Orissa High Court
Sarojini Dash vs State Of Orissa & Others on 3 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO Nos.302 & 264 OF 2018
In the matter of an application under Section 24-C
of the Orissa Education Amendment Act.
Sarojini Dash .... Appellant
-versus-
State of Orissa & Others .... Respondents
For Petitioner :M/s. K.K. Swain, Sr.Advocate
along with Mr. S. Jena,
P.K. Panda, Advocates
For Opp. Parties :M/s. S.K. Samal,
Addl. Govt. Advocate
Mr. J.K. Rath, Sr. Advocate along
with Mr. P. Prusty, Adv.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 10.11.2023 and Date of Order: 03.01.2024
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Biraja Prasanna Satapathy, J.
Since both the appeals have been filed
challenging the judgment dt.24.02.2018 so passed by the
State Education Tribunal (in short, called <The Tribunal=)
in G.I.A. Case No.180 of 2016, both the appeals are
// 2 //
heard analogously and disposed of by the present
common order.
2. While FAO No.302 of 2018 has been filed by the
appellant, who was the applicant before the Tribunal in
G.I.A. Case No.180 of 2016, F.A.O No.264 of 2018 has
been filed by the Managing Committee of the School also
challenging the judgment passed by the Tribunal on
24.02.2018.
3. It is the case of the appellant in F.A.O No.302 of
2018 that the School in question Maa Durga Girls High
School, Bangalo, in the district of Cuttack was
established in the year 1991. Respondent No.5 was
appointed as against the post of Trained Graduate
Teacher (PCM) vide order dt.24.11.2001 of the Managing
Committee and in terms of the said order, Respondent
No.5 joined in the school on 24.11.2001.
3.1. It is contended that since Respondent No.5
remained on unauthorized leave for a period of more
than three (3) months w.e.f 29.11.2005 and
subsequently, she made an application on 01.10.2006 to
// 3 //
remain on Maternity Leave, taking into account such
unauthorized absence of Respondent No.5, the Managing
Committee provided appointment to the appellant vide
order dt.22.01.2007 under Annexure-3 to the G.I.A
application. The appellant in terms of the order
dt.22.01.2007 joined in the school as against the post of
T.G.T(PCM).
3.2. It is contended that on being so appointed as
against the post of T.G.T (PCM), name of the appellant
was reflected in the renewal recognition form so
submitted by the Managing Committee before the Board
of Secondary Education, Orissa. It is also contended
that subsequently Respondent No.5 was terminated from
her services w.e.f 16.04.2007 vide order under Annexure-
2 series to the G.I.A application. On being so terminated
from her services w.e.f 16.04.2007, the Managing
Committee in its proceeding dt.09.06.2007 approved the
appointment of the appellant so made on 22.01.2007
w.e.f 17.04.2007 and regularized the appointment of the
appellant.
// 4 //
3.3. It is contended that private Respondent No.5 at
no point of time challenged the appointment of the
appellant as against the post of T.G.T(PCM) w.e.f
22.01.2007 nor her termination so issued by the
Managing Committee of the School on 16.04.2007. In
the meantime, the School also became eligible to get the
benefit of Grant-in-Aid as per Grant-in-Aid Order, 2004
read with Grant-in-Aid (Amendment) order,2008 w.e.f
01.04.2008. Even though services of the teaching and
non-teaching staff of the School was approved and
benefit of Block Grant w.e.f 01.04.2008 was extended
vide order dt.15.03.2011, but because of the dispute with
regard to the post of T.G.T.(P.C.M), the services of the
appellant was not approved.
