Orissa High Court
Chandan Pradhan vs State Of Odisha And Others on 16 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No. 309 of 2022
An application under Order XLVII, Rule-I Code of Civil
Procedure and under the Orissa High Court Rules.
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Chandan Pradhan .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate(s) appeared in these cases:-
For Petitioner : Mr. S. Mohanty, S.S. Mohapatra,
A.K. Jena, A.P. Rath, P. Sinha, P.K. Das
A. Biswal and C.K. Panda,
Advocates.
For Opp. Parties : Mr. B.P. Tripathy,
[Additional Government Advocate]
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
16th May, 2023
SASHIKANTA MISHRA, J.
Heard Mr. Satyabrata Mohanty, learned counsel
for the petitioner and Mr. B.P. Tripathy, learned Additional
Government Advocate for the State.
2. Mr. Mohanty submits that the present application for
review has been filed on the ground that a decision of the
Apex Court rendered in the case of Saktipada Mohapatra
vs. State of Odisha and others (Civil Appeal No. 1215 of
2022), decided on 02.02.2022, was inadvertently not
placed before this Court at the time of final hearing of the
writ petition. As a result, this Court, though granted relief
to the petitioner, yet taking note of the fact that the post of
Sikshya Sahayak has been abolished, directed the
authorities to consider his case sympathetically by
considering his case for appointment against any
equivalent post. Mr. Mohanty submits that on an identical
fact situation, the Apex Court in the case of Saktipada
Mohapatra (supra) granted relief to the petitioner therein
by directing the concerned authorities to appoint him as
Sikshya Sahayak on notional basis, since the post of
Sikshya Sahayak has been abolished. Mr. Mohanty further
contends that after abolition of the post of Sikshya
Sahayak the incumbents have been regularized as
Assistant Teacher and since this Court found the petitioner
to have been wrongly left out of appointment as Sikshya
Sahayak, he should also be granted similar relief notionally
so that he can be absorbed as Assistant Teacher.
3. Mr.B.P. Tripathy, on the other hand, has opposed the
prayer of the petitioner by submitting that the relief
claimed is no longer available to be granted, once the post
is abolished.
4. By judgment dated 29.09.2022, this Court found that
the petitioner, despite being selected for appointment as
Sikshya Sahayak was deprived of such appointment as a
Sports identity card had not been issued in his favour
though he was eligible for the same. After analyzing the
relevant Government Circulars/resolutions and the point of
law involved, this Court further found that the decision of
the Government justifying non-issue of the Sports identity
card in favour of the petitioner cannot be countenanced in
law and therefore, the same was quashed, But as regards
the relief to be granted, this Court found that the scheme of
Sikshya Sahayak had been abolished by the Government in
2019. Thus taking note of a decision of the Apex Court in
the case of Balakrushna Behera v. Satya Prakash
Dash, reported in (2008) I SCC 318, this Court did not
grant him the relief sought for.
5. A reading of the decision in Balakrushna Behera
(supra) reveals that the same was issued generally
restraining Courts from directing appointments to be made
where the post in question had been abolished. On the
other hand, the decision in Saktipada Mohapatra (supra)
specifically relates to the effect of abolition of the post of
Sikshya Sahayak. To the above extent therefore, this Court
is persuaded to hold that the decision in Balakrushna
Behera can be distinguished on the facts of the present
case and that the decision in Saktipada Mohapatra
(supra) would squarely apply to the case.
Since the decision in Sakitapada Mohapatra
(supra) was not brought to the notice of the Court at the
time of hearing of the case, the direction to the opposite
parties to consider the case of petitioner for appointment
against any equivalent post is obviously an error apparent
on the face of the record. This Court, therefore holds that
this is a fit case to exercise its power of review in respect of
the judgment dated 29.09.2022 only to the extent of the
relief granted therein.
6. In the result, the application for review is allowed. The
judgment dated 29.09.2022 passed by this Court in
W.P. (C) No. 9243 of 2018 is modified only to the extent of
substituting paragraphs-20 to 22 therein with the following
paragraphs:-
"20. Given the facts of the case and the law involved
therein the question that now arises is what relief can
be granted to the petitioner. Obviously, this Court
having held that the impugned order dated 03.05.2018
followed by order dated 11.05.2022 cannot be sustained
in the eye of law for the reasons spelt out in detail in the
preceding paragraphs, resultantly, the said orders are
quashed. The opposite party No.5 is directed to issue
Sports identity card in favour of the petitioner within a
period of four weeks. The petitioner has also prayed for
direction to appoint him a Sikshya Sahayak. It is stated
at the bar that the Scheme of Sikshya Sahayak has in
the meantime been abolished by the Government since
the year, 2019. This Court however, finds that in the
case of Saktipada Mohapatra vs. State of Odisha
and others (Civil Appeal No. 1215 of 2022), decided
on 02.02.2022, the Apex Court, despite taking note of
the fact of abolition of the post of Sikshya Sahayak
directed the authorities to consider the case of appellant
and appoint him as Sikshya Sahayak on notional basis
and also held that he shall be entitled for all notional
benefits including pay scale and seniority, to which he
is entitled to under law.
Since the same issue is involved in the present case,
this Court is also persuaded to issue similar directions
to the concerned authorities.
21. For the foregoing reasons therefore, the
authorities are directed to consider the case of the
petitioner for his appointment as Shikshya Sahayak on
notional basis. It is made clear that the petitioner shall
be entitled to pay scale and seniority only notionally
and shall not be entitled to any salary for the period, he
has not worked. His services shall be reckoned from the
date persons lower in order of merit than him were
appointed as Sikshya Sahayak and the period of service
notionally shall be considered as qualifying service for
all purposes including regularization of his services
w.e.f. the date similarly placed, Sikshya Sahayaks were
made regular Assistant Teachers.
22. The writ petition is disposed of accordingly.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
Dated 16th May, 2023, B.C. Tudu/Sr.Steno
