Smt. S.Sandhyarani Vs. State of Orissa and Others - Court Judgment

HIGH COURT OF ORISSA: CUTTACK O.J.C No.12847 of 1996 and W.P. (C) No.12660 of 2004 O.J.C. No.12847 of 1996 In the matter of application under Articles 226 & 227 of the Constitution of India. ---------Smt. S. Sandhyarani ………… Petitioner -VersusState of Orissa & others For Petitioner ..……….. Opp. Parties : M/s. Sameer Kumar Das, Mr. R.N. Mishra-2, Mr. S.K. Mishra. For Opp. parties : Addl. Government Advocate, (For Opp.Party Nos. 1 to

3) M/s Sarat Kumar Das, Mr. L.D. Dash & Mr. B.P. Das-2. (For Opposite Party No.4), W.P.(C) No.12660 of 2004 Smt. Manorama Panda ………… Petitioner -VersusState of Orissa & others For Petitioner ..……….. Opp. Parties : M/s. Sharat Kumar Das, Mr. Sidhartha Swain, Mr. N.N. Mohapatra. For Opp. parties : Addl. Government Advocate, (For Opp.Party Nos. 1 &

2) 2 M/s Raj Kishore Nayak, Mr. P.C. Jena, Mr.S.P. Dash, Mr.A.K.Panda (For Opposite Party No.3), M/s. Sameer Kumar Das, Mr. R.N. Mishra-2, Mr. S.K. Mishra. (For Opposite Party No.4) P R E S E N T: THE HON’BLE MR. JUSTICE B.P. DAS AND THE HON’BLE MR. JUSTICE B.K.MISRA ---------------------------------------------------------------------------------------Date of Judgment:

17. 04.2012 ---------------------------------------------------------------------------------------B.K.MISRA, J Both these writ petitions are being disposed of by this common judgment as they relate to the same facts as well as almost identical cause of action in the matter of appointment to the direct payment post of Demonstrator which fell vacant consequent upon the promotion of Sri R.K. Panda, as Lecturer, Pisciculture, Ganjam College, Ganjam.

2. by The writ petition No.12847 of 1996 has been filed Smt.S.Sandhyarani praying therein for quashing the appointment of opposite party No.4 under Annexure-4 to the direct payment post of Demonstrator in the Department of Zoology with a further prayer to direct opposite party No.2 to appoint the petitioner in the post of Demonstrator in the Department of Zoology along with other consequential service benefits”

3. The case of the petitioner in O.J.C. No.12847 of 1996 is that she was appointed as Demonstrator in the Department of Zoology of Ganjam College, Ganjam in the year 1989 (vide appointment letter under Annexure-1) and she joined the post of Demonstrator (Management Payment) on 19.8.1989. That post of the petitioner received approval of the Director, Higher Education, Orissa, Bhubaneswar (Opposite Party No.2) vide Office Order at Annexure-2. Subsequent to the appointment of the petitioner, Opposite Party No.4 was appointed in the same year 1989 as Demonstrator (Management Payment) in the Department of Botany. When one direct payment post fell vacant in the college, the petitioner and opposite party No.4 represented to the Principal to adjust them in that post. The Principal, namely, Opposite Party No.3 vide his letter at Annexure-3 solicited instructions from Opposite Party No.2 with regard to adjustment of Demonstrator in the first direct payment post in the Department of Zoology. The Director, Higher Education, Orissa, Bhubaneswar (Opposite Party No.2) intimated the Principal, Ganjam College, Ganjam that Smt. Manorama Panda (Opposite Party No.4), who was working as Demonstrator in the Department of Botany should be appointed against the direct payment post of Zoology and accordingly the order was issued in favour of opposite party No.4 under Annexure-4. Being aggrieved by the said adjustment of opposite party No.4 in the direct 4 payment post of Demonstrator in the Department of Zoology the petitioner raised objection before the concerned authority, but it is alleged that the concerned authority, namely, opposite party No.2 without considering the grievances of the petitioner directed that the petitioner be transferred to the Department of Botany as Demonstrator vide Annexure-5. The petitioner being aggrieved submitted representation to different authorities but when that yielded no result, the present writ petition was filed for the aforementioned prayers.

