Orissa High Court
Sasmita Balabantray vs State Of Orissa And Others on 17 April, 2017
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.1795 of 2017
In The matter of an application under Articles 226 and 227 of the Constitution
of India.
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Sasmita Balabantray ...... Petitioner
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner : Mr. Prafulla Ku.Mohapatra & S.C.Sahoo
For Opp.Parties : Mr. Budhiman Rout, Standing Counsel for the
School and Mass Education Department.
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing and judgment: 17.4.2017
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S.N.Prasad,J. This writ petition is under Articles 226 and 227 of the
Constitution of India challenging the order 12.1.2017 passed by the Odisha
Administrative Tribunal,Cuttack Bench, Cuttack in C.P.No.349(C) of 2016
arising out of O.A.No.1465(C) of 2016 whereby and where under the contempt
petition preferred by the petitioner for non-compliance of the order passed by
the Tribunal in O.A.No.1465(C) of 2016 has been dropped with liberty to the
petitioner to challenge the same, if so advised, in separate O.A.
2. Brief facts of the case of the petitioner is that the petitioner after
having passed B.A. with Sanskrit, Sikshya Sashtri(B.Ed.) and M.A. in Sanskrit
has made application pursuant to the advertisement dated 28.10.2014 for the
post of Classical Teacher(Sanskrit) for Puri district along with all particulars to
be considered under the S.E.B.C. category. Petitioner‟s candidature has been
2
considered under S.E.B.C. category for Classical Teacher(Sanskrit) in which
she was selected having obtained total marks of 247.60, documents were
verified on 16.3.2015, she was called upon to execute the agreement which
was done on 11.6.2015 and thereafter engagement order was issued on
11.6.2015for Classical(Sanskrit) Contract Teacher in Balukenswar Bidyapitha, Khajuria, Puri. In pursuance thereof, the petitioner joined the said post on 12.6.2015.
Petitioner while continuing, all of a sudden disengaged from service on 21.11.2015 against which she preferred O.A.No.1465(C) of 2016 which was disposed of vide order dated 29.4.2016 directing the authorities to consider the representation of the applicant within period of two months. Case of the petitioner is that the order passed by the Tribunal in O.A.No.1465(C) of 2016 has not been complied with, she has preferred contempt petition before the Tribunal being C.P.No.349(C) of 2016 for compliance of the order passed by the Tribunal, notices have been issued and while contempt petition was pending, the authorities filed show cause and necessary order dated 24.12.2016 as contained in Office Order No.43725 has been passed rejecting the claim of the petitioner. The Tribunal, after considering show cause, has dropped the contempt proceeding with liberty to the petitioner to file separate original application.
3. The petitioner being aggrieved with the order is before this Court under Articles 226 and 227 of the Constitution of India on the ground that the authorities while rejecting the claim of the petitioner has not taken into consideration the fact that the petitioner has been selected being eligible in all respects as per the terms and conditions of the advertisement and on wrong notion her candidature has been found to be not perfect since she was considered to be applicant in untrained category while the case of the petitioner all along is that she has training qualification and she had submitted her application form along with details of Sikhya Sahstri which is equivalent to B.Ed. and the authorities after verifying the said certificates, taken note of the same and due marks has been allotted on that count, hence order passed by the authorities rejecting her claim vide order dated 3 24.12.2016 cannot be said to be proper compliance of the order passed by the Tribunal. The Tribunal has not considered this aspect of the matter and dropped the contempt proceeding.
4. While, on the other hand, case of the State through its School and Mass Education Department, is that the advertisement stipulates that application is to be submitted online and the advertisement contains condition that the candidate must furnish details of educational qualification but the petitioner has not furnished her qualification regarding having trained category and as such she cannot be said to be an applicant with perfect educational qualification as per the terms and conditions of the advertisement, hence the authorities, at the first instance, had appointed her but after knowing this fact, has disengaged her from service. The Tribunal directed the authorities to pass order, the authorities have taken note of this aspect of the matter and as such rejected claim of the petitioner and the Tribunal, after verifying this aspect of the matter, has dropped the contempt with liberty to the petitioner to approach before the Tribunal by way of fresh original application, hence this Court may not entertain this writ petition in view of the liberty having been granted to the petitioner.
