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2014 DIGILAW 508 (ORI)

BAISHNAB CH. DASH v. STATE OF ORISSA

2014-08-19

RAGHUBIR DASH

body2014
JUDGMENT : Raghubir Dash, J. - Both the appeals are in challenge of order dated 30.11.2011 passed by the learned State Education Tribunal, Orissa in G.I.A. Case No. 18 of 2010. Petitioners before the Tribunal are the appellants and O.P. Nos. 1 to 8 are the respondent Nos. 1 to 8, respectively, in F.A.O. No. 65 of 2012. O.P. No. 6 in the G.I.A. Case is the appellant in F.A.O. No. 155 of 2012. To avoid possible confusion, the parties hereinafter will be described in accordance with their respective nomenclature in the cause title of the G.I.A. Case. 2. The petitioners moved the Tribunal under Section 24-B of the Orissa Education Act, 1969 (for short, the Act) to quash the recommendation made by the A.D.M., Cuttack vide his letter dated 7.11.2009, with further prayer for according approval to the petitioner's appointment and for release of Grant-in-Aid (G.I.A.) in their favour against the respective post they hold in Harekrushna Mahatab Adarsha Sanskrit Mahavidyalaya, Chandni Chowk, Cuttack. The petitioners claim that they are teaching and non-teaching staff of the said educational institution. 3. The substance of the case as advanced by the petitioners is that after the Institution became eligible to receive minimum G.I.A. with effect from 1.6.1990 the then Governing Body of the institution made recommendation vide Annexure-5 for approval of the appointment of the petitioners and for release of G.I.A. in their favour. The Director, Secondary Education, Orissa (O.P. No. 2) after necessary verification made recommendation to the Department of School and Mass Education, Government of Orissa for approval of the appointment of the petitioners as well as for release of G.I.A. In the meanwhile some disputes relating to constitution of the Governing Body came to surface. Pursuant to order passed by this Court in O.J.C. No, 6542 of 1997, the Director instructed the Superintendent of Sanskrit Studies to remain in-charge of the Management of the Institution till a new Governing Body, was constituted. While continuing as such, the Superintendent of Sanskrit Studies after necessary examination of records passed order dated 15.4.1999 allowing the petitioners to resume their duties and disallowing some outsiders including O.P. Nos. 6 to 8 to work in the Institution. In the meanwhile an advertisement was issued for submission of individual claim by the teaching and non-teaching staff of Sanskrit Colleges in the State. 6 to 8 to work in the Institution. In the meanwhile an advertisement was issued for submission of individual claim by the teaching and non-teaching staff of Sanskrit Colleges in the State. Accordingly, the petitioners submitted their individual claim to the Department of Higher Education. While their claim was pending consideration, the petitioners came to know that as per the decisions of the State Government the Additional District Magistrates of respective districts were required to obtain individual claim applications from teaching and non-teaching staff of different educational institutions within their respective jurisdiction and to forward the same to the Regional Director of Education, Bhubaneswar. In response thereto, the A.D.M., Cuttack in the capacity of the President of the Governing Body of the educational institution in question recommended names of O.P. Nos. 4 to 8 who are never the staff of the institution. The petitioners further assert that in view of the order passed in OJC No. 6542 of 1997, the A.D.M. had no authority to claim to be the President of the Governing Body and as such he could not have recommended names of the persons who are never the staff of the Institution. Thus, being aggrieved by such recommendation, the petitioners filed the G.I.A. Case before the learned Tribunal. 4. Learned Tribunal after hearing the parties, passed the impugned judgment giving direction to O.P. Nos. 1 and 2 to examine the claim and counter claim of the petitioners as well as O.P. Nos. 4 to 8 and to dispose of the same in accordance with law within a period of three months after giving the parties opportunity of personal hearing in the matter. 5. The petitioners who are the appellants in F.A.O. No. 65 of 2012 challenge the impugned order contending that under the Act the Tribunal is required to adjudicate all disputes relating to G.I.A. and it has no power to remand the matter to be adjudicated by the State. In this F.A.O., O.P. Nos, 4 to 5 have filed separate counter contending that the impugned judgment is legal, valid and in accordance with law. 6. O.P. No. 6 who is the appellant in F.A.O. No. 155 of 2012 takes the stand that the inter se dispute between him and petitioner No. 1 has already been decided by the Division Bench of this Court in O.J.C. No. 10088 of 1999. 6. O.P. No. 6 who is the appellant in F.A.O. No. 155 of 2012 takes the stand that the inter se dispute between him and petitioner No. 1 has already been decided by the Division Bench of this Court in O.J.C. No. 10088 of 1999. He further claims that he has already received block grant as per G.I.A. Order, 2009 and that by the order of this Court his right has already been decided for all time to come which is not liable to be reopened. So, he claims that his matter should not have been remitted by the Tribunal to the State Government for final decision on his entitlement to get G.I.A. 7. Challenging the impugned judgment on the ground that the learned Tribunal has no power to remand the matter to the authorities concerned for consideration of the rival claims, learned counsel for the petitioners have relied on the decisions in Prafulla Kumar Sahoo v. State of Orissa;, 2009 (II) OLR 709 and State of West Bengal v. Subhas Kumar Chatterjee;, AIR 2010 SC 2927 : Both the cases are in connection with matters arising out of Administrative Tribunals Act. It is claimed that both the decisions are on provisions contained in the Administrative Tribunals Act which are pari materia with the provisions in the Orissa Education Act. That apart, a