3.4. It is contended that even though Respondent
No.5 was terminated from her services vide order
dt.16.04.2007, but Respondent No.5 only in the year
2014 made a grievance petition before Respondent No.3
inter alia with a prayer to direct the School authority to
allow her to resume duty as against the post of
// 5 //
T.G.T(P.C.M) and to approve her services with release of
Block Grant on 10.10.2014 vide Annexure-6 series. On
receipt of the representation dt.10.10.2014 under
Annexure-6 series, Respondent No.3 vide letter
dt.03.11.2014 requested the school to submit a detailed
report with regard to appointment as against the Post of
T.G.T (PCM). The school on receipt of letter
dt.03.11.2014 submitted a detailed report vide letter
dt.17.11.2014 under Annexure-7 series. But, in the
meantime, basing on the letter issued by the Director,
Secondary Education on 29.08.2015, Respondent No.3
vide his letter dt.26.09.2015 directed the Headmaster-
cum-Secretary of the School to allow Respondent No.5 to
join as against her former post of T.G.T(PCM) under
Annexure-8.
3.5. It is contended that challenging the direction
issued by Respondent No.3 vide his letter dt.26.09.2015
under Annexure-8, the appellant moved Respondent
No.2 on 07.10.2015 inter alia with a request to set aside
// 6 //
the direction of Respondent No.3 so issued on
26.09.2015.
As the request made by the appellant before
Respondent No.2 on 07.10.2015 was not considered and
kept pending, appellant approached this Court in W.P.(C
) No.18949 of 2015. This Court vide order dt.16.10.2015
while disposing the matter directed Respondent No.2 to
take a decision on the representation made by the
appellant on 07.10.2015.
3.6. It is contended that Respondent No.2 without
proper appreciation of the appellant's claim vis-a-vis the
claim of Respondent No.5, rejected the claim of the
appellant so made in his representation dt.07.10.2015
while upholding the direction issued by the Respondent
No.3 in his letter dt.26.09.2015 vide order dt.18.04.2016.
3.7. It is contended that challenging the direction
issued by Respondent No.3 in his letter dt.26.09.2015
and the order passed by Respondent No.2 in his order
dt.18.04.2016, the appellant moved the Tribunal in G.I.A
Case No.180/2016 inter alia with the following prayer.
// 7 //
< It is, therefore, prayed that this Hon'ble Tribunal may
graciously be pleased :-
(i) Admit the G.I.A case
(ii) Call for the records;
(iii) The impugned letter of opposite party no.3 dated
26.09.2015 under Annexure-10 and the consequential
office order issued by opposite party no.2 dated
18.04.2016 under Annexure-13 be quashed
(iv) Further the opposite party nos.1 to 3 be directed
to approve the appointment of the applicant as against
the post of Trained Graduate Teacher (PCM) and
necessary grant-in-aid in shape of block grant be
released in her favour as has been done in the case of
other employees of the institution and the applicant may
be also entitled to receive all financial and consequential
benefit as due and admissible to the said post within a
reasonable time to be stipulated by this Hon'ble Tribunal
(v) And may pass such other appropriate order as
this Hon'ble Tribunal deems fit and proper in the eye of
law.=
3.8. It is contended that in the G.I.A application so
filed before the Tribunal, the appellant contended that
even though Respondent No.5 was appointed as against
the post of T.G.T (PCM) on 24.11.2001 where she joined
on 03.12.2001, but since Respondent No.5 remained on
unauthorized absent, the Managing Committee of the
School appointed present appellant as against the post of
T.G.T(PCM) vide order dt.22.01.2007 under Annexure-3
to the G.I.A Application. Subsequently, the services of
Respondent No.5 was terminated by the Managing
Committee vide order dt.16.04.2007 and after such
// 8 //
termination of Respondent No.5, the Managing
Committee in its resolution dt.09.06.2007 resolved to
regularize the services of the appellant as against the
post of T.G.T (P.C.M) in which she was appointed on
22.01.2007 w.e.f 17.04.2007
3.9. It is the case of the appellant before the
Tribunal that Respondent No.5 in terms of the resolution
issued by the Government on 27.03.1983 under
Annexure-7, never challenged her termination so made
on 16.04.2007. Not only that, subsequent to the
appointment of appellant, her name was reflected in the
renewal recognition form so submitted by the Managing
Committee before the Board of Secondary Education,
Orissa, every year. But respondent No.5 after remaining
silent for more than 7 years, moved an application before
Respondent No.3 on 10.10.2014 inter alia with a prayer
to direct the school authority to allow her to join as
against the Post of T.G.T (P.C.M).
