Allowed

Jyotsnarani Sahoo v. State

Orissa HC18 Apr 2023FAO/185/2011

Case brief

AI extract

What is this about?

In FAO Nos.185 and 220 of 2011, the High Court of Orissa examined rival claims for regularization as a Lecturer in English. The Court quashed the Tribunal's order approving one claimant's rival service, relying on enquiry reports of record tampering and lack of valid appointment. The Court allowed the appellant's claim for services approval against the 3rd post.

What did the court decide?

The claim of Respondent No.4 for approval of services against the 3rd post of Lecturer in English was rejected. The claim of the appellant for approval of services against the said post was allowed. R

Jyotsnarani Sahoo Vs State — Pension and Retirement Benefits | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

FAO Nos.185 and 220 of 2011

¶3

In the matter of an application under Section 24-C of the Orissa Education Act, 1969 and under Articles 226 and 227 of the Constitution of India.

¶4

Miss Jyotsnarani Sahoo …. Appellant

¶5

-versus- State of Orissa & Others …. Respondents For Appellants : M/s. Dr. J.K.Lenka, Advocate For Respondents :M/s. S.K.Samal,A.G.A ( for Respondent Nos.1 & 2) Mr. D.K. Panda, Advocate (for Respondent No.3) Mr. D.K. Mohapatra, Adv. (for Respondent No.4) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------------- Date of Hearing: 23.03.2023 and Date of Order: 11.04.2023

¶6

¶7

Biraja Prasanna Satapathy, J. Since in both the

¶8

appeal, the common order passed by the learned State

¶9

Education Tribunal (in short, <Tribunal=) on 23.03.2011 is under challenge, the same was heard analogously and

¶10

disposed of by the present common order.

¶11

// 2 //

¶12

2. While the appellant in both the cases herein seeking

¶13

approval of her services as against the 3^rd post of lecturer in English in Sishu Ananta Mahavidyalaya, Balipatna in the district of Khurda approached the Tribunal in GIA Case No.216 of 2007, Respondent No.4 in both the appeals seeking similar approval of her services as against the selfsame post of 3^rd post of Lecturer in English, approached the Tribunal in GIA Case No.286 of 2007. Since the issue involved in both the GIA cases in GIA Case No.216 of 2007 and GIA Case No.286 of 2007 revolves around the claim of appellant and Respondent No.4 with regard to approval of their services as against the 3^rd post of Lecturer in English in the above said College, the Tribunal vide the impugned order dated 23.03.2011 while allowed the claim of Respondent No.4 in GIA Case No.286 of 2007, but rejected the claim of the present appellant as made in GIA Case No.216 of 2007.

¶14

The appellant, therefore, filed the present two appeals challenging the common order passed in 23.03.2011 in GIA Case Nos.216 of 2007 and 286 of 2007.

¶15

3. The factual matrix giving rise to filing of the present appeal is that the College in question, taking into account the students strength as well as the work load in the Department of English during the academic session 1991-92,

¶16

Page 2 of 28

¶17

// 3 //

¶18

found that the number of posts required to be filled up taking into account the students strength though is <3= but two numbers of Lecturers in English are continuing as against the two approved posts of Lecturer in English.

¶19

4. Taking into account the requirement to fill up the 3^rd post of Lecturer in English along with other Departments, an advertisement was issued by the College on 11.07.1991 inviting applications from intending candidates for different posts of Lecturers, which also includes the post of Lecturer in English. In the said advertisement, the minimum qualifying mark was prescribed as <55%= at P.G level. Pursuant to the advertisement issued on 11.07.1991, interview for the post of Lecturer in English was conducted on 21.07.1991 and in the said interview while the present appellant was placed at Sl. No.3 of the merit list, Respondent No.4 was placed at Sl. No.5. The selection of the candidates

¶20

as against the post of Lecturer in English so made by the interview Board on 21.07.1991 was duly approved by the Governing body of the College in its resolution dated 31.07.1991.

¶21

5. As the candidates placed at Sl. No.1 & 2 of the merit list so prepared on 21.07.1991, did not join in spite of being provided with the order of appointment, the Principal-cum-

¶22

Page 3 of 28

¶23

// 4 //

¶24

Secretary of the College issued the order of appointment in favour of the present appellant who was at Sl. No.3 of the said list vide order No.3059 dated 09.09.1991. Pursuant to

¶25

the order of appointment issued on 09.09.1991, the appellant herein joined as against the 3^rd post of Lecturer in English on 16.09.1991.

¶26

6. But while continuing as such, when Respondent No.4 made a rival claim as against the 3^rd post of Lecturer in English, inter alia contending that she was initially appointed as a Lecturer in English on adhoc basis vide Office Order No.2871 dated 18.05.1991 and was subsequently regularized

¶27

as against the said post vide order No.2914 dated 29.07.1991, dispute arose with regard to the continuance of the present appellant vis-à-vis Respondent No.4 as against the 3^rd Post of Lecturer in English. Though various enquiries were conducted at different level in order to verify the genuineness of the appointment of the Appellant as well as Respondent No.4 and the eligibility to be appointed as against the 3^rd Post of Lecturer in English, but when nothing materialized and the approval as against the said 3^rd post of Lecturer in English was not made by Respondent Nos.1 & 2, the appellant in the present appeal moved the Tribunal in G.I.A Case No.216 of 2007. Similarly, Respondent No.4 also

¶28

Page 4 of 28

¶29

// 5 //

¶30

approached the Tribunal seeking similar relief in G.I.A Case No.286 of 2007. The Tribunal vide the impugned order dated 23.03.2011 while disposing both the appeals by a common order while rejected the claim of the present appellant so made in G.I.A Case No.216 of 2007, but allowed the claim of Respondent No.4 as against the 3^rd post of Lecturer in English so made in G.I.A Case No.286 of 2007.

