Orissa High Court
Smt. Mamata Bidhar vs State Of Odisha And Others on 18 September, 2023
ORISSA HIGH COURT: CUTTACK
AFR
W.P(C) NO. 20402 OF 2010
In the matter of an application under Articles 226 and 227
of the Constitution of India.
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Smt. Mamata Bidhar ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For petitioner : M/s. K.P. Mishra, Sr. Advocate
along with M/s. S. Rath.
L.P. Dwivedi, A. Mishra and
K. Hussain, Advocates.
For opp. parties : Mr. A.K. Mishra,
Addl. Government Advocate
[O.Ps. 1 to 4]
M/s. Y. Parekh, B.K. Kund and
B.P. Jayasingh, Advocates
[O.P.5]
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 14.09.2023:: Date of Judgment: 18.09.2023
DR. B.R. SARANGI, J. The petitioner, claiming to be appointed as
Hindi Teacher by the Secretary of the Managing Committee
of Gangapada High School, has filed this writ petition
seeking to quash the order dated 04.11.2010 passed by the
Odisha Administrative Tribunal, Cuttack Bench, Cuttack in
O.A. No. 3148 of 2000 under Annexure-2, by holding that
the appointment of the petitioner is not valid as she has not
been approved as per the Odisha Education (Recruitment
and Conditions of Service of Teachers and Members of the
Staff of Aided Educational Institutions) Rules, 1974 and the
Odisha Aided Educational Institutions (Appointment of
Hindi Teachers Validation) Act, 1992 is not relevant to her
case. The petitioner has further prayed for a direction to
the opposite parties no. 1 and 2 to accord approval to her
appointment as Hindi Teacher with effect from the date of
her initial appointment, i.e., 23/25.12.1991 and to grant all
consequential benefits, as regular Hindi Teacher with effect
from that date.
2. The factual matrix of the case, in brief, is that
Gangapada High School was an aided educational
institution, in which the petitioner was appointed as a
Hindi Teacher by the order of the Secretary of the Managing
Committee and accordingly she joined the post on
25.12.1991. The post of Hindi Teacher has been prescribed
by the State Government in the standard staffing pattern in
a High School. While she was continuing and discharging
her duty, her appointment was approved by the Managing
Committee on 07.10.1993.
2.1. During her continuance, the school was taken
over by the State Government with effect from 07.06.1994.
The Headmaster of the School, on 25.09.1995, sent the
proposal of the petitioner for her approval to the Inspector
of Schools, Khurda. In turn, on 04.11.1995, the Inspector
of Schools, Khurda sent the proposal to the Director of
Secondary Education, Odisha for approval of service of the
petitioner. As a consequence thereof, the Deputy Director
sent the proposal to the Government for approval of service
of the petitioner on 03.05.1997. But Deputy Secretary to
the Government, vide order dated 03.02.1998, rejected the
claim of the petitioner.
2.2. Challenging the above rejection order, the
petitioner approached the Odisha Administrative Tribunal,
Principal Bench, Bhubaneswar by filing O.A. No. 1580 of
1998. The said Original Application was disposed of
directing the Inspector of Schools to ascertain the correct
date of appointment and joining of the petitioner in the
school after making inquiry and to report the matter to the
concerned authorities in order to enable them to approve
the appointment of the petitioner. The Tribunal directed
that the exercise should be completed within three months
from the date of communication of the said order.
2.3 In compliance of the above order of the Tribunal,
opposite party no.3 conducted the inquiry and
communicated to the State Government indicating the fact
that the petitioner was appointed as a Hindi Teacher and
has been continuing and, therefore, the appointment of the
petitioner as Hindi Teacher should be approved with effect
from 25.12.1991. But the Government, vide order dated
08.09.2000, rejected the case of the petitioner for approval.
Therefore, the petitioner filed another Original Application
before the Odisha Administrative Tribunal, Cuttack Bench,
Cuttack bearing O.A. No. 3148 (C) of 2000 praying inter alia
to quash the order dated 08.09.2000 passed by the State
Government and to direct the opposite parties to approve
her appointment as Hindi Teacher of the School. It was
averred by the petitioner that she was continuing from the
date of her appointment, i.e., from November, 1991 till the
order of the State Government was passed in September,
2000. Even though the petitioner filed a misc. case before
the Tribunal for continuation in service, the same was
rejected.
