Sarat Kumar Sahu vs State Of Odisha & Others
2024 Latest Caselaw 8169 Ori

Orissa High Court

Sarat Kumar Sahu vs State Of Odisha & Others on 2 May, 2024

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

    IN THE HIGH COURT OF ORISSA AT CUTTACK
          FAO NOs.416,354 & 360 of 2019

Sarat Kumar Sahu                    .....              Appellant
                                                    Mr. S.K. Das, Adv.
                       -versus-
State of Odisha & Others                    .....       Respondents
                                                    Mr. S. Jena, AGA




                    CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

                            ORDER

02.05.2024 Order No.8

1. This matter is taken up through hybrid mode.

2. Heard learned counsel for the parties.

3. Since all these appeals have been filed against the common judgment passed by the State Education Tribunal, Odisha, Bhubaneswar (in short "Tribunal") on 11.03.2019, all the three appeals were heard analogously and disposed of by the present order.

4. Learned counsel for the appellants contended that since claim of the appellants are different to each other, three (3) separate GIA cases were filed before the Tribunal in G.I.A Case No.83 of 2015, 2983 and 2984 of 2017. But the Tribunal vide a common judgment disposed of all the three G.I.A cases without proper appreciation of the respective claims so made.

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4.1. It is contended that because of such wrong committed by the Tribunal the issue raised by the applicants in their respective G.I.A cases, were not dealt with properly and all the three (3) GIA applications were accordingly dismissed vide the impugned judgment. 4.2. It is also contended that the ground on which claim of all the three (3) applicants were rejected is also not sustainable in the eye of law, as their claim to get the benefit of approval as against the promotional post was admissible prior to coming into force of G.I.A Order, 1994.

4.3. In support of his aforesaid submission, Mr. S.K. Das, learned counsel for the appellants relied on the decision of this Court rendered in the case of Rajendra Prasad Singh Vs. State of Orissa and Others, 2001 (II) OLR 683 and Dasharatha Panda Vs. State of Orissa and Others, 121 (2016) CLT 53.

4.4. In the case of Rajendra Prasad Singh, this Court in Para 15 & 16 has held as follows:

15. The conclusion arrived at by me also finds support from the fact that the State Government vide Notification bearing No.37807 dated August 17, 1999 framed a set of Rules in exercise of powers conferred under Article 309 of the Constitution in the name and style of the Orissa Government College Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999 and by another Notification dated November 11, 1999, the Government in exercise of power conferred under Section 27(2) of the Orissa Education Act framed a set of parimateria rules for the Non-Government Aided Colleges ministerial employees in the name and style of "The Orissa Non-Government Aided Colleges Ministerial service (Method of Recruitment and Conditions of Service ) Rules, 1999 which came into force with effect from December 17,1999 prescribing the stipulations for passing Accounts Examination as a condition precedent for promotion to the post of U.D.C and Head Clerk post, this action of the Government .

makes it clear that the Government was conscious that till 1999, there was no provision prescribing a stipulation to pass Accounts Examination as a condition precedent for promotion to the higher post in Ministerial Cadre for Non-Government Aided and Unaided Institutions. Admittedly, in the present case, the Petitioner was promoted to the post of U.D.C in the year 1980 and to the post of Head Clerk in the year 1986. Both the posts were permissible under the prescribed yardstick. In view of the fact that neither in 1980 nor in 1986, there was any Rule or Notification laying down a stipulation to pass Accounts Examination as a condition precedent. I have no hesitation to hold that the promotion of the Petitioner was not bad nor contrary to Rule.

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16. Examining the problem from another angle, it appears that the training and Accounts Examination, was all-along conducted by the State Government through the Board of Revenue and the candidates for taking said training and appearing the Examination were to be sponsored by the State Government from Government establishments. The Petitioner not being an employee of the State Government could not have taken training and appeared the Accounts Examination. This is also a factor which clearly reveals that till 1999, the embargo of passing the Accounts Examination was not insisted upon so far as Ministerial employees of private or Non-Govt. Educational Institutions are concerned. As there was no mode provided for imparting training or conducting Accounts Examination, so far as Non-Government Institutions are concerned.

