Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 554 (ORI)

Dinesh Prasad Mishra v. State of Orissa

2017-05-09

B.R.SARANGI

body2017
JUDGMENT : DR. B.R. SARANGI, J. 1. The petitioner after completing his M.Sc. Degree in Zoology applied for the post of Lecturer pursuant to advertisement issued by the Director, Higher Education published in Odia daily “The Samaj” on 01.05.1978. He, on being called upon, attended the interview and was selected for appointment as Lecturer as per the merit list prepared by the Director. He was issued with a letter of appointment in Annexure-3 dated 21.08.1978 in pursuance of which he joined on the very same day, i.e., 21.08.1978 at S.V.M. College, Jagatsinghpur against a leave vacancy of one L.K. Sinha. The joining report of the petitioner on being communicated by the Principal, S.V.M. College, Jagatsinghpur, was duly approved by the Director vide communication dated 02.12.1978. Before that term of approval could expire, the Principal, S.V.M. College, Jagatsinghpur made a request to the Director, who, by letter dated 16.03.1979, accorded approval for further continuance of the petitioner in S.V.M. College, Jagatsinghpur. 2. Then, consequent upon a fresh appointment letter in Annexure-5 dated 14.05.1980 issued by the Principal-cum-Secretary of P.N. College, Khurda, the petitioner was relieved from the S.V.M. College on 16.05.1980 and on the very same day joined in P.N. College, Khurda, where he continued till 05.05.1981, on which date he joined as Lecturer in Science College, Hinjilicut by virtue of the Office order dated 05.05.1981 in Annexure-6. While he was so continuing at Science College, Hinjilicut, in pursuance of Annexure-7 dated 28.01.1984, the pay of the petitioner was fixed in the scale of pay of Rs.525-1150/- at Rs.740 as on 16.05.1980 and at Rs.760/- as on 01.01.1981 with the next date of increment as 16.05.1981. Thereafter, pursuant to communication dated 05.12.1990 in Annexure-8, the petitioner was relieved from Science College, Hinjilicut on 26.12.1990 and joined in Aska College on 27.12.1990. 3. While continuing at Aska College, the petitioner’s services were validated pursuant to Rule 3(b) of Orissa Aided Educational Institutions (Appointment of the Teachers Validation) Act, 1981 read with the Orissa Aided Educational Institutions (Appointment of the Teachers Validation) Amendment Act, 1983 with effect from the date of his initial appointment vide office order dated 17.08.1985 in Annexure-10. 3. While continuing at Aska College, the petitioner’s services were validated pursuant to Rule 3(b) of Orissa Aided Educational Institutions (Appointment of the Teachers Validation) Act, 1981 read with the Orissa Aided Educational Institutions (Appointment of the Teachers Validation) Amendment Act, 1983 with effect from the date of his initial appointment vide office order dated 17.08.1985 in Annexure-10. In the same, although it was specifically stated that the petitioner’s services were deemed to have been validated w.e.f. 21.08.1978, i.e., the initial date of appointment, in effect the said validation was made w.e.f. 12.05.1981, when the petitioner was serving at Science College, Hinjilcut 4th post (DP). Though several prayers have been made in the writ application, in course of hearing it is stated that the petitioner’s services having been validated from the date of his initial appointment, i.e., 21.08.1978, he should not have been extended with the benefit w.e.f. 12.05.1981, hence he claims that the benefit should be extended with effect from his initial appointment. 4. Mr. J. K. Rath, learned Senior Counsel for the petitioner urged that since the petitioner’s services had been validated from the date of his initial appointment, i.e., 21.08.1978, the benefit admissible to him should have been extended from that date, but effectively the benefit having been extended from a later date, i.e., 12.05.1981, he has been grossly aggrieved by that, hence approached this Court by filing the present writ application. 5. Mr. B. Senapati, leaned Addl. Government Advocate appearing for the State-opposite parties strenuously urged that the writ application suffers from gross suppression of facts as well as delay and laches, for which it is liable to be dismissed. Factually, it is urged that an ad hoc merit list was prepared for appointment of Lecturers in both Government Colleges and non- Government Colleges in the State. Accordingly, the petitioner’s name was sponsored for appointment against leave vacancy post in SVM College, Jagatsinghpur on ad hoc basis, pursuant to which he joined on 21.08.1978 against leave vacancy post. Again, the petitioner’s name was sponsored and he joined on 16.05.1980 at P.N. College, Khurda as Lecturer in Zoology on ad hoc basis against a teacher fellow vacancy of Sri S. Maharana. From there, his name was sponsored to Science College, Hinjilicut where he joined on 05.05.1981. Again, the petitioner’s name was sponsored and he joined on 16.05.1980 at P.N. College, Khurda as Lecturer in Zoology on ad hoc basis against a teacher fellow vacancy of Sri S. Maharana. From there, his name was sponsored to Science College, Hinjilicut where he joined on 05.05.1981. While the petitioner was continuing at Science College, Hinjilicut vide communication dated 28.01.1984 his scale of pay of was fixed at Rs.525-1150/- w.e.f. 16.05.1980 and at Rs.525-1300/- w.e.f. 01.01.1981. The petitioner’s service for the period from 21.08.1978 till 12.05.1981 in different scales was validated for adjustment against direct payment post without facing a fresh recruitment process. As the petitioner worked from 21.08.1978 to 15.05.1980 against leave vacancy and again adjusted against teacher fellow vacancy from 16.05.1980 to 11.05.1981, during that period which he was not getting his salary agaisnt