State of Odisha Vs Maheswar Behura

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.A. No. 122 of 2024

1. State of Odisha, represented through the Secretary (Commissionercum-Secretary), School and Mass Education Department, At-Lokseva Bhawan, At/P.O. Bhubaneswar, Dist-Khurda

¶4

2. Director, Elementary Education , Odisha, Heads of Department Building, At/P.O./P.S. Bhubaneswar, Dist-Khurda

¶5

3. District Inspector of Schools, Salipur , now Block Education Officer, Salipur, At/P.O. Salipur, Dist-Cuttack.

¶6

…Appellants.

¶7

-Versus-

¶8

1. Maheswar Behura, aged about 56 years, Son of Late Rushimai Behura, At-Satabati, P.O. Chhanipur, P.S. Salipur, Dist-Cuttack, working as Asst. Teacher, Resalo Prikaraypur Urdu Primary School, At/P.O. Asureswar, P.S. Nischintakoili, Dist-Cuttack.

¶9

…Respondent.

¶10

2. Headmaster, Resalo Prikaraypur Urdu Primary School, At/P.O. Asureswar, P.S. Nischintakoili, Dist-Cuttack

¶11

…Proforma Respondent

¶12

Advocates appeared in the case:

¶13

For the Appellants : Mr. Bimbisar Dash Addl. Government Advocate For Respondent No.1 : Mr. D.N. Rath, Advocate

¶14

Page 1 of 10

¶15

CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

ORDER

Order No.

05.11.2024

This matter is taken up through Hybrid mode.

¶20

I.A. No.203 of 2024

¶21

This application has been filed for condonation of delay of 279 days in preferring the present intra-Court appeal.

¶22

After having heard Mr. Bimbisar Dash, learned Additional Government Advocate appearing for the appellants-State and Mr. D.N. Rath, learned counsel appearing for respondent No.1, we are of the considered view that in the facts and circumstances and in the interest of justice, the delay in preferring the present appeal deserves to be condoned.

¶23

The delay stands condoned. Accordingly, the application is disposed of.

¶24

W.A. No.122 of 2024

¶25

State of Odisha has preferred the present intra-Court appeal putting to challenge an order dated 13.03.2023 passed by a learned Single Judge of this Court in W.P.(C) (OAC) No.928 of 2002. By the impugned order the learned Single Judge has allowed an application which was earlier filed by the respondent No.1 before

¶26

Page 2 of 10

¶27

the State Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter „Tribunal‟) vide O.A.No.928(C) of 2002 which stood transferred to this Court upon abolition of the Tribunal and came to be registered as WPC (OA) No.928 of 2002.

¶28

The facts relevant for adjudication are not in dispute, which are as under:-

¶29

6.1. The respondent No.1 was appointed as Sikshya Karmi in Laxminarayanpur UGME School vide office order dated 25.04.1992 issued by the District Inspector of Schools, Salepur in the District of Cuttack. The respondent No.1 and some other persons had approached the Tribunal by filing O.A. No.746 of 1993 with a grievance that they were not being paid their remuneration. Later the respondent was appointed as Primary School Teacher by office order No.2099 dated 15.05.1996. During pendency of the said O.A. No.746 of 1993, some of the candidates, who, though were empanelled in the list of Sikshya Karmi for regularization as Primary School Teacher, were not regularized as such, approached the Tribunal by filing an application giving rise to O.A. No.3743 (C) of 1996 and batch. O.A. No.746 of 1993 filed by the respondent, was heard along with the said O.A. No.3743 (C) of 1996 by the Tribunal. The Tribunal disposed of the said application by a common judgment and order. The Tribunal noticed apparent

¶30

Page 3 of 10

¶31

irregularities in the matter of regularization as Primary Teacher and disposed of the application with the following directions:-

¶32

“(i) Meritorious candidates from out of 617 candidates selected shall be given appointment as Primary School Teachers in place of those who have been irregularly appointed as Primary School Teachers by order of the District Inspector of Schools dated 15.05.1996.

¶33

(ii) On the appointments being given to the irregularly appointed Sikshya Karmies who have been regularized shall stand terminated.

¶34

(iii) Till termination those Sikshya Karmies irregularly appointed by Sri Krushna Chandra Sadangi shall continue on ad hoc basis on monthly remuneration of Rs.600/-.

