Orissa High Court
Prasanna Kumar Sahu vs State Of Odisha And Others on 17 January, 2024
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 666 of 2023,
W.A. No. 667 of 2023
and
W.A. No. 650 of 2023
W.A. No. 666 of 2023
Prasanna Kumar Sahu ..... Appellant
Mr. S.K. Das, Adv.
Vs.
State of Odisha and others ..... Respondents
Mr. R.N. Mishra, AGA (Respondents 1 & 2), Mr. D.N. Rath, Adv.(Respondent 4) W.A. No. 667 of 2023 Prasanna Kumar Sahu ..... Appellant Mr. S.K. Das, Adv.
Vs. State of Odisha and others ..... Respondents Mr. R.N. Mishra, AGA (Respondents 1 & 2), Mr. D.N. Rath, Adv.(Respondent 4) W.A. No. 650 of 2023 Prasanna Kumar Sahu ..... Appellant Mr. S.K. Das, Adv.
Vs. State of Odisha and others ..... Respondents Mr. R.N. Mishra, AGA (Respondents 1 & 2), Mr. D.N. Rath, Adv.(Respondent 4) CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN Date of hearing : 12.01.2024 :: Date of Order :17.01.2024 Order No. This matter is taken up through hybrid mode.05
2. Heard Mr. S.K. Das, learned counsel appearing for the appellant-Prasanna Kumar Sahu in all the writ appeals; Mr. R.N. Page 1 of 14 Mishra, learned Additional Government Advocate appearing for the State-respondents no.1 and 2; and Mr. D.N. Rath, learned counsel appearing for respondent no.4-Sanjaya Kumar Nayak in all the writ appeals.
3. Challenging the common judgment and order dated 02.03.2023 passed by the learned Single Judge in FAO No.202 of 2019, FAO No. 203 of 2019 and W.P.(C) No. 31932 of 2022, W.A. No.650 of 2023 has been filed against FAO No.202 of 2019, W.A. No.666 of 2023 has been filed against FAO No.203 of 2019 and W.A. No.667 of 2023 has been filed against W.P.(C) No.31932 of 2022. Since these three writ appeals involve common question of law with regard to extension of benefit of GIA for the post held by the appellant, they were taken up together. At the time of hearing, Mr. D.N. Rath, learned counsel appearing for respondent no.4- Sanjaya Kumar Nayak, who was the appellant before the learned Single Judge in the appeals filed under Section 24-C of the Odisha Education Act, raised an objection with regard to maintainability of the writ appeals.
4. As a matter of fact, F.A.O. Nos.202 and 203 of 2019 were filed by respondent no.4-Sanjaya Kumar Nayak under Section 24-C of the Odisha Education Act assailing the common judgment dated 01.02.2019 passed by the State Education Tribunal, Bhubaneswar in GIA No.152 of 2013 and GIA No. 149 of 2018, whereas W.P.(C) No.31932 of 2022 was preferred by the said respondent no.4 against the order dated 05.11.2022 passed by the Director, Higher Education, Odisha, pursuant to aforementioned judgment passed by the Tribunal, which is a consequential one. Therefore, all the three cases, involving same facts and common Page 2 of 14 question of law, were heard together and disposed of by the learned Single Judge by a common judgment, as referred to above, which is impugned in these writ appeals.
5. The factual matrix of the case, in brief, is that Fashimal Anchalika College/Higher Secondary School, Fashimal in the district of Sambalpur was established in the year 1993 and thereafter, the said institution got necessary permission, recognition and affiliation from the competent authority for opening of +2 Arts and Science Stream with 128 seats each during the academic session 1993-94. Respondent no.4-Sanjaya Kumar Nayak and appellant- Prasanna Kumar Sahu were selected in one selection process held for the post of Junior Clerk-cum-Typist in the year 1993. Accordingly, appointment letters were issued to both on 05.05.1993 enabling them to join in the respective post, but respondent no.4 joined on 12.05.1993, whereas the appellant joined on 13.05.1993.
