Orissa High Court
Rashmita Bindhani vs State Of Odisha & Ors. .... Opposite ... on 7 May, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.30744 of 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Rashmita Bindhani .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. N.C. Rout, Advocate
For Opp. Parties : Mr. S. Jena, AGA
Mr. B.S. Tripathy, Advocate
(Opp. Party No. 4)
Mr. S.K. Mishra, Advocate
(Opp. Party No. 5)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 18.04.2024 and Date of Judgment: 07.05.2024
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Biraja Prasanna Satapathy, J.
Petitioner has filed the present writ petition inter alia challenging
Judgment dtd.29.08.2023 so passed by the State Education Tribunal (in
short Tribunal) in Appeal Case No. 5 of 2019 under Annexure-9 to the
// 2 //
writ petition. Vide the said Judgment the Tribunal allowed the claim of
private opp. Party No. 5 and with a direction on Opp. Party No. 4 to
allow Opp. Party No. 5 to resume her duty as against the post of Clerk
in Anchalika Sahajoga High School, Noonchati.
2. It is the case of the Petitioner that pursuant to the notice issued by the
School in the notice board of the then Inspector of Schools, Baripada
Circle on 30.04.2000, Petitioner duly participated in the selection
process and Managing Committee of the School vide its Resolution No.
82 dtd.05.05.2000 resolved to appoint the Petitioner as against the post
of Clerk. Accordingly, Petitioner was appointed vide order of
appointment issued on 05.05.2000. Pursuant to the order of
appointment so issued on 05.05.2000, Petitioner joined as against the
post of Clerk in the School in question on 03.07.2000.
2.1. It is contended that on such joining of the Petitioner as against the
post of Clerk on 03.07.2000, name of the Petitioner was reflected in the
renewal recognition form submitted by the School w.e.f. the year 2000-
01 onwards. However, while so continuing, because of her illness,
Petitioner remained on leave w.e.f.05.07.2004 with due intimation to
the Managing Committee. Since Petitioner after remaining on leave
w.e.f.05.07.2004 extended her leave from time to time, one Sujata Sur
// 3 //
was allowed to continue as against the post in question in the leave
vacancy of the Petitioners. But in the meantime basing on the
Resolution No. 110 (Kha) dtd.09.08.2006, vide Annexure-F/4 to the
counter filed by Opp. Party No. 4 in the GIA case, Petitioner when was
issued with the notice on 09.08.2006 by the Managing Committee with
a direction to join immediately, failing which action shall be taken
against the Petitioner as per Rule, Petitioner joined in the post on
24.08.2006 vide Annexure-G/4.
2.2. It is contended that Petitioner though rejoined in her post on
24.08.2006, but because of her illness she again remained on leave
w.e.f.24.04.2007 vide leave application submitted on dtd.20.04.2007
under Annexure-H/4. Since Petitioner again remained on leave
w.e.f.24.04.2007, the aforesaid Sujata Sur was allowed to continue in
the leave vacancy of the Petitioner. But when the said Sujata Sur
expressed her unwillingness to continue further, in terms of the
Resolution No. 112 dtd.31.05.2007 under Annexure-J/4, Opp. Party
No. 5 was allowed to work in the leave vacancy of the Petitioner.
Accordingly, Opp. Party No. 5 was issued with the letter of
appointment vide letter No. 226 dtd.31.05.2007 vide Annexure-K/4 and
he joined as such on 18.06.2007 vide Annexure- L/4.
// 4 //
2.3. It is contended that after recovering from her illness Petitioner
submitted her joining report on 01.07.2007 under Annexure-M/4 and
the same was placed before the Managing Committee in its proceeding
dtd.20.07.2007 under Annexure-N/4. Even though the then Managing
Committee in its Resolution No. 113 (Ka) dtd.20.07.2007 unanimously
resolved to allow the Petitioner to join in her post, but the then
Secretary of the Managing Committee namely Pruthunath Kisku with
having malafide intention and ulterior motive did not allow the
Petitioner to rejoin. Petitioner though made series of applications before
the Managing Committee, but the matter was kept pending, till vide
Resolution No. 165 (Kha) dtd.08.07.2017 under Annexure-P/4,
Petitioner was allowed to rejoin in her post of Clerk. In terms of the
letter issued on 08.07.2017 under Annexure-Q/4, Petitioner joined in
the post of Clerk on 13.07.2017 vide Annexure-R/4. Name of the
present Petitioner was also forwarded along with other employees in
the renewal recognition submitted for the year 2018-19 under
Annexure-S/4.