¶35

(iv) The candidates left out from list of 617 meritorious candidates along with outsiders who have been irregularly appointed as Sikshya Karmies after appointment of Primary School Teachers from out of the merit list shall be given opportunity to be considered along with outsider for being appointed as Primary School Teachers, according to their merit.

¶36

(v) Trained Graduates in the list and the Trained Graduates who have been appointed as Sikshya Karmies out of the list

¶37

Page 4 of 10

¶38

shall get this opportunity by relaxation of age limit treating them as Matric C.T.

¶39

(vi) Entire process shall be completed by the District Inspector of Schools within six months from the date of receipt of a copy of this order.”

¶40

In the light of the Tribunal‟s order dated 13.12.1996, the respondent was posted in Salepur U.P. School on regular basis by an order dated 28.08.1997 passed by the D.I. of Schools, Salepur.

¶41

Certain writ applications were filed by some of the adversely affected candidates, who could not be appointed as Primary School Teachers giving rise to OJC No.17911 of 1997 and batch. A Division Bench of this Court disposed of OJC No.17911 of 1997 ( Chandramani Pradhan Vs. State of Odisha) and batch by a common judgment and order dated 12.05.2000 with the following finding in paragraph 4:

¶42

“4. That apart, we have also considered the merit of the petitioners‟ claim. It appears that the Inspector of Schools of Salepur (Sri Krushna Ch. Sarangi) appointed the petitioners and several others as Sikshyakarmis irrespective of their merit position in the panel of 1991. Because of such illegal appointments the Director of Elementary Education immediately freezed the said panel of 1991 and placed Shri Sarangi under suspension on April 26, 1992. Even after such suspension Sri Sarangi continued to give appointments to the empanelled

¶43

Page 5 of 10

¶44

persons from the panel of 1991 on pick and choose basis. Even before us nothing could be placed to show that there was any Government decision or policy for any other lawful or valid reasons justifying the petitioners‟ appointment overtaking other empanelled candidates occupying higher position in the said panel.”

¶45

While disposing of the case, the said Division Bench of this Court in Chandramani Pradhan (supra) and batch issued following directions and made observations:

¶46

“8. For the foregoing reasons, we dispose of this writ petition by upholding the impugned judgment and order of the Tribunal with the following clarifications:-

¶47

(i) The State Government is required to terminate the appointment of all those persons as Primary School Teachers whose merit position in 1991 panel does not justify such appointment. If necessary, the State Government may give the individual employee an opportunity of placing his documents before terminating the employment of individual employee on the basis of the Tribunal‟s order dated 13.12.1996.

¶48

(ii) If the State Government wants to appoint or retain anybody out of the panel of 1991, the same will have to be done serially from the panel of 1991 unless there is any specific lawful reason for any deviation.

¶49

(iii) It is, therefore, open to the State Government to adopt the policy if it intends to give preference to any particular class of candidates without offending Articles 14 and 16 of the Constitution of India. If the State Government wants to adopt any such policy, it must publicly announce the said policy in accordance with law before proceeding to implement such policy.”

¶50

Page 6 of 10

¶51

Applying the Division Bench decision in the case of Chandramani Pradhan (supra), the respondent No.1 was found to have been illegally absorbed as Primary School Teacher and, accordingly, an order of termination was passed by the D.I. of Schools, Salepur vide office order dated 06.04.2002. The said order dated 06.04.2002 became the subject matter of challenge in WPC (OAC) No.928 of 2002 which has been allowed by the learned Single Judge on the sole ground of non-compliance of principles of natural justice and direction of this Court dated 12.05.2000 in the case of Chandramani Pradhan (supra).

¶52

Another significant development took place during pendency of the writ applications. The respondent was again engaged through a process of selection as Sikshya Sahayak on 04.01.2005 and after completion of 6 years, he came to be engaged as regular Primary School Teacher with effect from 04.01.2011. The respondent did not bring this fact about his regularization from 04.01.2011 by filing any additional affidavit or amendment petition in the writ proceeding. This fact was brought on record in the counter affidavit filed by the Block Education Officer.