¶31

7. Dr. J.K. Lenka, learned counsel appearing for the

¶32

Appellant in both the appeals contended that during the academic session 1991-92, taking into account the students strength as well as the workload in the Department of English, it was found that as against three (3) Posts of Lecturer in English so required, taking into account the students strength since two nos. of Lecturer are continuing as against the approved posts, one post is required to be approved by the Government as against the Department of English. Taking into account such requirement to fill up another post of Lecturer in English, the College issued an advertisement on 11.07.1991 by inviting applications to fill

¶33

up the posts of Lecturer in different Department which includes the Department of English. In the said

¶34

advertisement, the minimum requirement was prescribed at 55% of mark at PG level.

¶35

Page 5 of 28

¶36

// 6 //

¶37

7.1. It is contended that while appellant had secured

¶38

58% mark in M.A in English, the Respondent No.4 had secured 53% mark. Accordingly, it is contended that even though Respondent No.4 was not eligible to make her application in terms of the advertisement issued on 11.07.1991, but she was allowed to take part in the interview which was held on 21.07.1991. In the interview held on 21.07.1991, while the present appellant with 38 marks was placed at Sl. No.3, Respondent No.4 with 34 marks was placed at Sl. No.5. As the candidates placed at Sl. Nos.1 & 2 did not join in spite of being provided with their appointment as against the 3^rd post of Lecturer in English, the appellant was appointed as Lecturer in English vide order dated 09.09.1991 of the Principal-cum-Secretary of the College. Prior to such appointment of the appellant, the Governing body of the College also approved the select list so prepared on 21.07.1991 in its proceeding dated 31.07.1991.

¶39

7.2. It is contended that in terms of the order of

¶40

appointment issued on 09.09.1991, the appellant joined as against the 3^rd post of Lecturer in English on 16.09.1991. Even though Respondent No.4 also participated in the interview pursuant to the advertisement issued under Annexure-2 and she was placed at Sl. No.5, but she raised a

¶41

Page 6 of 28

¶42

// 7 //

¶43

claim as against the 3^rd post of Lecturer inter alia contending

¶44

that vide Office Order dated 18.05.1991, she was appointed

¶45

as a Lecturer in English on adhoc basis and such adhoc appointment was regularized vide Office Order dated 29.07.1991. Dr. Lenka, learned counsel appearing for the appellant contended that during the time the Respondent No.4 was so appointed on adhoc basis, her services was

¶46

already approved as against the trade English in the Vocational stream by the Director Secondary Education vide Office Order dated 19.04.1991. In the said order dated 19.04.1991, the name of Respondent No.4 finds placed at Sl. No.4 as against the trade English. It is also contended that Respondent No.4 in terms of the order of approval made on 19.4.1991 also received her salary as due and admissible from April, 1991 to February, 1996.

¶47

7.3. It is also contended that when Respondent No.4 raised

¶48

her claim as against the 3^rd post of Lecturer in English inter alia taking the stand that she was initially appointed on adhoc basis vide Office Order dated 18.11.1991 and the said adhoc appointment was subsequently regularized vide Office Order dated 21.07.1991, enquiry was conducted in order to know the veracity of the claim so made by Respondent No.4.

¶49

As per the Office order issued by the Principal of the College

¶50

Page 7 of 28

¶51

// 8 //

¶52

on 23.07.1999, a sub-committee was constituted and the said sub-committee conducted an enquiry with regard to the genuineness of the appointment of Respondent No.4. In the report submitted by the Sub-committee on 11.09.1999, it was indicated as follows:-

¶53

< That the cases of the above mentioned teaching staff are very complicated. They have got two (2) numbers of appointment order. In Despatch Register, the letter numbers have been inserted and even in Resolution Book, their cases have been tampered and over written. Since their cases are under the investigation of Crime Branch & Department of Higher Education, Govt. of Orissa, the Principle is requested to put forth these cases before Governing Body for consideration. That, the appointment of Sujata Das, Lec. In English is creating a lot of confusion to know the actual incumbent of 3^rd post in English Department as because her date of joining has been pre-dated & her case needs further investigation by the Principal

¶54

That from the verification of attendance Register, it is found that, Sujata Das has inserted her signature from 18.05.1991 to 01.08.1991. In continuance with the Head Clerk & the Head Clerk has already admitted that, she has signed in the attendance register taking from his table her financial benefits. How it is possible ? The conduct & functioning of Head Clerk is questionable.

