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2018 DIGILAW 662 (ORI)

MOUSUMI MOHAPATRA v. STATE OF ODISHA

2018-07-16

S.N.PRASAD

body2018
JUDGMENT : S. N. Prasad, J. - Since common question is involved in both the appeals, they are being heard together and disposed of by this common judgment. The issue raised by the appellant, in both the appeals, is that the GIA Cases being Nos.78 of 2015 and 200 of 2016, which are now pending before the State Education Tribunal, Odisha, Bhubaneswar, are not maintainable but the Tribunal, without considering the grounds taken by the appellant regarding their non-maintainability, has come to the conclusion that both the aforesaid GIA cases are maintainable and accordingly, date has been fixed for its adjudication on merit. 2. The brief fact of the case is that the respondent no.6 who has been appointed as Lecturer in Education against the vacant post in the institution in question and as such, she has made an application to get the benefit of grant-in-aid under the provision of GIA Order, 2008 by filing GIA Case No.68 of 2010 before the State Education Tribunal, Odisha, Bhubaneswar for considering her name for approval of appointment as Lecturer in Education under GIA Order, 2008 instead of considering it in favour of the appellant, as she was continuing in the college from the date of her appointment. Respondent no.6 has approached before the Tribunal by filing GIA Case No.68 of 2010 wherein the Tribunal has directed the Director, Higher Education, Odisha, Bhubaneswar to adjudicate upon the said issue, in turn, the Director, Higher Education, Odisha, Bhubaneswar has decided the issue by passing final order dated 16.12.2014 wherein he has come to the conclusion that he is not inclined to enter into any dispute on the date of joining of the appellant, as claimed by the respondent no.6 and thereby holding therein that the appellant is not eligible under the GIA Order, 2008 taking into account her date of joining as 5.2.2007. In the aforesaid order, the Director has also came to finding that the respondent no.6 was not continuing in the college since 2003 and is not a staff of the college since 2003 and therefore, the claim of respondent no.6 does not deserve any merit for consideration and as such, the same has been rejected. The respondent no.6 against the aforesaid order has filed another GIA Case No.78 of 2015 assailing the order dated 16.12.2014 passed by the Director, Higher Education, Odisha, Bhubaneswar, as referred above. The respondent no.6 against the aforesaid order has filed another GIA Case No.78 of 2015 assailing the order dated 16.12.2014 passed by the Director, Higher Education, Odisha, Bhubaneswar, as referred above. One another GIA Case has been filed by the respondent no.6 being GIA Case No.200 of 2016 wherein the respondent no.6 has questioned her letter of resignation dated 5.1.2003, resolution of the Governing Body dated 15.5.2003 and the appointment of the appellant, besides for a direction to the respondent no.1 and 2 to approve her appointment as Lecturer in Education against the 1st post in Odakhanda Mahavidyalaya at Odakhanda in the district of Khurda. The appellant has raised preliminary objection regarding maintainability of the GIA applications by raising the issue that the appeal under Section-24-B of the Odisha Education Act, 1969 (hereinafter referred to as "the Act, 1969") is not to be entertained by the Tribunal by way of GIA Case Nos.78 of 2015 and 200 of 2016, since according to the learned counsel appearing for the appellant, the jurisdiction to entertain an appeal under Section-24-B of the Act, 1969 is only related to eligibility and entitlement of grant-in-aid and further the power under Section-24-B of the Act, 1969 can be exercised by an employee but admittedly as has been held by the Director, Higher Education, Odisha, Bhubaneswar in its order dated 16.12.2014 that the respondent no.6 is not an employee working under the aforesaid college and as such, she has no locus to invoke the jurisdiction of the Tribunal under the provision under Section-24-B of the Act, 1969. 3. While, on the other hand, learned counsel for the Staterespondents no.1 to 3 as also the learned counsel for the respondent no.6 have jointly submitted that the Tribunal has got the jurisdiction to entertain the appeal under Section-24-B of the Act, 1969 to come to a finding regarding eligibility or entitlement of getting benefit of grant-in-aid and to reach to this conclusion. The Tribunal is supposed to go into the legality and propriety of the order of resignation so that in order to reach to the conclusion as to whether the respondent no.6 was continuing with the post or not and can be arrived at further in the order passed by the Director, Higher Education, Odisha, Bhubaneswar on 16.12.2014, the same was under challenge in the GIA Case No.78 of 2015 wherein she has been held not continuing in the college since 2003 and is not a staff of the college since 2003 and as such, in order to reach to the conclusion as to whether the respondent no.6 was continuing since the year 2003 which has been negated by the Director, Higher Education, Odisha, Bhubaneswar which is under challenge in GIA Case No.78 of 2015. The Tribunal is to go with the root which lies in the issue of resignation of respondent no.6. Hence, the Tribunal has rightly entertained the application in order to reach the conclusion. It is also for the reason that the grant-in-aid is related to the eligibility, the criteria and the appointment, if made in an approved post and to come to a rightful conclusion as to whether one or the other is eligible to get the benefit of grant-in-aid, the question to test the entitlement would depend upon the mode of selection and the retaining of a post by a candidate who is seeking it under the grant-in-aid order. It has been submitted that holding the post by a candidate who is seeking benefit of grant-in-aid is important for granting the benefit of grant-in-aid and so long it will not be decided, the eligibility or entitlement to get the benefit of grant-in-aid cannot be adjudicated upon. Hence, the Tribunal has rightly entertained the GIA Applications to come to a rightful conclusion. 4. Hence, the Tribunal has rightly entertained the GIA Applications to come to a rightful conclusion. 4. Learned counsel for the appellant, in response, has submitted that the order of resignation was never been questioned by the respondent no.6 right from the date of resignation i.e. 5.1.2003 and when this issue has been raised, then only for the first time in the year 2016, the resignation letter dated 5.1.2003 has been challenged by filing GIA Case No.200 of 2016 and as such, there is applicability of the principle of constructive res judicata, since the issue available to the respondent no.6 at the time of filing GIA Case No.68 of 2010, but since which has not been raised, hence the same cannot be allowed to be raised by the respondent no.6. 