Orissa High Court
Benudhar Baliarsingh vs Odisha State Administrative on 4 April, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.P.(C) NO. 9391 OF 2016
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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Benudhar Baliarsingh ..... Petitioner
-Versus-
Odisha State Administrative
Tribunal, Principal Bench,
Bhubaneswar and others ..... Opp. Parties
For petitioner : M/s Abhiram Swain,
S.C. Mohanty, P.K. Mishra,
N.C. Moharana and
D.C. Behera, Advocates
For opp. parties : Mr. Biplab Mohanty, Addl. Government Advocate P R E S E N T:
THE HONOURABLE DR. JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY Date of Hearing and Judgment :: 04.04.2024 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the order dated 04.05.2016 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No. 988 of 2013 and O.A. Page 1 of 18 No. 539 of 2014 in rejecting the claim of the petitioner with regard to fixation of inter se seniority, pursuant to inter district transfer, over and above opposite party no.6, and grant of all consequential benefit. The petitioner has further prayed to direct the Director, Elementary Education Odisha-opposite party no.3 to count the seniority of the petitioner with effect from 07.04.1980 and grant consequential service benefits, so far as the posts of Level-II (Assistant Block Education Officer) and Level-I (Block Education Officer) are concerned.
2. The fact in brief is that the petitioner, having been duly selected by the circle level selection committee, was appointed as Headmaster of a P.S.M.E. School by the Circle Inspector of Schools, Boudh-Kandhamal and joined the service on 07.04.1980. After serving there for a period of more than 13 years, he was transferred to Khurda circle in the year 1993, on the basis of his representation on compassionate ground, and joined there on 23.06.1993 as Headmaster, Manikapur UGME School. In the meantime, all the incumbents of primary Page 2 of 18 and upper primary schools in the State were declared as Govt. servant w.e.f. 05.09.1989 as per resolution dated 26.09.1989 issued by the School & Mass Education Department. The Govt. in Education and Youth Services Department had issued a resolution dated 23.07.1983 deciding principles for selection of Head Pandits for non- Govt. Primary Schools and institution of educational district wise cadre for primary school teachers and allowing revised scale of pay. Clause-7 of the said resolution prescribes that in case any Asst. Teacher/ Head Pandit of a particular district cadre is transferred to another district in his own request, he will be assigned the junior most place in the respective cadre. This stipulation was only meant for Asst. Teacher and Head Pandits of an education district only those who were recruited and appointed by the concerned D.I. of Schools.
2.1. The appointment of the petitioner was made by the circle level selection committee constituted by the Circle Inspector of Schools. The Government in G.A. Department come up with a resolution dated 26.08.1993 Page 3 of 18 on the subject, inter district transfer of class-III and Class-IV employees (other than junior clerk). This resolution clearly indicates that the employee shall, upon such transfer, forfeit his/her seniority for his/her past service and shall in the gradation list of the cadre (to which transfer is sought) in relation to the year in which he/ she interfered rank below the junior most employee of the district to which he/ she is transferred. But the petitioner claims that his seniority should be fixed on the basis of his initial date of joining, i.e., 07.04.1980 and all consequential benefits should be extended in Khurda Circle. The same having been denied by the authorities and such denial having been confirmed by the Tribunal, the petitioner has approached this Court in the present writ petition.
3. Mr. A. Swain, learned counsel for the petitioner vehemently contended that since the appointment of the petitioner was made by the circle level selection committee, even if he had filed the representation and requested for inter district transfer, the inter se seniority should have been retained taking Page 4 of 18 into consideration his date of joining, i.e., 07.04.1980. It is further contended that by issuing executive instructions, the seniority of the petitioner cannot be annulled and, therefore, the finding arrived at by the Tribunal cannot be sustained and, the same is liable to be quashed.
4. Mr. Biplab Mohanty, learned Addl.
Government Advocate vehemently contended that once the petitioner had made a request for inter district transfer by filing a representation on compassionate ground, the same having been accepted and implemented, the claim of the petitioner to retain his seniority in the new district, in view of his past service, cannot be sustained and, as such, the Tribunal is well justified in rejecting the claim of the petitioner and accordingly contended that the writ petition should be dismissed.
5. This Court heard Mr. A. Swain, learned counsel appearing for the petitioner and Mr. Biplab Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode and Page 5 of 18 perused the records. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
6. In view of the factual matrix and rival contentions raised by the learned counsel for the parties, the short question that falls for determination of this Court is, whether the petitioner can retain his seniority, even if he was transferred on his request from Boudh- Kandhamal Circle to Khurda Circle, and can get all the benefits as claimed in the Original Application.
