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2014 DIGILAW 864 (ORI)

Brundabati Dei v. Swarnaprava Sahoo

2014-12-11

B.N.MAHAPATRA, I.MAHANTY

body2014
JUDGMENT : I. Mahanty, J. This review petition has come to be filed by one Brundabati Dei seeking to review the order dated 02.07.2010 passed by this Court in O.J.C. No.5672 of 1997 on the ground that the said order clearly indicates error of fact on the face of the record. 2. Bereft of unnecessary details, it would suffice to note here that one Charubala Senapati claiming to be the Headmistress of Birakishore Girls’ High School, At/P.O. Bagalo, Baharana (for short, “B.K. Girls’ High School”) along with two others namely, Rama Ojha and Brundabati Dei had filed OJC No.2217 of 1990, whereas Smt. Charubala Senapati claimed that she was the Headmistress of B.K. Girls’ High School appointed by a validly constituted Managing Committee of the school in question. She alleged that one Dipti Pratihari who had been indicated by the incumbent Managing Committee had been subsequently appointed as Headmistress in her place. It appears that the further allegation was that the petitioner No.2-Rama Ojha (in OJC No.2217 of 1990) and the present review petitioner-Brundabati Dei who had also been appointed at the inception of B.K. Girls’ High School in the year 1983 had also not been permitted to perform their duties by indication of certain individuals in her place. It is important to note here that in the said writ application, one Swarnaprava Sahoo claiming to be the PET in the said school had been impleaded as opposite party No.9 in OJC No.2217 of 1990. The said writ petition along with another writ petition, i.e., OJC No.730 of 1983 filed by the persons claiming reconstitution of Managing Committee of B.K. Girls’ High School came to be disposed of by this Court by a common order dated 17.03.1993 with a direction to the Director, Secondary Education, Orissa, Bhubaneswar (for short, “Director”) to determine the disputed question of fact and to decide whether Smt. Charubala Senapati or Smt. Dipti Pratihari was the Headmistress of B.K. Girls’ High School and to carry out an indepth inquiry into the matter and take a final decision thereon. It appears that as a consequence of the aforesaid direction, the Director conducted an inquiry and after permitting to all parties to represent their respective cases passed order dated 04.08.1993 (Annexure-10 in OJC No.5672 of 1997), wherein he came to a conclusion that the meetings held subsequent to 24.09.1985 and accordingly held the resolution of the Managing Committee of the School in question dated 24.09.1985 to be legally invalid, consequently, the appointment of Smt. Pratihari as Headmistress was held to be invalid. Therefore, the other appointments as Asst. Teacher and Headmistress (in-charge) as the case may be cannot be taken to be valid. Paragraph 15 of the said order of the Director is extracted here-in-below: “15. Besides, since I have held that all the meetings held subsequent to 24.9.85 to be legally invalid, the resolution of Managing Committee appointing Smt. Pratihary is ipsofacto invalid and therefore, her appointment as an Asst. Teacher and Headmistress incharge as the case may be, cannot be taken to be valid.” 3. After having held the appointment of Smt. Dipti Pratihari as Asst. Teacher and Headmistress (In-charge) invalid, considering her issue on humanitarian point of view, the Director directed the Managing Committee of the School in question, to retain her as Asst. Teacher. Insofar as other employees including the review petitioner-Brundabati Dei are concerned, the Director issued certain direction in paragraph-20 of its order dated 04.08.1993, which reads thus: “20. In respect of other employees of the institution, it is left to the Managing Committee to take a decision keeping in view my above said observation.” 