4. According to the petitioner when she was appointed as Demonstrator in the Department of Zoology she should have been appointed against the direct payment post of Demonstrator which fell vacant consequent upon the promotion of the holder of that post as lecturer in Pisciculture but the authorities by overlooking that and bypassing all norms appointed opposite party No.4 to the direct payment post of Demonstrator in the Department of Zoology though initially she was appointed as Demonstrator in Botany against the Management post. It is also the further case of the petitioner that Zoology and Botany are two separate cadres and the grounds on which the opposite party No.4 was appointed against the direct post of Demonstrator that she was placed in First Division in M.Sc. Examination and the petitioner was placed in Third Division was not to be taken into consideration as she and opposite party No.4 passed B.Sc. 5 Examination with Honours in Zoology and both are placed in Second Division.

5. We may mention here that the opposite party Nos.1 and 2 and the Principal-cum-Secretary, Governing Body, Ganjam College, Ganjam (opposite party No.3) did not file their counter affidavit.

6. Opposite Party No.4-Smt. Manorama Panda filed her counter affidavit wherein it is her case that the Principal-cumSecretary, Ganjam College, Ganjam had requested the Employment Exchange, Chhatrapur to sponsor candidates from C.B.Z. Group for the post of Demonstrator in the Department of Biology (Botany & Zoology) and accordingly the said Employment Exchange sponsored the name of opposite party No.4 along with the name of the petitioner and other suitable candidates having requisites educational qualifications. Around 10 to 20 candidates with C.B.Z. combination appeared in the interview on 10.08.1989 and in that interview she (opposite party No.4) stood first because of the career marking and excellent performance in the interview and accordingly appointment order was issued to her on 11.08.1989 in the existing and immediate regular vacancy of Demonstrator (Management Post) in Botany.

7. It is the specific case of opposite party No.4 that the petitioner was appointed to the post of Demonstrator in the Department of Zoology on 19.8.1989 and that was only a stop-gap 6 arrangement and not a regular appointment. It was specifically mentioned in the appointment order that the petitioner was appointed against a post exclusively meant for S.T. candidate. Thus, when it was a stop-gap ad hoc time bound appointment against a post reserved for a particular category of candidate the same is neither at par with the regular appointment as is given to the opposite party No.4 prior to the appointment of the petitioner not it vests any legal right on the petitioner to claim seniority. It is also the specific case of opposite party No.4 that she having joined the post on 16.08.1989 and the petitioner having joined the post on 19.8.1989, she is definitely senior to the petitioner. According to the case of opposite party No.4 that when direct payment post of Demonstrator, Zoology fell vacant following the promotion of Sri Ramakanta Panda, as Lecturer in Pisciculture, she along with the petitioner made representations for being absorbed in the said post but she (Opposite Party No.4) was adjusted in the said direct payment post of Demonstrator as per the approval of the Director, Higher Education, Orissa, Bhubaneswar as well as by the Governing Body of Ganjam College, Ganjam. Therefore, the petitioner having no semblance of any right to be considered to be adjusted against the direct payment post of Demonstrator and has mischievously filed the writ petition which is to be dismissed.

8. Smt. Manorama Panda has filed the writ petition W.P. (C) No.12660 of 2004 with a prayer for issuance of a writ of 7 certiorari or any other appropriate writ or order quashing the impugned order dated 20.10.2004, Annexure-8 and all other consequential orders as illegal and to pass such other orders as may be deemed fit and proper in the facts and circumstances of the case.