common judgment passed in F.A.O. Nos. 313 and 314 of 2011 and the judgment in F.A.O. No. 351 of 2012 of this Court are also cited which relate to matters arising out of the Orissa Education Act. In these judgments it is held that the Tribunal is bound to adjudicate the matter before it and it cannot delegate its jurisdiction to extra statutory authority which it is not expressly authorized to do. Therefore, it is submitted, the order of remand passed by the learned Tribunal in the present case is liable to be set aside and the matter may be remanded to the Tribunal for adjudication of the dispute. The applicability of the ratio as laid down in the aforecited cases to matters which are adjudicable by the Tribunal is not disputed by the learned counsels for the O.Ps. The applicability of the ratio as laid down in the aforecited cases to matters which are adjudicable by the Tribunal is not disputed by the learned counsels for the O.Ps. However, it is argued that the ratio in these cases is not applicable to the case in hand inasmuch as the learned Tribunal has nothing to adjudicate in the matter that has been taken before it by the petitioners. It is submitted that the petitioners have not challenged any order pertaining to any matter which comes within the jurisdiction of the Tribunal and what they have challenged is a mere recommendation made by the A.D.M., Cuttack on which an order is yet to be passed by the competent authority of the State Government after verifying the rival claims of the petitioners and O.P. Nos. 4 to 8. 8. This submission made by the learned counsel for the O.P.S. appears to be quite forceful. Admittedly, the petitioners have moved the learned Tribunal to quash the recommendation made by the A.D.M., Cuttack in favour of O.P. Nos. 4 to 8. The petitioners claim that their names have also been recommended by the Superintendent of Sanskrit Studies who is in-charge of the management of the College. It appears, that recommendation is also pending for consideration. It is not claimed that either the Director of Higher Education or any competent authority of the State Government has passed any order on such recommendation. The petitioners, however, apprehend that if on the basis of the recommendation of the A.D.M., Cuttack, G.I.A. is released in favour of O.P. Nos. 4 to 8 the former would suffer irreparable injury and the direction of this Court passed in OJC No. 6542 of 1997 would be rendered nugatory leading to serious consequences. In my considered view, merely on the basis of such apprehension it cannot be said that there is accrual of any cause of action to take the matter to the learned Tribunal. As per Section 24-B of the Act, any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressal of his grievance. It is rightly submitted by the learned counsels for the O.Ps. As per Section 24-B of the Act, any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressal of his grievance. It is rightly submitted by the learned counsels for the O.Ps. that a mere recommendation is not an order and therefore, even though the petitioners are likely to be affected by such recommendation, they cannot take the matter to the Tribunal for adjudication unless and until a decision is taken by the concerned authorities on the rival claims of the petitioners and O.P. Nos. 4 to 8 and, thereafter, any order is passed on the recommendations. 9. Vide the impugned order the learned Tribunal has directed the Respondent Nos. 1 and 2 to examine the rival claims of the petitioners and O.P. Nos. 4 to 8. The Tribunal has observed that G.I.A. has not yet been released in favour of any of the parties. It has further observed that before release of G.I.A. it is obligatory on the part of the authorities to examine the entitlement of the rival claimants. Unless any order is passed on such recommendation, the concerned teaching and non-teaching employees of the educational institution cannot move an application before the Tribunal for redressal of their grievance, if any, over a mere recommendation. Therefore, the learned Tribunal has rightly not entered into the merit of the rival claims. Since the impugned order is not on the merit of the case, this Court is also not in a position to enter into its merit. 10. Sub-section (3) of Section 24-B of the Act provides that on receipt of an application the Tribunal shall, if satisfied after such enquiry, as it may deem necessary, that the application is fit for adjudication, admit such application, but if it is not so satisfied, it may summarily reject the application after recording its reasons. The Act does not make any provision giving any discretionary power to the Tribunal to give direction to the State Government or an officer or authority of the State Government to examine the claim and counter claim of the contesting parties and to dispose of the same within a stipulated period. The Act does not make any provision giving any discretionary power to the Tribunal to give direction to the State Government or an officer or authority of the State Government to examine the claim and counter claim of the contesting parties and to dispose of the same within a stipulated period. The Impugned order reflects that the learned Tribunal, after taking into consideration the contentions of the contesting parties, has recorded its finding that the G.I.A. is yet to be released in favour of any of the staff of the Institution and the concerned authorities are yet to pass any order on the recommendations for release of G.I.A. Therefore, it did not prefer to enter into the merit of the case. Thus, the Tribunal is deemed to have recorded its reason as to why it is not a fit case for adjudication. Under such circumstance, the learned Tribunal ought to have passed order under Sub-section (3) of Section 24-B of the Act. For the self-same reason this Court does not find it to be necessary to remand the matter to the Tribunal. 11. In the result, the impugned order is set aside and the application made by the petitioners before the learned Tribunal is summarily rejected. Both the appeals are disposed of accordingly. Final Result : Disposed off