Orissa High Court
Tapaswini Acharya vs State Of Odisha & Others ... Opposite ... on 30 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No13837 of 2013
(Application under Articles 226 and 227 of the Constitution of
India)
Tapaswini Acharya ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.K.Swain,
Advocate.
-versus-
For Opposite Parties
: Mr. S.N.Patanaik, A.G.A
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
30.1.2025.
Sashikanta Mishra,J. The Petitioner has approached this Court
seeking the following relief;
"Under the above circumstances, it is humbly
prayed that the writ petition may be allowed;
And
(A) A writ of mandamus or an appropriate writ
may be issued commanding the opposite
parties more particularly to the opposite party
Nos.1 and 2 to accord approval of the
petitioner's appointment against the
Additional Trained Graduate post and
thereafter her monthly salary may be
released forthwith;
And
(A-1) An appropriate writ may be issued by
extending the benefit of the judgment and
order dated 24.02.2003 passed by the
Odisha Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No.1634 (C) of 2000
and batch of cases by approving the
appointment of the petitioner with effect from
07.06.1994 as has been done in the case of
other Additional Section Teachers in
consonance with the said judgment and order
dated 24.02.2003 passed by the Odisha
Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No.1634 (C) of 2000 and
batch of cases under Annexure:7 to the
rejoinder affidavit filed by the petitioner,
which has been upheld by this Hon'ble Court
vide order dated 17.11.2005 passed in
W.P.(C) No.5864 of 2004 under Annexure:8 to
the rejoinder affidavit filed by the petitioner,
and also by the Hon'ble Apex Court by
treating the letter dated 24.04.2000 issued
by the State Government in School and Mass
Education Department under Annexure: 10
as illegal in respect of the petitioner and she
may also be allowed to discharge her duties
in the School in question pursuant to the
judgment and order dated 24.02.2003
passed by the Odisha Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No.
1634 (C) of 2000 and batch of cases which
has been upheld by this Hon'ble Court vide
order dated 17.11.2005 passed in W.P.(C)
No.5864 of 2004 with all consequential
service and financial benefits, within a time
to be stipulated by this Hon'ble Court;
(B) And any other order orders or
direction/directions may be issued so as to
give complete relief to the petitioner;
And for this act of kindness, the petitioner
shall as in duty bound remain ever pray."
2. The Petitioner was appointed against an Additional
Trained Graduate post on 04.7.1991 in Akhua Odanga
High School, Odanga in the district of Kendrapara
having B.S.C. B.Ed. qualification in C.B.Z. Her
appointment was confirmed by the Managing
Committee in its resolution dated 31.7.1991. On
23.7.1996, the Managing Committee recommended her
case to the authorities for approval of her appointment.
The Inspector of Schools, after necessary verification
recommended the case of the Petitioner to the Director,
Secondary Education for approval of her appointment
and for release of her monthly salary under the direct
payment scheme. Though the post against which the
petitioner was appointed was admissible as per the
yardstick dtd.08.7.1981, her appointment was not
approved on the ground that she did not have the
requisite qualification i.e. B.Ed., which she acquired in
July, 1996 as an in-service candidate. She therefore,
approached this Court in O.J.C. No.6381/1998 which
was disposed of by order dated 14.5.1998 directing the
Director, Secondary Education to dispose of her
representation after making proper inquiry. However,
no action was taken. It is stated that similarly situated
Additional Section Teachers having approached this
Court, their appointments were approved basing on the
ratio decided by this Court in the case of
Bibekananda Das v. State of Orissa and others,
1997 (23)OLR 222. The petitioner submitted several
representations to the authorities including the
Director, but no steps were taken. By letter
dtd.24.4.2000 of the Government in School and Mass
Education Department, the persons who had not
acquired B.Ed. qualification by 7.4.1994 were decided
to be removed from service by holding their
appointments to be illegal and ab initio void. Said
decision of the Government was challenged by large
number of Addl. Section Teachers before the erstwhile
Odisha Administrative Tribunal in O.A. No.1634
(C)/2000 and batch. By order dated 24.2.2003 the
Tribunal, relying upon the judgment rendered in the
case of Bibekananda Das v. State of Orissa (supra)
quashed the letter dtd.24.4.2000 and consequential
termination letters issued by the Inspector of Schools.