¶55

7.4. It is also contended that since the sub-committee in its

¶56

report dated 11.09.1999 held the Head Clerk and ExPrincipal of the College responsible for tampering with and manipulating the College records with regard to appointment of Respondent No.4 as against the 3^rd post of Lecturer in

¶57

English, an enquiry was made by the Deputy Director, Department of Higher Education. The Dy. Director in his

¶58

Page 8 of 28

¶59

// 9 //

¶60

report so conducted pursuant to the direction of the

¶61

Department on 31.12.1999 held as follows:-

¶62

< On examination of the Dak Despatch register Volume – IV maintained at that time, it is evident that no appointment order was issued to Smt. S. Das though she was placed at the 4^th position in order of merit drawn by the interview Board. On examination of the attendance register of vocation volume -1, 1990-91 and volume-II, 1990-91-92, it is found that Smt. S. Das had been serving as a part time teacher in the vocational stream running in that college and the principal of the college was in-charge of the said vocations stream. From the pay acquaintance of vocational stream available in the college office Smt. Das is found to have been paid from January 1991 to February 1996. Annexure-III (A,B.C,D) (The appointment of Smt. Das as Part-time teacher n the Vocational) stream do not available in the College Office).

¶63

In view of the above facts, it is clear that after the conduct of the said interview held on 21.7.91. Smt. Das was working as a Part-time techer and her such service was approved by the then Director, Secondary Education, Orissa vide his Letter NO.14957, dated 19.4.91(Annexure-IV). Smt. Das had never been issued any appointment order during the period when such orders were issued to Ms. Sahoo and Mr. Ray. Therefore, the two Posts of Lecture-in-English created by the Governing Body on 31.7.91 were filled up by Ms. J.R. Sahoo and Sri S.K. Ray.

¶64

The Governing Body of the College, in its meeting NO.18, dated 18.9.94, in resolution No.11 has been pleased to regularize and confirm the services of Sri S.K. Ray and Ms. J.R. Sahoo since the date of their joining on 1.11.91 and 16.9.91 respectively, (Annexure-V)

¶65

On scrutiny of the pay acquaintance register from 6/1987 to 5/1992 volume V-3(2) Page 23 it is found that Ms. J.R. Sahoo received her first Salary of Rs.1250/- at the rate of Rs.500/- per month from the date of her joining against Serial No.19 and Sri S.K. Ray, Rs.500/- per month against Serial NO.21. Whereas Smt. Das received her first salary Rs.500/per month against Sl. No.22. From the maintenance of the Serial number and the amount disbursed towards the first salary in the acquaintance register, it is evident that Smt. Das joined as a Lecturer after Ms. J.R. Sahoo and Sri S.K. Ray had joined (Annexure-VI).

¶66

Page 9 of 28

¶67

// 10 //

¶68

Regarding the appointment order and the date of joining of Smt. Das, two appointment orders bearing (1) 2871/SAM, dt.18.5.91 and (2) 2914/SAM/dt.29.7.1991 are available in her personal file. The first appointment order singed by the then principal on 18.5.1991 directed Smt. Das to join immediately as a Lecturer-in-English on adhoc basis. On the basis of the aforesaid appointment order her joining report is found in her personal file for which Smt. Das claims to have joined as a Lecturer with effect from 18.5.1991.

¶69

The justify the reasons why she was not given salary fro mthe date of her so called appointment on 18.5.91, Smt. Das gave an application to the Principal on 18..91 to the effect that she would work on honorary basis, since the financial condition of the institution was not sound (Annexure-VII).

¶70

As regards the second appointment order (2914/SAM, dt.29.7.91)-it was issued to Smt. Das and was signed by the Principal on the same day i.e. 29.7.91, stating in the said order < the post is regularized from the date of ad-hoc appointment i.e. 18..5.91.=

¶71

It is not out of place to mention that

¶72

(a) Both the appoitmen t orders issued to Smt. Das are within the academic year 1990-91, when no post in the Department of English was created by the G.B. of the College. Two such posts were creatd by the G.B. only during the session 1991-92 as stated in the

¶73

Annexure-1.

¶74

(b) The Governing Body of the College, in its meeting NO.6 held on 31.7.91, authorized the Principal to appoint candidates from the interview panel to fill up the posts in English. But both the appointment orders issued to Smt. Das were found to have been signed and issued by then Principal prior to the date he was authorized by the Governing Body to do so. Such authorization was given by the Govnerning Body to the Principal on 31,7,91(Ref.Annexure-1).

¶75

(c) On the scrutiny of the attendance register (for teaching staff) Volume – VII, January to November, it is found that the first appointment letter in favour of Smt. Das was served two days before the commencement of the summer vaction of the college when the regular classes of the College usually remains suspended for the conduct of C.H.S.E and University Examinations.

¶76

Thus in view of the above facts, the appointment letter issued to Smt. Das is irregular and it contravene the creation of post by the Governing Body. On verification of the Dak Despatch register VolumeIV, both the serial numbers found in the appointment

¶77

Page 10 of 28

¶78

// 11 //

¶79

orders issued to Smt. Das are found to be tampered with and manipulated.

¶80

(a) The Sl. NO.2871 dt.18.5.91 and its columns like name, address, subject matter etc. written earlier have been struck of completely and rewritten with some other names. But there is no reference to Smt. Das against the (7) of 2871, dated 18.5.91 and thus remains blank(Annexure-VIII)

¶81

(b) The Sl. NO.2914, dated 29.7.91 in the Dak Register is also found to be tampered with.(Annexure-IX) The tampering and manipulation found in the Dak Register amply justify that the appointment letters issued to Smt. Das were later creations.

¶82

ON verification of the resolution relating to the appointment of Smt. Das, it is found that the resolution is tampered with and manipulated to favour her appointment and her date of joining. The Resolution no.6 of the meeting no.6 dated 21.4.94 read as

¶83

(Resolution Book Vol.II, Page – 38)(Annexure-X)

¶84

On examination of the above resolution, it is found that the said resolution of 21.4.91 intends to give adhoc appointment to Smt. Das from 18.5.91 as her name is specified in the resolutions.

