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2014 DIGILAW 642 (ORI)

Smita Rout v. State of Orissa

2014-09-26

B.R.SARANGI

body2014
Judgment Dr. B.R.Sarangi, J. The applicant in GIA Case No. 354 of 2011 in State Education Tribunal, Orissa has filed this appeal impugning the judgment dated 17.3.2012 (Annexure-17) passed by the Presiding Officer, State Education Tribunal in the said G.I.A Case upholding the order passed by the Director, Higher Education, Odisha (opposite party no.2) declaring respondent no.4 senior to the appellant and directing to approve her post entitling her to get Block Grant against the post of Demonstrator in Psychology in Bhadrak Women’s College, Bhadrak. 2. The short facts of the case in hand are that the appellant was appointed as Demonstrator in Psychology in Bhadrak Women’s College, Bhadrak on 4.10.1991, pursuant to which she joined the post on 28.10.1991. By the time she joined, respondent no.4 had neither been appointed nor promoted from any other post to the post of Demonstrator in Psychology of the college. Subsequently by forging college records, respondent no.4 was shown to have been promoted to the post of Library Assistant (Demonstrator in Psychology) vide office order No. 87 dated 9.8.1990 (Annexure-4) by the Principal of the college. On the basis of the said office order No. 87 dated 9.8.1990, respondent no.4 claimed to have been appointment in the post of Demonstrator in Psychology of the college vide Annexure-5. The appellant raised objection before the college authorities with regard to such manipulation/ forging of records, but no action was taken on that. The Principal again manipulated the records and sent proposal in favour of respondent no.4 to the Director (opposite party no.2) for approval of appointment of opposite party no.4 and release of grant-in-aid for the post of Demonstrator in Psychology stated to be held by her. The same was objected to by the appellant before the Director. The further case of the appellant was that the very entry of respondent no.4 into the college by way of appointment as Library Assistant, subsequently promoted as Laboratory Assistant (Demonstrator) in Psychology Department was also in clear violation of the service rules followed in such colleges. The same was objected to by the appellant before the Director. The further case of the appellant was that the very entry of respondent no.4 into the college by way of appointment as Library Assistant, subsequently promoted as Laboratory Assistant (Demonstrator) in Psychology Department was also in clear violation of the service rules followed in such colleges. Without considering the same, the learned Tribunal passed the judgment holding that in absence of any statutory rules or administrative instruction for fixation of inter se seniority of aided educational institutions, discretion lay with the appointing authority to determine the inter se seniority and since one post of Demonstrator in Psychology was admissible for the +2 Wing of the College, respondent no.4 being senior to the appellant, her service was rightly approved entitling her to receive the Block Grant. 3. Mr. S.K. Das, learned counsel for the appellant challenges the order of the learned Tribunal mainly on two grounds; (i) the learned Presiding Officer of the Tribunal has passed the impugned judgment, Annexure-17, without considering the materials available on record; and (ii) when respondent no.4 had been appointed by a forged promotion order and was declared as senior to the appellant, the direction for release of Block Grant for the post illegally held by her was an out-come of sheer non-application of mind. With such contention, he urges to quash the order of the learned Tribunal. To substantiate his contention, he has relied upon the decisions of this Court in the cases of Batakrushna Adhikari v. State of Orissa and others, 106(2008) CLT 212; Meghmala and others v. G.Narasimha Reddy and others, (2010) 8 SCC 383 ; Surendra Kumar Dalmia v. Suryaa Sponge Iron Ltd. and others, (2011) Supp.II OLR 932 and an un-reported decision of this Court in the case of Sri Durlava Chandra Nayak v. State of Orissa and others, OJC No.10088 of 1999 disposed of on 19.2.2003. 4. Mr.S.Jena, learned counsel for respondent no.4 strenuously refuted the contentions of the learned counsel for the appellant and stated that due to delay and laches, the appellant is not entitled to get any benefit and submitted that respondent no.4 had been appointed directly in the post of Demonstrator in Psychology and it was not her case that she was promoted to the said post. Therefore, only the Governing Body was competent to decide the inter se seniority and rightly has declared her senior to the appellant entitling her to get the Block Grant. To substantiate his contention, he has relied upon the decisions in K.A.Abdul Majeed v. State of Kerala and others, (2001) 6 SCC 292 , Sarat Kumar Misra, v. Managing Committee of Teisipur High School and others, 55(1983) CLT 446. 5. With reference to the aforesaid rival contentions, this Court is required to examine (i) Whether the learned Tribunal was biased against the counsel, who was appearing for the appellant when mala fide was attributed against him while deciding the case against the appellant? and (ii) Whether fraud was played by forging the documents to extend benefits to respondent no.4 entitling her to get the Block Grant? 