7. On careful perusal of the materials available on record, it is evident that seniority of the petitioner was placed at sl. no. 1359 just above the name of the opposite party no.6, whose name was found place at sl. no. 1360 of the gradation list prepared by the State- opposite parties in the year 2006 and such gradation list has also been acted upon by allowing promotion to level- II post from level-III post from the year 2008 to 2013 which was never challenged by the juniors of the petitioner in any forum. The petitioner retained his Page 6 of 18 seniority from the date of his joining in service, i.e., from 07.04.1980, without any interruption, up to 2013. While the gradation list stood intact for several years, the same was recast on 01.09.2013 downgrading the seniority of the petitioner, in comparison to his immediate junior, i.e., opposite party no.6. In the new gradation list of 2013, the position of opposite party no.6 has been shown at sl.no.68 whereas the position of the petitioner in the same gradation list finds place at sl. no. 1249. According to the petitioner, such action of the State opposite parties is unjust and bad in law. The case of the petitioner is that, once seniority had been fixed and remains in existence for a reasonable period, any change to the same should not be entertained. Moreover, promotion has also been extended basing on gradation list and such promotions have also not been challenged.
8. But fact remains, initially the petitioner was appointed as Headmaster and joined as such in Level-III on 07.04.1980. He became government servant w.e.f. 05.09.1989 vide resolution dated 16.09.1989. He was transferred to act as S.I. of schools under BDO, Boudh, Page 7 of 18 vide order dated 17.07.1991. He joined as S.I. of Schools, Boudh on 27.07.1991. Subsequently, the petitioner joined as Headmaster in Level-III on 22.06.1993 in Khurda education district on his own request on inter district transfer with bottom seniority. In the meantime, the Elementary Cadre Rules, 1997 came into force w.e.f. 12.08.1997. The petitioner and opposite party no.6 both were Level-III teachers under Elementary Cadre Rules, 1997 and they were encadered in the list in 2006, which was published in 2008. The Director Elementary Education Odisha, Bhubaneswar in his letter dated 14.02.2013 instructed to all District Inspector of Schools for publication of gradation list of Level-III teachers as per Rule 15 (1) (a) of Odisha Elementary Education Rules, 1997 and Amendment Rules, 2009 on the basis of seniority. As the petitioner came to Khurda education district from Kandhamal education district on his own request with bottom seniority, the prayer for correction/ modification of gradation list and his placement above opposite party no.6 does not arise.
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9. On the basis of the request made by the petitioner, by way of filing a representation, when he was transferred from Kandhamal education district to Khurda education district on 22.06.1993 with bottom seniority, and having accepted the same he had joined at his new place of posting on the basis of bottom seniority principle, now he is estopped from claiming the benefit of fixation of seniority over and above the opposite party no.6 and other consequential benefits.
10. Section-115 of the Indian Evidence Act, 1872 deals with Estoppel, which reads as follows:-
"115. Estoppel:- When one person has, by this declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
To bring the case within the scope of estoppel as defined in Section 115 of the Evidence Act;
1. There must be a representation by a person or his authorized agent to another in any form, a declaration, act or omission;
2. The representation must have been of the existence of a fact and not of promises be future or intention which might or might not be enforceable in contract;
3. The representation must have been meant to be relied upon;
4. There must have been belief on the part of the other party in its truth;
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5. There must have been action on the faith of that declaration, act or omission that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to this prejudice or detriment;
6. The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice;
7. The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel;
8. Only the person to whom representation was made or for whom it was designed can avail himself of it."
11. In Black's Law Dictionary, 7th Edn. At page 570 'estoppel' has been defined to mean a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.
12. The Law Dictionary expresses promissory estoppel to the following effect:-
"A promise by which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promise, and which does induct such action or forebearance. Such a promise is binding if injustice can be avoided only by enforcement of the promise."
13. In Halsbury's Laws of England, Fourth Edition, Vol.16 in Para-1514 at page 1017, the Page 10 of 18 "promissory estoppel" has been defined to the following effect:-
"Promissory estoppel: When one party has, by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced."
14. In Central London Property Trust Ltd. v. High Treas House Ltd., (1956) 1 All ER 256, it has been held that a promise is intended to be binding, intended to be acted upon, and in fact acted upon is binding.
15. In Century Spg. And Mfg. Co. Ltd v.
Ulhasnagar Municipal Council, (1970) 1 SCC 582, it has been held that there is no distinction between a private individual and a public body so far as the doctrine of promissory estoppel is concerned.
16. In Gujurat State Financial Corporation v. Lotus Hotels, (1983) 3 SCC 379, it has been held that the principle of "promissory estoppel" would estop a Page 11 of 18 person from backing out of its obligation arising from a solemn promise made by it to the respondent.
17. In Ashok Kumar Maheswari v. State of U.P., 1988 SCC LSS 592, it has been held that doctrine of "promissory estoppel" has been evolved by the Courts on the principle of equity to avoid injustice.
18. In Sharma Transport v. Govt. of A.P., AIR 2002 SC 322: 2002) 2 SCC 188, it has been held that the Government is equally bound by its promise like a private individual, save where the promise is prohibited by law, or devoid of authority or power of the officer making the promise. The equitable doctrine of promissory estoppel must yield where the equity so requires in the larger public interest.