¶85

Hence, there is every reason to doubt that this resolution is inserted in the G.B. Resolution Book at a later date. Further, no post in the Department of English existed on the day i.e 18.5.91 when the said appointment order was to be issued.

¶86

Referring to the service matter of Smt. Das at another place of the resolution Book (Vol.II, Page-50) a resolution bearing NO.4 of the meeting No.9, dtd.8.9.91 reads.

¶87

A list of employees of the College found in the said resolution, mentions regularization of the services of Miss Sujata Das, Lecturer-in-English w.e.f 189.5.91 against the Sl. NO.5 of the said list and subsequent serial numbers after Sl.No.5 have been changed to 6,6 to 7 so on and so forth. This manipulation might have been done at a later date to insert the name of Ms. Sujata Das against the Sl.NO.5 which was previously for Smt. Sabitanjali Senpati, Lecturer-in-Botany (Annexure-XI)

¶88

Regarding the involvement of Sri B.C. Das, the present Head Clerk (G.I.A staff) and the Ex-Principal in tampering with and manipulating the vital College records, as alleged by the Petitioner, to the extent of affecting her seniority in the Department of English. Verification of the services of the members of the staff of S.A. Mahavidyalaya, including Ms. J.R. Sahoo and Smt. S. Das, was done by three senior teachers of the college and the Head Clerk on 10.2.99. At the time of

¶89

Page 11 of 28

¶90

// 12 //

¶91

verification the signatures of Smt. S. Das was seen from 1.8.91 onwards on the daily staff attendance register. But latr on, it was discovered that Smt. S. Das has put her signature from 18.5.91 (from the date she claims her seniority).

¶92

When the Head Clerk was asked about such manipulation, he explained in his note sheet NO.1 dtd.27.6.99 <that Smt. Das managed to sign the attendance register in his absence while it was kept on the table=. The Head Clerk is the custodian of the staff attendance register and such an explanation from the Head Clerk is not convincing.

¶93

That on examination of the hand writing of the Head Clerk, the enquiring officer felt that there is a close resemblance of the Head Clerk’s hand writing with that of the over writing on the Dak Register. The Head Clerk happens to be the custodian of the Dak Register. So such a manipulation at the Head Clerk’s level cannot be ruled out. For confirmation it needs the opinion of a hand writing expert.

¶94

The ex-Principal who has been alleged to have manipulated the records of the college could not contacted. However, since he was the custodian of the Governing Body resolution Book and other documents of the college of during his tenure as the Principal, he should be brought into the range of suspicion and be interrogated to find out further details in this regard. Conclusions

¶95

1. Tampering with and manipulation of college records have been made to establish the pre-dated appointment of Smt. S. Das, Lecturer-in-English of S.A Mahavidyalaya and thus making her senior to the Petitioner Smt. J.R. Sahoo, Smt. J.R. Sahoo joined in her service as a Lecturer-in-English on 16.9.91. Where as Smt. S. Das joined in her post on a later date.

¶96

2. Further investigation is necessary to fix responsibility on the Head Clerk and the Principal and to draw proceedings against them.=

¶97

7.5. It is also contended that basing on the order passed by the Department of Higher Education, enquiry was also conducted against the Head Clerk and ex-principal of the College and in the enquiry conducted by the Additional

¶98

Page 12 of 28

¶99

// 13 //

¶100

Director, Department of Higher Education, the report of the

¶101

Additional Director dated 16.12.2006 is as follows:

¶102

<As per RDE’s report NO.220/02.03.2020, tampering with and manipulation of College records have been made to establish the pre-dated appointment of Smt. Das, Lecturer in English of S.A. Mahavidyalaya and thus making her senior to the petitioner, Ms. Jyotasnarani Sahoo, Lecturer in English, Ms. J.R. Sahu joined her service as a Lecturer in English on 16.09.1991, whereas Smt. S. Das joined her post on a later date. The Regional Director Education recommended further investigation against the complicity of the then Principal, and the involvement of B.C. Das, the Head Clerk in tampering with and manipulation of vital College records, as alleged by the Petitioner to the extend of affecting her seniority. Accordingly, B.C. Rath was suspended w.e.f 13.07.2000 as per decision of Governing Body.

¶103

After taking the approval of the Sub-Collector, Bhubaneswar, the Principal of S.A. Mahavidyalaya, Balipatna re-instated Sri B.C. Das, Head Clerk, vide his letter NO.802/6.12.2000m pending finalization of disciplinary proceedings against him. These records pertaining finalization of disciplinary proceedings have been furnished to the undersigned by the present Principal, Sri Kshirod Kumar Ray Mohapatra (As annexed) was present himself before the undersigned at 12.30 P.M on 16.12.2006.

¶104

As per D.O of Deputy Secretary to Government of Higher Education Department vide D.O No.3904/dt.24.1.2004, the then Director Higher Education, Ms. Kalpana Manjari Das, in her letter No.12971/dated 4.3.2004(copy enclosed) requested Government to kindly issue necessary instructions regarding further investigation upon the Head Clerk and the Ex-Principal as suggested in RDE’s Report. No reply was received from the Government till date. However, a second D.O has been issued from Government No.49106/24.11.06 for a detailed report pertaining to the above matter. The above mentioned letter carries no reference to the former Government D.O letter No.3904/dtd.24.01.2004 or to the reply of the DHE letter NO.12971/4.3.2004.

