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2018 DIGILAW 641 (ORI)

Madan Mohan Das v. State of Odisha

2018-07-06

S.N.PRASAD

body2018
JUDGMENT S. N. PRASAD, J. - This appeal is against the judgment dated 23.05.2012 passed by the Presiding Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.163 of 2011 whereby and whereunder the grievance of the appellant to extend the benefit of Grant-in-Aid @ 1/3rd w.e.f. 1.6.1992 has been denied and he has been held to get the Grant-in-Aid in pursuant to the Grant-in-Aid Order, 2009. 2. The brief fact of the case of the appellant is that Kharasrota Mahavidyalaya, Singhpur, District-Jajpur was established in the year 1976 with the concurrence of the Government vide letter dated 5.11.1979. Government also granted the concurrence for opening of Intermediate Commerce Course with effect from the Session 1980-81 vide letter dated 17.09.1980 for +2 Science Stream with effect from the Session 1987-88 vide letter dated 5.1.1988. The Government has also granted concurrence for opening of +3 Degree Course with effect from the Academic Session 1986-87 vide letter dated 27.09.1986. After opening of +2 Science Stream, the appellant was appointed as Gardener vide Order dated 21.7.1986 and joined on 1.8.1986, as would be evident from Annexures-3 and 4 respectively annexed in the memo of appeal. The appointment was subsequently been approved by the Governing Body vide Resolution dated 1.12.1986 (Annexure-5). The Principal-cum-Secretary of the Governing Body has submitted proposal before the Director, Higher Education, Odisha for approval of appointment of eligible teaching and non-teaching staff of +2 Science Stream, in turn, the Director has submitted the proposal to the Government but no action was taken by the Government for a long period, which led the appellant to file the writ petition i.e. O.J.C. No.3705 of 1987 before this Court and in pursuant to the direction passed by this Court, the State Government has approved the appointment of some of the eligible staff leaving the case of the appellant. Hence, appellant again approached to this Court by filing another writ petition i.e. O.J.C. No.14377 of 1997 which was disposed of vide order dated 24.12.1997 with a direction to the Director, Higher Education, Odisha to take final decision with regard to the approval of the service of the appellant but no action whatsoever has been taken and while the matter was pending before the Government, the appointment of the appellant was approved under Grant-in-Aid Order, 2009. The appellant, having no option, has approached to the Odisha Education Tribunal under the provision of Section-24-B of the Orissa Education Act, 1969 which was registered as G.I.A. Case No.163 of 2011 wherein prayer has been made to release the grant-in-aid @ 1/3rd w.e.f. 1.6.1992 and accordingly sought for modification of the order dated 19.5.2010 as contained under Annexure-6 by modifying it for extending the benefit of grant-in-aid @ 1/3rd w.e.f. 1.6.1992, but the Odisha Education Tribunal has rejected the aforesaid claim against which the present appeal has been field inter alia on the ground that the appellant’s College is Category-I College as per Clause-9(2)(B)(i)(a) of the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid, Order, 1994 and the post was admissible as per workload and yardstick prevalent prior to commencement of the Grant-in-Aid Order, 2009. The appellant’s appointment cannot be approved under the Grant-in-Order, 2009, since the appellant is fulfilling all eligible criteria as laid down in the Grant-in-Aid Order, 1994, he is entitled to be given benefit under the Grant-in-Aid Order, 1994 instead of Grant-in-Aid Order, 2009. But without appreciating this aspect of the matter, the relief sought for by the appellant has been rejected by the Tribunal. The other ground has been taken by the appellant is that Smt. Sukesini Bihari, Lay Attendant of Stewart Science College under Grant-in-Aid Order, 1994 has been given the benefit, but denying the same to the appellant is highly discriminatory. The further ground has been taken regarding extending the benefit in favour of Bishnu Charan Behera, who has appointed as Gardner in B.B. Mahavidyalaya, Chandikhole, District-Jajpur and joined on 19.11.1987 but he has been given benefit in pursuant to the Grant-in-Aid Order, 1994. Likewise, one Pravakar Dalai, Dharmasala Mahavidyalaya, Jajpur has joined on 14.12.1987, whose service was approved as Gardner vide order dated 14.3.1997 who has also given benefit under the Grant-in-Aid Order, 1994, but without appreciating these aspects of the matter, the relief sought for by the appellant before the Tribunal has been denied that too without assigning any reason. Likewise, one Pravakar Dalai, Dharmasala Mahavidyalaya, Jajpur has joined on 14.12.1987, whose service was approved as Gardner vide order dated 14.3.1997 who has also given benefit under the Grant-in-Aid Order, 1994, but without appreciating these aspects of the matter, the relief sought for by the appellant before the Tribunal has been denied that too without assigning any reason. It has been contended by the learned counsel for the appellant by placing the impugned judgment that by recording the submission of the appellant and referring to the provision of para-3 of Grant-in-Aid Order, 2009, the claim of the appellant has been rejected without answering the issue which he has raised before the Tribunal and as such, the judgment passed by the Tribunal is without any application of quasi-judicial mind and without any cogent reason. It has been contended by the appellant that the Tribunal has made an observation while rejecting the claim of the appellant that the appellant is only entitled for the provision under Grant-in-Aid Order, 2009 even if he has eligible for so or if the post is admissible at the relevant time of appointment of the appellant. Since the post of Gardner is admissible as per the Government yardstick dated 8.7.1977, the appellant, who has appointed against the post in the year 1986, is only entitled to Block Grant under Grant-in-Aid Order, 2009 but why he is entitled in pursuant to the Block Grant under Grant-in-Aid Order, 2009 has not been disclosed while rejecting the grievance of the appellant. 