6. Mr.S.K.Das, learned counsel for the appellant vehemently urged that the learned Presiding Officer of the Education Tribunal was biased against him, as a consequence whereof, without considering the materials available on record, he came to an erroneous finding that respondent no.4 was senior to the appellant directing release of Block Grant in her favour. It is stated that the Presiding Officer ought not to have passed the impugned judgment against the appellant contrary to the materials available, thereby acting mala fide. 7. No material has been produced before this Court to indicate that the Presiding Officer was biased against the counsel appearing before him for the appellant or to draw any presumption that he acted mala fide, more so when mala fide is alleged against the Presiding Officer, he ought to have been impleaded in person as a party to the proceeding itself. 8. The dictionary meaning of “mala fide” is “in bad faith”. In Probodh Sagar v. Punjab State Electricity Board, (2005) 5 SCC 630, the apex Court has held that “mala fide”, is not meaningless jargon. It has proper connotation. Mala fide depends upon its own facts and circumstances. 9. In Inderpreet Singh Kahlon v. State of Punjab, AIR 2006 SC 2571 , the apex Court held that an action taken in undue haste may amount to be “mala fide”. 10. It has proper connotation. Mala fide depends upon its own facts and circumstances. 9. In Inderpreet Singh Kahlon v. State of Punjab, AIR 2006 SC 2571 , the apex Court held that an action taken in undue haste may amount to be “mala fide”. 10. In State of Punjab v. V.K Khanna, AIR 2001 SC 343 , the apex Court held that the expression ‘mala fide’ has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide – actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act. 11. In E.P.Royappa v. State of Tamil Nadu and another, AIR 1974 SC 555 , a Constitution Bench of the apex Court held that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. 12. Applying the above principles enunciated by the apex Court to the present context, it appears that no material is placed before this Court to prove that the Presiding Officer acted mala fide because of his prejudice against the counsel who was appearing for the appellant. In absence of any material available on record and due to non-impletion of the Presiding Officer of the Tribunal in person as a party to this appeal, this Court is not inclined to delve into the question of mala fide of the Presiding Officer in adjudicating the dispute between the appellant and respondent no.4. 13. Learned counsel for the appellant has emphatically urged that there was forgery of the college records at the instance of respondent no.4. A perusal of Annexure-4 reveals that respondent no.4 was shown to have been promoted to the post of Library Assistant (Demonstrator in Psychology) vide office order No. 87 dated 9.8.1990, which reads as follows: “Miss Deepali Das, Library Attendant has been promoted to the post of Library Assistant (Demonstrator) Psychology Department vice Miss Basantlata Barik resigned. A perusal of Annexure-4 reveals that respondent no.4 was shown to have been promoted to the post of Library Assistant (Demonstrator in Psychology) vide office order No. 87 dated 9.8.1990, which reads as follows: “Miss Deepali Das, Library Attendant has been promoted to the post of Library Assistant (Demonstrator) Psychology Department vice Miss Basantlata Barik resigned. She should report herself for duty to her new assignment immediately.” 14. Another office order bearing No. 87 dated 9.8.1990 is also available on record, vide Annexure-5, which respondent no.4 claims to be her appointment order to the post of Demonstrator in Psychology of the college. The same reads as follows: “Miss Deepali Das, D/o Nayan Nandadas been appointed to the post of Library Assistant (Demonstrator) Psychology Department vice Miss. Basantlata Barik resigned. She should report herself for duty to her assignment immediately.” 15. On consideration of the aforementioned contentions, it appears that forgery in the matter is tell tale in view of the fact that there could not be two letters with different contents bearing the same office order number and date. On scrutiny, it appears that one related to appointment order whereas the other an order of promotion. The appellant alleges forgery having been committed. Considering the same, the Director had called for the college records and on verification found inherent defects and illegalities in the so-called appointment/ promotion of respondent no.4 to the post of Demonstrator in Psychology, that too tampering with documents to favour respondent no.4 by practising fraud. On the basis of the information sought under the Right to Information Act from the note-sheet of the Directorate, vide Annexure-11 series at page 48-49 of the brief, no inference can be drawn that the Director caused any enquiry and came to such conclusion and rather there was some nothings of subordinates on which no reliance can be placed to draw a conclusion that respondent no.4 was appointed fraudulently. 16. The learned Tribunal failed to distinguish and define the meaning of the words “appointment” and “promotion” and the finding arrived at by him by using the word „promotion? in place of „appointment? was only a misconception due to ignorance. 