¶105

However, the fact that manipulations have been made to adversely affect the seniority of Ms J.R. Sahoo, the Petitioner’s case is under personal investigation of Hon’ble Commissioner-cum-Secretary Higher Education, Government of Orissa as reported by the present Principal vide his letter No.1144/12.12.06.

¶106

The undersigned makes a humble submission that this report along with the clarification of DHE and enquiry report of R.D.E may kindly be sent to the Government for the final disposal of the case.=

¶107

Page 13 of 28

¶108

// 14 //

¶109

7.6. Learned counsel for the appellant contended that in the meantime when Respondent No.4 approached this Court in W.P.(C ) No.10754 of 2005 for regularization of her service as per the provisions contained under the Validation Act, 1998 and this Court vide order dated 04.10.2005, directed the Respondent Nos.1 & 2 to take a decision on the Petitioner’s claim. Respondent No.1 vide order dated 24.02.2007 rejected the claim of Respondent No.4 on the ground that the order of appointment issued in favour of her on 18.05.1991 and the approval of the same made vide Resolution dated 08.09.1991 are all manipulated and Respondent No.4 has also been appointed in contravention to Section 10(2) & ( 3) of the Orissa Education Act,1969.

¶110

7.7. Dr. J.K. Lenka, learned counsel for the appellant

¶111

also contended that the Governing body of the College i.e. Respondent No.3 in the counter filed in the present appeal

¶112

has also admitted about the illegal appointment of Respondent No.4 vide order dated 18.5.1991 and subsequent order issued on her favour on 29.07.1991. Respondent No.3 in its counter has also indicated that the order dated 18.05.1991 and 29.07.1991 are no order in the eye of law as the Principal of the College at the relevant point of time was

¶113

Page 14 of 28

¶114

// 15 //

¶115

not authorised by the Governing body to issue any such order of appointment in favour of Respondent No.4. It is also contended that the services of Respondent No.4 was never approved by the Governing body in its resolution dated 31.07.1991, as alleged. The stand taken by Respondent No.3 in Para 5,6,7 & 12 of the counter are reproduced hereunder :

¶116

“5. That again Advertisement was made by the principal on 11.7.91 at Annexure-2 to the F.A.O petition in the daily leading Odiya News Paper, <The Samaj= for filing up different posts of Lecturer including Lecturer in English. As per the said Advertisement dated 11.7.91, the required percentage of marks at P.G level was 55% as the college is a composite college. The Appellant has secured 58% of marks in P.G, where as the Resp. NO.4 had secured 53% of in P.G. Level, (Annexure-3 series to the F.A.O). In the said Advertisement, it has been clearly mentioned that the interview will be held on 21.07.91. The Appellant, Resp. NO.-4 and others had applied and participated in the interview on 21.07.1991 before the selection committee. It reveals from the merit list of the selection committee dated 21.07.91 at Annexure-4 to the F.A.O petition that the Appellant secured 3^rd position and Resp. NO.-4 placed 5^th postion in order of merit. The Appellant secured 38 marks and Resp. NO.-4 secured 34 marks. Appearance of Res. No-4 joined as a lecturer in English after the interview held on 21.7.91 but not before that i.e. 18.05.91. The so called regularization by the principal who is not competent dated 29..7.91 (at Annexure-9 at page-29) w.e.f 18.5.91 is no order in the eye of law as he was not authorized by the G.B. to do so.

¶117

6. That the G.B. as per resolution dated 31.07.91 at Annexure-5 to the F.A.O petition approved/confirmed the merit list and authorized/empowered the principal to issue appointment order on the basis of merit list dated 21.07.91 and also after taking into consideration the work load of composite college created two more posts of Lecturer in English that is 3^rd and 4^th poist respectively. Therefore, the question of appointment of Res. NO-4 prior to 31.07.91 did not arise. Had the Res. No-4 was appointed prior to 31.07.91, the G.B could have reflected the said fact in the resolution

¶118

Page 15 of 28

¶119

// 16 //

¶120

dated 31.7.91. Appointments orders were issued to Serial numbers 1 and 2 in the merit list dated 21.7.91 against 3^rd and 4^th post so far as lecturer in English is concerned. But they did not join by 09.09.91. Hence, the Appellant who placed 3^rd position became NO.-1 in the merit list and was issued appointment order on 09.09.91 at Annexure-6 to the F.A.O petition which post the Appellant joined on 16.09.91. Sri S.K. Ray who was placed at Sl. NO-6 in the panel dated 21.07.91 was also issued appointment order which post he joined in Nov. 1991. As the Rs.No-4 was ineligible to hold the post she was not issued any appointment order. Two posts created by the G.B i.e. 3^rd and 4^th in its resolution dated 31.07.91 have been filled up by the Appellant and Sri9 S.K.Ray. The G.B as per Resolution dated 18.09.94 approved the appointment of the Appellant w.e.f 16.9.91 and S.K. Ray w.e.f 01.11.91. At the relevant time the Resp. No.4 was appointed as part time Teacher in another institution/school under Director of Secondary Education. The said fact is established from the approval order issued by the Director of Secondary Education as per order datedf 19.04.91 at Annexure-7. The name of Resp. No-4 finds place at Sl.No-3 in the said order. The Resp. NO-4 received her salary/remuneration from the said school from April, 1991 to Feb.1996. The appointing authority is Governing Body but not the principal. The so called appointment orders at Annexures-8 and 9 to the F.A.O petition were neither issued nolr did the G.B. empower/authorize the principal to issue said appointments orders in favour of Res.No-4. 7. That it is revealed from the report of the SubCommittee dated 11.09.99 at Annexure-10 to the F.A.O petition that Smt. Sujata Das(Resp.No-4) had inserted her signature from 18.05.91 in the attendance register in connivance with the Head Clerk. As per order of the Director, Higher Education, the Dy. Director conducted an enquiry. It is further clearly revealed from the enquiry report of the Dy. Director dated 03.03.2000 at Annexure-11 to the F.A.O peititon that both the appointment letters dated 18.05.91 and 29.07.91 were signed by then Principal prior to the date he ws authorized by G.B and on verification of Dak Despath register, the serial numbers found in both the appointment letters were tampered with and manipulated by the Ex-principal. The issue NO.2871 dated 18.5.91 (Annexure-8) and its subject matter written earlier have been struck off completely and over and above the said struck off was re-written again with some other names. But there is no reference in respect of Res. NO-4 against the Issue