2.4. As in the meantime School became eligible to get the benefit of
Grant-in-aid, Managing Committee vide letter dtd.14.12.2018 under
Annexure-H/3 to the counter filed by Opp. Party No. 3 before the
// 5 //
Tribunal forwarded the claim of all teaching and non-teaching staff of
the School for approval of their services.
2.5. It is contended that though the services of all the teaching and non-
teaching staff of the school was approved by Opp. Party No. 3 vide
order dtd.21.12.2019 under Annexure-I/3 series, but because of the
dispute pending at the instance of Opp. Party No. 5 in Appeal Case No.
5 of 2019, services of the present Petitioner was not approved nor the
post of Clerk was also approved.
2.6. It is contended that Petitioner though was allowed to rejoin in her
post w.e.f.13.07.2017 and since then she was not only allowed to
continue but also continuing as such till date, Opp. Party No. 5 never
challenged such action of the Managing Committee in allowing the
Petitioner to rejoin on 13.07.2017 vide Annexure-R/4. But by taking a
plea that Opp. Party No. 5 is being prevented by the Managing
Committee from discharging his duty, which amounts to termination,
he approached the Tribunal by filing Appeal Case No. 5 of 2019 inter
alia with the following prayer:-
"Under the above circumstances, it is therefore humbly
prayed that this Hon'ble Tribunal may be graciously pleased
to declare the action of the opposite party no. 4 in preventing
the appellant to be illegal and without jurisdiction and direct
the opposite party no. 4 to reinstate the appellant in his
former post and allow him to continue as such.
// 6 //
And further the Hon'ble Tribunal be pleased to direct
the Opp. Party No. 1 to 3 to grant all the consequential
service and financial benefits as due and admissible to the
appellant.
And/or pass any other appropriate order/orders in the
fitness of the case.
And for this act of kindness as in duty bound the
applicant shall ever pray."
2.7. Though in the memo of appeal nothing was indicated as to from
which date Opp. Party No. 5 was so prevented from discharging his
duty, but the Tribunal without proper appreciation of the materials
placed before it by the present Petitioner as well as by the Managing
Committee-Opp. Party No. 4, allowed the claim of Opp. Party No. 5
vide impugned Judgment dtd.29.08.2023 in Appeal Case No. 5 of 2019
under Annexure-9. While allowing such claim of Opp. Party No. 5, the
Managing Committee-Opp. Party No. 4 was also directed to allow Opp.
Party No. 5 to rejoin as against the post of Clerk.
2.8. Learned counsel for the Petitioner contended that since Opp. Party
No. 5 in terms of the Resolution passed by the Managing Committee
vide Resolution No. 112 dtd.31.05.2007 under Annexure-J/4, allowed
Opp. Party No. 5 to work as against the post of Clerk in the leave
vacancy of the Petitioner and accordingly letter of appointment was
issued on 18.06.2007 under Annexure-K/4. But by claiming himself to
have been appointed on regular basis and by alleging prevention by the
// 7 //
Managing Committee from discharging his duty, Opp. Party No. 5 filed
the appeal before the Tribunal in Appeal Case No. 5 of 2019.
2.9. It is contended that even though Opp. Party No. 5 was issued with
the letter of appointment on 31.05.2007 vide Annexure-K/4 as against
the leave vacancy of the Petitioner and subsequently on joining of the
Petitioner after recovering from her illness on 01.07.2007, though
Petitioner was allowed by the Managing Committee to join as such in
its Resolution No. 113 (Ka) dtd.20.07.2007 under Annexure-N/4, but
due to illegal action of the then Secretary of the Managing Committee,
Petitioner was not allowed to discharge her duty w.e.f.01.07.2007.
2.10. After several approach being made, the Managing Committee
vide Resolution No. 165 (Kha) dt.08.07.2017 under Annexure-P/4
allowed the Petitioner to join, where she joined on 13.07.2017 vide
Annexure-R/4. Though w.e.f.13.07.2017, Opp. Party No. 5 was not
allowed to continue and is also not in service, but by taking a plea that
he was prevented from discharging his duty and such termination
violates the provisions contained under Sec. 10-A of the Odisha
Education Act, the appeal was preferred before the Tribunal with the
prayer as indicated hereinabove.
