Orissa High Court
Smitanjali Swain vs Madhab Chandra Mallick And on 4 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 395 of 2023
Smitanjali Swain ... Appellant
Ms. S.Sahoo, Advocate
-versus-
Madhab Chandra Mallick and ... Respondents
others
Mr. S.K. Samal, AGA (for Respondent
Nos.-2,3 & 4)
CORAM:
JUSTICE G. SATAPATHY
ORDER(ORAL)
04.09.2023
Order No. of 2023
02. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical Mode).
2. Ms. S.Sahoo, learned counsel for the appellant
vociferously submits that the respondent No. 1 by
suppressing the material facts has obtained an order
from the learned State Education Tribunal,
Bhubaneswar for instructing the Director, Higher
Education, Odisha (O.P. No.2) to recommend the name
of respondent No. 1 against the first post of Lecture in
Odia in the College and also directing release of the
Block Grant w.e.f. 01.03.2018 in his favour. It is also
submitted by her that initially the respondent No.1 had
challenged the appointment of the appellant against the
first post of Lecturer in Odia in the College in a writ
application before this Court in W.P.(C) No. 15532 of
2018, which was dismissed and against such dismissal,
the respondent No.1 had preferred writ appeal which
was allowed in his favour, but the appellant challenged
such order in a review petition vide RVWPET No. 254 of
2019, but during the pendency of review petition, the
respondent No. 1 filed the G.I.A. No. 76 of 2020 before
the learned Tribunal without impleading the appellant
as a party, but subsequently, on the prayer of the
appellant, he was impleaded as a party, however, copy
of such G.I.A. was never served on the appellant, even
though there was a clear direction by the learned
Tribunal for it and subsequently by misrepresenting
the fact that the dismissal of review has not been
challenged before the Apex Court, which was in fact
challenged before the Apex Court in SLP, the
respondent No.1 got the aforesaid order from the
Tribunal and therefore, the appeal against such order
would definitely enure to the benefit of the appellant
and unless the operation of impugned order is stayed,
the appellant No.1 would not be able to enjoy the fruit
of the benefit of the order that would be passed in the
present F.A.O. Ms. S. Sahoo, learned counsel further
submits against the dismissal of the review petition, the
appellant No.1 has also preferred an SLP vide SLP (C)
No. 729-730 of 2023, which was admitted by the Apex
Court and notice was issued to the respondents and
accordingly, respondent No. 1 has also appeared
therein and has already filed counter affidavit therein.
On the aforesaid submissions, Ms. S. Sahoo, learned
counsel for the appellant prays to stay the operation of
the impugned order passed in G.I.A. No. 76 of 2020.
3. On the other hand, Mr. S.K. Samal, learned AGA
appearing for the respondent Nos. 2, 3 and 4 after
waiving notice against them submits the stand of the
State by taking this Court through paragraph-3 of the
impugned judgment which reads as under :-
"The State-O.P. Nos. 1 and 2 have filed
a common counter and claim for
dismissal of the case. According to
them, the applicant has made delay in
filing the application and before filing
the same, has not served a notice on
them in terms of the Section 24-B(3)
of the O.E. Act. Since Sri Harekrushna
Swain was continuing as lecturer in
M.I.L(Odia) of the College since
31.12.1997 till his retirement on
28.2.2018 against the 1st post, the
appointment of the applicant was
certainly against the 2nd post of
Lecturer in Odia, which is an
inadmissible post as per the yardstick
prescribed under the Grant in Aid
Order, 2009. The applicant has
deliberately suppressed certain
relevant facts to create confusion. The
name of the applicant was never
proposed by the College against the 1st
post. It was for the 2nd post and due to
its inadmissibility, the State
Government could not release Block
Grant in his favour. So, no illegality or
mistake has been committed by the
State-O.Ps".
Mr. S.K. Samal, learned AGA also submits that
in view of the aforesaid stand of the State, it may also
challenge the impugned judgment.
4. In view of the aforesaid submissions and taking
into consideration the fact brought to the notice of the
Court, issue notice on admission of appeal and I.A.
against respondent Nos. 1 and 5 by Registered Post/
Speed Post with A.D. making it returnable by the next
date. Requisites for issuance of notice against
respondent Nos. 1 and 5 shall be filed within three
working days. Accept one set of process fee.
5. List this matter on 6th October, 2023.
6. As an interim measure, no decision shall be
taken in the matter pursuant to the impugned order
passed on 18.07.2023 by the learned State Education
Tribunal in G.I.A. No. 76 of 2020 till the next date i.e.
6th October, 2023.
(G. Satapathy)
Judge
S. Sasmal
Signature Not Verified
Digitally Signed
Reason: Authentication
Location: High Court of Orissa
Date: 05-Sep-2023 11:03:48