¶121

Page 16 of 28

¶122

// 17 //

¶123

NO.2871(7) dated 18.5.91 and the issue number 29`14 dated 29.07.91(Annexure-9) in the Dak Despatch Register was also tampered with. In the findings, the Dy. Director has held that tampering with and manipulation have been made to establish pre-dated appointment of Resp. No-4 making her senior to the Appellant, although the Resp. NO-4 joined on a latter date. Copy of the relevant extract of the Dak Despatch register is filed here with as Annexure-E/3.

¶124

12. That there is no such resolution on 29.7.91. Hence the question of regularization of the service of the Resp. NO-4 and giving seniority as per resolution dated 20.12.2003 by mentioning that her services has been regularized by the G.B on 29.07.91 is wrong. After verification and as desired by the Director, Higher Education the present Principal(deponent) has submitted the report on dated 10.11.200 at Annexure24. In the said report the present principal(Deponent) has reported in details regarding illegality in respect of the appointment of Res.No-4.=

¶125

7.8. It is accordingly contended that even though the Governing body of the College did not accept the

¶126

appointment of Respondent No.4 as against the 3^rd post of Lecturer in English and in various enquiry report, it was also found that Respondent No.4 was never appointed in terms of

¶127

order dated 18.05.1991 and 29.07.1991, but the learned Tribunal on the face of such report submitted by different authority as well as the stand taken by the Governing body of the College, illegally, arbitrarily allowed the claim of Respondent No.4 while rejecting the claim of appellant No.1 vide its order dated 23.03.2011. It is accordingly contended

¶128

that the impugned judgment is not sustainable in the eye of law.

¶129

Page 17 of 28

¶130

// 18 //

¶131

8. Mr. Dillip Kumar Mohapatra, learned counsel appearing

¶132

for Respondent No.4 on the other hand made his submission basing on the stand taken in the counter affidavit filed by Respondent No.4.

¶133

Mr. Mohapatra contended that as the 3^rd post of Lecturer in English was made available as per the workload and prevailing yardstick, the Governing body in its resolution dated 19.09.1990 decided to appoint one Lecturer in English

¶134

as against the 3^rd Post. Pursuant to the said decision of the governing body taken on 19.09.1990, the Governing body in its resolution dated 21.04.1991 resolved to appoint Respondent No.4 on adhoc basis w.e.f 18.05.1991. Pursuant

¶135

to the decision taken in its proceeding dated 21.04.1991, the Respondent No.4 was appointed on adhoc basis as a lecturer in English vide Officer order dated 18.5.1991 and the said adhoc appointment was treated as a regular appointment w.e.f 18.05.1991 vide subsequent order issued on 29.07.199. The appointment of Respondent No.4 on regular basis w.e.f 18.05.1991 vide order dated 29.07.1991 was also approved by the Governing body in its resolution dated 31.07.1991.

¶136

8.1. Mr. Mohapatra further contended that since in

¶137

spite of being appointed on regular basis w.e.f 18.05.1991

¶138

Page 18 of 28

¶139

// 19 //

¶140

vide order dated 29.07.1991, Respondent No.4 was not paid

¶141

with her salary and she was instead paid with the salary w.e.f 01.11.1991 and the appellant from the date of her joining i.e. 16.09.1991, the Governing body in its resolution dated 20.12.2003 resolved to extend the benefit of salary in favour of the appellant w.e.f 18.05.1991.

¶142

8.2. It is also contended that in terms of the Resolution dated 20.12.2003, the seniority of Respondent No.4 though

¶143

was treated on notional basis w.e.f 18.05.1991, but the arrear salary from 18.05.1991 to 31.10.1991 was not paid due to the poor financial condition of the College. It is also contended that even though pursuant to the order passed by this Court in W.P.(C ) No.10754 of 2005, the claim of the appellant as well as Respondent No.4 for regularization of their services as against the 3^rd post of Lecturer in English under the provisions of the Validation Act, 1998 was considered, but the claim of Respondent No.4 as well as that of the appellant was rejected by the Government. The Respondent No.4 accordingly moved the Tribunal in G.I.A Case No.286 of 2007 and the said claim has been rightly allowed by the Tribunal after due verification of all the relevant records.

¶144

Page 19 of 28

¶145

// 20 //

¶146

9. Mr. Dinesh Kumar Panda, learned counsel

¶147

appearing for Respondent No.3-Governing body on the other hand made his submission basing on the stand taken in the counter affidavit.