5. Heard the learned counsel for the parties and after appreciation of their rival submissions, before going into the merit of the issue, to test the maintainability of the dispute which has been entertained by the Tribunal, it is important to go through the provisions as contained under Section-24-B of the Odisha Education Act, 1969 being refereed herein below:- "24-B. Adjudication by Tribunal - (1) The Tribunal shall have jurisdiction, power and authority to adjudicate all disputes and differences, between the Managing Committee or, as the case may be, the Governing Body of any private educational institution and any teacher or employee of such institution or the Slate Government or any officer or authority of the said Government, relating to or connected with the eligibility, entitlement, payment or non-payment of grant-in-aid. (2) Any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressa1 of his grievance. (2) Any person, aggrieved by an order pertaining to any matter within jurisdiction of the Tribunal, may make an application to the Tribunal for the redressa1 of his grievance. (3) On receipt of an application under Sub-section (2), the Tribunal shall, if satisfied after such inquiry as it may deem necessary that the application is a fit case for adjudication by it, admit such application, but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons : Provided that no application before the Tribunal seeking a claim of grant-in-aid against the State Government or any officer or authority of the said Government shall be admitted, unless the applicant has served a notice on the State Government or concerned officer or authority furnishing the details of the claim and a period of two months has expired from the date of receipt of the said notice by the State Government or, as the case may be, the concerned officer or authority. (4) The Tribunal shall not admit an application under Sub-section (2), unless it is made within one year from the date of expiry of the period of two months referred to in Sub-section (3). (5) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to any rules made by the Government, shall have power to regulate its own procedure. (6) All the proceedings before the Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code, 1860." It is evident from the provision as contained in Section-24-B of the Act, 1969 that the same pertains to the power conferred upon the Tribunal to adjudicate upon the entitlement and eligibility to get the benefit of grant-in-aid by an employee. Thus, it is evident that the power has been conferred under the provision of Section 24-B of the Act, 1969 that any matter related to eligibility and entitlement to get the benefit of grant-in-aid will be adjudicated by the Tribunal in exercise of the aforesaid power. It is evident from the grant-in-aid orders issued time to time by the State of Odisha stipulating the condition for getting the said benefit. It is evident from the grant-in-aid orders issued time to time by the State of Odisha stipulating the condition for getting the said benefit. The condition to get the benefit of grant-in-aid order is regarding the appointment holding the approved post and completion of a particular period of service etc. Thus, it is evident that to adjudicate upon the question of entitlement of grant-in-aid order, a Court or a Tribunal has to go on the legality and propriety of the appointment as to whether it is against the sanctioned post or as to whether the person claiming the eligibility under the aforesaid order is holding the post or not or as to whether the particular tenure for the service has been rendered by such category of employee or not. In other words, the financial benefit under grant-in-aid order cannot be adjudicated upon independently rather it is a question to be decided and depended upon the eligibility conditions as per different grant-in-aid orders applicable. So, it is a question to be adjudicated by taking aid of different facts and eligibility etc. So far as the question raised by the appellant that the respondent no.6 is not an employee, since it has already been held by the Director, Higher Education, Odisha, Bhubaneswar basing upon her date of resignation made on 5.1.2003 and as such, she cannot be grouped under the category of employee, hence she has got no locus to file an application under Section 24-B of the Act, 1969, but according to my considered view, although the Director, Higher Education, Odisha, Bhubaneswar has passed an order dated 16.12.2014 holding therein that the respondent no.6 is not continuing in service from the year 2003, the aforesaid order is challenged in GIA Case No.78 of 2015 and if the Tribunal by taking note of all these facts as questioned in the application under Section-24-B of the Act, 1969 which cannot be said that it is not maintainable. 6. In view of the facts stated hereinabove and taking into consideration the fact that the issue of entitlement of grant-in-aid is being claimed by the appellant vis-?-vis the respondent no.6 and for that, various facts and legal positions are to be taken into consideration which relates to the basis of appointment holding the post as discussed hereinabove. 6. In view of the facts stated hereinabove and taking into consideration the fact that the issue of entitlement of grant-in-aid is being claimed by the appellant vis-?-vis the respondent no.6 and for that, various facts and legal positions are to be taken into consideration which relates to the basis of appointment holding the post as discussed hereinabove. Hence, the objection raised by the appellant that since the respondent no.6 has resigned from the post, she has got no locus to approach the jurisdiction of the Tribunal under the provision under Section-24-B of the Act, 1969, is having no force. It is for the reason that when the respondent no.6 is questioning the very issue of her resignation, it has to be decided by the appropriate court of law and for doing that, the Tribunal has entertained both the GIA Applications. 7. Hence, according to my considered view, it cannot be said that the Tribunal has exceeded its jurisdiction in entertaining both the GIA applications and thereby the issue and ground raised by the appellant is of no substance. 8. At this juncture, learned counsel for the appellant submits that the appellant have no objection, if the Tribunal will be directed to decide all the issues related to the appointment/resignation of respondent no.6 or any other issues pertaining to the subject matter involved herein, the writ petition may be disposed of in terms of the direction upon the Tribunal to decide the issues. 9. In view of such concession of the learned counsel for the appellant, both the FAOs are disposed of without going into merit, leaving it open to the parties to raise all points which shall be adjudicated by the Tribunal in accordance with law and without being prejudiced by this judgment. Final Result : Disposed