This court dismissed the State's writ petition challenging the Odisha Administrative Tribunal's order to reinstated an employee and treat her service as continuous from her original appointment, finding no error apparent on the face of the record.
The writ petition is dismissed with no cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.(C) No.22665 of 2016
21.06.2017
Heard Mr. D.R. Mohapatra, learned Standing Counsel for School & Mass Educati
on Department and Mr. M.K. Khuntia, learned counsel for opposite party no.1.
The State Authorities being the petitioners in this writ petition, assails the
order dated 30.06.2016 passed by the learned Odisha Administrative Tribunal, Bhubaneswar in O
.A. No. 1916 of 2013 wherein the Tribunal directed the State authorities to modify the order o
f appointment of the applicant and to issue fresh order treating her to be continuing in servi
ce with effect from 17.03.1999 with all consequential service benefits.
The short fact of the case as is reveals from the record is that opposite part
y no.1 was appointed as a Classical Teacher in Binayakdev High School, Naiguah on 11.03.1999 a
fter being selected in a selection process conducted by Circle Level Selection Committee, Puri
Education Circle. While she was so continuing, one Binodini Dei filed an Original Application
bearing O.A. No. 1050 (C) of 1999 for a direction to appoint her as a Classical Teacher since
candidates securing lesser marks than her in the said selection process have been issued with
appointment orders. In the said O.A. the present opposite party no.1 was made as respondent n
o.3 and one Binayak Pradhan was made respondent no.5. The Tribunal disposed of the O.A. on 02
.05.2003 with the following observation:-
Taking therefore all these facts and circumstances into account we are of the view tha
t the examination process held for appointment of the Classical teacher was not proper and con
sequently appointment given on the basis of the said selection have became vulnerable. It may
not be forgotten that a settle position should not be unsettled and in the meantime as the re
spondent nos.
3 to 5 have already been appointed, in ordinary course they should not be disturbed. Even the
n in the peculiar circumstances of this case we are left with no other option but to say that
taking into account the marks obtained by the applicant in the University and the HSC examinat
ion the assessment be made afresh and if the applicant gets higher place in the merit list, he
r case for appointment as a Classical teacher be considered if she has no other disqualificati
on. In the event of appointment, she should be deemed to have been appointed from the date her
counter part got appointment. The intervening period from the date of deemed appointment til
l the date of real appointment should be treated as continuity of service for other all purpos
es excepting the facts that she would not get back wages for the aforesaid period. Without dis
turbing anybody the applicant should be adjusted if she is found meritorious to her counter pa
rts. If no such appointment could be given, the persons who has got lesser marks should be ca
lled upon to give way for the applicant. A decision in this regard be taken within four month
s from the date of receipt of a copy of this order.
Pursuant to the aforesaid order, the state authorities terminated the service
of the present opposite party no.1 and appointed Smt. Binodini Dei as a Classical Teacher. The
present opposite party no.1 challenged her termination order dated 08.4.2004 before the Tribu
nal in O.A. No.886 (C) of 2004 raising inter alia that when the person securing lesser mark t
han her, i.e. Binayak Pradhan was allowed to continue, termination of her
service is illegal. The said O.A. was disposed of on 24.04.2008 with the following observation
and direction:-
xx xx xx. Be it as may since the applicant was a selected candidate in the category of
SEBC women and had to make way for another person, the stipulations of the Tribunal in its or
der for not disturbing the applicant when opportunity was available has not been considered in
right perspective. In view of that, I dispose of this application with the following orders.
Respondent No.2 would call for the records and verify if at the time of termination of
services of the applicant there was any opportunity to adjust the applicant against an availa
ble vacancy if such a vacancy has remained unfilled until now. If that is so, then notwithstan
ding the ban, she be considered for appointment, if necessary by obtaining the required relaxa
tion from the appropriate authority bringing it to their notice that the relaxation was being
sought for complying with a judicial order passed prior to the imposition of ban. This be done
within a period of three months from the date of receipt of a copy of these orders.