2.4. The petitioner challenged the said order before
this Court by filing OJC No. 10250 of 2000. This Court,
vide order dated 25.10.2000, granted interim protection to
the petitioner. However, said writ petition was disposed of
on 01.09.2008 directing the Tribunal to take steps for
disposal of the Original Application, i.e., O.A. No. 3148 (C)
of 2000 within a period of three months. The said Original
Application was disposed of, vide order dated 04.11.2010,
by rejecting the prayer made therein. Against such rejection
order, the present writ petition has been filed.
2.5. This Court, vide order dated 09.05.2011, passed
an order of status quo. During pendency of the writ
petition, one Kumari Subhadra Jali was appointed, on
31.07.2022, as Hindi Teacher. Accordingly the petitioner
filed an application to implead said Kumari Subhadra Jali
as a party and the same was allowed vide order dated
21.03.2023. Therefore, the petitioner seeking the
aforementioned relief is pursing the present writ petition.
3. Mr. K.P. Mishra, learned Senior Advocate
appearing along with Mr. Adyasidhi Mishra, learned
counsel for the petitioner vehemently contended that the
claim of the petitioner was rejected on three grounds, such
as, although the petitioner's appointment was made on
25.12.1991 by the Secretary of the Managing Committee,
but the date was wrongly mentioned as "23.12.1991";
secondly, prior permission of creation of the posts as per
the principles laid down by this Court in the case of
Bidyutlata Mohanty v. State of Orissa, OJC No. 2564 of 1993
for appointment of the petitioner as Hindi Teacher was not
taken; and thirdly, the school in question was treated as a
Government School with effect from 07.06.1994, therefore,
the petitioner cannot be taken as the employee of the
School as she was not continuing as an approved staff of
the aided institution. The contention of the learned Senior
Counsel is that once the petitioner was appointed on
23/25.12.1991 and continuing in the post, she should have
been granted continuous service and all admissible
benefits. For non-consideration of the same in its proper
perspective by the Tribunal, the order impugned cannot be
sustained in the eye of law and is liable to be quashed.
4. Mr. A.K. Mishra, learned Addl. Government
Advocate appearing for the State-opposite parties
contended that since the very entry of the petitioner into
the service is absolutely without following due procedure,
she is not entitled to get the benefits as claimed in the
present writ petition. Gangapada High School, Gangapada
in Khurda Education Circle, which was an aided high
school till 06.06.1994, was taken over as a New
Government High School from 07.06.1994. The claim made
by the petitioner, for approval of her appointment with
effect from 25.12.1991 and for release of salary component,
has been rejected by the State-opposite parties, as prior
permission was not obtained for giving such appointment.
More so, said post was not approved by the Government.
Thereby, the very appointment of the petitioner, said to
have been made by the Secretary of the School, is fake and
fraudulent, inasmuch as the Secretary of the School has
allegedly signed the letter putting the date as 25.12.1991,
when the date of issue of the said letter mentioned as
23.12.1991. It is further contended that though the
petitioner claims that her appointment was ratified by the
Managing Committee, vide resolution dated 07.01.1993,
but, while submitting the representation dated 06.05.1998
to the opposite party no.3, she had enclosed a photo copy of
the extract of the resolution dated 07.01.1993, by which
the appointment of the petitioner dated 23.12.1991 has
been allegedly ratified. Be that as it may, vide order dated
03.02.1998, the claim of the petitioner was rejected by the
Deputy Secretary to Government. Challenging the said
order of rejection, the petitioner had approached the Odisha
Administrative Tribunal by filing O.A. No. 1580 of 1998.
The said Original Application was disposed of, vide order
dated 09.09.1998, directing that inquiry be conducted to
ascertain the correct date of appointment and joining of the
petitioner. After the Inspector of Schools submitted its
report on 06.05.1999, the Government, vide order dated
08.09.2000, rejected the case of the petitioner for approval.