5.1. On 05.07.1993, respondent no.4 sought permission from the then President of Governing Body for study leave to prosecute higher study and allow him to take admission in the very same College as a regular +2 Arts student for a period of two years. The President of the Governing Body permitted him to take admission as regular +2 Arts student on 20.12.1993. Accordingly, he took admission and completed such course in the year 1995. During such period, he continued to work in the 2nd post of Junior Clerk-cum-Typist. Long after, i.e., on 16.09.2009, the Secretary of the College passed an order stating that the Governing Body in its meeting held on 15.09.2009 passed resolution that respondent no.4 was placed in the 3rd post of Junior Clerk-cum-Typist and the appellant was placed against the 2nd post. As such, dispute of Page 3 of 14 placement of respondent no.4 vis-à-vis the appellant was started. In view of such position, respondent no.4 claimed that he never received such letter nor any prior notice was issued to him before passing the resolution dated 15.09.2009. Whereas, the appellant filed GIA Case No.152 of 2013 before the State Education Tribunal under Section 24-B of the Odisha Education Act with a prayer to direct the authorities to approve his appointment and release Block Grant to him in the 2nd post of Junior Clerk-cum-Typist w.e.f. 20.01.2009 in accordance with Grant-in-Aid Order, 2008. He also filed a document attaching to the said GIA Case as Annexure-5 showing that on 06.07.1993, the President of the College had cancelled the permission order dated 05.07.1993 granted to respondent no.4 to take admission in +2 Arts Stream of the College on the ground that his application would be considered only after passing resolution in the Governing Body in the next meeting. After receiving notice in the said GIA Case, respondent no.4, who was impleaded as opposite party no.4 therein, also filed GIA Case No.149 of 2018 challenging the purported decision of the Governing Body to approve the appellant against the 2nd post and respondent no.4 against the 3rd post. As such, it was prayed to direct the authorities to approve his appointment against the 2nd post w.e.f. 20.01.2009.
5.2. Both the GIA Cases, namely, GIA Case No.152 of 2013 filed by the appellant and GIA Case No.149 of 2018 filed by respondent no.4, were heard analogously by the Tribunal and by a common judgment dated 01.02.2019, the Tribunal held that there being no resolution of the Governing Body at the relevant time approving the permission granted by the President in favour of Page 4 of 14 respondent no.4 for prosecuting studies, the period of his study leave cannot be counted towards service period and that his regular appointment can be taken into consideration from the year 1995, but not prior to that. It was, therefore, held that the Governing Body rightly took a decision in its resolution dated 15.09.2009 to adjust the present appellant against the 2nd post and respondent no.4 against 3rd post of Junior Clerk. Accordingly, GIA Case No.152 of 2013 filed by the appellant was allowed and GIA Case No.149 of 2018 filed by respondent no.4 was rejected.
5.3. The said common judgment dated 01.02.2019 passed by the State Education Tribunal, Bhubaneswar was impugned in the FAOs. Pursuant to such judgment, the Director of High Education, Odisha, vide order dated 14.12.2021 approved payment of Block Grant in favour of the appellant against the 2nd post w.e.f. 20.01.2009 subject to result of the F.A.Os. filed by respondent no.4. Thereby, the order dated 14.12.2021 passed by the Director, Higher Education, Odisha was also challenged by respondent no.4 in W.P.(C) No.31932 of 2022 before the learned Single Judge, as being consequential one.
5.4. Learned Single Judge, after due adjudication, considering the materials available on record, vide common judgment dated 02.03.2023, came to a finding that in view of the admitted fact that respondent no.4 had joined on 12.05.1993 and the appellant on 13.05.1993, there is no way by which the latter can be treated as senior to him. Having come to such a finding, learned Single Judge set aside the judgment dated 01.02.2019 passed by the State Education Tribunal, Bhubaneswar in GIA No.152 of 2013 and allowed GIA Case No.149 of 2018 and W.P.(C) No.31932 of 2022 Page 5 of 14 filed by respondent no.4 by approving his appointment against the 2nd post and accordingly, directed the authorities to approve the appointment of respondent no.4 as Junior Clerk-cum-Typist against the 2nd post and release block grant/Grant-in-Aid within a period of three months.
6. While entertaining the writ appeals, on 27.04.2023, a preliminary objection was raised by learned counsel appearing for respondent no.4 with regard to maintainability of the writ appeals and this Court passed the following order:-
"1. At the outset, Mr. Jayant Kumar Rath, learned Senior Counsel appearing for Respondent No.4 raises a preliminary objection regarding maintainability of the present writ appeals since the impugned order has been passed by the learned Single Judge in exercising the jurisdiction under Article 227 of the Constitution of India. He points out that the challenge before the learned Single Judge was to an order passed by the State Education Tribunal. He has placed reliance on an order dated 4th May, 2022 passed by this Court in W.A. No.592 of 2011 (Khalia Mehera v. S.E., Hirakud Dam Circle, Burla) where the appeal was not entertained since the impugned order in that case was passed by the learned Single Judge under Article 227 of the Constitution.