4.5. In the case of Dasharatha Panda, this Court in paragraphs-9,10 &11 has held as follows:

9. Similar aspect came up for consideration before this Court in Rajendra Prasad Singh (supra) wherein this Court held in paragraphs-15 and 16, as follows:

15. The conclusion arrived at by me also finds support from the fact that the State Government vide Notification bearing No.37807 dated August 17, 1999 framed a set of Rules in exercise of powers conferred under Article 309 of the Constitution in the name and style of the Orissa Government College Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999 and by another Notification dated November 11, 1999, the Government in exercise of power conferred under Section 27(2) of the Orissa Education Act framed a set of paramateria rules for the Non-

Government Aided Colleges ministerial employees in the .

name and style of "The Orissa Non-Government Aided Colleges Ministerial service (Method of Recruitment and Conditions of Service ) Rules, 1999 which came into force with effect from December 17,1999 prescribing the stipulations for passing Accounts Examination as a condition precedent for promotion to the post of U.D.C and Head Clerk post, this action of the Government makes it clear that the Government was conscious that till 1999, there was no provision prescribing a stipulation to pass Accounts Examination as a condition precedent for promotion to the higher post in Ministerial Cadre for Non-Government Aided and Unaided Institutions. Admittedly, in the present case, the Petitioner was promoted to the post of U.D.C in the year 1980 and to the post of Head Clerk in the year 1986. Both the posts were permissible under the prescribed yardstick. In view of the fact that neither in 1980 nor in 1986, there was any Rule or Notification laying down a stipulation to pass Accounts Examination as a condition precedent. I have no hesitation to hold that the promotion of the Petitioner was not bad not contrary to rule that the training and Accounts Examination, was all-along conducted by the State Government through the Board of Revenue and the candidates for taking said training and appearing the Examination were to be sponsored by the State Government from Government establishments. The Petitioner not being an employee of the State Government could not have taken training and appeared the Accounts Examination. This is also a factor which clearly reveals that till 1999, the embargo of passing the Accounts Examination was not insisted upon so far as Ministerial employees of private or Non-Govt. Educational Institutions are concerned. As there was no mode provided for imparting training or conducting Accounts Examination, so far as Non-Government Institutions are concerned.

10. Subsequently, this Court also held in W.P.(C ) NO.561 of 2004 (P. Soleman Raju v. State of Orissa and Others), disposed of on 9.2.2004 that the Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Services) Rules, 1999 came into force w.e.f December 17, 1999 prescribing the stipulation of passing Accounts Examination as a condition precedent for promotion to the posts of Sr. Clerk and Head Clerk. The said rules are not applicable to the present case as the promotion of the Petitioner was prior to December 17, 1999.

11. Taking into account the ratio decided in P. Soleman Raju case (supra) wherein this Court allowed the Writ Petton and directed opposite party Nos.1 and 2 to fix up the pay scale meant for the post of U.D. Clerk from 1.1.1988 and Head Clerk w.e.f 1.2.1992 and pay differential salary to the petitioner in that case within a period of four months from the date of receipt of the order. Applying the same analogy to the present case and looking into the .

decisions in the case of Rajendra Prasad Singh and P. Soleman Raju (supra), this Court is of the considered view that while rejecting the claim of the petitioner, the Director, Higher Education, Orissa had not applied his mind in proper perspective and mechanically rejected the claim of the petitioner, vide Annexures-10 and 12. Therefore, this Court sets aside the orders vide Annexures-10 and 12 and directs the Director, Higher Education, Orissa to fix up salary and emoluments of the Petitioner in the pay scale meant for the post of Sr. Clerk from 24.10.1993 and Head Clerk from 26.10.1988 and pay the differential salary and emoluments to the petitioner within a period of four months from the date of receipt of this order."

5. Learned Addl. Govt. Advocate though supported the impugned judgment but fairly contended that taking into account the nature of claim so made in the respective GIA cases, the Tribunal should have decided the claim individually, instead of disposing all the three GIA cases vide a common judgment.

6. Having heard learned counsel for the parties and considering the submission made, this Court after going through the impugned judgment also finds that claim of the applicants in the present three (3 ) appeals stands in a different footing and the Tribunal should have decided the matter separately instead of disposing the three GIA cases vide a common judgment.

6.1. In that view of the matter, this Court is inclined to quash the judgment dt.11.03.2019 passed in G.I.A case Nos. 83 of 2015, GIA Case Nos.2983 and 2984 of 2017. While quashing the common judgment dt.11.03.2019 so passed in the aforesaid three GIA cases, this Court remits the matter to the Tribunal to decide the claim in each of the G.I.A case separately.

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6.2. Since it is contended that two of the appellants have retired in the meantime, the Tribunal is directed to dispose of all the three (3) GIA cases within a period of six (6) months from the date of receipt of this order, if there is no other legal impediment 6.3. However, considering the submissions made by the learned Addl. Govt. Advocate that counter affidavit was not filed in any of the GIA case, learned Addl. Govt. is directed to intimate the Government Advocate appearing on behalf of the State before the Tribunal to file the counter affidavit within a period of four (4) weeks from today without fail.

The FAOs are accordingly disposed of. Photocopy of the order be placed in the connected cases.

( BIRAJA PRASANNA SATAPATHY) Judge sangita

Reason: authentication of order Location: high court of orissa, cuttack Date: 06-May-2024 17:22:15

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