Orissa High Court
State Of Odisha & Ors vs Debendra Ku. Barik on 22 November, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 429 of 2020
State of Odisha & Ors. ..... Appellant
Mr. S.P. Das, ASC
-versus-
Debendra Ku. Barik ..... Respondents
Mr. S.K. Das, Advocate
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
22.11.2024
Order No. 04 I.A. No. 671 of 2023
1. This matter is taken up through hybrid mode.
2. This I.A. has been filed seeking recalling of order dtd.22.06.2023
passed in I.A. No. 309 of 2020.
3. Learned counsel appearing for the Respondent No. 1 contended
that he does not want to press the I.A..
4. Accordingly, the I.A. is dismissed as not pressed.
(BIRAJA PRASANNA SATAPATHY)
Judge
05. I.A. No. 309 of 2020 & FAO No. 429 of 2020
1. This is an application filed by the State seeking condonation of
delay of around 766 days.
2. In support of the condonation of delay, learned ASC relied on the
stand taken in Para 3, 4, 5 & 6 of the interim application which are
reproduced hereunder:-
"3. That, the Administrative Branch on the basis of suggestions
made by appellant No. 2 obtained approval of Appellant No. 1
and sent request proposal to the office of the Advocate General
vide Letter No. 6394, dtd. 03.03.2018 to file FAO against the
order dtd. 13.12.2017 passed in GIA case No. 100/2012.
4. That, since certain disputed facts with regard to admissibility
of the post retained by the Respondent No. 1 could be revealed
the matter required further analysis for which relevant
clarification was sought for from the Director, Higher
Education and such clarification was received from the
concerned quarter. On the basis of the clarification the
admissibility of the post was assessed and the file therefore was
remained in process till 07.12.2018 when it was sent to Law
Department for imparting their views. The Law Department
returned the file on 04.05.2019 suggesting to implement the
impugned judgement of the Learned Tribunal.
5. That, during the process of implementation the Hon'ble Apex
Court by judgement dtd. 16.09.2019 passed in Civil Appeal No.
7295/2019 (State of Odisha and Anr.-vrs-Anup Kumar Senapati
and Another) and a batch consisting other 8 numbers of
identical Civil Appeals came to a conclusion that after repeal of
Grant-in-Aid order, 1994, the provisions of the said repealed
order can not be revived again to grant benefit to any post or
person in an aided non Govt. college, provided if the post/
person has not received Grant-in-Aid prior to its repealed. Thus,
in view of the aforesaid settled provisions of law, the
Department of Higher Education took a further decision to file
FAO before the Hon'ble High Court against the order dtd.
13.12.2017 passed in GIA case No. 100/2012.
6. That, accordingly, the office of the Advocate General was
contacted on dtd. 16.3.2.2.0 and discussions were made with the
Learned Additional govt. Advocate on dtd. 17 3.2020. Sri
Pranabandhu Rout, Deputy Secretary was authorized for the
purpose in the Administrative Department who attended the
Office chamber of the concerned Law officer concerned on
17.3.2020 and held discussions for the purpose with the Law
Officer on 17.3.2020 and as per discussions held, the draft FAO
was prepared by the Law Officer concerned in the Office of the
Advocate General, Odisha, Cuttack on 17.3.2020. The draft
FAO grounds were verified and it was finalized on 17.3.2020.
The finalized FAO memorandum was filed on 18.3.2020 wherein
a delay of 764 days occurred which is calculated excluding the
period of 60 days available u/s 24(C) of Orissa Education Act,
1969 and the duration consumed by the Tribunal to supply the
certified copy of the impugned judgment in filing an Appeal
against the orders passed by Ld. State Education Tribunal."
2.1. In support of his submission, learned Addl. Standing Counsel
appearing for the Appellants relied on the order passed by the
Hon'ble Apex Court on 22.11.2019 in SLP (Civil) Diary
Nos.33245 of 2018 and similar SLPs.
It is contended that in all the aforesaid orders, Hon'ble Apex
Court was pleased to condone the delay in filing the Special Leave
Petition by imposing a cost of Rs.50,000/- on the State. Order
passed in SLP (Civil) Diary No.33245 of 2018 and similar SLPs
are reproduced hereunder:-
"Delay condoned.
Subject to the Petitioner-State depositing a sum of
Rs.50,000/- (Rupees fifty thousand only) in the Registry of this
Court within four weeks from today, issue notice, returnable on
13.01.2020,
Dasti service, in addition, is permitted.
If the amount is not deposited within the stipulated time,
the special leave petition shall stand dismissed without further
reference to the Court.
Upon deposit, the amount shall be invested in a fixed
deposit receipt with a nationalized bank initially for a period of
90 days with auto renewal facility.
xxx xxx xxx
Diary No.33248/2018; Diary No.33650/2018; Diary
No.39345/2018;
Diary No.39309/2018; Diary No.39347/2018; Diary
Diary NO.31098/2019; and Diary No.33665/2019
Mr. Ashok Parija, learned Senior Counsel invited out
attention to the judgment and order dated 16.09.2019 passed in
Civil Appeal No.7295 of 2019 and all other connected matters.
The issue involved in the matter was set out in para 1 of the said
judgment as under:
"1. The question involved in the appeals is whether the
employees are entitled to claim grant-in-aid as admissible under
the Orissa (Non-Government Colleges, Junior Colleges and
Higher Secondary Schools) Grant-in-aid Order, 1994
(hereinafter referred to as the „ the order of 1994), after its
repeal in the year 2004 by virtue of provisions contained in
Orissa (Non-government Coleges, Junior Colleges and Higher
secondary Schools) Grant-in-aid Order, 2004 (hereinafter
referred to as the „the order of 2004‟). The order of 2004 has
also been repealed by Orissa (Aided Colleges, Aided Junior
Colleges, and Higher Secondary Schools) Grant-in-aid Order,
2008."
