Orissa High Court
Sanatan Leenka vs State Of Odisha & Others on 30 November, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.496 of 2017
Sanatan Leenka .... Appellant
Mr. K.K. Swain, Advocate
-versus-
State of Odisha & Others
.... Respondents
Mr. B.P. Tripathy, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
30.11.2023
Order No.
19. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. The present appeal has been filed inter alia
challenging the judgment dtd.06.12.2017 so passed by the
learned State Education Tribunal, Odisha, Bhubaneswar in
G.I.A Case No.774 of 2012.
4. It is the case of the appellant that the appellant while
continuing as a Demonstrator in the Department of Physics
in Adikabi Sarala Das College, Tirtol in the district of
Jagatsinghpur, he was promoted to the post of Lecturer in
Physics vide order dtd.31.07.2009 under Annexure-4 to the
GIA application.
4.1. It is contended that as provided under Rule-8(2)(b) of
the Odisha Education (Recruitment and Condition of
Service of Teachers and Members of the Staff of Aided
Educational Institution) Rules, 1974, though such
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promotion is permissible to be made by the Governing Body
but that should be with prior approval of the Government.
4.2. It is also contended that in terms of the decision
passed by this Court in the case of Majhipada M.E. School
vs. State of Orissa & Ors., OJC No.3244 of 1998 decided
on 21.02.1992, this Court while deciding similar issue with
regard to obtaining of prior approval in terms of the
provisions contained under Section-10(A) of the Orissa
Education Act, 1969, held that requirement of the rule
relating to prior approval as mere approval and which can
be post facto also.
4.3. It is contended that in terms of the decision rendered
by this Court in the aforesaid case the Governing Body of
the College moved the Director Higher Education seeking
post facto approval for such appointment of the appellant
on 20.04.2010 vide Annexure-10 to the GIA application.
4.4. It is contended that when the request made by the
Governing Body on 20.04.2010 under Annexure-10 and
subsequent request made on 30.04.2010 under Annexure-
11-Series was not considered, the appellant approached
this Court in W.P.(C) No.11283 of 2010.
4.5. This Court vide order dtd.04.08.2010, while disposing
the writ petition permitted the Petitioner to appear before
the Director Higher Education- the present Respondent
No.2 for consideration of his claim and with a further
direction on the Director to fix an early date of hearing and
conclude the same as early as possible in accordance with
law.
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4.6. Learned counsel for the Appellant contended that as
provided under Rule-8(2)(b), such prior approval and / or
post facto approval can only be considered by the
Government in case of a College.
4.7. It is accordingly contended that in view of such clear
provision under Rule-8(2)(b) of the Rules, even though this
Court directed the Director, Higher Education to take a
decision on the Appellant's claim for according post facto
approval to his appointment as against the post of Lecturer
in Physics, but the said authority should have referred the
matter to the Government for consideration without taking
a decision on his own.
4.8. Instead of following the provisions contained under
Rule-8(2)(b), Director Higher Education vide order
dtd.11.11.2011 under Annexure-12 to the GIA application
when rejected the prayer of the Governing Body to accord
post facto approval, Petitioner challenging the same
approached the Tribunal in GIA Case No.774 of 2012. But
the Tribunal without proper appreciation of the provisions
contained under Rule-8(2)(b) vis-à-vis the decision in the
case of Majhipada M.E. School as cited (supra), dismissed
the GIA application vide the impugned judgment
dtd.06.12.2017.
4.9. Learned counsel for the Appellant contended that in
view of the provisions contained under Rule-8(2)(b), the
Director Higher Education-Respondent No.2 should not
have considered the matter with passing of the order on
11.11.2011.
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Accordingly, it is contended that the order
dtd.11.11.2011 is not sustainable in the eye of law. But the
Tribunal without proper appreciation of the provisions
contained under Rule-8(2)b) dismissed the GIA application
vide the impugned judgment.
4.10. Learned counsel for the Appellant accordingly
contended that with regard to the question of post facto
approval, the matter be remitted to the Government-
Respondent No.1 by setting aside the order passed by the
Director on 11.11.2011 under Annexure-12 to the GIA
application.
4.11. Learned counsel for the Appellant also contended that
similar nature of post facto approval has been extended by
the Government on different occasion and the appellant
being similarly situated is also eligible and entitled to get
similar benefit of post facto approval.
6. Mr. B.P. Tripathy, learned Addl. Government Advocate
for the State on the other hand contended that since the
order dtd.11.11.2011 has been passed by the Director
Higher Education in terms of the order passed by this Court
in W.P.(C) No.11283 of 2010, which was filed none else than
by the present appellant, Appellant cannot take a plea that
Director Higher Education is not competent to pass such an
order. However, he fairly contended that such nature of
approval can only be considered by the Government.
7. Having heard learned counsel for the Parties and
considering the dispute involved, this Court is of the view
that the question with regard to according post facto
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approval to the appointment of the Petitioner as against the
post of Lecturer in Physics in terms of the order passed by
the Governing Body on 31.07.2009, should have been
decided by the Government-Respondent No.1.
6.1. Even though this Court directed the Director Higher
Education to take a decision in its order dtd.04.08.2010 in
W.P.(C) No.11283 of 2010, but the Director in view of the
clear provisions contained under Rule-8(2)(b) of the Rules
should have referred the matter to the Government instead
of taking a decision on his own.
6.2. In view of such position, this Court is inclined to
quash the judgment dtd.06.12.2017 so passed by the
Tribunal in GIA No.774 of 2012 as well as the order dtd.
11.11.2011 so passed by the Director Higher Education-
Respondent No.2 vide Annexure-12 to the GIA application.
While quashing both the orders, this Court directs
Respondent No.1 to take a fresh decision with regard to the
prayer made by the Governing Body to accord post facto
approval to the appointment of the Petitioner as against the
post of Lecturer in Physics so made by the Governing Body
on 31.07.2009 within a period of three (3) months from the
date of receipt of this order in accordance with law.
However, considering the submissions of Mr. Swain, learned
counsel for the appellant, that similar nature of post facto
approval has been extended in various cases, liberty is
granted to the appellant to provide all those orders before
Respondent No.1. Appellant is directed to produce a copy of
this order along with orders showing extension of such post
facto approval in favour of similarly situated employees,
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before Respondent No.1 within a period of ten (10) days
from the date of receipt of this order.
7. With the aforesaid observations and directions, the
FAO stands disposed of.
(Biraja Prasanna Satapathy)
Judge
Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
