Swapna Mohanty vs The State of Odisha State of Orissa and Ors. Secretary to Government of Odisha

CIVIL APPEAL No.8425 of 2018 (Arising out of Special Leave Petition (Civil) No.32405 of 2015)

Swapna Mohanty .... Appellant

Versus

The State of Odisha & Ors. ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

The controversy in this case pertains to the

competing claim of the Appellant and Respondent No.4

to the 1st post of Lecturer, English in Indira Gandhi

(Junior) Mahavidyalaya, Nimapara in Odisha. The

decision by the State Education Tribunal, Odisha, in

Signature Not Verified favour of the Appellant was reversed by the High Digitally signed by SANJAY KUMAR Date: 2018.08.21 17:25:47 IST Reason: Court. Hence, the Appeal.

1 | Page (I)

1. The Appellant was appointed as a Lecturer in

English against the 2nd post in the Indira Gandhi

(Junior) Mahavidyalaya, Nimapara (hereinafter referred

to as “the College”). On 24th November, 1991, the

Appellant was elevated to the 1 st post of Lecturer in

English due to the resignation of Chaudhury

Ramakanta Dash. Respondent No.4 was appointed

against the 2nd post which was held by the Appellant

prior to her being appointed to the 1 st post of Lecturer.

The services of the Appellant were terminated on 29 th

July, 2001 by the Special Officer of the College.

Thereafter, Respondent No.4 was appointed to the 1 st

post of Lecturer in English on 14th October, 2001. On

3rd August, 2002, the Appellant filed an appeal

challenging the order of termination of her service.

The College was admitted to grant-in-aid w.e.f. 1st

January, 2004. By a letter dated 7 th July, 2005,

the Appellant requested the Director, Higher Education

to expedite the hearing of her Appeal dated 3 rd

August, 2002. The Director, Higher Education vide

2 | Page order dated 21st February, 2006 allowed the appeal

and set aside the order dated 29 th July, 2001 by which

the Appellant’s services were terminated. The

Appellant was reinstated as Lecturer in English in the

1st post on 28th February, 2006.

2. The Appellant approached the State Education

Tribunal, Odisha by filing GIA Case No.120 of 2006

under Section 24-B of the Odisha Education Act, 1969

seeking a direction to the Government of Odisha and

the Director, Higher Education to approve her

appointment against the 1st post of Lecturer in

English in the College and to release grant-in-aid w.e.f.

1st January, 2004. The State Education Tribunal by its

judgment dated 3rd December, 2008 allowed GIA Case

No.120 of 2006 by granting the relief prayed for.

Aggrieved by the non-implementation of the directions

issued by the State Education Tribunal, the Appellant

filed a Writ Petition in the High Court of Odisha which

was allowed by a judgment dated 25th November,

2009. The State Government was directed to

implement the judgment of the State Education

3 | Page Tribunal in GIA Case No. 120 of 2006 within a period of

six months.

3. Respondent No.4 filed GIA Case No. 36 of 2010 in

the State Education Tribunal seeking approval of his

appointment in the 1st post of Lecturer in English in the

College. During the pendency of the said appeal, the

State Government approved the appointment of the

Appellant in the 1st post of Lecturer in English by an

order dated 13th January, 2011 and released the

grant-in-aid in favour of the Appellant. It is relevant to

note that the appeal filed by the State Government

against the order dated 3rd December, 2008 of the

State Education Tribunal was rejected by the High

Court. The Tribunal dismissed GIA Case No. 36 of 2010

filed by Respondent No.4. Respondent No.4

challenged the judgment of the State Education

Tribunal in the High Court. The High Court allowed the

appeal filed by Respondent No.4. Respondent No.4

was declared to be entitled to receive the grant-in-aid

against the 1st post of Lecturer in English.

( II )

4 | Page

4. While dismissing the GIA Case No.36 of 2010 filed

by Respondent No.4, the State Education Tribunal held

that the Appellant is admittedly senior to Respondent

No.4. It was further held that the Appellant

was entitled for release of grant-in-aid in respect of the

1st post of Lecturer in English as a natural consequence

of the order of termination of her services being set

aside. The High Court reversed the order passed by

the State Education Tribunal on the ground that the

order passed in favour of the Appellant by the State

Education Tribunal on 3rd December, 2008 was in

violation of principles of natural justice and thus, void.

The High Court held that Respondent No.4 ought to

have been impleaded by the Appellant in the case filed

by her before the Tribunal. Another ground which

found favour with the High Court is that the Director,

Higher Education had no jurisdiction to decide the

appeal filed by the Appellant against the order of

termination of her service.

( III )

5. The High Court proceeded on the basis that the

appeal preferred by the Appellant to the Director, 5 | Page Higher Education was filed on 7 th July, 2005. The High

Court found fault with the Appellant for filing an appeal

after a delay of four years from the date of the order of

termination of her service on 29 th July, 2001. As the

College was admitted to grant-in-aid on 20 th February,

2004, the High Court held that Director, Higher

Education did not have jurisdiction to entertain the

appeal.