// 8 //
2.11. It is contended that since Opp. Party No. 5 was never appointed
on regular basis by facing due recruitment process and he was only
allowed to continue in terms of the Resolution No. 112 dtd.31.05.2007
in the leave vacancy of the Petitioner vide Annexure-J/4, the claim so
made by Opp. Party No. 5 could not have been allowed by the Tribunal
on the face of the stand taken by the present Petitioner and the
Managing Committee-Opp. Party No. 4. It is accordingly contended
that the impugned Judgment is not sustainable in the eye of law and
liable to be interfered with by this Court.
3. Mr. S.K. Mishra, learned counsel appearing for Opp. Party No. 5 on
the other hand made his submission basing on the stand taken in the
memo of appeal. It is contended that Opp. Party No. 5 was never
appointed as against the leave vacancy of the Petitioner vide Resolution
No. 112 dtd.31.05.2007. In the alternate in terms of Managing
Committee Resolution No. 98 dtd.31.05.2007, he was appointed as
against the post of Clerk on regular basis vide Annexure-2 to the appeal
memo and in terms of the said order he joined on 18.06.2007 vide
Annexure-3. Subsequent to his joining as against the post of Clerk on
18.06.2007, w.e.f. academic session 2006-07, name of Opp. Party No. 5
was reflected as against the post of Clerk in the renewal recognition
form so submitted by the Managing Committee vide Annexure-4 series.
// 9 //
3.1. In the meantime vide notification dtd.24.09.2015 under Annexure-
1, when the School was notified to be an Aided Educational Institution,
Opp. Party No. 5 was prevented from discharging his duty and name of
Petitioner was reflected in the renewal recognition form w.e.f.
academic session 2017-18 vide Annexure-5 and her name was also
forwarded by the Managing Committee for approval as against the post
of Clerk.
3.2. It is contended that since Opp. Party No. 5 was duly appointed as
against the post of Clerk in terms of the decision taken by the Managing
Committee in its Resolution No. 98 dtd.31.05.2007, where he joined on
18.06.2007, the action of Opp. Party No. 4 in not allowing him to
discharge his duty, amounts to termination. Since Opp. Party No. 5
when was prevented from discharging his duty, the School was already
notified to be eligible to get the benefit of Grant-in-aid vide
Notification dt.24.09.2015 under Annexure-1, prior to taking such
action, Opp. Party No. 4 should have obtained prior permission in terms
of the provisions contained under Sec. 10-A of the Odisha Education
Act. Since no prior permission was ever taken as provided under Sec.
10-A of the Odisha Education Act, such action of the Managing
Committee is not sustainable in the eye of law.
// 10 //
3.3. Mr. Mishra accordingly contended that since Opp. Party No. 5
while continuing as against the post of Clerk w.e.f.18.06.2007 on being
duly appointed vide order of appointment issued on 31.05.2007 under
Annexure-2, without compliance of the provisions of Sec. 10-A of the
Act, was prevented from discharging his duty by the Managing
Committee, Opp. Party No. 5 rightly approached the Tribunal in filing
the appeal in question. The Tribunal after proper appreciation of the
stand taken by the present Opp. Party No. 5 and the Managing
Committee vis-a-vis the Petitioner, rightly allowed the claim vide the
Judgment in question, which requires no interference.
4. Mr. B.S. Tripathy, learned counsel appearing for the Managing
Committee-Opp. Party No. 4 on the other hand made his submission
basing on the stand taken in the counter affidavit so filed in Appeal
Case No. 5 of 2019. It is contended that pursuant to the decision taken
by the Managing Committee in its Resolution dtd.10.04.2000 vide
Annexure-A/4 to the counter filed in the Appeal, the Managing
Committee decided to fill up one post of Clerk and one post of Peon.
Basing on such Resolution and the notice issued in that regard,
Petitioner duly participated in the selection process and in terms of the
decision taken by the Managing Committee in its Resolution
dtd.05.05.2000 under Annexure-B/4, Petitioner was appointed as
// 11 //
against the post of Clerk vide order of appointment issued on
05.05.2000 under Annexure-C/4. Pursuant to the said order of
appointment, Petitioner joined on 03.07.2000 vide Annexure-D/4. On
such joining of the Petitioner as against the post of Clerk on
03.07.2000, her name was also reflected in the renewal recognition
form submitted by the Managing Committee w.e.f. academic session
2000-01 vide Annexure-E/4.