5. We have heard learned counsel for the parties and perused the documents available on record.
6. Undisputed fact in this case is that an advertisement has been published by the authorities for filling up the post of Classical Teacher(Sanskrit) vide advertisement dated 28.10.2014(Annexure-2) wherein education qualification for the Classical Teacher(Sanskrit) has been prescribed which is reproduced below:
"Bachelors Degree with Sanskrit as one of the optional/Hons subject from a recognized university with minimum 50% marks in aggregate (45% for SC/ST/Ph/OBC/SEBC candidates) with Sikshaya Shastri(Sanskrit) ( a course prescribed by NCTE) from a recognized university/institution recognized by NCTE and affiliated to a recognised university or Shastri(Sanskrit) with minimum 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) from recognized university and Sikshya Shastri (Sanskrit) ( a course prescribed by NCTE) from a recognized 4 university/institution recognized by NCTE and affiliated to a recognized university.
OR
Acharya with minimum 50% marks in aggregate from a
recognized University.
OR
Bachelor‟s degree with Sanskrit as one of the optional/Hons subject with minimum 50% of marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and M.A. in Sanskrit with minimum 50% marks in aggregate from a recognized university. (The untrained candidates shall have to undergo required training within the timeline as prescribed by Govt.)."
It is evident from the qualification for consideration of such candidates who were aspirants for being appointed as Classical Teacher(Sanskrit), such candidate should have possessed Bachelors Degree with Sanskrit with minimum 50% marks in aggregate with Sikshya Shastri(Sanskrit) or Acharya with minimum 50% marks in aggregate from a recognized university or Bachelor‟s degree with Sanskrit as one of the optional/Hons subject with minimum 50% of marks in aggregate.
The petitioner being holding Bachelor‟s degree with Sanskrit, Sikshya Sashtri(B.Ed.) and M.A. in Sanskrit, had made application in terms of the advertisement, in Column-3 „General qualification‟ she has disclosed regarding her educational qualification as Bachelors degree with Sanskrit as one of the optional/Hons. subject and M.A. in Sanskrit but in column-17 under the heading „Academic qualifications‟ she has furnished details of her by giving detail marks as would be evident from Annexure-3 annexed to the writ petition. Candidature of the petitioner has been considered and the qualification regarding Sikhya Sashtri has also been taken note while verifying the documents, as would be evident from Annexure-5 annexed to the writ petition. Case of the petitioner had been considered for the post of Classical Teacher(Sanskrit), she had been offered engagement order vide order No.3914 dated 4.4.2016, in terms thereof, the petitioner has given her joining, but subsequently she has been disengaged on the pretext that she was not possessing the required qualification at the time of submission of the application form as she applied in untrained category.
57. The petitioner approached the Tribunal vide O.A.No.1465(C) of 2016 and the Tribunal while disposing of the original application vide order dated 29.4.2016, without going into the merits of the claims of the respondents 1 and 2, has directed the authority to take decision within period of two months, the authority has passed order dated 24.12.2016 as contained in Order No.43725(Annexure-10) whereby and where under claim of the petitioner has been rejected by disclosing reason that she has applied in untrained category. The Tribunal while dropping the contempt proceeding and after going into the order dated 24.12.2016, has observed that the order of the Tribunal has been fully complied with hence the applicant is at liberty to challenge the same, if so advised in separate original application, the order is challenged before this Court on the pretext that dropping of contempt is not under right perspective and without examining materials aspects of the matter.
8. There is no dispute about the fact that proceeding of contempt as has been provided under the Administrative Tribunal Act under section 17 which is to be exercised by the Tribunal for non-compliance of the order passed by the Tribunal. It is also not in dispute that if any order has been passed by court of law under the Contempt of Court Act as to whether it will proceed or not, is subject matter of satisfaction of the said Court but simultaneously it has to be seen that if there is no material compliance i.e. the order has not been complied with in its letter and spirit, the contempt matter should not be dropped in order to avoid multiplicity of litigation. Although, in the instant case, the order passed by the Tribunal in O.A. is without going into merit of the case, the authorities have been directed to consider case of the petitioner by taking decision in this regard.