19. In State of Rajasthan v. J.K. Udaipur Udyog Ltd., (2004) 7 SCC 673, it has been held that the "promissory estoppel" operates on equity and public interest.
20. In A.P. Steel Re-rolling Mill Ltd. v. State of Kerala, (2007) 2 SCC 725, it has been held that where a Page 12 of 18 beneficent scheme is made by the State, the doctrine of "promissory estoppel" would apply.
21. In State of Orissa v. Manglam Timber Products Ltd., (2003) 9 Scale 578, it has been held that to attract applicability of promissory estoppel a contract in writing is not a necessary requirement. This principle is based on premise that no one can take advantage of its own omission or fault.
22. In B.L. Sreedhar v. K.M. Munireddy, (2003) 2 SCC 355 (365) it has been held by the apex Court that 'estoppel' is based on the maxim "allegans contrarir non est audiendus" (a party is not to be heard contrary) and is the spicy of presumption "juries et de jure" (absolute, or conclusive or irrebuttable presumption).
23. In H.R. Basavaraj v. Canara Bank, (2010) 12 SCC 458, it has been clarified that in general words, 'estoppel' is a principle applicable when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his/her position. In such a case, the Page 13 of 18 former shall be stopped from going back on the word given. The principle of estoppels is only applicable in cases where the other party has changed his positions relying upon the representation thereby made.
24. The principle of promissory estoppels has been considered by the apex Court in Union of India v. M/s Anglo, Afghan Agencies etc., AIR1968 SC 718; Chowgule & Company (Hind) Pvt. Ltd. v. Union of India, AIR 1971 SC 2021; M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, AIR 1979 SC 621; Union of India v. Godfrey Philips India Ltd., AIR 1986 SC 806; Delhi Cloth & General Mills Ltd. v. Union of India, AIR 1987SC 2414; and Bharat Singh v. State of Haryana, AIR 1988 SC 2181 and many other subsequent decisions also.
25. In Ambika Prasad Mohanty v. Orissa Engineering College, 1989(1) OLR 440, the Division Bench of this Court has already held that a student admitted after satisfying all qualifications, subsequently his admission is cancelled and he cannot prosecute his studies elsewhere, rule of estoppel is applicable. Page 14 of 18
26. This Court in Dr. (Smt.) Pranaya Ballari Mohanty v. Utkal University, 2014 (I) OLR 226 has come to a finding that the action taken at belated stage by the University after lapse of 20 years of publication of the result is hit by the principle of estoppel.
27. Similar view has also been taken by this Court in Rajanikanta Priyadarshy v. Utkal University, represented through its Registrar, 2015 (I) OLR 212, wherein this Court held that the result of +3 Final Degree (Regular) Examination, 2010 of the petitioner therein having been published and on that basis he has already undergone higher studies and passed in different courses, subsequently his initial result cannot be cancelled on the ground that he has failed in the said examination.
28. Similar principle has been followed by this Court in the case of Bikash Mahalik v State of Odisha, 2021 (III) ILR CTC 720 and M/s. Balasore Alloys Ltd v State of Odisha, 2019 (I) ILR CTC 214, in which one of us (Dr. Justice B.R. Sarangi) was a member.
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29. The reason for forgoing the inter se seniority accepting with bottom seniority on transfer on request is that, the persons, those who had born in the cadre in the respective district, carry their inter se seniority. When the petitioner prayed for transfer from Kandhamal education district to Khurda education district, even if his seniority was fixed in his previous place of posting taking his date of joining as 07.04.1980, but when joins in the new education district, he has to forgo seniority and his seniority has to be fixed in the existing cadre at the bottom, which he has accepted without any protest. Now, after rendering service in the new education district on the bottom seniority principle, the petitioner cannot claim that his seniority should be fixed in Khurda education district taking into consideration his initial date of appointment as 07.04.1980.
30. The apex Court in the case of C.N. Ponnappan (supra) held as follows:-
"4. The service rendered by an employee at the place from where he Was transferred on compassionate grounds is regular service. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result Page 16 of 18 of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred".
31. Abiding by the above principle laid down by the apex Court and also the principle of estoppel, this Court is of the opinion that the petitioner cannot claim fixation of seniority in Khurda education district, taking into consideration his initial date of joining, i.e. 07.04.1980 under Kandhamal education district. On perusal of the record, it is also found that the petitioner has not placed any document indicating his inter-district transfer and the terms and conditions fixed therein.
32. In view of the above, this Court is of the considered view that the impugned order dated 04.05.2016 passed by the Odisha Administrative Tribunal, Principal Bench, Bhuaneswar in O.A. No. 539 of 2014 and O.A. No. 988 of 2013 under Annexure-6 cannot be faulted with warranting interference by this Court.
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33. In the result, the writ petition merits no consideration and the same stands dismissed. But, however, under the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE
Orissa High Court, Cuttack
The 04th April, 2024, Arun
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 08-Apr-2024 11:13:33 Page 18 of 18