4.1. It is contended that while so continuing Petitioner remained on
leave w.e.f.24.04.2007 with submission of the leave application on
20.04.2007 under Annexure-H/4. In such leave vacancy of the
Petitioner, Opp. Party No. 5 in terms of the decision taken by the
Managing Committee in its Resolution No. 112 dtd.31.05.2007 vide
Annexure-J/4 was appointed vide letter No. 226 dtd.31.05.2007 under
Annexure-K/4. In terms of such letter of appointment issued under
Annexure-K/4, Opp. Party No. 5 submitted his joining on 18.06.2007
under Annexure-L/4 with due acceptance.
4.2. It is contended that after such joining of Opp. Party No. 5 on
18.06.2007, Petitioner after recovering from her illness, submitted her
joining on 01.07.2007 vide Annexure-M/4. The Managing Committee
in its Resolution No. 113(Ka) dtd.20.07.2007 under Anenxure-N/4
// 12 //
though resolved to allow the Petitioner to rejoin and requested the
Secretary to do the needful, but due to illegal action of the Secretary of
the Managing Committee at the relevant point of time, Petitioner was
not allowed to join w.e.f.01.07.2007. However, vide Resolution No.
165 (Kha) dtd.08.07.2017 under Annexure-P/4, Opp. Party No. 4
resolved to allow the Petitioner to rejoin and accordingly Petitioner
rejoined as against the post of Clerk on 13.07.2017 vide Annexure-R/4,
pursuant to the letter issued by the Managing Committee on 08.07.2017
under Annexure-Q/4.
4.3. It is contended that after 13.07.2017, Opp. Party No. 5 is neither in
the pay roll of the school nor in service as against the post of Clerk. But
by taking a plea that he was prevented from discharging his duty by the
Managing committee, he approached this Court initially in W.P.(C) No.
1109 of 2019. Pursuant to the liberty granted by this Court in its order
dtd.07.02.2009, Petitioner filed the appeal before the Tribunal in
Appeal Case No. 5 of 2019.
4.4. Learned counsel appearing for Opp. Party No. 4 contended that
since Opp. Party No. 5 was allowed to continue in the leave vacancy of
the Petitioner in terms of the Resolution No. 112 dtd.31.05.2007 vide
Annexure-J/4 with letter of appointment issued on 31.05.2007 under
// 13 //
Annexure-K/4 and Opp. Party No. 5 joined in the said leave vacancy on
18.06.2007 vide Annexure-L/4, Opp. Party No. 5 cannot claim himself
to have been appointed as against the post of Clerk on regular basis. It
is also contended that though Opp. Party No. 5 claims himself to have
been appointed in terms of Resolution No. 98 dtd.31.05.2007, but no
such Resolution was ever passed by the Managing Committee nor it
was produced by Opp. Party No. 5 before the Tribunal. In the alternate
while filing its counter, Opp. Party No. 4 not only produced Resolution
No. 112 dtd.31.05.2007 but also letter of appointment issued in favour
of Opp. Party No. 5 on 31.05.2007 in terms of Resolution No. 112
dtd.31.05.2007. Opp. Party No. 5 also by reflecting the Resolution
Number, joined on 18.06.2007 vide Annexure-L/4.
4.5. It is contended that since Opp. Party No. 5 never produced copy of
Resolution No. 98 dtd.31.05.2007 basing on which he was so appointed
as against the post of Clerk, the Tribunal should not have held that Opp.
Party No. 5 was appointed on regular basis in terms of such Resolution.
But Resolution No. 112 dtd.31.05.2007 clearly reveals that Opp. Party
No. 5 was allowed to continue as against the post of Clerk in the leave
vacancy of the Petitioner and such engagement is till Petitioner
rejoined.
// 14 //
4.6. Even though in its proceeding dtd.20.07.2007 under Annexure-N/4,
the Managing Committee resolved to allow the Petitioner to rejoin in
terms of the joining letter submitted on 01.07.2007 under Annexure-
M/4, but because of the illegal action of the Secretary of the Managing
Committee at the relevant point of time, Petitioner was not allowed to
rejoin. But in terms of the decision taken by the Managing Committee
in its proceeding dtd.08.07.2017 vide Resolution No. 165 (Kha) under
Annexure-P/4, Petitioner was allowed to rejoin with letter issued on
dtd.08.07.2017 under Annexure-Q/4, where she joined on 13.07.2017
under Annexure-R/4.