3.10. It is contended that since in terms of the
resolution issued by the Government on 27.03.1983,
// 9 //
against such nature of termination, Director, Secondary
Education is the appellate authority, but Respondent
No.3 in consideration of the application submitted by
Respondent No.5 on 10.10.2014, directed the school
authority to allow Respondent No.5 to join in her former
post of T.G.T (P.C.M) vide letter dt.26.09.2015. It is
contended that Respondent No.3 is not competent to
issue such a direction, as it is the Director, who is the
appellate authority and to consider such nature of
grievance.
3.11. It is further contended that appellant
challenging the communication issued by Respondent
No.3 though moved an application before Respondent
No.2 on 07.10.2015, but the same was never considered.
Accordingly, the appellant was constrained to move this
Court in W.P.(C) No.18949 of 2015. This Court vide order
dt.16.10.2015 when directed Respondent No.2 to
consider the appellant's grievance, the same was rejected
vide order dt.18.04.2016 and by confirming the direction
issued by Respondent No.3 in his letter dt.26.09.2015.
// 10 //
3.12. It is contended that since Respondent No.5 was
duly terminated from her services as she remained on
unauthorized absent and the appellant was appointed
as against the said post with due approval of her
appointment in the proceeding of the meeting
dt.09.06.2007, the Tribunal on the face of such materials
being produced, should not have rejected the appellant's
claim vide the impugned judgment dt.24.02.2018.
4. Mr. S.D. Routray, learned counsel appearing for the
appellant in FAO No.264 of 2018 while supporting the
submission of Mr. K.K. Swain, learned counsel for the
appellant in the other appeal, contended that
Respondent No.5 while continuing as against the post of
T.G.T (PCM), she was issued with a show-cause on
23.03.2005 with regard to missing of valuation paper.
Thereafter, Respondent No.5 remained on unauthorized
absent w.e.f 29.11.2005.
4.1. It is contended that while continuing on such
leave, Respondent No.5 submitted an application on
01.10.2016 in order to allow her to take maternity leave.
// 11 //
After availing the maternity leave, Respondent No.5
joined in her duty on 17.01.2007. But w.e.f 01.02.2007,
she remained on unauthorized leave once again. Taking
into account the conduct of Respondent No.5 in
remaining unauthorized absent from her duty, the
Managing Committee initially resolved to appoint the
appellant as against the Post of T.G.T (P.C.M) and
accordingly, order of appointment was issued in favour of
the appellant on 22.01.2007. Subsequently, Respondent
No.5 was terminated from her services w.e.f 16.04.2007
and on such termination of Respondent No.5, the
appointment of the appellant so made on 22.01.2007
was approved and her appointment was regularized by
the Managing Committee in its Proceeding
dt.09.06.2007.
4.2. It is accordingly contended that the Tribunal
without proper appreciation of the stand taken by the
appellant/ applicant in the G.I.A case as well as the
Managing Committee, illegally rejected the claim of the
// 12 //
appellant applicant in G.I.A Case No.180 of 2016 vide the
impugned judgment dt.24.02.2018.
5. Learned Additional Government Advocate appearing
for the State on the other hand contended that since by
the time appellant in F.A.O 302/2018 was appointed on
22.1.2007, there was no vacancy available as per the
prescribed yardstick as against the Post of T.G.T(P.C.M),
the very appointment of the appellant is a nullity in the
eye of law.
5.1. It is also contended that even though
Respondent No.5 was terminated from her services w.e.f
16.04.2007 and the services of the appellant was
regularized in the proceeding dt.09.06.2007, but the said
proceeding is a manipulated one, as in the proceeding
dt.09.06.2007, the decision taken by the Managing
Committee on 23.07.2007 was also taken note of.