16. The learned Tribunal failed to distinguish and define the meaning of the words “appointment” and “promotion” and the finding arrived at by him by using the word „promotion? in place of „appointment? was only a misconception due to ignorance. The learned Tribunal relied upon the document vide Annexure-D/4 to the counter at page 79 of the appeal memo construing to be the gradation list of Demonstrators said to have been prepared by the Council of Higher Secondary Education, Orissa and came to the conclusion that respondent no.4 was senior to the appellant. A perusal of the same shows that the same was also false and manufactured one as it does not bear any seal or signature of any authority. Had it been a document of the Council, at the bottom of the letter, there could not have been a space for signature of the Principal of the college. Neither there is any signature of the authority of the Council nor of the Principal or of any other person. Therefore, such document cannot be construed to be a genuine document. 17. As per the provisions contained in Section 10-C of the Orissa Education Act, 1969 and Rule 3 of the Orissa Aided Educational Institutions (Employees Common Cadre and Inter-Transferability)Rules, 1979, it is the Director, who is competent to prepare and publish the gradation list of staff members of aided institutions. Therefore, the Council of Higher Secondary Education had no authority to prepare the gradation list of Demonstrators. Thus, the reliance placed on such document and the findings arrived at by the learned Tribunal thereon holding respondent no.4 senior to the appellant was vitiated. 18. Rule-7 of the Orissa Education (Recruitment and Condition of Service of the Teachers and Members of Staff of an Aided Educational Institutions), Rules 1974, prescribes that the age and qualification for entry into the service into the aided institution is same as that in Government institutions. The maximum age for entry into the government service is prescribed in Rule 52-A of the Orissa Service Code. As per the Government rule for entry into the government service at the relevant time, the upper age limit was 28 years which is now 32 years. The date of birth of respondent no.4 as recorded in her High School certificate is 17th August, 1952 (Annexure-7 of the appeal memo). As per the Government rule for entry into the government service at the relevant time, the upper age limit was 28 years which is now 32 years. The date of birth of respondent no.4 as recorded in her High School certificate is 17th August, 1952 (Annexure-7 of the appeal memo). Therefore, by 10.07.1989, i.e. date on which respondent no.4 claimed to have been appointed as a Library Attendant, she was 36 years 10 months and 23 days and by the time she was appointed to the post of Demonstrator on 9.8.1990, she was 37 years 11 months and 22 days. In any view of the matter being an unreserved category candidate, respondent no.4 could not have been appointed in the institution in question being of over age. Respondent no.4 relies on a document vide Annexure-B/4 that her over age was condoned by the Governing Body on 1.10.2009. Therefore, if the appointment in favour of respondent no.4 was made on 10.7.1989 as Library Attendant and subsequent appointment as Demonstrator on 9.8.1990, over-age could have been condoned either before her appointment or immediately after such appointment. But that cannot linger for a period of 19 years for the Governing Body to condone her age vide Annexure-B/.4 on 1.10.1999. 19. In Dullava Chandra Nayak case (supra), this Court held that seniority of a person can only be counted from the date of condonation of deficiency not from the date he/ she was appointed. Therefore, even if it is construed that respondent no.4 was appointed as Demonstrator on 9.8.1990, her seniority was to count from the date of condonation of deficiency, meaning thereby it ought to relate back to 1.10.2009 on which date the Governing Body had condoned her over age. If the seniority will be counted from that date, respondent no.4 could not be senior to the appellant under any circumstance. 20. The finding arrived at by the learned Tribunal that there being no statutory rule or administrative instruction for fixation of inter se seniority in aided educational institutions, it was within the discretion of the appointing authority to determine inter se seniority since one post of Demonstrator in Psychology was admissible for the +2 Wing of the college and respondent no.4 being senior to the appellant, her services were rightly approved and she was to receive the Block Grants. 21. 21. It is the admitted case of the both the parties that no Block Grant has been released in favour of either party. Mr.S.Jena, learned counsel for respondent no.4 fairly submitted that the finding of the learned Tribunal to that extent was not correct. Therefore, setting aside the impugned judgment, the matter should be remitted back to the Tribunal for fresh adjudication on the basis of the materials available on record. 22. As it appears from the order-sheets, this Court by order dated 24.4.2012 in Misc. Case No.213 of 2012 passed an interim order directing stay of operation of the impugned judgment dated 17.3.2012 till the next date. Consequently no block grant has been released in favour of respondent no.4, which fact has been admitted by both parties. 