Dr. Prabasini Devi vs State Of Odisha & Others
2023 Latest Caselaw 5740 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                               FAO No.495 of 2018


         Dr. Prabasini Devi                   ....    Appellant
                                                    Mr. G.N. Padhi, Advocate

                                             -versus-

         State of Odisha & Others             ....   Respondents
                                                   Mr.S.K. Samal, AGA



                              COROM:
                   JUSTICE BIRAJA PRASANNA SATAPATHY

                                  ORDER

Order No 11.05.2023

11. 1. This matter is taken up through Hybrid Mode.

2. Heard Mr.G.N. Padhi, learned counsel for the Appellant and Mr. S.K. Samal, learned Addl. Government Advocate for the State.

3. The Appellant has filed the present appeal challenging the judgment dated 17.03.2018 passed by the learned State Education Tribunal in G.I.A Case No.28 of 2016.

4. It is contended that the Appellant was appointed as against the 1st post of Lecturer in Education in Nayagarh Autonomous College, initially on honorarium basis on 26.07.1984 and on regular basis w.e.f. 17.11.1984. The service of the Appellant was also validated w.e.f. 26.07.1984 in terms of the Validation Act, 1989.

4.1. It is further contended that prior to his appointment as against the 1st post of Lecturer in Education in the College, one Shri Dasrathi Muduli was continuing against the 1st post vide appointment order issued on dated 02.02.1983 in terms of the Governing Body Resolution.

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The services of Shri Dasrathi Muduli was also approved by the Governing Body in its resolution dated 05.06.1983. When the said Shri Dasrathi Muduli resigned from the post on 17.07.1984, the Appellant was appointed as against the said post on honorarium basis on 26.07.1984.

4.2. Mr. Padhi, learned counsel for the Appellant further contended that the post in which the Appellant was appointed was a sanctioned post, so sanctioned w.e.f. 01.06.1983. Therefore, taking into account such creation of the post w.e.f. 01.06.1983 and the continuance of Shri Dasrathi Muduli initially w.e.f. 02.02.1983 and by the present appellant since 26.07.1984, the appellant became eligible to receive the benefit of grant-in-aid @ 1/3rd w.e.f.1.6.1988, 2/3rd w.e.f. 1.6.1990 and full salary cost w.e.f. 1.6.1992. On the face of such appointment of Shri Dasrathi Muduli and subsequent appointment of the appellant, the Respondents when allowed the benefit of grant-in-aid @ 1/3rd w.e.f.1.6.1990, 2/3rd w.e.f. 1.6.1992 and full salary cost w.e.f. 1.6.1994, the matter was carried to this Court in OJC No.6165 of 1993. This Court vide order dated 16.10.1996 though disposed of the matter with a direction on the Respondents to release the grant-in-aid, but by misinterpreting that order, the benefit was never extended w.e.f. 01.06.1988. Seeking compliance of the order so passed by this Court on 16.10.1996, when contempt petition was filed before this Court, taking into account another order passed on 30.06.1997, the appellant was released with grant-in-aid @ 1/3rd w.e.f.1.6.1986/1.6.1988. The Appellant challenging such order passed on 30.07.1997 also approached this Court in OJC No.12809 of 2001 with a prayer to extend the benefit of grant-in-aid @ 1/3rd w.e.f. 1.6.1986/1.6.1988.

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4.3. When this Court disposed of the matter in OJC No.12809 of 2001 vide order dated 13.05.2003 with a direction to the Opposite Party No.1 to dispose of the claim of the Petitioner, Opposite Party No.1 declined to extend the benefit of 1/3rd w.e.f. 1.6.1988 vide order dated 23.12.2003. The Petitioner being aggrieved by such order passed on 23.12.2003 approached this Court in W.P.(C) No.9178/2004. The said writ petition was subsequently transferred to the Tribunal and renumbered as GIA Case No.28/2016.