3. Mr. S. Mohanty, learned Additional Standing Counsel appearing for the opposite parties no.1 and 2 has argued the case on merit by referring to the provision of Grant-in-Aid Order, 1994 as also Grant-in-Aid Order, 2009 but in all fairness, he has submitted that the Tribunal has not taken care of expressing any reason of denial of the claim of the appellant which would be evident from the last paragraph of the impugned judgment itself. 4. Heard the learned counsel for the parties and after going through the argument advanced on behalf of the appellant as also Mr. 4. Heard the learned counsel for the parties and after going through the argument advanced on behalf of the appellant as also Mr. S. Mohanty, learned Additional Standing Counsel appearing for the opposite parties no.1 and 2, it is found that the appellant is aggrieved with the date of the benefit of grant-in-aid, since the appellant is claiming his entitlement w.e.f. 1.6.1992 on the basis of his appointment made on 21.7.1986 and joined in the aforesaid post on 1.8.1986. At the time of appointment, the Government yardstick dated 8.7.1977 was invoked. There is no dispute about the position of law that prior to coming into effect Grant-in-Aid Order, 1994, the Government time to time issued the instructions/circulars to govern the field to extend the benefit of grant-in-aid. For the first time, the Grant-in-Aid Order, 1994 has been brought into existence wherein the eligibility condition has been prescribed as referred in Clause(3) of Order-10 of the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid, Order, 1994. The same is being referred herein below:- “10(3) A post in an Aided Educational Institution coming under Category-I for which no grant-in-aid has been sanctioned prior to commencement of the amendment Act shall be eligible to receive grant-in-aid at the rate of 2/3rd of the admissible salary cost from the date of eligibility, at the rate of 1/3rd of the admissible salary cost 2 years after receipt of grant-in-aid at the rate of 1/3rd and at the rate of full admissible salary cost 2 years thereafter.” From its perusal, it is evident that a post in an Aided Educational Institution coming under Category-I for which no grant-in-aid has been sanctioned prior to commencement of the amendment Act shall be eligible to receive grant-in-aid at the rate of 2/3rd of the admissible salary cost from the date of eligibility, at the rate of 1/3rd of the admissible salary cost 2 years after receipt of grant-in-aid at the rate of 1/3rd and at the rate of full admissible salary cost 2 years thereafter. The claim of the appellant is that the institution in question is coming under Category-I, which according to the appellant, is admitted fact and the very same facts has been raised before the Tribunal that when the institution in question is coming under the Category-I for which no grant-in-aid has been sanctioned prior to commencement of the Amendment Act, if the post was admissible as per workload and yardstick prevalent prior to commencement of the amendment Act, has been filled up prior to that date and it has completed the qualifying period of five years of more, or of 3 years of more in case the institution is situated in backward area, which is required under Order-9(2)(B)(i) of the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid, Order, 1994, reference to the provision of Order-9(2)(B)(i) of the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid, Order, 1994 needs to be made which is being quoted herein below:- “9(2)(B)(i) a post in a Non-Government Educational Institution coming under Category-I for which no grant-in-aid has been sanctioned prior to commencement of the Amendment Act, if; (a) The post was admissible as per workload and yardstick prevalent prior to commencement of the amendment Act. (b) has been filled up prior to that date and (c) it has completed the qualifying period of five years or more, or of 3 years or more in case the institution is situated in backward area.” The specific case of the appellant is that at the time of appointment, the yardstick dated 8.7.1977 was prevalent and appellant is also completed 5 years of continuous service and as such, according to the appellant, he is fulfilling all the criteria of eligibility as laid down under Grant-in-Aid Order, 1994 but the authority, without appreciating this aspect of the matter, has passed an order on 19.5.2010 extending the benefit of grant-in-aid w.e.f. 1.2.2009 which has been assailed before the Tribunal in exercise of power conferred to it under Section-24-B of the Odisha Education Act, 1969. It is evident from the impugned judgment that the Tribunal although