2. Mr. Sameer Kumar Das, learned counsel appearing for the Appellant, on the other hand, refers to an interim order dated 29th September, 2021 passed by this Court in W.A. No.143 of 2016 (Arabinda Panda v. The Director, Higher Education, Odisha) which according to him also was dealing with a similar preliminary objection which stood overruled by this Court after referring to the judgment of the Full Bench of this Court in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz, 2008(II) OLR (FB) 725, which has been affirmed by the Supreme Court in Mahammed Saud v.
Dr. (Maj) Shaikh Mahfooz, (2010) 13 SCC 517. However, the writ appeal being W.A. No.143 of 2016 was subsequently dismissed on merits.
3. Mr. Das, learned counsel for the Appellant will satisfy this Court on the maintainability of the present writ appeals by referring to all the judgments on the issue including the Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz (supra).
Page 6 of 144. List on 23rd June, 2023."
Thereafter, the matter was listed on 23.06.2023, 27.06.2023, 23.11.2023 and 13.12.2023, when this Court passed the following order:-
"1. This matter is taken up through hybrid mode.
2. Learned counsel for the parties are directed to verify as to whether the writ appeal is maintainable or not and address the Court on the next date.
3. List this matter after two weeks."
In compliance of the said order, this Court proceeded to decide the objection raised by Mr. D.N. Rath, learned counsel appearing for respondent no.4-Sanjaya Kumar Nayak with regard to maintainability of the writ appeals, as preliminary issue.
7. Mr. S.K. Das, learned counsel appearing for the appellant vehemently contended that the writ appeals filed against the order dated 02.03.2023 passed by the learned Single Judge in FAOs and writ petition are maintainable. To substantiate his contentions, he has relied upon the judgment of this Court in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz, 2008 (II) OLR (FB) 725 and Basanta Kumar Das v. Governing Body, Taratarini College [W.P.(C) No.963 of 2016, disposed of on 24.02.2016].
8. Mr. D.N. Rath, learned counsel appearing for respondent no.4, in support of his objection, has relied upon the judgment of this Court in Rabindranath @ Rabindranath v. Bijay Kumar Bhuyan, 2016 (II) ILR CUT 283, Jyotshna Mohapatra v. State of Odisha, 2018 (I) ILR CUT 869 : 2018 (II) OLR 1 and Shradhakar Mohanty v. Management of Cuttack Municipal Corporation [W.A. No.122 of 2013, disposed of on 01.11.2023].
Page 7 of 149. Mr. R.N. Mishra, learned Additional Government Advocate supported the contentions raised by Mr. D.N. Rath, learned counsel appearing for respondent no.4 and contended that the present writ appeals at the instance of the appellant are not maintainable.
10. This Court heard Mr. S.K. Das, learned counsel appearing on behalf of the appellant-Prasanna Kumar Sahu, Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State-respondents, and Mr. D.N. Rath, learned counsel appearing on behalf of respondent no.4-Sanjaya Kumar Nayak. Since the preliminary question of maintainability of the writ appeals is under consideration, on the basis of the argument advanced by the respective parties, the matter was heard and reserved for orders on the question of maintainability and accordingly the present order is being passed.
11. There is no dispute before this Court that the order passed by the Odisha Education Tribunal under Section 24-B of the Odisha Education Act for grant of grant-in-aid was considered by the learned Single Judge in FAO Nos. 202 and 203 of 2019. So far as W.P.(C) No. 31932 of 2023 is concerned, the same had been filed challenging the consequential order dated 05.11.2022 passed by the Director, Higher Education Odisha, which was also the subject matter of challenge before the learned Single Judge in FAOs. Therefore, learned Single Judge since decided the FAOs filed under Section 24-C of the Odisha Education Act, whether against such order, writ appeal can be filed before this Court is the question to be adjudicated.
Page 8 of 1412. Mr. S.K. Das, learned counsel appearing for the appellant-Prasanna Kumar Sahu laid emphasis on the Full Bench decision of this Court in the case of Mahammed Saud and others v Dr. (Maj) Shaikh Mahfooz and another, 2008 (II) OLR (FB)-725 and contended that in view of the Full Bench decision, the writ appeal is maintainable.