9. The case has been contested by the State of Odisha through the learned Additional Government Advocate but no issue regarding maintainability of the writ petition has been raised as to whether order passed by the State Administrative Tribunal constituted under section 15 of the Administrative Tribunals Act,1985 dropping of contempt proceeding of an 6 order passed by it can be amenable to writ jurisdiction under its power conferred under Articles 226 and 227 of the Constitution India or not.
Since we are dealing with this, thought it proper to deal with maintainability of the issue without being raised by the parties.
The Administrative Tribunals Act,1985 enacted upon by the Parliament to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution of India and for matters connected herewith or incidental thereto.
The Act provides power setting up a Tribunal under section 15 of the Administrative Tribunal for a State. The Act further provides to adjudicate the issue relating to recruitment and matters concerning recruitment, to any civil service of the State or to any civil post under the State by making application under section 19 of the Act. The Act further provides under the provisions of Section 17 of the Act the power to punish for contempt by which the Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of order passed by following the provisions of Contempt of Courts Act,1971. Contempt of Courts Act,1971 provides power to prefer an appeal under section 19 by which provision has been made to file appeal from any order or decision in exercise of its jurisdiction to punish for contempt where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court , where the order or decision is that of a Bench, to the Supreme Court.
Here since we are dealing with issue with respect to the order passed by the State Administrative Tribunal which comprises of two members consisting of Acting Chairman and Member(Admn.), vide order dated 12.1.2017 in CP No.349(C) of 2016 and has dropped the contempt giving 7 liberty to the applicant applicant/petitioner to challenge the order passed by the authority, if so advised, in the shape of original application.
Admitted position is that the proceeding of contempt has been dropped without further proceeding with the contempt case, meaning thereby there is no order of punishment by the Tribunal, hence in that view of the matter, the provision of Section 19 of the Contempt of Courts Act,1971 which provides provision to prefer appeal before the Hon‟ble Supreme Court, is not the issue here.
It is also necessary to state here that vires of the Administrative Tribunals Act,1985 was the subject of the scrutiny before the Hon‟ble Apex Court in the case of L.Chandra Kumar -vs- Union of India and others reported in (1997) 3 SCC 261 whereby and where under the Constitution Bench of the Hon‟ble Apex Court after discussing every aspects of the matter has endorsed the constitutional amendment by passing an order by giving the High Court the power of judicial scrutiny over and above the order passed by the Central/State Administrative Tribunals but without giving administrative power of superintendence. It has been laid down therein that the order passed by the Tribunal constituted under the Administrative Tribunal Act,1985 would be amenable at the first instance before the High Court under its writ jurisdiction and then appeal before the Supreme Court. In that judgment it has been laid down that any decision passed by the Tribunal constituted under the Administrative Tribunals Act,1985 would be amenable under writ jurisdiction conferred to the High Court under Articles 226 and 227 of the Constitution.
In the case of L.Chandra Kumar -vs- Union of India and others(supra) there was no issue to consider the orders passed by the Tribunal in contempt proceeding and as such, the issue regarding order passed by the Tribunal in Contempt Proceeding was fell for consideration before the Hon‟ble Supreme Court in the case of T.Sudhakar Prasad -vs- Govt. of Andhra Pradesh and others, reported in (2001)1 SCC 516, their Lordships of the Hon‟ble Supreme Court held that any order or decision of the Tribunal punishing for contempt shall be appealable only to the Supreme 8 Court in view of the specific provision contained in Section 19 of the Contempt of Courts Act,1971.
It has further been held that the distinction between orders passed by the administrative Tribunal on matters covered by Section 14(1) of the Act and orders punishing for contempt under section 19 of the Contempt of Courts Act read with Section 17 of the Act, is this: as against the former there is no remedy of appeal statutorily provided, but as against the latter, statutory remedy of appeal is provided by Section19 of the Contempt of Courts Act itself. This ratio does not bar jurisdiction of the High Court in case of contempt proceeding is dropped since there is no remedy of appeal statutorily provided and as such in view of this ratio, writ will be held to be maintainable against the order passed by the Tribunal dropping contempt proceeding.