The Tribunal further directed the authorities to allow
the applicants to continue as Government servants
with all benefits attached to their posts. The order of
the Tribunal was challenged by the State Government
before this Court in W.P.(C) No.5864/2004, which
came to be dismissed by order dated 17.11.2005. Said
order was challenged by the State before the Apex
Court, but the same was also dismissed. On such
basis, it is claimed by the Petitioner that she stands on
similar footing as the applicants before the Tribunal
and therefore, she should be allowed to discharge her
duty in the School in question with all consequential
service and financial benefits.
3. Counter affidavit has been filed by the State
authorities (Opp.Party No.3). The maintainability of the
Writ Petition has been challenged on the ground that
the Petitioner is guilty of suppression of material facts
inasmuch as she completed her +3 degree course in
April, 1992, which is subsequent to her appointment
in the School. Further, she took up new appointment
as Headmistress in Sidheswar U.P. School at
Jagadalpur in the district of Kendrapara since 2003
wherein she is continuing as such till date. Her post
has been duly approved and she is receiving block
grant from the Government. It is further stated that
the Petitioner has approached this Court after long
lapse of 15 years from the date of order passed in OJC
No.6381/1998 without explaining the delay. She never
submitted any representation and those enclosed as
Annexure-6 are fabricated for the purpose of the
present Writ Petition. On facts, it is stated that the
Petitioner was appointed as Asst. Teacher by the
Managing Committee of the School as per resolution
dtd.04.7.1991 against Supra Post describing her as an
outsider subject to approval of Inspector of Schools.
Her appointment was approved by the Managing
Committee. She was never appointed against an
Additional Trained Graduate post. At the time of her
appointment she was pursuing her +3 degree course in
Bachelor of Science at Kendrapara College as a regular
student, which she completed only in April, 1992.
Therefore, her appointment is illegal and void ab initio.
She passed B.Ed. from Berhampur University in July,
1996 claiming to be an in-service candidate, but the
same was completely false. For all such anomalies, her
appointment was never approved and thereafter she
remained willfully absent and voluntarily abandoned
her service. She thereafter joined as Headmistress of
Sidheswar M.E. (U.P.) School.
4. The Petitioner has filed a rejoinder seeking to
refute the averments of the counter affidavit. It is
stated that she appeared in +3 examination in 1991
but the result was published in 1992. Therefore, said
result would relate back to the date of examination as
per the settled positon of law. Since the Petitioner was
appointed in the School in question prior to December,
1993, the ratio decided in Bibekananda Das v. State
of Orissa (supra) squarely applies to her and
therefore, her service could have been approved with
untrained graduate scale of pay and after acquiring
B.Ed. qualification, with trained graduate scale of pay.
The Tribunal in the batch of cases, quashed the order
of termination issued by the Government, which is a
judgment in rem and therefore, squarely applies to the
Petitioner, even though she was not an applicant.
Since her services were terminated and she was out of
job thereby, she took up another employment in
Sidheswar U.P.School, which cannot be treated as an
illegality. She never remained unauthorisedly absent
rather she has been fighting litigation from the very
beginning.
5. Heard Mr. K. Swain, learned counsel for the
Petitioner and Mr. S.N.Patanaik, learned Addl.
Government Advocate for the State.
6. Mr. Swain would argue that the Petitioner
admittedly joined on 04.7.1991 which is prior to the
cut-off date i.e., December, 1993 and therefore, the
ratio decided in Bibekananda Das v. State of Orissa
(supra) squarely applies to her. As such, her services
ought to have been approved on untrained graduate
scale of pay till acquisition of B.Ed. qualification in
1996 and thereafter on trained graduate scale of pay.
Despite clear direction of this Court in the earlier Writ
Petition, the Director did not consider the
representation submitted by the Petitioner. Mr. Swain
further argues that in any case, the judgment of the
Tribunal being a judgment in rem also applies to the
Petitioner and therefore, she is entitled to the same
benefit as the applicants therein.