9. It is the case of Smt. Manorama Panda that Ganjam College, Ganjam is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969 (for short the ‘O.E.A.’). The Principal-cum-Secretary of Ganjam College, Ganjam had sent requisition to the Employment Officer, Chhatrapur to sponsor candidates from C.B.Z. Group for the post of Demonstrator in Biology (Botany & Zoology) and accordingly the Employment Officer had sponsored her name, the name of Opposite Party No.4 and other suitable candidates having requisite educational qualifications. Around 10 to 20 candidates with C.B.Z. combination appeared in the interview on 10.8.1989 and she (petitioner-Manorama Panda) stood first and accordingly was issued with an appointment letter on 11.08.1989 (Annexure-1) and she joined the post on 16.8.1989. The petitioner’s appointment as Demonstrator in Botany was against the management payment post created vide Government Order No.369/EYS. Dated 5.1.1987 under Grant-in-Aid principle vide Directorate Order No.1035 dated 5.1.1990. Where as opposite party No.4 was appointed to the post of Demonstrator in the Department of Zoology by the 8 Principal, Ganjam College, Ganjam by way of stop-gap arrangement for a period of six months on 19.8.1989 vide appointment order (Anneuxre-2). Such appointment of opposite party No.4 was approved by the opposite party No.2 on 19.05.1990 vide Annexure-3. It is the specific case of the present petitioner Smt. Manorama Panda that her appointment was a regular appointment whereas the appointment of opposite party No.4 being a stop-gap ad hoc time bound appointment against a post reserved for a particular category of candidate, there is no legal right for opposite party No.4 to claim seniority over the petitioner. Further it is the specific case of the petitioner that Chemistry, Botany and Zoology (C.B.Z.) form one group and similarly Mathematics, Physics and Chemistry (M.P.C.) form another group. A candidate with C.B.Z. Group cannot be appointed as a Demonstrator in Physics. So also a candidate with M.P.C. Group cannot be appointed as a Demonstrator in Botany and Zoology. The petitioner was appointed as Demonstrator, Botany under the Management Payment post which was immediately available in the department of Botany and when Sri Ramakanta Panda, Demonstrator in Zoology in direct payment post Ganjam College, Ganjam was promoted to the post of Lecturer in Pisciculture against the said direct payment post of Demonstrator in Zoology, she along with opposite party No.4 represented to be absorbed in the said post. But the Principal-cum-Secretary of the College 9 solicited instructions in the matter and on receipt of the letter of the Director, Higher Education, Orissa (Annexure-5) and with the approval of the Governing Body of the College, she was adjusted in the direct payment post of Demonstrator in Zoology. The opposite party No.4 was adjusted in the management post of Botany with a clear vacancy having occurred. The opposite party No.4 filed writ petition i.e. O.J.C. No.12847 of 1996 praying to quash the appointment of the petitioner under Annexure-6 with a further prayer to appoint her in the direct payment post of Demonstrator in the Department of Zoology.

10. During pendency of the writ petition, namely, O.J.C. No.12847 of 1996 the State Government on the representation of Opposite Party no.4 instructed the Director, Higher Education, Orissa, namely the opposite party no.2 to revoke its earlier order in adjusting the petitioner against the direct payment post of Demonstrator, Zoology and to abolish the first post of Demonstrator in Zoology and to revert the petitioner to the Management Payment Post of Demonstrator in Botany and allowed the opposite party no.4 to be retained against the Management Post of Demonstrator in Zoology (vide order under Annexure-8). According to the petitioner on a perusal of Annexure-8 it would be evident that after lapse of 13 years without any rhyme and reason and particularly when Writ Petition (O.J.C.No.12847 of 1996) filed by the opposite party no.4 was pending, there was no justification 10 for the Government for revoking the order of adjustment against the direct payment post of Demonstrator in Zoology and more over when order under Annexure-8 was passed behind the back of the petitioner and without affording opportunity to defend her position, the same is illegal, arbitrary and contrary to the provisions of Orissa Education Act and Rules and instructions framed thereunder. It is also the further case of the petitioner that pursuant to Annexure-8 she did not receive any consequential letter from opposite party nos.2 & 3 and accordingly, the writ petition has been filed for quashing the impugned order at Annexure-8 and all other consequential orders.

11. The opposite party no.4 in her counter affidavit has reiterated her stand which she has taken in filing the Writ Petition i.e. O.J.C.No.12847 of 1996. Besides that it is also her case in this writ petition that the impugned order at Annexure-8 should not be interfered with and it cannot be said to be an illegal order in view of the facts and circumstances of the case and besides that there was no interim order in O.J.C.No.12847 of 1996 prohibiting the Government in reviewing the matter and passing appropriate direction or order. It is also the case of the opposite party no.4 that the writ petition is premature in nature especially when the petitioner had alternative remedy like representing to the State Government against the order issued under Annexure-8”

12. The opposite party no.1, namely the State in its counter has taken prevaricating stands namely when on one hand it avers that when the petitioner was appointed initially as Demonstrator in Botany, her subsequent adjustment in the post of Demonstrator of Zoology was not proper and when that came to the notice of the State Government, the impugned order dated 20.10.2004 was issued to set things right. But on the same breath it is the stand of the Government that the order issued by the Director, Higher Education under Annexure-5 (in the present writ petition) is just and proper.

