Orissa High Court
Hemanta Kumari Sarangi vs State Of Odisha And Others on 26 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P(C) No. 23372 of 2016
An application under Articles 226 and 227 of the
Constitution of India.
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Hemanta Kumari Sarangi .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate(s) appeared in this case:-
For Petitioner : M/s. R. Roy, R.K. Sahoo,
S.K. Singh, S. Samal &
A. Pradhan, Advocates,
Vs.
For Opp. Parties : Mr. S. Patnaik,
Additional Government Advocate
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
26 September, 2023
SASHIKANTA MISHRA, J.
The petitioner has filed this writ petition with the
following prayer:-
"It is, therefore, humbly prayed that your
Lordships may be pleased to issue a Rule NISI
calling upon the O.Ps to show cause why the
petitioner shall not be allowed to continue as
regular Headmaster with scale of pay Rs.
9300-34,800 with Grade pay Rs.4200/- from
1.04.2014 to 31.01.2016 and consequently
why the pension and pensionary benefits as
per the last pay of the Headmaster shall not be
disbursed to the petitioner and if no show
cause is filed and insufficient show cause is
shown, the O.Ps be directed to allow the scale
of pay of Headmaster to the petitioner in the
scale of pay Rs.93,00-34,800/- with G.P, Rs.
4200/- from 1.04.2014 to 31.01.2016 and
consequently the pension and pensionary
benefits be disbursed to the petitioner. And
pass such other order/orders as your
Lordships may be deem fit and proper in the
ends of justice."
2. The petitioner's case is that being appointed as a
Sectional Teacher having B.A. C.T. qualification, she joined
in Gopabandhu M.E. School at Gabakund in the district of
Puri on 16.04.1981 by the Managing Committee. Her
appointment was approved by the erstwhile District
Inspector of Schools, Puri vide order dated 16.11.1981.
While in service, she passed B.Ed. from Utkal University in
1981. Thereafter, she joined as Sectional Teacher in the
Trained Graduate post in Utkal Hindi Bidyapith, Puri on
01.01.1990 being duly selected and appointed by the
Managing Committee. The post of the Headmaster fell
vacant with effect from 31.04.2014 because of retirement of
the then incumbent. The Managing Committee decided to
allow the petitioner to act as the Headmaster against the
vacancy with effect from 01.04.2014 being the senior most
Trained Graduate Teacher. Such arrangement was made as
per resolution of the Managing Committee on 30.04.2014
and the proposal was sent to the Government as well as
the Director, Elementary Education for according
necessary permission. The petitioner also submitted a
representation to the Director through the Block Education
Officer on 26.05.2014 for consideration of her case for
promotion to the post of Headmaster. The Director, in his
letter dated 10.02.2015 directed the Block Education
Officer, Puri to report whether the Managing Committee
had taken prior permission from the Government to give
promotion to the petitioner. Pursuant to such
communication the Managing Committee, by resolution
dated 12.05.2015 again resolved to grant promotion to the
petitioner in the post of Headmaster with effect from on
01.04.2014 and requested for according
permission/approval. The petitioner also submitted a
representation to the Block Education Officer on
19.05.2015, which was forwarded to the Director. By letter
dated 26.05.2015, the Block Education Officer also
recommended the case of the petitioner for consideration of
her promotion as regular Headmaster against the existing
vacancy. There was no further correspondence. The
petitioner therefore applied through her husband on
08.07.2016 under the RTI Act to the Government in the
department of School and Mass Education to supply
information regarding the approval for promotion.
Accordingly, the PIO and under Secretary to Government in
his letter dated 27.10.2016 supplied the letter of
permission dated 20.10.2016 accorded for filling up the
post of Headmaster. In the meantime, the petitioner had
already retired on superannuation on 31.01.2016.
Claiming that she is entitled to be granted the pay scale of
the post of Headmaster, i.e., Rs.9,300-34,800/- with grade
pay of Rs.4,200/- with effect from 01.04.2014 till the date
of her retirement, the petitioner has approached this Court
with the above mentioned prayer.
3. The case of the opposite parties as revealed from the
counter affidavit filed by the Block Education Officer is that
as per Rule 8(2)(b) of the Orissa Education (Recruitment
and Conditions of Service of Teachers & Members of the
Staff of Aided Educational Institutions) Rules, 1974,
promotion had been granted by the Managing Committee
only after obtaining prior approval of the competent
authority. In the Instant case, the petitioner was allowed to
discharge the duties of Headmaster by the Managing
Committee without obtaining prior approval of the
competent authority. Therefore, the so-called promotion of
the petitioner is ab initio void. It is further stated that
though the Government ultimately granted permission by
letter dated 20.10.2016 but by then, the petitioner was no
longer in service. Thus, the petitioner can never be treated
as having worked in the capacity of Headmaster of the
school so as to be entitled to the relief claimed in the writ
petition.
4. In the rejoinder filed by the petitioner to the counter
of opposite party No.4, it is stated by the petitioner that she
cannot be blamed for the delay caused by the competent
authority in according permission for filling up the higher
post. It is further stated that the concerned authorities
slept over the matter for more than two years and accorded
permission knowingly after retirement of the petitioner only
to deprive her of the benefits.
5. Heard Mr. R. Roy, learned counsel for the petitioner
and Mr. S. Patnaik, learned Additional Government
Advocate for the State.
6. Mr. Roy would argue that admittedly, the petitioner
was allowed to discharge the duties of the Headmaster,
which is a higher post with effect from 01.04.2014. The
Managing Committee duly intimated such fact to the
competent authority and sought permission. The
competent authorities slept over the matter for a long time.