4. In pursuance of the aforesaid direction of the Director, the Managing Committee of B.K. Girls’ High School took a decision by its resolution dated 28.01.1994 under Annexure-8 in the review petition. It is made clear that since the resolution under Annexure-8 has been passed in Odia, learned counsel for the review petitioner files English translated copy of the same in Court today. The translated copy is taken on record and relevant portion thereof is quoted here-in-below: “xx xx xx Managing Committee Meeting of Birakishore Girls High School was held in the school premises on 28.1.94, Friday at about 3 P.M. under the presidentship of Srijukta Sangram Keshari Ray, Tahasildar, Niali, President of B.K. Girls’ High School. The translated copy is taken on record and relevant portion thereof is quoted here-in-below: “xx xx xx Managing Committee Meeting of Birakishore Girls High School was held in the school premises on 28.1.94, Friday at about 3 P.M. under the presidentship of Srijukta Sangram Keshari Ray, Tahasildar, Niali, President of B.K. Girls’ High School. It was resolved in accordance with the order no.34999 dated 04.08.93, of the D.P.I. to accept the joining of Charubala Senapati (B.A. B.Ed.), Brundabati Dei (PET), Manmath Ray (Clerk), Rama Ojha (Female Peon) appointed in accordance with Resolution dtd. 24.9.95 of the Managing Committee. In pursuance of the letter No.28465 dtd. 8.7.81 of Education department, two trained graduate (Arts) and two trained graduate (Science) are eligible to remain in a High School. But, as a result of joining of Charubala Senapati in this school, because of Smt. Kanungo and including Smt. Senapati, being two arts graduates, there is no vacancy in Arts Trained graduate to allow the jointing of Smt. Pratihari. Therefore, it was requested to the Inspector of Schools to engage Smt. Pratihari in any other school according to her qualification. The higher authority is requested to fill up Science graduate post. The higher authority is also requested to fill up the post of headmaster in the school on regular basis. Similarly it is requested to engage Smt. Swarnaprava Sahoo (PET) in any other school according to her qualification. But it was directed/told to accept the joining report of Brundabati Dei on production of the joining report. The higher authority is requested to pay all the arrear and current salary including increments to the working staff in accordance with the DPI Order. The staff who would join (in accordance with 24.9.85 Resolution), their joining report would be accepted instantly and it was requested to Shradhanjali Kanungo to relieve those persons who are working in their place. There having no objection, the service of Mamata Das as Classical Teacher is hereby approved. The Managing Committee expressed their concern over the refusal of recognition of the school for academic session 1993-94 and BSEO is requested to cancel the refusal order. It is directed Sradhanjali Kanungo to make correspondence in the matter. For this Managing Committee agreed to give an undertaking to the Board. Eventually the meeting was ended with the thanks to the President.” 5. It is directed Sradhanjali Kanungo to make correspondence in the matter. For this Managing Committee agreed to give an undertaking to the Board. Eventually the meeting was ended with the thanks to the President.” 5. At this juncture, it would also be appropriate to note here that in compliance of earlier direction of this Court as noted hereinabove, the Director, Secondary Education, Odisha vide order dated 04.08.1993 (Annexure-10 in OJC No.5672 of 1997) decided the lis in favour of Charubala Senapati and against Dipti Pratihari and further held that the resolution of the Managing Committee after 24.09.1985 has become invalid and called upon the Managing Committee to take a decision in this line with the aforesaid direction. It would be important to note here that the opposite party No.1-Swarnaprava Sahoo has never sought to challenge the aforesaid order of the Director in any forum and consequently, once the said order has become final, the principles decided therein is obviously binding on the Managing Committee and the authorities therein and consequently, the decision made in favour of the review petitioner was passed which became the subject matter of challenge in OJC No.5672 of 1997 by Swarnaprava Sahoo. 