However, the present opposite party no.1 was appointed and adjusted to act as
Classical Teacher in Kakatapur Girls High School, Kakatapur treating the same to be a fresh ap
pointment, which was not in accordance with the order of the Tribunal. Opposite party no.1 the
reafter made number of representations to the authorities requesting that she should be reinst
ated and her service should be regularized from 04.05.2004 to 07.06.2011 and to allow her all
consequential service benefits
with effect from her initial date of appointment, i.e. 17.03.1999.
Opposite party no.1, therefore, filed another Original Application bearing O.A
. No. 1916 of 2013 ventilating such grievances since her applications were not attended to. Th
e Tribunal while disposing of the said Original Application vide order dated 30.06.2016 took n
ote of all the previous orders passed by it, i.e. in O.A. No. 1050 (C) of 1999 and 886 (C) of
2004 and directed the responds to modify the order of appointment of the applicant (present op
posite party no.1) dated 07.06.2011 and to issue a fresh order treating the applicant continui
ng in service with effect from 17.03.1999 with all consequential service benefits. It was also
directed that she will not be entitled to any financial benefits for the period she was out o
f service. The said order of the Tribunal is impugned in the present writ application by the S
tate authorities.
Learned counsel for the petitioner submits that since opposite party no.1 was
a female candidates and she had secured less mark than the applicant in O.A. No. 1050 (C) of 1
999, therefore, she was terminated pursuant to the order passed by the Tribunal in O.A. No. 10
50 (C) of 1999 for giving way to the applicant. However, she was again appointed/ adjusted pur
suant to the order passed in O.A. No. 886 (C) of 2004. Hence there is no wrong is issuing fres
h appointment order and as such the Tribunal should not have passed the impugned order directi
ng the state authorities to issue a fresh order treating opposite party no.1 to be continuing
in service with effect from 17.03.1999. Hence the impugned order is liable to be quashed.
Learned counsel for opposite party no.1, on the other hand submits that the or
der passed in O.A. No. 1050 (C) of 1999 has been wrongly interpreted and understood by the aut
horities.
When one Binayak Pradhan, who secured 127.92 mark was allowed to continue, the order of termin
ation of opposite party no.1, who secured 157.33 mark was illegal. Similarly when the Tribunal
has directed in O.A. No. 886 (C) of 2004 to adjust the applicant against an available vacancy
if such a vacancy has remained unfilled until that date, issuance of fresh appointment is il
legal and not in accordance with the direction of the Tribunal in both the Original Applicatio
ns. As such the impugned order need not be interfered with.
This Court minutely perused all the orders passed by the Tribunal, i.e. order
dated 02.05.2003 passed in O.A. No. 1050 (C) of 1999, order dated 24.04.2008 passed in O.A. No
. 886 (C) of 2004, so also the present impugned order. The orders passed by the Tribunal in bo
th the earlier Original Applications are final. The admitted fact is that the person securing
lesser mark was allowed to continue while the opposite party no.1 was issued with the terminat
ion order. This Court is of the opinion that the Tribunal has not directed in its order dated
02.05.2003 in O.A. No. 1050 (C) of 1999 to terminate a more meritorious persons keeping a pers
on having lesser merit than her. The Tribunal has further not specified whether to terminate a
female candidate or a male candidate, rather the Tribunal has directed that the person who ha
s got lesser marks should be called upon to give way for the applicant. In the order dated 24.
04.2008 passed in O.A. No. 886 (C) of 2004, the Tribunal has also directed to adjust the pres
ent opposite party no.1 in such a vacancy which has remained unfilled until that date and not
to issue fresh appointment order.
Considering the submission made by learned counsel for the parties and taking
all such facts into account, in our considered opinion, the impugned order passed by the Tribu
nal is
just and proper and there is no error apparent on the face of the record calling for any inter
ference by this Court in exercise of the jurisdiction conferred under Article 227 of the Const
itution of India.
The writ petition stands dismissed accordingly. No cost.
S. Panda, J.
S.N. Prasad, J.
2 issues framed by the court
Whether the High Court can interfere under Article 227 of the Constitution of India with the Tribunal's order directing reinstatement.
Whether the Tribunal erred in directing fresh appointment of the terminated employee and treating service as continuous.
1 provisions across 1 enactments
State authorities
Opposite party no.1
S. Panda
S.N. Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court