13. In Mahammed Saud (supra), the question of maintainability of appeal against the judgment passed by the learned Single Judge in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 was under consideration. The Full Bench of this Court came to a finding that the writ appeal lies against the judgment passed in exercise of jurisdiction under Article 226 of the Constitution of India but not against the judgment/ order/decree passed by the learned Single Judge in exercise of powers of superintendence under Article 227 of the Constitution of India, 1950.
13.1. The question raised in the said case was discussed in paragraph-2 of the said judgment which reads as under:-
"The question of maintainability of the LPA against the judgment of a Single Judge of this Court was raised in course of hearing of the LPA, It was pointed out at the Bar that there had been two sets of directly conflicting judgments of Division Benches of this Court, inasmuch as in the case of V.N.N. Panicker v. Narayan Pati & Anr., 2006 (II) OLR 349, a Division Bench had taken the view that the Letters Patent Appeal was not maintainable in view of amendment of Section 100-A CPC against the judgment/order of a learned Single Judge. Similar view was also taken by another Division Bench in the case of Ramesh Ch. Das v. Kishore Ch. Das & Ors., 2007 (Suppl-1) OLR 1110. But then in the case of Birat Chandra Dagara v.
Taurian Exim Pvt. Ltd. & Anr., 2006 (II) OLR 344, a Division Bench had held that such an appeal was maintainable. In order to resolve the aforesaid controversy Page 9 of 14 this Full Bench has been Constituted."
13.2. Taking into consideration the judgment passed in the case of V.N.N. Panicker v. Narayan Pati & Anr., 2006 (II) OLR 349 and in the case of P.S. Sathappan (dead) by L.Rs v. Andhra Bank Ltd. & Ors., AIR 2004 SC 5152, the Full Bench of this Court in paragraph-7 of the judgment observed as follows:-
"The Division Bench of this Court in the V.N.N. Panicker case (supra) in view of the aforesaid observation of the Supreme Court in P.S. Sathappan case (supra) held that by virtue of Section 100-A CPC no Letters Patent Appeal would be maintainable if the order of the trial Court which was appealed against in an appeal filed under Section 104 CPC was passed after insertion of Section 100- A by amendment which came into force with effect from 1st July, 2002. In view of the fact that the order against which the LPA was filed was passed after 1.7.2002, the Letters Patent Appeal was held to be not maintainable."
13.3. After due adjudication, the Full Bench of this Court at paragraph-47 of the judgment held as follows:-
"We have heard the learned counsel for the parties patiently, noted the citations carefully, perused the materials meticulously and considered the submissions pragmatically and for the discussions made above, we have arrived at the following conclusions :
(1) After introduction of Section 100-A in the Code of Civil Procedure by 2002 Amendment Act, no Letters Patent Appeal is maintainable against a judgment/ order/ decree passed by a learned Single Judge of a High Court.
(2) The decision of a Division Bench of this Court in Birat Ch. Dagra case (supra) has not laid down the correct position of law. On the other hand, the conclusions arrived at by Division Benches of this Court in V.N.N. Panicker and Ramesh Ch. Das cases (supra) are held to be good law and are confirmed.
(3) A Writ Appeal shall lie against the judgment/orders passed by a learned Single Judge in a Writ Petition filed under Article 226 of the Constitution of India. In a Writ application filed under Articles 226 and 227 of the Constitution, if any order/ judgment/ decree is passed in exercise of jurisdiction under Article 226, a Writ Appeal will lie, whereas no Writ Appeal will lie against Page 10 of 14 judgment/order/decree passed by a single Judge exercising powers of superintendence under Article 227 of the Constitution.
(4) No Letters Patent Appeal shall lie against judgment/ order passed by a learned Single Judge in proceedings arising out of Special Acts."
13.4 This Court came to a definite finding that writ appeal shall lie against the judgment/orders passed by a learned Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ petition filed under Articles 226 and 227 of the Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie, whereas no writ appeal will lie against judgment/order/decree passed by the learned Single Judge exercising powers of superintendence under Article 227 of the Constitution. Similarly, no Letters Patent Appeal shall lie against judgment/ order passed by a learned Single Judge in proceedings arising out of Special Acts.