6. The opposite party No.1 in the present review petition, namely, Swarnaprava Sahoo had filed OJC No.5672 of 1997 seeking to challenge the impugned order dated 02.12.1994 (Annexure-11 therein) passed by the Inspector of Schools, Cuttack Circle, Cuttack to the following effect: “Office Order No.13348/Dt.2-12-94 In pursuance of the order No.34999 dt. 4.8.93 of the Director of Secondary Education, Orissa, Bhubaneswar arising out of the O.J.C. No.2217/90. The appointment of Smt. Brundabati Dei, as P.E.T. of B.K. Girls’ High School, Bagalbaharana made by the managing committee in its sitting No.1 dt. 28-1-94, she is hereby approved in the time scale of pay Rs.1080-30-1440-30-1800.” Sd/-B.C. Behera. Inspector of Schools, Cuttack Circle, Cuttack” 7. Mr. M.K. Sahoo, learned counsel for the review petitioner submits that this Hon’ble Court placed reliance upon Annexure-11 and erroneously came to an conclusion that the petitioner had come to be appointed by the Managing Committee of the School on 28.01.1994. In this regard, Mr. Inspector of Schools, Cuttack Circle, Cuttack” 7. Mr. M.K. Sahoo, learned counsel for the review petitioner submits that this Hon’ble Court placed reliance upon Annexure-11 and erroneously came to an conclusion that the petitioner had come to be appointed by the Managing Committee of the School on 28.01.1994. In this regard, Mr. Sahoo points out that the said order of the Inspector of Schools, Cuttack under Annexure-11 in the writ petition, in fact has been subsequently modified/corrected under Annexure10 in the review petition indicating therein that the present review petitioner had been validly appointed on 04.07.1983 and it has been reflected in the said annexure that “Her pay be notionally fixed from the date of joining in the school, i.e., from 04.07.1983 to the date of her reinstatement. She would be eligible to get un-trained P.E.T. scale of pay Rs.780/-to 1160/-with effect from 01.03.1985, Rs.960 to 1500/-scale of pay with effect from 01.06.1989, Matric C.P.Ed. scale of pay Rs.975/-to 1660/-with effect from 12.11.1996, i.e., the date of publication of C.P.Ed. result by the Board of Secondary Education, Orissa and Rs.1080/-to 1600 Scale of pay with effect from 25.03.1994.” Therefore, Mr. Sahoo submits that the writ petitioner was guilty of suppression of material fact inasmuch as she ought to have filed a copy of resolution of the Managing Committee itself and mere reliance upon Annexure-11 led to mis-construe the view on the part of the Court. Mr. Sahoo, learned counsel for the review petitioner further submits that although no counter affidavit was filed by the State nor by the review petitioner in the writ petition, yet, pursuant to an interim direction of this Court, an affidavit dated 29.06.2010 came to be filed on 01.07.2010 sworn-to by Srikanta Prusty, Director of Secondary Education, Odisha. Paragraphs 4 and 5 of the said affidavit are quoted here-in-below: “4. That, the petitioner was working as an PET in B.K. Girls High School, Bagalgarh an aided educational institution under Cuttack Circle with effect from 1986 although opposite party No.5 Smt.Brundabati Dei, PET was appointed in the said high school since 1983, whose appointment has been approved and grant-in-aid has been released and opposite party No.5 is in receipt of grant-in-aid salary. 5. 5. That, the adjustment of the petitioner in the vacant post of PET in other aided high school may not be permissible as she is not validly appointed by the Managing Committee of B.K. Girls’ High School, Bagalgarh. Moreover, Govt. in the School & Mass Education Department in their letter No.4855/SME dtd. 23.3.2000 have decided that the vacant teaching/non-teaching posts in aided high schools shall stand automatically abolished….” 8. Copy of the aforesaid affidavit was not available on record and we sought a copy of such affidavit from learned counsel for the School and Mass Education Department for the purpose of incorporating in the record. The same is filed in court today by learned Standing Counsel for the School & Mass Education Department and are taken on record. 9. Mr. S.K. Das, learned counsel on behalf of Smt. Swarnaprava Sahoo (opposite party No.1 in the review petition and petitioner in OJC No.5672 of 1997) strenuously urges that the review petitioner’s contention should not be entertained inasmuch as she has failed to file counter affidavit during pendency of the writ petition and consequently the Court should not take into consideration the submission of the review petitioner nor any document that has been appended in the review petition. 