13. We have heard the learned counsel appearing for the respective parties at length. We have also examined the entire matter with reference to the pleadings of the respective parties. The undisputed facts reveal that both Smt. Manorama Panda and Smt.S. Sandhyarani faced an interview for appointment to the post of Demonstrator in the department of Biology of Ganjam College, Ganjam along with other candidates as their names were sponsored by the local Employment Exchange, Chhatrapur pursuant to the requisition of the Principal, Ganjam College, Ganjam which was held on 10.18.1989. The petitioner Smt. Manorama Panda in W.P(C) No.12660 of 2004 and Smt.S.Sandhyarani, opposite party no.4 who is also the petitioner in O.J.C.No.12847 of 1996 had requisite educational qualification in C.B.Z. combination for the post of Demonstrator in Biology 12 (Botany and Zoology). In the said interview Smt. Manorama Panda stood first whereas Smt.S. Sandhyarani secured the 3rd position. The appointment letter was issued in favour of Smt. Manorama Panda on 11.8.1989 as Demonstrator in Botany and she joined her post on 16.8.1989 against a regular vacancy whereas opposite party no.4 Smt.S. Sandhyarani was appointed as Demonstrator in Zoology on condition that her appointment is against the post of a Scheduled Tribe candidate as no candidate belonging to that category was available when the interview took place and the said appointment would be valid till the joining of the Scheduled Tribe candidate. The appointment letter issued in favour of Smt. Manorama is at Annexure-1 and the appointment letter issued to Smt.S. Sandhyarani is at Annexure-2. On perusing Annexures-1 & 2 it is seen that both were appointed against the management post. Admittedly, Smt.S.Sandhyarani was issued with the appointment letter (Annexure-2) on 19.8.1989 and she joined the post on the same day. In view of these admitted facts Smt.Manorama Panda appears to be senior to opposite party no.4Smt.S.Sandhyarani as Demonstrator in the Department of Biology on the basis of their joining their respective posts (Demonstrator Management Post).

14. The admitted fact also shows that the regular post i.e. direct payment of post of Demonstrator in Zoology fell vacant consequent upon the promotion of Sri R.K.Panda, who was 13 Demonstrator in the Department of Zoology against the direct payment post as he was promoted to the post of Lecturer as Pisciculture. When such direct payment post of Demonstrator was available both the petitioner as well as the opposite party no.4 applied to be adjusted against the direct payment post of Demonstrator in Zoology. The Principal-cum-Secretary, Ganjam College, Ganjam, namely the opposite party no.3 referred the matter to the Director, Higher Education, Orissa (opposite party no.2) and solicited instructions vide his letter, Annexure-4. The opposite party no.2 in his letter at Annexure-5 clarified that the petitioner Smt. Manorama Panda to be adjusted against the direct payment post of Demonstrator in Zoology as she stood first in the interview and also joined earlier than Smt.S. Sandhyarani. Annexure-5 was placed before the Governing Body of Ganjam College in its meeting held on 25.8.1991 and the Governing Body ratified the same and adjusted Smt. Manorama Panda in the vacancy of the direct payment post of Demonstrator in Zoology caused due to promotion of Sri R.K.Panda as Lecturer, Pisciculture. The opposite party no.2 also approved the adjustment made by opposite party no.3, namely, the Principal-cum-Secretary of the Governing Body by adjusting the petitioner Smt. Manorama Panda in the direct payment post of Demonstrator in Zoology vide Annexure-7”