4.7. Petitioner since 13.07.2017 is also continuing as against the post of
Clerk and Opp. Party No. 5 w.e.f.13.07.2017 is not in employment as
against the post of Clerk. But by making a false allegation that he was
prevented from discharging his duty, which amounts to termination, he
preferred an appeal in terms of the liberty granted by this Court. The
Tribunal without proper appreciation of the stand taken by the
Managing Committee and the documents filed along with the counter
affidavit, allowed the claim vide the impugned Judgment. It is
accordingly contended that the impugned Judgment so passed by the
Tribunal is not sustainable in the eye of law.
// 15 //
5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made
his submission basing on the stand taken by Opp. Party No. 3 before
the Tribunal. It is contended that Anchalika Sahajoga High School,
Noonchati was granted permission for establishment of the School
w.e.f. the academic session 1993-94 and recognition of the school was
accorded from the academic session 1996-97. The school while so
continuing, was notified as an Aided Educational Institution vide
notification dtd.24.09.2015.
5.1. It is contended that in terms of the Resolution passed by the
Managing Committee on 05.05.2000 under Annexure-A/3 series,
Petitioner joined as against the post of Clerk on 03.07.2020 in terms of
order dtd.05.05.2000 so issued by the Managing Committee vide
Annexure-A/3 series to the counter filed in the Appeal.
5.2. It is contended that while so continuing Petitioner when made an
application on 05.07.2004 with a prayer to grant her leave till recovery
from her illness vide Annexure-B/3, Petitioner was allowed to remain
on such leave. But when the Managing Committee directed the
Petitioner to rejoin, Petitioner submitted her joining on 24.08.2006 vide
Annexure-C/3. But thereafter, Petitioner again remained on leave from
24.04.2007 by submitting application in that regard on 20.04.2007 and
// 16 //
such leave application of the Petitioner was also accepted by the
Managing Committee in its Resolution No. 111 (Kha) dtd.24.04.2007
under Annexure-D/3 series.
5.3. It is also contended that vide Resolution No. 112 dtd.31.05.2007
under Annexure-E/3, Opp. Party No. 4 resolved to appoint Opp. Party
No. 5 temporarily in the leave vacancy of the Petitioner. Pursuant to
such Resolution passed by the Managing Committee on 31.05.2007
vide Resolution No. 112, Opp. Party No. 5 pursuant to the order of
appointment issued on 31.05.2007, joined as a Clerk on 18.06.2007 in
the leave vacancy of the Petitioner.
5.4. It is contended that Petitioner after recovering from her illness
though submitted her joining on 01.07.2007 and also made several
applications to accept her joining vide Annexure-F/3 series, but the
same was kept pending. But ultimately the Managing Committee in its
Resolution No. 165 (Kha) dtd.08.07.2017 resolved to terminate Opp.
Party No. 5 and allowed the Petitioner to rejoin under Annexure-G/3
series. Pursuant to the decision taken by the Managing Committee in its
Resolution dtd.08.07.2017, Petitioner was permitted to rejoin vide letter
issued on 08.07.2017, where she joined on 13.07.2017 under Annexure-
G/3 series.
// 17 //
5.5. It is contended that since the School became eligible to get the
benefit of Grant-in-aid vide notification dtd.24.09.2015, proposal was
submitted by the Managing Committee reflecting names of the teaching
and non-teaching staff of the School vide letter dtd.14.12.2018 under
Annexure-H/3 series. In the said proposal name of the Petitioner though
was there, but the same was not approved, as the date of joining of the
Petitioner was shown as 08.07.2017. But subsequently, the Managing
Committee though requested the Inspector of schools for approval of
her services, but no action was taken because of the pendency of
Appeal Case No. 5 of 2019.
5.6. Mr. Jena, learned AGA accordingly contended that since Opp.
Party No. 5 was appointed as against the leave vacancy of the Petitioner
in terms of Resolution No. 112 dtd.31.05.2007, where he joined on
18.06.2007, the Tribunal should have taken into consideration the stand
of the present Petitioner and that of the Managing Committee while
deciding the issue in favour of Opp. Party No. 5.
6. Having heard learned counsel appearing for the Parties and after
going through the materials available on record, it is found that Opp.
Party No. 5 moved the Tribunal in Appeal Case No. 5 of 2019 alleging
therein that he was prevented from discharging his duty as against the
// 18 //
post of Clerk. But in the memo of appeal so available in the case
record, no specific date has been indicated as to from which date Opp.
Party No. 5 was so prevented from discharging his duty.
6.1. Even though Opp. Party No. 5 claims himself to have been
appointed as against the post of Peon in terms of Resolution No. 98
dtd.31.05.2007, but copy of such Resolution was never produced by the
Petitioner either before the Tribunal even before this Court.
