaterally taken to the detriment of the appellant. In any
case, the same amounts to punishment which was not
preceded by any disciplinary proceeding against him. On
such score alone the resolution passed by the Governing
Body is rendered unconscionable in the eye of law.
15. Another aspect needs to be considered at this
stage. The respondent No.4 also never objected to the
position vis-à-vis the appellant as narrated in the preceding
paragraph. All action appears to have been taken only after
the institution was notified as an aided educational
institution and became eligible for aid as per Grant-in-Aid
Order, 2008. It would be relevant to note that one Bibhuti
Kumar Nayak was holding the 1st post of Clerk and the
appellant, as already stated, was appointed on 12.05.1993
against the 2nd post. As per Grant-in-Aid order 2008, only
two persons were eligible to get Grant-in-Aid. The incumbent
of the 1st post was extended Grant-in-Aid and therefore, the
question arose as to who was to receive Grant-in-Aid in
respect of the 2nd post. It is more than evident that everyone,
that is, the management as well as respondent No.4 woke up
from their deep slumber at this stage to find fault with an act
the appellant had committed more than 16 years before
ostensibly to deprive him from the benefit of Grant-in-Aid.
Learned Tribunal has not focused its attention to these vital
aspects while considering the GIA application of respondent
No.4. In the fitness of things, learned Tribunal should have
examined the entitlement of respondent No.4 to receive
Grant-in-Aid under GIA Order, 2008 after thoroughly
examining the facts of the case vis-à-vis the inter-se seniority
between him and the appellant. On the contrary, the
Tribunal appears to have been swayed away by the
consideration that the prosecution of study by the petitioner
was without permission of the Governing Body. It is
reiterated that the same may be a misconduct for which the
appellant could have been proceeded against and punished,
but no such action was ever taken against him. It is
therefore, not open to the management to simply wipe out the
service rendered by the appellant during the relevant period
unilaterally. If the action of the management as contained in
the resolution dated 15.09.2009 is treated as a punishment,
which in effect it is, the same would be entirely illegal and
contrary to law for the reasons indicated hereinbefore and
hence, no sanctity can be attached to it. Learned Tribunal
must therefore, be held to have committed manifest error in
placing reliance on the said Resolution to reject the prayer of
the appellant.
16. Some argument has been made by the parties
relating to seniority vis-à-vis their ages but then in view of
the admitted fact that the appellant had joined on
12.05.1993 and respondent No.4 on 13.05.1993, there is no
way by which the latter can be treated as senior to him.
17. Thus, from a conspectus of the analysis of facts
and law involved in the case and the rival contentions put
forth, this Court is of the view that the impugned judgment
passed by the Tribunal cannot be sustained in the eye of law.
18. Resultantly, both the Appeals, FAO Nos. 202 of
2019 and 203 of 2019 are hereby allowed. The impugned
judgment in so far as it relates to allowing GIA case No.152 of
2013 is hereby set aside. GIA case No. 149 of 2018 is
allowed. The opposite party authorities are directed to
approve the appointment of the appellant, Sanjaya Kumar
Nayak as Junior Clerk -cum-Typist against the 2nd post and
to release block-grant/Grant-in-Aid within a period of three
months. Consequently, W.P.(C). No.31932 of 2022 is also
allowed. The impugned order under Annexure-13 is hereby
quashed. The Director, Higher Education is directed to pass
necessary orders in terms of this judgment in favour of the
appellant within the stipulated period.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
2nd March, 2023/ Deepak 9*