15. Needless to mention here that the Governing Body of an College is the competent authority to fix inter se seniority, issuance of appointment order to its employees. Such orders are required to be approved by the Director, Higher Education. The adjustment of the petitioner as Demonstrator Zoology in the direct payment post made by the Governing Body with the previous sanction by the Director, Higher Education, Orissa which was also duly ratified/approved by the Governing Body have not been challenged by the opposite party no.4-Smt.S. Sandhyarani as yet and therefore, the same has attained its finality and binding. The principle of acquiescence is applicable to the conduct of Opposite Party No.4 in this case. Besides that the Opposite Party No.4 namely, Smt. S.Sandhyarani despite the fact that her claim of adjustment to the direct payment post of Demonstrator, Zoology was ignored and in that post the petitioner was adjusted but she did not challenge the same but waited till 1996 when she filed the writ petition. In our considered view the Opposite Party No.4 is estopped from questioning the adjustment of the petitioner Smt.Manorama Panda in the direct payment post of Demonstrator, Zoology, Ganjam College which was not only approved by Opposite Party No.2 but also by the Governing Body of the said College.

16. Here it may be mentioned that the Government order vide Annexure-8 revoking the order of adjusting Smt. Manorama Panda, (the petitioner) and posting her in the second post of 15 Demonstrator in Zoology was passed on 20.10.2004 i.e. after long 13 years after the order passed by the Director, Higher Education, Orissa vide Annexure-5 on 22.4.1991. It appears that the order of the Government vide Annexure-8 was perhaps on the allegation of Smt. S.Sandhyarani. But a question arises can such letter of the Government vide Annexure-8 alter the decision of the Governing Body which has obtained the approval of the opposite party No.2 vide Office order No.33388 dated 6.7.1992 and especially when the adjustment of Smt.Manorama Panda has already been acted upon long back. In our considered view the answer is an emphatic not At the cost of repetition we may state that the decision of the Governing Body of Ganjam College, Ganjam as well as order of the Director, Higher Education namely opposite party No.2 (Annexure-7) have not been challenged by Smt. S.Sandhyarani. As per the provisions of the Orissa Education Act, when a promotion is given to a post carrying a higher scale of pay or pay available in the college, the prior approval of the Government is required. But in the instant case both Smt.Manorama Panda, the petitioner and Smt.S.Sandhyarani (O.P.No.4) were appointed as Demonstrator in the management post and continuing as such in the Department of Biology. The post of direct payment Demonstrator in the Department of Zoology having been fallen vacant on the promotion of Sri R.K.Panda to the post of Lecturer, the person continuing in the management post was only adjusted against the said post. In view of this for adjusting the 16 petitioner Smt. Manorama Panda in the direct payment post of Demonstrator in Zoology, the Principal-cum-Secretary of Ganjam College solicited instructions in the matter from opposite party No.2 as Smt. Manorama Panda as well as Smt. S.Sandhyarani both claimed to be adjusted against the direct payment post of Demonstrator in Zoology. But the opposite party No.2 taking into consideration the merit and seniority of Smt. Manorama Panda intimated the Principal-cum-Secretary of Ganjam College, Ganjam to adjust Smt. Manorama Panda against the direct payment post of Demonstrator which had fallen vacant and that also received the approval of the Governing Body of the College. Therefore, the Government namely, opposite party No.1 had no role to play or to pass any order revoking the order passed by the Director, Higher Education namely, opposite party No.2 vide Annexure-7.

17. On consideration of the entire fact situation, we are of the considered view that the order of the Government dated 20.10.2004 (Annexure-8) which was passed after long 13 years of the order of the Director, opposite party No.2 on 6.7.1992 vide Office order No.33388 (Annexure-7) is not sustainable in the eye of law. Accordingly, the order of the Government at Annexure-8 is quashed and Smt. Manorama Panda is entitled to all consequential benefits pursuant to the order of opposite party No.2 vide Annexure-7 to the writ application. 17 In view of the above findings, W.P.(C) No.12660 of 2004 stands allowed and the writ application filed by Smt. S. Sandhyarani bearing O.J.C. No.12847 of 1996 merits no consideration and accordingly, stands dismissed. …………………….. B.K.Misra, J.B.P. Das, J.I agree. ……………………. B.P.Das, J.Orissa High Court, Cuttack The 17th April, 2012/RNS