7. Per contra, Mr. Patanaik, learned Addl.
Government Advocate, would argue that the Writ
Petition is grossly delayed inasmuch as the Petitioner
did not take any steps pursuant to the order passed by
this Court in the earlier Writ Petition. She took up
employment in another School and never challenged
the decision of the Government on her own. Even
otherwise, the Tribunal passed the order in the year
2003 which ultimately became final by dismissal of the
Writ Petition filed against it by the State in 2005 as
also of the SLP by the Apex Court. Even then the
Petitioner did not act. Since she has already taken up
employment in another School where her services have
been approved and she is in receipt of block grant, her
claim to be regularized in her former post, no longer
survives for consideration.
8. Since the question of maintainability of the Writ
Petition on the ground of delay and laches has been
raised, it would be proper to consider the same at the
outset.
It is settled law that even though no period of
limitation is prescribed for entertaining a Writ Petition
yet, stale claims are not to be considered. Further, an
application which is grossly delayed without any
plausible explanation being offered for the delay also
should not be entertained. In the instant case, the
Petitioner had originally approached this Court against
non-approval of her appointment in O.J.C.
No.6381/1998. Said Writ Petition was disposed of by
order dtd. 14.5.1998. The following order was passed
by a Division Bench of this Court;
"Heard.
The petition is disposed of with a direction
to the Director of Secondary Education, Orissa,
Bhubaneswar, opposite party No.2 to dispose
of the representation at Annexure:5 within six
months from the date of receipt of this order
after making proper enquiry. The Director shall
pass appropriate orders.
Send a copy of this order along with copy of
the writ petition to opposite party No.2.
Sd/- S.N.Phukan, C.J.
Sd/- C.R.Pal. J."
It is stated that the Director did not act upon the
above order. As is evident, the direction was to dispose
of the representation within 6 months from the date of
receipt of the order. The order being passed on
14.5.1998, it can be reasonably presumed that the 6
months period, after accounting for the date of receipt
thereof, would be in December, 1998. So, if the
Director was guilty of inaction or non-compliance of
the order passed by this Court, it was always open to
the Petitioner to approach this Court by filing
appropriate application. The Petitioner appears to have
slept over the matter since then and sprung into the
action only in 2013. Nothing has been put forth to
explain as to why the Petitioner did not approach this
Court earlier.
9. On consideration of the contentions advanced
by the Petitioner it would be clear that she has based
her claim entirely on the judgment passed by the
erstwhile Odisha Administrative Tribunal in O.A.
No.1634(C)/2000 and batch, which was confirmed by
this Court as well as the Apex Court. Even though the
Tribunal's order was passed in 2003, the Petitioner did
nothing for all these years. Secondly, the Petitioner
was not one of the applicants before the Tribunal.
10. From what has been narrated above, it is
apparent that the Petitioner is a fence-sitter and
sprung into action only because a favourable order was
passed in favour of those persons who choose to
challenge the decision of the Government to terminate
their services. Evidently, the Petitioner having in the
meantime secured employment in another school with
her services being approved and block grant being
released in her favour, had not felt the need to join
with the applicants before the Tribunal. Long after, the
Petitioner has staked claim to restore her position in
the former School. Nothing has been placed before this
Court by the Petitioner to show that she was
discharging her duties in the former School till she was
appointed in another School as Headmistress. This is
therefore, a case where the Petitioner, despite being
validly employed in an institution seeks to extend such
employment backwards to her former institution
apparently to claim further service and financial
benefits.
11. It is also significant to note the fact that the
Petitioner was subsequently appointed as
Headmistress in Sidheswar U.P. School was not
disclosed in the Writ Petition. It is only after the said
fact was pointed out by the State in its counter that
the petitioner came forward to admit the same in her
rejoinder. This cannot be treated as an act of coming to
the Court with clean hands.
12. In view of the foregoing narration and
particularly, taking note of the gross delay and laches
exhibited by the Petitioner and her conduct of not
disclosing the fact of her employment in another
School in the Writ Petition, this Court is of the
considered view that she is not entitled to any relief,
much less the relief claimed by her.
13. In the result, this Court finds no merit in the
Writ Petition, which is therefore, dismissed but in the
circumstances, without any cost.
................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