10. Mr. S.K. Samal, learned Standing Counsel for the School & Mass Education Department appearing for opposite party Nos.2, 3 and 4 on the other hand supports the prayer made by the review petitioner and submits that once the Director took a decision vis-à-vis appointment of Charubala Senapati as Headmistress and came to conclude that the appointment of Dipti Pratihari as Headmistress was invalid. The selfsame principle which guided such decision and consequently the result in retaining all those points which had been affirmed by the Managing Committee on 24.09.1985 and not at any point of time thereafter. Admittedly, the opposite party No.1-Swarnaprava Sahoo (writ petitioner in OJC No.5672 of 1997) was an appointee subsequent to 24.09.1985, i.e., in the 1986. Consequently, the principle decided by the Director; acted upon by the Managing Committee and affirmed by the Inspector of Schools, Cuttack Circle, Cuttack were absolutely in order. Mr. Samal, learned Standing Counsel further submits that the Court has committed error on record inasmuch as by placing reliance upon Annexure-11 came to conclude that the review petitioner was given appointment on 28.01.1994 which is not a fact. Mr. Samal, learned Standing Counsel further submits that the Court has committed error on record inasmuch as by placing reliance upon Annexure-11 came to conclude that the review petitioner was given appointment on 28.01.1994 which is not a fact. He further submits that the affidavit of Srikanta Prusty, Director of Secondary Education, Odisha, Bhubaneswar dated 29.06.2010 which has been taken into consideration by the Court in the impugned order, in particular paragraph-4 thereof which has already been quoted hereinabove, clearly indicates that the review petitioner-Brundabati Dei has been appointed in B.K. Girls’ High School since 1983 and her appointment has been approved and grant-in-aid has also been released in her favour. 11. Mr. Nayak learned counsel for the opposite party No.5-Managing Committee of B.K. Girls’ High School also supports the prayer made by the review petitioner, as well as, the stand taken by the learned Standing Counsel for the School & Mass Education Department. He further clarifies that the decision taken by the erstwhile Managing Committee on 24.09.1985 which was held to be invalid by the Director and has thereafter been acted upon. The appointment of any other employee including Dipti Pratihari and other teachers at any subsequent meeting has been held to be invalid. Consequently, he also supports the prayer of the review petitioner. 12. That this Court does have jurisdiction to entertain a review petition, where it finds any error on record which causes injustice to the parties. In the present case at hand, we find that the findings given in the impugned order dated 02.07.2010 which has been sought to be reviewed, that the appointment of the review petitioner on 28.01.1994 is clearly an error on record. It appears that the order dated 02.07.2010 was passed by this Court based upon Annexure11 therein, which admittedly appears to have been modified/superseded by the clarification issued on 27.10.1998 under Annexure-10 in the review petition, wherein the date of appointment of the review petitioner has been indicated as 04.07.1983. 13. Apart from the above, although the State also did not file any detailed counter affidavit, the affidavit filed by the Director dated 29.06.2010 came to be filed, wherein in paragraph 4 thereof also affirmed the fact that the review petitioner was appointed in the year 1983 and also her appointment had been confirmed by the then validly constituted Managing Committee at its meeting dated 24.09.1985. It is also relevant to note here that the minutes of the meeting contains in paragraph 5, the Director has categorically stated that “the writ petitioner-Swarnaprava Sahoo (opposite party No.1 herein) was not validly appointed by the Managing Committee of B.K. Girls’ High School”. The invalidity of appointment of Swarnaprava Sahoo was categorically pointed out by the Director. Therefore, there appears to be no foundation for the impugned order, as to how the objection of the Director could be overlooked. Mere approval of an invalid order cannot vest any solid authority in law. Consequently, we allow the review petition for the reasons noted hereinabove. The order dated 02.07.2010 passed in O.J.C. No.5672 of 1997 is hereby quashed and the said writ petition filed by Swarnaprava Sahoo stands dismissed. As a consequence, the judgment passed in this review petition shall be given effect to by taking necessary steps in this regard. 14. In the result, the review petition is allowed to the extent indicated above.