¶148

9.1. Mr. Panda contended that Respondent No.4 was never appointed on adhoc basis vide order dated 18.5.1991 nor she was appointed on regular basis vide order dated 29.07.1991. It is also contended that the approval of the appointment of Respondent No.4 on regular basis w.e.f 18.05.1991 was also not approved by the Governing body in its resolution dated 31.07.1991 as alleged by Respondent No.4. It is contended that the then Head Clerk in connivance with the then Principal of the College by manipulating the records, issued the order of appointment in absence of any resolution of the Governing body to that effect on 18.05.1991 as well as subsequent order issued on 29.07.1991.

¶149

9.2. Mr. Panda, learned counsel for Respondent No.3 further contended that the alleged order dated 18.05.1991 and 29.07.1991 were never issued vide letter Nos.2871 and 2914. It is the Head Clerk of the College who manipulated the Dak Register by issuing such letter in favour of Respondent No.4. It is also contended that in connivance with the ex-Head Clerk and ex-Principal, Respondent No.4

¶150

Page 20 of 28

¶151

// 21 //

¶152

managed to put her signature in the attendance Register w.e.f 18.05.1991.

¶153

9.3. Mr. Panda contended that pursuant to the decision taken by the Governing body in its proceeding dated 19.09.1990 though it was decided to fill up another post of Lecturer in English with due issuance of advertisement and an advertisement was also issued to that effect 17.10.1990 fixing 28.10.1990 as the date of interview, but the said recruitment process was cancelled by the Governing body in its proceeding dated 21.10.1990. Therefore, pursuant to the Resolution dated 19.09.1990 and the advertisement dated 17.10.1990, no selection was conducted for appointment of Lecturer in English. It is also contended that in the Dak Register of the relevant date i.e. 18.05.1991, no such letter was issued in favour of Respondent No.4 vide letter No.2871. With regard to letter No.2914 dated 29.07.1991, the ex-Head Clerk manipulated the Dak Register by interpolating therein the name of Respondent No.4. But It is contended that the appointment of the Respondent No.4 so made on 29.07.1991 was never approved by the Governing body in its resolution dated 31.07.1991 as alleged by Respondent No.4 nor any such order of appointment was issued in favour of Respondent

¶154

Page 21 of 28

¶155

// 22 //

¶156

No.4 either on 18.05.1991 and 29.7.1991 with due approval

¶157

of the Governing Body.

¶158

9.4. On the other hand, Mr. Panda contended that

¶159

pursuant to the advertisement issued on 11.07.1991, the present appellant as well as Respondent No.4 participated in the interview held on 21.07.1991. In the said interview held

¶160

on 21.07.1991, for the post of Lecturer in English, the present appellant was placed at Sl. No.3 and Respondent No.4 at Sl. No.5. As the candidates placed at Sl. No.1 & 2 did not join in spite of being provided with order of appointment,

¶161

the appellant was issued with the order of appointment on 09.09.1991 and she joined in the said post of Lecturer in English on 16.09.1991. It is also contended that the stand

¶162

taken by Respondent No.4 that she was appointed on ad-hoc basis vide Office Order dated 18.05.1991 and subsequently on regular basis vide order dated 29.07.1991 are not sustainable, as during the relevant time, the services of Respondent No.4 was approved as against the trade English in the Vocational stream of the College vide order of the Director, Secondary Education dated 19.04.1991. The Respondent No.4 as against the said trade was also paid with her salary from April, 1991 to February, 1996. Therefore, by

¶163

no stretch of imagination, it can be held that Respondent

¶164

Page 22 of 28

¶165

// 23 //

¶166

No.4 was appointed by the Governing body on adhoc basis on 18.05.1991 and on regular basis vide order dated 29.08.1991 as a Lecturer in English.

¶167

10. Mr. S.K. Samal, learned Addl. Govt. Advocate on

¶168

the other hand contended that since the issue involved is with regard to appointment as against 3^rd post of Lecturer in English and the appellant as well as Respondent No.4 are making rival claim, it is for the Court to decide that the inter se claim of the Appellant and Respondent No.4. However, it is contended that the prayer of the appellant as well as Respondent No.4 for regularization of their services as against the 3^rd post of Lecturer under the Validation Act 1988 was rejected by the Government, taking into account

¶169

the report submitted by the Dy. Director as well as Asst. Director with regard to the manipulation on the question of appointment of Respondent No.4 vide order dated 18.05.1991 and 29.07.1991.

¶170

11. I have heard Dr. J.K. Lenka, learned counsel appearing for the appellant and Mr. D.K. Mohapatra, leaned counsel appearing for Respondent No.4, Mr. D.K. Panda, learned counsel appearing for Respondent No.3 and Mr. S.K. Samal, learned Additional Government Advocate appearing on behalf of Respondent Nos.1 & 2.

¶171

Page 23 of 28

¶172

// 24 //

¶173

On the consent of the learned counsels appearing

¶174

for the parties, the matter was heard at the stage of admission and disposed of by the present common order.

¶175

12. Having heard learned counsel for the parties and taking into account the stand taken by the appellant and Respondent No.4, question to be decided by this Court is as to whether prior to appointment of the appellant vide order dated 09.09.1991, the Respondent No.4 as alleged was appointed on adhoc basis vide office order dated 18.05.1991 and subsequently on regular basis w.e.f 18.05.1991 vide order dated 29.07.1991.