Challenging such order dated 08.09.2000, the petitioner
approached the Tribunal by filing O.A. No. 3148 (C) of
2000. The Tribunal, vide impugned order dated 23.08.2010,
dismissed the Original Application by observing that no
approval had been conveyed by the competent authority in
accordance with the 1974 Rules, and that the appointment
of the petitioner cannot be held as valid as it was not
approved as per the 1974 Rules and the Odisha Aided
Educational Institutions (Appointment of Hindi Teachers
Validation) Act, 1992, and that the formal proposal was
sent only on 25.09.1995, i.e., after the School was taken
over as a Government School. Thereby, the Tribunal is well
justified in rejecting the claim of the petitioner and, as
such, the writ petition is liable to be dismissed.
5. This Court heard Mr. K.P. Mishra, learned Senior
Advocate appearing along with Mr. Adyasidhi Mishra,
learned counsel for the petitioner; Mr. A.K. Mishra, learned
Addl. Government Advocate appearing for the State-
opposite parties. Although learned counsel Mr. Y. Parekh,
along with his associates, had entered appearance on
behalf of opposite party no.5, at the time of hearing none
was present. Since it is a certiorari proceeding and no
counter is forthcoming from opposite party no.5, on the
basis of the materials available on record, the respective
counsel proceeded with the hearing and with the consent of
learned counsel for the parties, the writ petition is being
disposed of finally at the stage of admission.
6. As it appears, the appointment order was issued
to the petitioner by the Secretary of the Managing
Committee of Gangapada High School, who is not a
competent authority and, as such, the same was issued
without approval of the Managing Committee and
retrospective approval of the appointment of the petitioner
was made, as per the resolution dated 07.01.1993, to
validate the appointment made on 23/25.12.1991. So far
as the applicability of the Validation Act, 1992 is
concerned, that will cover the case where the appointment
is made by the competent authority within 31.12.1991.
That means, those who have been appointed by the
competent authority within 31.12.1991, their services have
been validated under the Validation Act, i.e. Odisha Aided
Educational Institutions (Appointment of Hindi Teachers
Validation) Act, 1992. The appointment of the petitioner
made on 23/25.12.1991 by the Secretary, who has not
been authorised by the Managing Committee, was ratified
by the Managing Committee long after that date, i.e., on
07.01.1993. Such appointment cannot be accepted as a
valid appointment. Thereby, the payment of salary as
claimed by the petitioner also cannot be allowed. The
appointment of the petitioner is not valid, as the Secretary
of the School was nowhere authorised to issue appointment
order on behalf of the Managing Committee anticipating
ratification by the Managing Committee. Any such
appointment letter issued by the Secretary cannot be
sustained in the eye of law. Therefore, initial entry of the
petitioner into service having suffered from illegalities and
irregularities, the same cannot be ratified subsequently
and, more so, the so called appointment letter dated
23/25.12.1991 was issued only 7 days prior to 31.12.1991,
i.e., the cut off date under the Odisha Aided Educational
Institutions (Appointment of Hindi Teachers Validation) Act,
1992, and such appointment has been sought to be
regularised by the Managing Committee's resolution dated
07.01.1993, that too long after such appointment. If such
appointment was ratified on 07.01.1993, in that case, so far
as approval of the post and consequential grant of dues are
concerned, the same are not justified.
7. In view of such position, since the appointment
of the petitioner, vide order dated 23/25.12.1991, cannot
be held to be valid, as it was not approved as per the
provisions contained in the Odisha Education (Recruitment
and Conditions of Service of Teachers and Members of the
Staff of Aided Educational Institutions) Rules, 1974, and
considering the availability of vacancy the post has been
filled up by opposite party no.5, the claim made by the
petitioner cannot be sustained in the eye of law. More so, so
far as Validation Act, 1992 is concerned, the provisions
contained in the Odisha Aided Educational Institutions
(Appointment of Hindi Teachers Validation) Act, 1992
cannot be applicable to the case of the petitioner.
8. In view of the foregoing discussions, the relief
sought by the petitioner cannot be granted and accordingly
the writ petition merits no consideration and the same
stands dismissed. However, there shall be no order as to
costs.
(DR. B.R. SARANGI)
JUDGE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 18th September, 2023, Arun