The conclusion drawn by the Court as set out in para 31 was as
under:
"31. It is apparent on consideration of Paragrapha 4 of
order of 2004 that only saving of the right is to receive the block
grant and only in case grant in aid had been received on or
before the repeal of the Order of 2004, it shall not be affected
and the Order of 1994 shall continue only for that purpose and
no other rights are saved. Thus, we approve the decision of the
High Court in Lok Nath Behera (supra) on the aforesaid aspect
for the aforesaid reasons mentioned by us."
Relying on the aforesaid observations, it is submitted that
the only right that was saved was to receive the block grant and
only in case the grant-in-aid was received on or before the
repeal of the Order of 2004. It is further submitted that the
decision of the High Court in Loknath Behera was approved by
this Court. Exactly contrary situation has now been accepted by
the High Court in the orders presently under appeal.
We must however state that the matters were disposed of
by the High Court as the petition in every case was delayed by at
least 800 days. In the circumstances, we pass following order:-
a) Delay condoned.
Subject to the petitioner-state depositing a sum of Rs.50,000/-
(Rupees fifty thousand only), to the account of every petition in
the Registry of this Court within four weeks from today, let
notices be issued to the respondents, returnable on 13.01.2020.
Dasti service, in addition, is permitted.
b) If the amount is not deposited within the stipulated time, the
special leave petitions shall stand dismissed without further
reference to the Court.
c) Upon deposit, the amount shall be invested in a fixed deposit
receipt with a nationalized bank initially for a period of 90 days
with auto renewal facility.
Mr. Subhasish Mohanty, learned Advocate-on-Record,
who has appeared on behalf of Caveator/ Sole respondent in
SLP (Civil) Diary No.31098 of 2019, accepts notice on behalf of
sole respondent. He prays for and is granted three weeks‟ time
to put in affidavit in reply.
Rejoinder, if any, be filed within two weeks‟ thereafter.
List all the matters on 213.01.2020".
2.2. Learned State Counsel also relied on the decision rendered
by the Hon'ble Apex Court on 09.10.2023 in Civil Appeal
No.5867 of 2015 (Sheo Raj Singh (Deceased) Through Lrs. &
Ors. vs. Union of India &Anr.).
Placing reliance on the decision in Sheo Raj Singh as
provided under Section-5 of the Limitation Act, it is contended
that, the term sufficient cause is elastic enough for Courts to do
substantial justice. Further, when substantial justice and technical
considerations are pitted against one and another, the former
would prevail. Since in the present case the Tribunal allowed the
claim of the respondent without following the decision of this
Court in the case of LaxmidharPati vs. State of Orissa & Others
(1996)(I) OLR- 152 as well as other decisions rendered by this
Court, in view of the ratio decided in the case Sheo Raj Singh and
the order passed by the Hon'ble Apex Court in SLP (Civil) Diary
No.33245 of 2018, 38574 of 2015 and 11604 of 2020 in
condoning the delay, subject to payment of cost of Rs.50,000/- the
delay in filing of the present appeal is required to be condoned as
substantial question of law is involved.
2.3. Hon'ble Apex Court in Para-31(b) and 37 of the Judgment in
Sheo Raj Singhhas held as follows:-
"31.b. The expression sufficient cause is elastic enough for
courts to do substantial justice. Further, when substantial justice
and technical considerations are pitted against one another, the
former would prevail".
xxx xxx xxx
37. Having bestowed serious consideration to the rival
contentions, we feel that the High Court‟s decision to condone
the delay on account of the first respondent‟s inability to present
the appeal within time, for the reasons assigned therein, does
not suffer from any error warranting interference. As the
aforementioned judgments have shown, such an exercise of
discretion does, at times, call for a illiberal and justice-oriented
approach by the Courts, where certain leeway could be
provided to the State. The hidden forces that are at work in
preventing an appeal by the State being presented within the
prescribed period of limitation so as not to allow a higher court
to pronounce upon the legality and validity of an order of a
lower court and thereby secure unholy gains, can hardly be
ignored. Impediments in the working of the grand scheme of
governmental functions have to be removed by taking a
pragmatic view on balancing of the competing interests".
3. Mr. S.K. Das, learned counsel appearing for Respondent No. 1
on the other hand contended that the Tribunal allowed the claim of
Respondent No. 1 vide Judgment dtd.13.12.2017 in GIA Case No.
100/2012. The order passed by the Tribunal was also complied vide
order dtd.03.08.2019 and 31.10.2019. After compliance of the
order, the appeal has been filed challenging the order passed the
Tribunal on 13.12.2017.
3.1. It is also contended that similar prayer to condone the delay has
been rejected by this Court vide Judgment dtd.20.02.2024 in FAO
No. 504 of 2020. It is accordingly contended that in view of the
detailed order passed in FAO No. 504 of 2020, the present I.A. is
also liable for dismissal.
4. Having heard learned counsel appearing for the Parties and
considering the submissions made and the fact that the FAO has
been filed after compliance of the order passed by the Tribunal, this
Court placing reliance on the Judgment passed on 20.02.2024 in
FAO No. 504 of 2020 is not inclined to condone the delay in filing
the appeal.
5. I.A. accordingly stands rejected. Consequentially the appeal also
fails and stands dismissed.
(BIRAJA PRASANNA SATAPATHY)
Judge
Sneha
Location: High Court of Orissa, Cuttack