¶176

12.1. From the records, it is found that even though the Governing body in its resolution dated 19.09.1990 decided to fill up another post of Lecturer in English as per the yardstick by issuing an advertisement on 17.10.1990 fixing the date of interview to 28.10.1990, but the Governing body in its proceeding dated 21.10.1990 decided to cancel the said selection process. It is also found that in the proceeding dated 21.04.1991 annexed by Respondent No.4 in her counter though the Governing body resolved to appoint the Respondent No.4 as a Lecturer in English w.e.f 18.05.1991

¶177

on ad-hoc basis and vide Office Order No.2871 dated 28.07.1991 she was so appointed on regular basis w.e.f

¶178

Page 24 of 28

¶179

// 25 //

¶180

18.05.1991, but in view of the decision taken by the Governing body in its resolution dated 21.10.1990, no interview was held for appointment of a Lecturer in English. No document has also been annexed by the Respondent No.4 in her counter showing that the Respondent No.4 was so appointed by facing a due selection process, pursuant to the advertisement issued on 17.10.1990. It is also found from

¶181

the record as well as the enquiry report submitted by different authority, that no such order of appointment was ever issued in favour of Respondent No.4 vide Office order No.2871 dated 18.05.1991 and Office order No.2914 dated 29.07.1991. No such document has also been filed by Respondent No.4 disputing the report submitted by the Enquiry Officers under Annexures-1 to 12 and 14.

¶182

12.2. Even if assuming the appointment of Respondent

¶183

No.4 so issued on 18.5.1991 and 29.07.1991 to have been properly issued, but since the said Respondent No.4 never faced any selection prior to her appointment as against the post of Lecturer in English, and the advertisement so issued, as admitted by the Governing body, was cancelled in its proceeding dated 21.10.1990, the appointment of

¶184

Respondent No.4 cannot be treated as a valid appointment,

¶185

Page 25 of 28

¶186

// 26 //

¶187

in view of the decision of this Court rendered in the case of

¶188

Jitendra Behera Vs Registrar (Admn), Orissa High Court in W.P.(C ) No.4784/ 2005.

¶189

12.3. This Court after going through the materials placed by the learned counsel appearing for the parties, is of the view that the Tribunal while deciding the claim of the Appellant vis-à-vis Respondent No.4 has not at all taken into consideration the report submitted by the different authorities under Annexures-10,11,12 & 14. From the said report, it is manifestly clear that Respondent No.4 was never appointed on adhoc basis on 18.5.1991 nor her services was regularized w.e.f 18.05.1991 vide order dated 29.07.1991. On the other hand, it is found from the record that Respondent No.4 pursuant to the advertisement issued by the College on 11.07.1991 participated in the selection process and she was placed at Sl. No.5 as against the position of the appellant at Sl. No.3. It is also found that since persons placed at Sl. No.1 & 2 did not join, the appellant was provided with the appointment vide Office Order dated 09.09.1991, where she joined on 16.09.1991. In the enquiry conducted by different authority, no allegation has been made with regard to selection and appointment of

¶190

the Appellant as against the 3^rd post of Lecturer. It is also

¶191

Page 26 of 28

¶192

// 27 //

¶193

found that on her joining on 16.9.1991, the appellant was

¶194

released with her salary from the said date. But the Respondent No.4 on the face of her alleged appointment w.e.f 18.05.1991 was never released with the salary w.e.f. 18.05.1991.

¶195

12.4. Therefore, it is the view of this Court that the Tribunal while deciding the claim of the appellant vis-à-vis Respondent No.4 has failed to take note of all the aforesaid stand into consideration in its proper perspective. The Tribunal has completely erred in accepting the order of appointment issued in favour of Respondent No.4 on 18.05.1991 and 29.07.1991. Since Respondent No.4 was never appointed as alleged by the Governing body and found in different enquiry conducted by different authority, the services of Respondent No.4 as directed by the Tribunal cannot be approved as against the 3^rd post of Lecturer in English. This Court accordingly is inclined to quash the order dated 23.03.2011 so passed by the Tribunal in GIA Case No.216/2007 and 286 of 2007 and quash the same. While rejecting the claim of Respondent No.4 so made in GIA Case No.286/2007, this Court allows the claim of the appellant for her approval as against the 3^rd post of Lecturer in English in SishuAnanta Mahavidyalaya, Balipatna. This

¶196

Page 27 of 28

¶197

// 28 //

¶198

Court directs Respondent Nos.1 & 2 to take effective steps for approval of the services of the appellant as against the 3^rd post of Lecturer in English from the date of her eligibility and release the consequential grant-in-aid within a period of three months from the date of receipt of this order.

¶199

Both the appeals are accordingly disposed of.

¶200

The Photo copy of this order be kept in the connected

¶201

case.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the, 11 th April, 2023/sangita

¶202

Page 28 of 28

Jyotsnarani Sahoo v. State

Case brief

What is this about?

What did the court decide?

Jyotsnarani Sahoo v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Biranchi Narayan Das Vs State of Odisha

Abhiram Mallik Vs Bhakta Charan Mohanty, Enginr. in Chief, Water Resources Dept.

Janmejaya Bhoi Vs State Project Director,Opepa

Fakir Ch.Sankhua Vs State and Ors.

Himadri Kar Vs Kapilendra Mishra , O.E.S 1

Sudha K. K. Vs State of Odisha