6.2. Even though after such joining of Opp. Party No. 5 on 18.06.2007
his name was reflected in the renewal recognition form submitted by
the Managing Committee w.e.f. academic session 2006-07, but since
the Resolution basing on which Opp. Party No. 5 claims to have been
appointed as against the post of Clerk with order of appointment issued
on dtd.31.05.2007, was never produced, the Tribunal in absence of the
same should have relied on the stand taken by the present Petitioner as
well as by the Managing Committee - Opp. Party No. 4 that Opp. Party
No. 5 was appointed as against the leave vacancy of the Petitioner in
terms of the Resolution No. 112 dtd.31.05.2007 under Annexure-J/4.
6.3. As found from the record in terms of Resolution No. 112
dtd.31.05.2007, Opp. Party No. 5 was appointed as against the post of
Clerk vide order of appointment issued on 31.05.2007 under Annexure-
// 19 //
K/4 in the leave vacancy of the Petitioner. Not only that in terms of
such order of appointment issued, Opp. Party No. 5 joined on
18.06.2007 under Annexure-L/4. In all those documents starting from
Annexure-J/4 to L/4, the Resolution Number was indicated as
Resolution No. 112 dtd.31.05.2007. Since vide Resolution No. 112
dtd.31.05.2007, the Managing Committee - Opp. Party No. 4 resolved
to appoint Opp. Party No. 5 as against the leave vacancy of the
Petitioner, Opp. Party No. 5 cannot raise a claim that he was appointed
on regular basis as against the post of Clerk. Petitioner though after
such appointment of Opp. Party No. 5, submitted her joining on
01.07.2007 under Annexure-M/4, but the same on the face of the
Resolution passed by the Managing Committee on 20.07.2007 under
Annexure-N/4, Petitioner was not allowed to rejoin.
6.4. However, in terms of Resolution No. 165 (Kha) dtd.08.07.2017
under Annexure-P/4, Petitioner was allowed to rejoin and accordingly
the Managing Committee issued a letter on dtd.08.07.2017 under
Annexure-Q/4. In terms of letter dtd.08.07.2017 under Annexure-Q/4,
Petitioner was allowed to rejoin on 13.07.2017 vide Annexure-R/4. In
its proceeding dtd.03.07.2017 Managing Committee clearly indicated
that Opp. Party No. 5 was appointed as against the leave vacancy of the
// 20 //
Petitioner in terms of the decision taken vide Resolution No. 112
dtd.31.05.2007.
6.5. It is also found from the record that no document was ever
produced by Opp. Party No. 5 before the Tribunal showing himself to
have been appointed vide order of appointment issued on 31.05.2007
by facing due recruitment process so initiated by the Managing
Committee. However, from the record it is found that Petitioner in
terms of the decision taken by the Managing Committee in its
Resolution dtd.10.04.2000 under Annexure-A/4 and subsequent
Resolution dtd.05.05.2000 under Annexure-B/4, after facing due
selection process, was issued with the order of appointment on
05.05.2000 under Annexure-C/4.
6.6. Since Petitioner was duly appointed as against the post of Clerk by
facing due selection process and Opp. Party No. 5 was appointed as
against the leave vacancy in terms of Resolution No. 112
dtd.31.05.2007 under Annexure-J/4, claim of Opp. Party No. 5 that he
was regularly appointed and was prevented from discharging his duty
by the Managing Committee, as per the considered view of this Court is
not acceptable. But on the face of the documents so produced by the
Managing Committee - Opp. Party No. 4 and the Petitioner as well as
// 21 //
the stand taken by the Inspector of Schools - Opp. Party No. 3, the
Tribunal as per the considered view of this Court came to a wrong
conclusion that Opp. Party No. 5 was duly appointed as against the post
of Clerk vide order of appointment issued on 31.05.2007 under
Annexure-2 to the appeal memo. The Tribunal in absence of any
pleading made by Opp. Party No. 5, as to from which date he was as
such prevented from discharging his duty could not have accepted such
plea while allowing the claim of Opp. Party No. 5 vide the impugned
Judgment.
7. In view of such analysis as indicated above, this Court is inclined to
quash the Judgment dtd.29.08.2023 so passed by the Tribunal in Appeal
Case No. 5 of 2019 and quash the same accordingly.
8. The writ petition is accordingly allowed.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 7th of May, 2024/Sneha
Location: High Court of Orissa, Cuttack