Therefore, the petitioner cannot be blamed for the delay
and/or deprived of the necessary benefits. Mr. Roy further
refers to the provision under Rule 8(2)(b) of the 1974 Rules
to contend that in any case, post facto approval having
been granted by the authority, the petitioner is entitled to
the benefits of higher pay etc. from the date she discharged
duties in the higher post, i.e., 01.04.2014 till her
retirement.
7. Per contra, Mr. Patnaik has argued that as per Rule
8(2)(b) of the 1974 of Rules, prior approval of the competent
authority is a must before granting promotion to an
employee to the higher post. He has also relied upon a
judgment passed by this Court in this regard in the case of
Pramod Kumar Palai v. State of Odisha and others
[W.P.(C) No. 15569 of 2016] decided on 14.03.2023,
wherein the provision under Rule (8)(2)(b) of the 1974
Rules has been interpreted to mean that prior approval is a
must before any promotion can be granted by the
Managing Committee. Therefore, even if the petitioner may
have discharged duties in the higher post, the same cannot
be validated in law.
8. The basic facts of the case are not disputed. The fact
that the petitioner was allowed to officiate as the
Headmaster of the School with effect from 01.04.2014 has
nowhere been disputed nor is the resolution passed by the
Managing Committee indicating such fact on 30.04.2014 in
seeking permission of the competent authority. The
Managing Committee had also resolved on 12.01.2015 to
promote the petitioner while seeking approval of the
competent authority. It is also not disputed that permission
was ultimately granted but on 20.10.2016, by which time
the petitioner had already retired from service on
superannuation. On the above facts, the question that falls
for consideration is, whether the petitioner could be said to
have been validly promoted as the Headmaster with effect
from 01.04.2014. Mr.Roy, learned counsel for the petitioner
has laid great stress on the language used in Rule 8(2)(b) to
contend that the same empowers the government to grant
post facto approval to such promotion accorded by the
Managing Committee. The very same argument was
advanced in the case of Pramod Kumar Palai (supra)
wherein Rule 8(2)(b) was interpreted, inter alia, in the
following manner:-
"Therefore, in construing the provision under
Rule 8 the reasonable interpretation would
be, notwithstanding its placement in Clause
(b) the amended provision shall relate to
clause (a) only and not to Clause (b). In other
words, the provision permitting grant of post-
facto approval shall relate to Ad hoc
appointment provided under Clause (a). As
has been argued by learned State counsel,
the placement of the amended portion in
Clause (b), could be due to the error of the
draftsman or even an act of inadvertence but
whatever it may be, the effect of the
amendment cannot be construed so narrowly.
It is only in the above manner that the
apparent conflict can be harmonized so as to
give effect to the legislative intent. This Court
finds itself persuaded to agree with the
reasoning suggested by the learned State
counsel that the requirement of prior approval
in case of filling up of vacancy in posts
carrying higher scale of pay by employees of
the same aided Institution by the Managing
Committee seems to be to prevent arbitrary,
whimsical, capricious, malafide actions as
also of nepotism and favoritism"
9. Thus, given the interpretation made by this Court
earlier with regard to Rule 8 (2)(b), it cannot be said that
the so called promotion of the petitioner to the post of
Headmaster with effect from 01.04.2014 was valid since
admittedly, prior approval of the competent authority had
not been obtained.
9. This takes the Court to the next question as to what
relief can be granted to the petitioner. As has already been
discussed, regardless of the fact that the Managing
Committee had already allowed the petitioner to discharge
the duties of the Headmaster, it sought for
approval/permission by passing two resolutions, one on
30.04.2014 and the other on 12.05.2015. The permission
was eventually granted but on 20.10.2016. The counter
filed by opposite party No. 4 is conspicuously silent as to
the reason for the apparent delay in according permission.
But as said earlier, the petitioner had already retired from
service with effect from 31.01.2016. In Pramod Kumar
Palai (supra) notwithstanding the interpretation of Rule
8(2)(b) as made by this Court, the concerned authorities
were still directed, on equitable consideration to grant the
benefit at least prospectively. Alas, such a relief cannot be
granted in the present case, since the petitioner was no
longer in service by the time the order granting permission
came to be issued. This is a classic case where the
principle of 'delay defeats justice' comes in to play in full
measure. To strike a balance between the statute and
equity therefore, this Court feels persuaded to hold that the
order granting approval having been passed after
retirement of the petitioner, shall be deemed to relate back
at least to the date of the petitioner's retirement, if not
earlier. That the petitioner had actually rendered service in
the higher post with effect from 01.04.2014 and such fact
being within the express knowledge of the concerned
authorities who chose not to interfere at the relevant time,
is all the more reason why the petitioner should be granted
the desired relief albeit from the date of her retirement
only.
10. For the foregoing reasons therefore, the writ petition
is party allowed. It is directed that the order dated
20.10.2016 in so far as the same relates to the present
petitioner shall be made effective with effect from
31.01.2016. The petitioner's last pay shall accordingly be
fixed in the pay scale of the post of Headmaster as on
31.01.2016 and all consequential service and financial
benefits shall be granted on such basis. The whole exercise
shall be concluded within a period of two moths from the
date of production of certified copy of this order by the
petitioner.
.................................
Sashikanta Mishra,
Judge
High Court, Cuttack,
The 26th September 2023/ B.C. Tudu, Sr.Steno
Signature Not Verified
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 27-Sep-2023 10:55:19