14. Further reliance has been placed by Mr. Das, learned counsel for the appellant-Prasanna Kumar Sahu on the order passed by the Division Bench of this Court in W.A. No. 143 of 2016, in which the maintainability of the judgment of the learned Single Judge passed in the case of Basanta Kumar Das v. Governing Body of Taratarini College was under consideration. It is apt to mention, Basanta Kumar Das had filed the case under Section 24-C of the Odisha Education Act. The Coordinate Bench of this Court, relying on the judgment of the Full Bench of this Court in Mahammed Saud (supra), held that the writ appeal is maintainable.
15. Mr. D.N. Rath, learned counsel appearing on behalf of respondent no.4-Sanjaya Kumar Nayak raised preliminary objection on the maintainability of the writ appeal relying on the decision of Page 11 of 14 this Court in the case of Rabindranath v. Bijaya Kumar Bhuyan, 2016 (II) ILR CUT 283. However, in the said case the issue was whether the Additional Civil Judge, (Jr. Division), Digapahandi has territorial jurisdiction to hear the Election Petition? In that case learned Judicial Magistrate of First Class, Digapahandi has been vested with the power of Addl. Civil Judge (Jr. Division), vide notification dated 10.08.2005 of the Law Department of the Government of Odisha. Moreover, the Court of the Civil Judge (Jr. Division) includes the Court of Addl. Civil Judge (Jr. Division) under Sub-section (c) of Section 2 of the Odisha Civil Courts Act, 1984. In the said decision, this Court held that the Addl. Civil Judge, (Jr. Division), Digpahandi has territorial jurisdiction to hear the election petition.
15.1. However, while dealing with the said case, the preliminary question was raised with regard to maintainability. This Court, relying on the decision rendered in the case of Saswati Patra v. Saraswati Biswal [W.A. No. 222 of 2016 disposed of on 16.05.2016 reported at 2016 SCC OnLine Ori 296 = 2016 (II) ILR- CUT 48] wherein the judgment of the apex Court in the case of Jogendrasinhji Vijaysinghji v. State of Gujarat and others, (2015) 9 SCC 1 was referred to, held that the writ appeal is maintainable.
16. Further reliance was placed on the decision of this Court in the case of Jyotshna Mohapatra (supra), wherein maintainability of Letters Patent Appeal was the issue since the order travelled from the appeal filed before the District Judge arising out of a confiscation proceeding under the Odisha Forest Act and the learned Single Judge exercised the jurisdiction under Article 227 of the Constitution of India. In that case, the Division Bench of Page 12 of 14 this Court held that the writ appeal is not maintainable.
17. Learned counsel for respondent no.4 also cited the order of this Court passed in Shradhakar Mohanty (supra), wherein this Court, relying on the decision rendered in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 and in Smt. Swarnaprava Pattnaik @ Das v. Dibakara Satpathy (Dead) through L.Rs. Lilly Satpathy @ Panda and others [Writ Appeal No.346 of 2012 dismissed on 08.12.2016] held that since the order has been passed by the learned Single Judge in exercise of the power under Article 227 of Constitution of India, the writ appeal is not maintainable.
18. Having heard learned counsel for the parties and keeping in view the fact that the Coordinate Bench of this Court in W.A. No. 143 of 2016, relying on the judgment of the Full Bench of this Court in Mahammed Saud (supra) has already entertained the writ appeal holding the same as maintainable, this Court is not inclined to take a different view than the one already taken. On a scrutiny of the decisions rendered in Rabindranath, Jyotshna Mohapatra and Shradhakar Mohanty (supra), on which reliance has been placed by learned counsel for respondent no.4-Sanjaya Kumar Nayak, it appears that the same have been rendered under the special statute, for which such decisions are distinguishable. Thus, in the considered opinion of this Court, the present writ appeals are maintainable and the preliminary objection raised by learned counsel for respondent no.4-Sanjaya Kumar Nayak with regard to maintainability, is accordingly rejected. Hence, the writ appeals shall be decided on merits.
19. Issue notice. Since respondents no.1, 2 and 4 have Page 13 of 14 already entered appearance, let adequate number of extra copies of the writ appeals be served on learned Additional Government Advocate as well as on Mr. D.N. Rath, learned counsel appearing for respondent no.4 within a period of three days, for enabling them to file their respective replies as to the merit of the case.
20. Requisites for issuance of notice to respondent no.3 in each of the writ appeals by registered post with A.D., shall be filed within three days.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Alok/Arun (M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: A.R-cum-Sr. Secretary
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 17-Jan-2024 15:49:57
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