has recorded the submission of the appellant at length, question has also been framed, as would be evident from paragraph-4, but after quoting para-3 of Grant-in-Aid Order, 2009, straight away the order has been passed denying the claim but what led the Tribunal to deny the claim of the appellant is lacking in the impugned judgment, since in the ultimate paragraph of the aforesaid judgment it has been held by the Tribunal that the appellant is entitled to approval of the Grant-in-Aid Order, 2009 but why he is entitled to for approval under Grant-in-Aid Order, 2009, no reason has been assigned. There is no dispute in the settled position of law that any Court of law or the quasi-judicial authority has been conferred with the power even the administrative authority is deciding an issue, it is expected from such Court of law or the quasi-judicial authority or the administrative authority to assign the reason and if there is no reason in the order, the same cannot be said to be order in accordance with law rather it should be cryptic and mechanical order. It is evident from the pleading made in the memo of appeal as also in the impugned judgment that the appellant has raised various points and as such, the Tribunal ought to have given a finding by discussing entire aspect of the matter and in case of rejection as has been done by the Tribunal, the ground which has been taken by the appellant ought to have been answered by discussing it on the basis of the legal position, but that is not available in the impugned judgment. The order if passed without reason will be said to be not proper. Reference in this regard may be made to the judgment rendered by Hon’ble the Supreme Court in the case of The Siemens Engineering & Manufacturing Co. of India Ltd. v. The Union of India and Another, reported in (1976) 2 SCC 981 wherein their Lordships have held at paragraph-6 which is being quoted herein below:- “6. Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, The Collector and the Government of India disposed of the proceedings before them. Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, The Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December, 8, 1961 which were repeated in the subsequent representation dated June, 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a Court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If Courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application. We hope and trust that in future the customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the customs authorities and the validity of the adjudication made by the customs authorities can also be satisfactorily tested in a superior tribunal or Court. In fact, it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind.” In the case of S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594 wherein their Lordships have held at paragraphs-36 and 39 which are being quoted herein below:- “36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” “39. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action”. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the large public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decision (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.” In the case of Workmen of Meenakshi Mills Ltd. etc. v. Meenakshi Mills Ltd. and another, reported in AIR 1994 SC 2696 wherein their Lordships have held at paragraph-49 which is being quoted herein below:- “49. We are also unable to agree with the submission that the requirement of passing a speaking order containing reasons as laid down in sub-sec. (2) of S. 25N does not provide sufficient safe-guard against arbitrary action. In S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : ( AIR 1990 SC 1984 ), it has been held that irrespective of the fact whether the decision is subject to appeal, revision or judicial review, the recording of reasons by an administrative authority by itself serves a salutary purpose. viz. In S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 : ( AIR 1990 SC 1984 ), it has been held that irrespective of the fact whether the decision is subject to appeal, revision or judicial review, the recording of reasons by an administrative authority by itself serves a salutary purpose. viz. it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making.” In the case of Chairman Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Others, reported in (2009) 4 SCC 240 wherein their Lordships have held at paragraph-8 which is being quoted herein below:- “8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” Thus, it is evident from the aforesaid pronouncements that assigning reasons is important and basic ingredient to justify an order. But this Court, while testing the judgment on the touchstone of the aforesaid principles, has found that the judgment impugned is lacking the reasons. 5. In view thereof and as per discussion made hereinabove so also in my considered view, the judgment dated 23.05.2012 passed by the Presiding Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.163 of 2011 is not sustainable in the eye of law. Accordingly, the same is quashed. In consequence thereof, the matter is remitted before the Tribunal to consider the issue afresh after hearing the parties and on the basis of the materials already on record and decide it within period of four months from the date of receipt of certified copy of this judgment. The F.A.O. is accordingly disposed of. Appeal disposed of.