Similar issue fell for consideration before the Hon‟ble Apex Court in the case of Sujitendra Nath Singh Roy -vs-State of West Bengal & Ors. ( Civil Appeal No.7535 of 2011) reported in (2015)INSC 204(13.3.2015) in which same issue fell for consideration wherein West Bengal Land Reforms and Tenancy Tribunal was enacted subsequently in terms of the enabling provisions under Article 323B of the Constitution of India, refused to initiate contempt against the authority arrayed as respondent no.5 before it, said order was challenged before the Calcutta High Court but the Hon‟ble Calcutta High Court by placing reliance upon the judgment rendered by it in the case of Manju Banerjee -v- Debabrata Pal, reported in (2006) 1 WBLR (Cal) 147 held the writ petition as not maintainable and the order ultimately went before the Hon‟ble Supreme Court, their Lordships of the Hon‟ble Supreme Court, after taking into consideration the judgment rendered by Constitution Bench in the case of L.Chandra Kumar -vs- Union of India and others(supra) and dealing with the provisions of Section 15 of the Contempt of Courts Act, has differed the view taken by the Calcutta High Court in the case of Manju Banerjee -v- Debabrata Pal(supra) by observing at para-8 that "on a careful consideration of judgment of the Division Bench in the case of Manju Banerjee(supra) which has been followed in the impugned order, we are unable to agree with the view that writ petition under Article 226/227 of the Constitution is not maintainable when the 9 Tribunal refused to initiate a contempt proceeding. Such inference has been drawn by the Division Bench on the basis of some judgment in the case of D.N.Taneja -vs-Bhajan Lal, reported in (1988)3 SCC 26. In those cases the order refusing to initiate proceeding had been passed by the High Court and not by a Tribunal, and therefore, this Court observed that in a fit and proper case the aggrieved person, who informed the court of the alleged act of contempt, can approach the Supreme Court under Article 136 of the Constitution of India. Obviously in those cases there could be no occasion to observe that the aggrieved person can also approach the High Court under Articles 226 and 227 of the Constitution of India. This submission is that because of similar powers of contempt vested in the Tribunal under Section 15 of the Act,1997, the Tribunal ceases to be inferior to the High Court for exercise of writ jurisdiction is devoid of any substance because it ignores that High Courts have constitutional status and are vested with extraordinary writ jurisdiction whereas the Tribunal is only a creature of statute. Hence, in our considered view, in the case of Manju Banerjee(supra) the Division Bench of the Calcutta High Court does not lay down the law correctly that when the Tribunal refused to initiate contempt proceeding, the aggrieved person has remedy only under Article 136 and not under Article 226/227 of the Constitution."
We, after taking into consideration the statutory provision as well as the authoritative pronouncement of judgments has referred to above, are of the view that the writ petition is maintainable.
10. We have perused the advertisement and the conditions for consideration of candidature of Classical Teacher(Sanskrit), from its perusal it is evident that the petitioner was in possession, at the time of making application, the educational qualification as Bachelors degree with Sanskrit as one of the optional/Hon. Subject and M.A. in Sanskrit, that is Sikhya Sahstri(Sanskrit). The candidature of the petitioner was considered by taking note of the educational qualification as Sikhya Sahstri(Sankrit) . We have perused from it from the check list of documents which was verified under Annexure-5 annexed to the writ petition. Thereafter, the authorities come up with the engagement order, in pursuance thereto, the petitioner has joined duty, but all of a sudden, she has been disengaged on the pretext that she was in the untrained category. The authorities while considering the case of the applicant under untrained category have failed to consider the documents which she has annexed along with the application form regarding her training certificate Sikhya Sahstri along with B.Ed. degree, even though they have checked it under the heading „documents relating to Educational and 10 Professional Qualification‟ which according to the opposite party, the petitioner has no Sanskrit Hons at the time of submission of application online, but this reason of disengagement is not acceptable to us reason being that if the experience certificates could not have been accepted online it should have been rejected at the threshold, but it was considered by taking note of the Sikhya Sahstri(Sanskrit) at the time of checking list of documents and thereafter she had been selected.