¶53

Mr. Bimbisar Dash, learned Additional Government Advocate for the appellants assailing the impugned order passed by the learned Single Judge has submitted that in terms of the order of the Division Bench in the case of Chandramani Pradhan (supra), it was not mandatory for the appellants to grant an opportunity of hearing. It was the mandate of the Division Bench of this Court to terminate appointment of all those persons

¶54

Page 7 of 10

¶55

as Primary School Teachers, whose merit position in 1991 panel did not justify such appointment. He submits that only in such cases where the State Government felt necessity, it (the State Government) was permitted to give an individual employee an opportunity of placing his documents before terminating his employment on the basis of the Tribunal‟s order dated 13.12.1996. He has also submitted that the conduct of the respondent in not disclosing subsequent development of his engagement as Sikshya Sahayak and his regularization as Primary School Teacher with effect from 04.01.2011 ought to have been aptly taken note of by the learned Single Judge and the writ petition ought to have been dismissed on this ground alone.

¶56

Mr. D.N. Rath, learned counsel for respondent No.1 on the other hand has submitted that the respondent was at Sl. No.139 in the panel of 617 candidates based on merit and, therefore, there was no illegality or any irregularity in his engagement. He has, however, not been able to satisfy this Court that any person lower in the merit list of 1991 panel was engaged and allowed to continue.

¶57

In view of submissions, which were made on behalf of the respondent, the Court had required the learned counsel for the respondent No.1 to inform this Court as to whether any person above him in the merit list, was not engaged as a Primary School Teacher based on 1991 panel by an order dated 11.09.2024. This question was put to ascertain as to whether the persons placed at higher position in the merit list than the

¶58

Page 8 of 10

¶59

respondent were ignored and the respondent was engaged. There is no categorical assertion pursuant to the said order. The respondent has, thus, not been able to make out a case before this Court that his disengagement was in breach of Articles 14 and 16 of the Constitution of India inasmuch as someone with lower merit was allowed to continue and the respondent‟s engagement was illegally terminated.

¶60

It is apparent that the Respondent‟s termination of engagement was on the ground that his merit position in 1991 panel could not justify his engagement. The respondent has not been able to establish a clear case of any discrimination in the writ proceedings.

¶61

We find force in the submission advanced on behalf of the appellants that an opportunity to call for the documents from the candidates was required only if the Government felt that necessary. The Division Bench in the case of Chandramani Pradhan (supra ) made this conscious observation as has been noted above. Since the Division Bench in the case of Chandramani Pradhan (supra), did not require an opportunity of hearing to be given as the cases of respective parties were thoroughly addressed, the impugned order of disengagement dated 06.04.2002 could not have been interfered with on the ground that the respondent was not given an opportunity of hearing.

¶62

Further, since the respondent participated in the subsequent selection process pursuant to which he was appointed as Sikshya Sahayak on 04.01.2005 and after having completed 6 years of service, he is

¶63

Page 9 of 10

¶64

working as regular Primary School Teacher, no fruitful purpose could be served by quashing the order of termination dated 06.04.2002 on the ground of violation of principles of natural justice.

¶65

In the absence of any materials/findings indicating that the respondent No.1 was discriminated against and the persons lower in the merit position were allowed to continue ignoring his case, the order of the learned Single Judge cannot be sustained.

¶66

For the aforesaid reasons, the impugned order 13.03.2023 passed by the learned Single Judge of this Court in W.P.(C) (OAC) No.928 of 2002 requires interference. Accordingly, the said impugned order is set aside.

¶67

The writ appeal is accordingly allowed. There shall be no order as to costs.

¶68

(Chakradhari Sharan Singh)

¶69

Chief Justice

¶70

(Savitri Ratho)

¶71

Judge

¶72

SK Jena/Secy.

¶73

Signature Not Verified

¶74

Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Nov-2024 10:54:30

¶75

Page 10 of 10

State of Odisha v. Maheswar Behura

Case brief

What is this about?

State of Odisha v. Maheswar Behura

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Jagannath Mahaparabh Vs Jagannath Mahaparabh

State of Odisha Vs Dr. Truptirani Naik

Sri Jagannath Mohaprabhu Bije Indola Math, Puri Vs State of Odisha

Abhisek Pattnaik Vs State of Odisha

State of Odisha Vs Kailash Chandra Behera

State of Odisha Vs Anjali Prabha Panda