6. The counsel for the Appellant referred to the

letter dated 7th July, 2005 addressed to the Director,

Higher Education which was only a reminder with a

request to dispose of the appeal that was filed earlier

on 3rd August, 2002. To satisfy ourselves about the

correctness of the claim of the Appellant, we directed

the counsel appearing for the State of Odisha to

produce the records pertaining to the Appeal. Mr. Sibo

Sankar Mishra, learned counsel for the State of Odisha

informed us that the Appeal dated 3 rd August,

2002 is missing from the records. He submitted that

the letter dated 7th July, 2005 is available which would

indicate that an Appeal was indeed filed on 3 rd August,

6 | Page 2002. If the High Court was aware of the Appeal being

filed on 3rd August, 2002, it would not have

concluded that there was a delay of four years in filing

the Appeal and that the Director, Higher Education did

not have jurisdiction to entertain the Appeal. The

College was admitted to grant-in-aid on 20 th February,

2004 w.e.f. 1st January, 2004 and undisputedly, the

Director, Higher Education was the competent

authority to entertain appeals till then. The State

Education Tribunal gets jurisdiction to decide the

appeals in respect of colleges only from the date on

which they are admitted to grant-in-aid. The High

Court concluded that the Director, Higher Education

did not have jurisdiction to entertain the Appeal which

was filed on 7th July, 2005 i.e. after the College was

admitted to grant-in-aid which is factually incorrect.

The Appeal was filed on 3rd August, 2002 itself when

the Director, Higher Education was competent to

entertain the Appeal. We have also examined the

point pertaining to the competence of the Director,

Higher Education to hear the Appeal after the College

7 | Page was admitted to grant-in-aid. In other words, even if

the Appeal could be entertained by the Director,

Higher Education when it was filed on 3rd August, 2002,

the point to be examined is whether the Director,

Higher Education could have decided the Appeal after

the College was admitted to grant-in-aid. The Appeal

was allowed by the Director, Higher Education on 21 st

February, 2006 which was, admittedly, after the

College came into the fold of grant-in-aid. We are of

the opinion that the Director, Higher Education

continued to have jurisdiction to decide the Appeal

that was filed before him prior to the admission of the

College to grant-in-aid as there is no provision in the

Odisha Education Act providing for a change-over of

proceedings to the Tribunal. In a similar fact situation,

this Court in Commissioner of Income Tax, Orissa

v. Dhadi Sahu1 held as follows:

“18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are

1 1994 Supp (1) SCC 257

8 | Page pending to the court or the tribunal which under the new law gets jurisdiction to try them.”

( IV )

7. The other point which was found in favour of

Respondent No.4 by the High Court is that there is

violation of principles of natural justice which resulted

in the order dated 3rd December, 2008 in GIA Case No.

120 of 2006 being void. This is for the reason that the

Appellant did not implead Respondent No.4 in the said

case. The subject matter of GIA Case No.120 of 2006

filed by the Appellant was approval of her appointment

against the 1st post of Lecturer in English in the

College. There is no doubt about the order of

termination of the services of the Appellant being set

aside. The said order became final when the Appeal

filed by the Government was rejected by the High

Court. There is no dispute that the Appellant was

holding the 1st post of Lecturer in English in the College

on the date of termination of her services. It was only

after the termination of the services of the Appellant,

Respondent No.4 was appointed to the 1 st post of

9 | Page Lecturer in English in the resultant vacancy. The

natural consequence of the order of termination being

set aside is that the Appellant has to be appointed to

the 1st post of Lecturer in English in the College. There

is no doubt that only one post of Lecturer in English

out of the two occupied by the Appellant and

Respondent No.4 is admitted to grant-in-aid. The

request of the Appellant was consequential to the

order dated 21st February, 2006 by which she was

directed to be reinstated in the 1 st post of Lecturer in

English. Respondent No.4 is not a necessary party

either to proceedings pertaining to the termination of

services of the Appellant or the consequential

proceedings arising therefrom. A person whose

presence before a forum may be necessary in order to

enable it effectually and completely to adjudicate upon

and settle all the questions involved in the dispute is a

necessary party. A necessary party is one without

whom no order can be made effectively. A proper

party is one in whose absence an effective order can

be made, but whose presence is necessary for

10 | P a g e complete and final decision on the question involved in

the proceedings. [See:- Udit Narain Singh

Malpaharia v. Additional Member Board of

Revenue, Bihar & Anr.2]

8. As GIA Case No. 120 of 2006 emanates from a

dispute pertaining to the termination of services of the

Appellant and the only dispute before the Tribunal

being the grant of consequential benefits, we are of

the considered opinion that Respondent No.4 was not a

necessary party. We are aware of the fact that as a

consequence of appointment of the Appellant in the 1 st

post of Lecturer in English, Respondent No.4 has to be

relegated back to his original post i.e. 2nd post of

English. But, as stated earlier, that is a natural

consequence of the order of termination of the

services of the Appellant being set aside.

9. The counsel appearing for Respondent No.4 has

submitted that there was delay of more than a year in

the filing of an Appeal against the order of termination

dated 3rd August, 2002 and there was no application

filed for condoning the said delay. He further

2 AIR 1963 SC 786

11 | P a g e contended that both the Appellant and Respondent

No.4 did not have requisite qualifications to hold the

post of Lecturer in English in the College at the time of

their initial appointment. Respondent No.4 acquired

the necessary qualifications prior to the Appellant and

so, he should be treated as senior to the Appellant

which would entitle him to be appointed in the 1 st post

of Lecturer in English. It is not necessary for us to

adjudicate on the points which were not raised and

considered by either the Tribunal or the High Court.

The High Court is not right in finding the Appellant to

have played fraud on the Court by filing an Appeal

before the Director, Higher Education who did not have

jurisdiction or by not impleading Respondent No.4 as a

party before the Tribunal.

10. For the aforementioned reasons, the judgment of

the High Court is set aside and the Appeal is allowed.

.....................................J. [S.A. BOBDE]

.....................................J. [L. NAGESWARA RAO]

New Delhi, August 21, 2018.

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