11. It is not in dispute that in the contempt proceeding no fresh adjudication cannot be made. The Tribunal has passed an order, in the case at hand, to challenge the order passed by the authority before the Tribunal by filing fresh original application presuming that fresh cause of action has arisen but before doing that Tribunal ought to have scrutinize the factual aspect by going into the facts as to whether any fresh cause of action has arisen at all or not or the order has been passed by the authority on the basis of the ground already available on record before the Tribunal at the time of disposal of original application, but that has not been done otherwise the tribunal would not have reached to the conclusion of filing fresh original application due to coming out of fresh cause of action. The Tribunal has also not assessed while doing so since the cause of action cannot be changed merely by passing a fresh order by the authority reason being that the cause of action is bundle of facts and if the ground is already available on record and the order is being passed ignoring the said ground it cannot be said to be changed cause of action.
The expression „cause of action‟ has been dealt with by the Hon‟ble Apex Court in the case of Navinchandra N.Majithia -vs- State of Maharashtra, reported in (2000)7 SCC 640 wherein at sub-para of Para-21 discussion has been made with respect to the expression „cause of action‟ and by taking note of the judgment in Chand Kour -vs- Partab Singh, ILR(1889) 16 Cal 98, wherein it has been laid down that in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other 11 words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition.
Thus, adjudication has to be made on the basis of the pleadings made by the parties in the plaint if the fact and law is same, as has been pleaded in the plaint, an order has been passed without taking note of the same, the order is obviously said to be erroneous.
In view of such position, it cannot be said that we are adjudicating the issue afresh rather we have only gone into the facts as to whether merely on account of passing a fresh order can be said to be accruing fresh cause of action if the facts are the same having been raised in original application.
This view, we have taken in order to avoid multiplicity of proceedings and on analyzing the facts of the case in hand and come to conclusion that the cause of action has not arisen afresh warranting to file a fresh litigation.
12. We, after taking into consideration this factual aspect of the matter, thought it proper that the Tribunal ought to have taken into consideration this aspect of the matter even under contempt jurisdiction by passing further direction in order to assess the fact and should have avoided the multiplicity of the proceeding but instead of doing so, in a routine manner, the order has been passed in the contempt proceeding by dropping it and granting liberty to the petitioner to move before the appropriate forum, while even in Contempt proceeding further direction can be passed if situation so warrants, for reference the judgment passed by the Hon‟ble Apex Court in the case of Promotee Telecom Engineers Forum -vs- D.S.Mathur, Secretary, Department of Telecommunications, reported in (2008)11 SCC 579 wherein in similar facts and circumstances the Hon‟ble Apex Court has been pleased to hold at para-20 which is being reflected herein below:
12"We are not impressed at all by the contention of the learned counsel appearing on behalf of the respondent that since the respondent has passed the orders disposing of the representations of the petitioners, the only way left for the petitioners was to challenge the same by way of an independent Original Application before the Tribunal. It is more than a decade that the petitioners are fighting for their rights. Their rights had already been crystallized by various orders passed by the Tribunals and the courts which fact is not denied by the respondent. On the top of it, the petitioners were again required to come before this Court by way of an Interim Application being IA No.16 and that has resulted in denial of the fruits of the orders which were passed in their favour by the Tribunals and the courts. Under such circumstances, to push them again to file Original Application challenging the obviously erroneous orders passed by the respondent disposing of the representations of the petitioners would be a travesty of justice."
The facts and circumstances of the case in hand is also similar to that of the case herein referred to above, hence applying the same and after taking into consideration that the petitioner is eligible to hold the post, her candidature had been considered and she had joined her duty, as such the case of the petitioner should not have been thrown out by the Tribunal to approach it afresh, otherwise the order passed by the authority disposing of the representation of the petitioner would be travesty of justice.
13. In view thereof, the order passed by the authority dated 24.12.2016 and learned Tribunal dated 12.1.2017 are not sustainable in the eye of law, accordingly, the same are quashed.
The opposite parties are directed to take consequential steps within eight weeks from the date of receipt/production of copy of this order.
14. In the result, the writ petition stands allowed.
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S.N.Prasad, J. S.Panda,J. Orissa High Court, Cuttack, Dated the 17th April,2017/Palai