5.2. Learned Additional Government Advocate contended
that the happening of 23.07.2007 cannot be taken note
of in the proceeding dt.09.06.2007. It is contended that
in view of such thing which is apparent on the face of the
// 13 //
resolution dt.09.06.2007, it is to be held that such a
resolution is a manipulated one and the services of the
appellant-Sarojini Dash was never regularized in terms of
the resolution dt.09.06.2007.
5.3. Learned Additional Government Advocate
accordingly contended that since the very appointment of
the appellant-Sarojini Dash was against a non-existent
post and by that time Respondent No.5 was very much in
service, the appellant has no right to claim against the
post in question.
5.4. It is further contended that taking into account
the fact that the appellant was appointed during
continuance of Respondent No.5, Respondent No.3
basing on the direction issued by the Respondent No.2,
directed the School authority to allow Respondent No.5
to join in her former post vide letter dt.26.09.2015. The
said action of Respondent No.3 has also been upheld by
the Director in terms of the order passed by this Court in
W.P.(C ) No.18949 of 2015 vide order dt.18.04.2016. It is
accordingly contended that the Tribunal after due
// 14 //
consideration of the matter since has passed the
judgment in question, it requires no interference.
6. Mr. D.N. Rath, learned counsel appearing for
Respondent No.5 on the other hand made his
submission basing on the stand taken before the
Tribunal.
6.1. It is contended that Respondent No.5 was duly
appointed by the Managing Committee of the School as
against the post of T.G.T (P.C.M) vide order of
appointment issued on 24.11.2001. In terms of the said
order, Respondent No.5 joined in the school on
03.12.2001.
6.2. It is contended that during continuance of
Respondent No.5, appellant was appointed vide order
dt.22.01.2007. Since the very appointment of the
appellant was against a non-existing post and prior to
termination of Respondent No.5, such nature of
appointment is void, ab initio.
6.3. In support of his submission, learned counsel
appearing for Respondent No.5 relied on a decision of the
// 15 //
Hon'ble Apex Court in the case of State of Punjab Vs,
Debender Pal Singh 2011 (14) S.C.C 770. Hon'ble
Apex Court in Paragraphs-72 &73 of the said judgment
has held as follows.
<72. It is a settled legal proposition that if initial
action is not in consonance with law, all subsequent
and consequential proceedings would fall through for
the reason that illegality strikes at the root of the order.
In such a fact-situation, the legal maxim "sublato
fundamento cadit opus" meaning thereby that
foundation being removed, structure/work falls, comes
into play and applies on all scores in the present case.
73. In Badrinath v. State of Tamil Nadu & Ors., AIR
2000 SC 3243; and State of Kerala v. Puthenkavu
N.S.S. Karayogam & Anr., (2001) 10 SCC 191, this
Court observed that once the basis of a proceeding is
gone, all consequential acts, actions, orders would fall
to the ground automatically and this principle is
applicable to judicial, quasi-judicial and administrative
proceedings equally.=
6.4. Learned counsel for Respondent No.5 also relied
on another decision of the Hon'ble Apex Court in the case
of State of Orissa & Others Vs. Mamata Mohanty, (2011)
3 SCC 456. Hon'ble Apex Court in paragraph-20 has
held as follows.
<20. It is a settled legal proposition that if an order is
bad in its inception, it does not get sanctified at a later
stage. A subsequent action/development cannot
validate an action which was not lawful at its inception,
for the reason that the illegality strikes at the root of the
order. It would be beyond the competence of any
authority to validate such an order. It would be ironic to
permit a person to rely upon a law, in violation of which
he has obtained the benefits. If an order at the initial
stage is bad in law, then all further proceedings
consequent thereto will be non est and have to be
necessarily set aside. A right in law exists only and
only when it has a lawful origin. (vide: Upen Chandra
// 16 //
Gogoi v. State of Assam & Ors., AIR 1998 SC
1289;Mangal Prasad Tamoli (Dead) by L.Rs. v.
Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR
2005 SC1964; and Ritesh Tiwari & Anr. v. State of U.P.
& Ors., AIR 2010 SC 3823).
The concept of adverse possession of lien on post or
holding over are not applicable in service jurisprudence.
Therefore, continuation of a person wrongly appointed
on post does not create any right in his favour. (Vide Dr.
M.S. Patil v. Gulbarga University & Ors., AIR 2010 SC
3783).=
6.5. It is also contended that even though a stand
has been taken by the Managing Committee that
Respondent No.5 was terminated from her services w.e.f
16.04.2007, but at no point of time, such order of
termination was communicated to Respondent No.5 and
thereby enabling her to take appropriate steps as
provided under law.
6.6. It is also contended that while on the one hand, it is
the stand of the Managing Committee that Respondent
No.5 was terminated w.e.f 16.04.2007, but in the letter
issued by the Chairman of the School on 28.04.2007, it
was indicated that the resignation submitted by
Respondent No.5 has been accepted by the Managing
Committee in its resolution dt.28.04.2007. But in the
Resolution dt.28.04.2007, there is no such decision
// 17 //
taken by the Managing Committee with regard to
acceptance of the resignation of Respondent No.5.
6.7. It is contended that Respondent No.5 at no point of
time has either resigned nor she was terminated, as
alleged w.e.f 16.04.2007. It is accordingly contended that
the Tribunal after going through the materials placed
before it, has rightly come to the conclusion by
upholding the direction issued by Respondent No.3 in his
letter dt.26.09.2015 and the order passed by the Director
on 18.04.2016.
6.8. Learned counsel appearing for Respondent No.5 also
produced a copy of the proceeding of the Managing
Committee dt.09.06.2007 before this Court for perusal.
On bare perusal of the said resolution, it is found that
even though the proceeding was held on dt.09.06.2007,
but in the said proceeding vide Resolution No.6, decision
taken by the Managing Committee on 23.07.2007 has
been approved. Since an happening of 23.07.2007
cannot be taken note of in the proceeding held on
09.06.2007, it is quite obvious that such a proceeding is
// 18 //
a manipulated one and any decision taken in the
proceeding dt.09.06.2007 is a nullity in the eye of law.
7. Having heard learned counsel for the parties and
after going through the materials available on record,
this Court finds that as against the post of T.G.T (PCM)
in Maa Durga Girls High Schoo, Bandalu, Respondent
No.5 was appointed on 24.11.2001 where she joined on
03.12.2001. It is also found that during subsistence of
the appointment of Respondent No.5, appellant-Sarojini
Dash was appointed as against the post held by
Respondent No.5 on 22.01.2007. Since by the time
appellant was appointed as against the post of
T.G.T(PCM), the post was held by Respondent No.5, no
such order of appointment could have been issued in
favour of the appellant-Sarojini Dash and it is a void
order in view of the decision of the Hon'ble Apex Court
in the case of Debender Singh and Mamata Mohanty
as cited supra.
7.1. Even though a stand has been taken that
Respondent No.5 was terminated from her services w.e.f
// 19 //
16.04.2007 and such termination was approved by the
Managing Committee in its proceeding dt.09.06.2007,
but as discussed hereinabove, the proceeding
dt.09.06.2007 is a manipulated one.
In view of such position, the approval of
appointment of appellant-Sarojini Dash so made w.e.f
22.01.2007 in the proceeding dt.09.06.2007 is also not
legal and justified.
7.2. Since by the time the appellant-Sarojini Dash
was appointed on 22.01.2007, Respondent No.5 was very
much in service in the school as against the post of T.G.T
(PCM), this Court finds no illegality or irregularity with
the judgment passed by the Tribunal on 24.02.2018 in
G.I.A Case No.180 of 2016. Accordingly, this Court is
not inclined to interfere with the said judgment and
dismiss both the appeals.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Digitally Signed Dated the 3rd January,2024/sangita
Signed by: SANGITA PATRA
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 03-Jan-2024 16:17:38