direct payment post. Since he was adjusted against direct payment post only on 12.05.1981, his claim to be considered under the career advancement scheme from the date of initial appointment, i.e., 21.08.1978 does not merit any consideration under the prevailing government guideline. As the petitioner was appointed against a leave vacancy, which is purely temporary and stop gap arrangement, the extension of service benefit of regular direct payment post from 21.08.1978 cannot sustain in the eye of law. As he was appointed permanently on 12.05.1981 against the direct payment post, from that date he is entitled to get all service benefits. Therefore, the prayer of the petitioner as confined by his counsel at the time of argument that benefit should be extended from the date of initial appointment, i.e., 21.08.1978 as per the validation order dated 17.08.1985, instead of 12.05.1981, the date when the petitioner was appointed permanently against direct payment post, is absolutely misconceived one and such prayer cannot sustain in the eye of law 6. This Court heard Mr. J.K. Rath, leaned Senior Counsel for the petitioner and Mr. B. Senapati, learned Addl. Government Advocate appearing for State-opposite parties, and perused the records. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is disposed of finally at the stage of admission. 7. The undisputed fact being that the petitioner was appointed against a leave vacancy post w.e.f. 21.08.1978 on ad hoc basis at SVM College, Jagatsinghpur. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties this writ petition is disposed of finally at the stage of admission. 7. The undisputed fact being that the petitioner was appointed against a leave vacancy post w.e.f. 21.08.1978 on ad hoc basis at SVM College, Jagatsinghpur. Thereafter he was posted as against teacher fellow vacancy at P.N. College, Khurda and, subsequently, while he was posted at Science College, Hinjilcut, on 12.05.1981, he was regularized in the 4th post of direct payment. 8. As already stated, though several prayers were made in this writ application, in course of hearing Mr. J.K. Rath, learned Senior Counsel for the petitioner confined the same and stated that although the services of the petitioner have been validated w.e.f. 21.08.1978, the actual service benefits have been extended w.e.f. 12.05.1981 instead of 21.08.1978. In response to such contention, an affidavit has been filed by opposite party no.2. It is specifically stated therein that the service benefits cannot be extended to the petitioner w.e.f. 21.08.1978, because the petitioner was appointed as against a leave vacancy post held by a regular employee and the service benefits having been extended to a permanent regular employee, the same benefits cannot be extended to the petitioner, as against one sanctioned post continuance of two regular Lecturers under the direct payment scheme is not permissible. As the appointment of the petitioner was purely temporary and ad hoc against stop gap arrangement, the benefit claimed by the petitioner is not admissible w.e.f. 21.08.1978, i.e., from the date of initial appointment. When the petitioner was appointed against a regular vacancy and in a direct payment post in Science College, Hinjilicut on 12.05.1981, the benefit has to be extended to him from that date. As such no illegality or irregularity has been committed by the opposite party in not extending such benefit. 9. It is further contended that the writ petition suffers from delay and laches. If the service of the petitioner has been validated w.e.f. 21.08.1978 from the date of his initial appointment, and the said benefit has been extended w.e.f 12.05.1981 on the basis of his regular appointment against direct payment post, the cause of action starts from that date when the validation order was passed on 17.01.1985. If the service of the petitioner has been validated w.e.f. 21.08.1978 from the date of his initial appointment, and the said benefit has been extended w.e.f 12.05.1981 on the basis of his regular appointment against direct payment post, the cause of action starts from that date when the validation order was passed on 17.01.1985. But the petitioner approached this Court by filing this writ petition on 06.05.1994, after long lapse of so many years and no reason has been assigned by the petitioner why he approached this Court at such a belated stage. 10. Delay in moving an application is also a relevant factor for which the Court may refuse to entertain the writ application for granting relief. Ferris on Extraordinary Legal Remedies at Page 228 it has been observed : “All seem to agree, regardless of the theory if the proceeding is not brought within a reasonable time after alleged default or neglect of duty and such delay is not satisfactorily explained, Court may in the exercise of its discretion refuse its issuance. This is particularly so, when to grant the writ after such a delay would work a prejudice to the party effecting their right.” Right to the writ may, in accordance with equitable principles, be barred not only by laches, but by estoppels. There is no general rule as to what is reasonable time within which proceeding must be brought but it depends upon the fact in each case, it is the first importance that the aggrieved party move promptly. 11. In Kamini Kumar Das Choudhary v. State of West Bengal, AIR 1972 SC 2060 , the apex Court held that “it is imperative, if the petitioner wants to invoke extraordinary remedy available under Article 226 of the Constitution that he should come to the Court at the reasonable possible opportunity.” 12. Applying the above principles to the present case, the relief sought by the petitioner suffers from delay and laches. Therefore, the writ petition merits no consideration and the same is hereby dismissed.