23. Mr.S.Jena, learned counsel for respondent no.4 strenuously urged that the objection raised by the appellant after lapse of twenty years of appointment/ promotion of respondent no.4, the same cannot be entertained by this Court at this stage. 24. Considering such contentions and on scrutiny of records, it appears that from the date of entry of opposite party no.4 into service, the appellant having raised objection, the mater was placed before the Director with the noting given in para 48-49 of the brief by his subordinate on which no reliance can be placed at this stage. Therefore, when the matter was placed before the appropriate authority for consideration, the learned Tribunal could not have come to such conclusion holding respondent no.4 senior to the appellant entitling her to receive Block Grant. As such, no delay or laches can be attributed to the appellant in any manner whatsoever. Therefore, the decision in K.A.Abdul Majeed (supra) has no application to the present context to dislodge the claim of the appellant vis-à-vis respondent no.4. 25. On the other hand in the case of Batakrushna Adhikari (supra), this Court considering the judgments of the apex Court has held that an inherent illegality cannot be legalized by subsequent regularization. Applying the said principle to the present context when admittedly, respondent no. 4 was over aged and there was no condonation of her over age during her very entry into service, being void ab initio, cannot be regularized with efflux of time unless such deficiency as to over-age was condoned. Applying the said principle to the present context when admittedly, respondent no. 4 was over aged and there was no condonation of her over age during her very entry into service, being void ab initio, cannot be regularized with efflux of time unless such deficiency as to over-age was condoned. The contention of over-age having been made pursuant to the letter of the Principal of the College vide Annexure-B/4, that cannot be construed to be a valid condonation as there was no resolution of the Governing Body condoning such over-age. Rather on perusal of Annexure-B/4, it appears that only a proposal was made by the Principal in that regard, which was not approved or concurred by a valid Governing Body. 26. The reliance placed on Sarat Kumar Misra (supra) by the learned counsel for respondent no.4 that the Governing Body is only the competent authority to condone the over age, there is no dispute on that score. But fact remains, since there was no valid Governing Body, merely a proposal of the Principal cannot be construed to mean that the age of respondent no.4 had been condoned by the competent Governing Body. In that view of the matter, the declaration of respondent no.4 as senior to the appellant by the learned Tribunal has no legs to stand. 27. As it appears from the preliminary counter affidavit filed on behalf of respondent no.4 in G.I.A.Case No. 354 of 2011 (Annexure-14 to the appeal memo), she had signed the verification describing her age as 59 years and such verification had been done on 3.2.2012. Therefore, by this time, the respondent no.4 has been superannuated from service on attaining the age of 60 years. Since the claim has been made by respondent no.4 on the basis of fraudulent document and in the meantime she has already been superannuated from service, no benefit of block grant can be extended to her. 28. In Meghamala and others (supra), the apex Court has held that a fraud washes away everything and a person practising fraud is not entitled to any relief. Similar view was also taken by this Court in Surendra Kumar Dalmia (supra) 29. Therefore, the finding arrived at by the Tribunal holding respondent no.4 senior to the appellant, her services having been rightly approved and she was entitled for block grant, was completely erroneous. Similar view was also taken by this Court in Surendra Kumar Dalmia (supra) 29. Therefore, the finding arrived at by the Tribunal holding respondent no.4 senior to the appellant, her services having been rightly approved and she was entitled for block grant, was completely erroneous. The Tribunal having committed gross error apparent on the face of the record, the same cannot be sustained. 30. On a conjoint reading of the above mentioned provisions of law read with the materials available on record, this Court comes to the unequivocal conclusion that the learned Tribunal did commit gross error apparent on the face of the records finding respondent no.4 senior to the appellant, her services having been rightly approved and is being entitled to Block Grant. Since such findings having been arrived at on the basis of fraudulent documents or no document, this Court has also no hesitation to quash the impugned order dated 17.3.2012, Annexure-17, passed by the Education Tribunal. 31. In view of the above, since the impugned order of the learned Tribunal has been quashed, benefits as due and admissible to the appellant since her appointment as Demonstrator in Psychology in Bhadrak Women’s College be granted to her within three months hence. 32. With the above observation and direction, the appeal is allowed. No cost.