4.4. It is contended that though all the supporting documents in support of appointment of one Shri Dasarathi Muduli initially w.e.f. 02.02.1983 along with the mark secured by the said Shri Dasarathi Muduli were before the Tribunal as the entire writ petition in W.P.(C) No.9178/2004 was transferred, but the Tribunal on misconception that no such document with regard to the qualification of Shri Dasarathi Muduli being available in the case record, disbelieved the appointment of Shri Dasarathi Muduli not to have been made with having the requisite percentage of mark. On such finding that the post in which the Petitioner was appointed on 26.07.1984 since was not filled up by a person with having the required percentage of mark, the Tribunal was not inclined to entertain the prayer so made by the Appellant to release of grant-in-aid of 1/3rd w.e.f. 01.06.1988.

4.5. Mr. Padhi brought to the notice of this Court the documents enclosed to the writ petition in W.P.(C) No.9178 of 2004. This Court finds that in the said writ petition which was subsequently transferred to the Tribunal, the certificate in support of the qualification acquired by Shri

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Dasarathi Muduli was very much available. It is also found that Shri Dasarathi Muduli had passed the M.A in Education in 1st Class having secured 72% of mark. Therefore, the doubt expressed by the Tribunal that Shri Dasarathi Muduli was not having the requisite qualification in absence of any document so produced by the appellant, as per the considered view of this Court is not just and proper. Since the documents were very much available in the case record, the Tribunal lost sight of those documents and came to a wrong conclusion that Shri Dasarathi Muduli was not having the requisite qualification for his appointment as against 1st post of Lecturer in Education on 02.02.1983. In view of such wrong finding since the benefit was not extended, the impugned order is not sustainable in the eye of law.

5. Mr. S.K. Samal, learned Addl. Government Advocate on the other hand contended that taking into account the date of appointment of the appellant and the subsequent validation of his appointment w.e.f. 17.07.1984 as per the provisions of GIA Order, 1994 the post became eligible to get the benefit of grant-in-aid after completion of 5 years of service, which falls on 1.6.1990. Accordingly, it is contented that taking into account the validation of his appointment and on completion of 5 years when the post became eligible to get the benefit of grant-in-aid, the same has been rightly released in favour of the appellant @ 1/3rd w.e.f. 01.06.1990, 2/3rd w.e.f. 01.06.1992 and full salary cost w.e.f. 01.06.1994.

6. Having heard learned counsel for the Parties and after going through the materials placed before this Court, it is found that the appellant was appointed as against the post

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which was earlier held by Shri Dasarati Muduli with his date of appointment as 02.02.1983.

It is also found from the record that the said person namely Shri Dasarathi Muduli had requisite qualification and percentage of mark while being appointed as against the 1st post of Lecturer in Education. Since the present appellant subsequent to the resignation of Shri Dasarathi Muduli was appointed on 26.07.1984 and the said appointment has been validated by the Government in terms of the Validation Act, 1989, the post in question as per the considered view of this Court became entitled to get the benefit of 1/3rd on completion of 5 years from 2.2.1983 i.e. on 01.06.1988. Therefore, the claim made by the appellant to get the benefit of grant-in-aid @ 1/3rd w.e.f.1.6.1988, 2/3rd w.e.f. 1.6.1990 and full salary cost w.e.f. 1.6.1992, as per the considered view of this Court is just and fair. The Tribunal without proper appreciation of the materials available before it came to a wrong conclusion that no document was there before the Tribunal with regard to eligibility of Shri Dasarathi Muduli for his appointment as against 1st post of Lecturer in Education.

6.1. In that view of the matter, this Court is inclined to interfere with the impugned judgment so passed by the Tribunal on 17.03.2018 in G.I.A Case No.28 of 2016. While interfering with the same, this Court quash the said judgment and while quashing the same, this Court directs the Respondent Nos.1 and 2 to extend the benefit of grant- in-aid @ 1/3rd w.e.f.1.6.1988, 2/3rd w.e.f. 1.6.1990 and full salary cost w.e.f. 1.6.1992 in favour of the appellant. The entire exercise shall be undertaken and completed

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within a period of four (4) months from the date of receipt of this order. Needless to say the arrear entitlement on such sanction of grant-in-aid shall also be released within the aforesaid time period.

7. Accordingly, the FAO stands disposed of.

(Biraja Prasanna Satapathy) Judge Subrat

Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: ..

Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-May-2023 16:23:55