State Of Odisha vs Himanshu Sekhar Das

Murahari Sri Raman, J.

THE PRAYER IN THE INTRA-COURT APPEAL:

Assailing Judgment dated 08.09.2021 delivered by the learned Single Judge in the Writ Petition bearing W.P.(C) No.2701 of 2014 in the matter of Articles 226 and 227 of the Constitution of India, the functionaries of State of Odisha-appellant,  preferred  this  intra-Court  appeal beseeching to invoke provisions of Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948, with the following relief(s):

“It is, therefore, most humbly and respectfully prayed that this Hon’ble Court may graciously be pleased to admit the appeal, call for the records of the writ petition, issue notice to the respondent and after hearing the parties; this Hon’ble Court may graciously be pleased to set aside/reverse the order passed by the Hon’ble Single Judge dated 08.09.2021 passed in WPC (OAC) No.2701 of 2014 thereby holding that the claim of the respondent is not entitled for the relief as prayed for;

And may pass such other order/orders as may be deemed just and proper;

And for this act of kindness the appellants as in duty bound shall ever pray.”

THE UNDISPUTED FACT AS CULLED OUT FROM THE IMPUGNED JUDGMENT OF THE LEARNED SINGLE JUDGE AND PLEADINGS:

The respondent, being appointed against the post of 4th peon in Putineswar High School, Putina in the district of Balasore on 14.12.1991 by the erstwhile Managing Committee, entered into service on 16.12.1991. His post got duly approved as per the roll strength of the school vide Letter No.5950, dated 27.05.1995 issued by the Inspector of Schools, Balasore Circle, Balasore. But, in the meantime, the school was taken over by the State Government on 07.06.1994 by virtue of the Resolution dated 16.12.1994 of the Government.

2.1. A post of 4th peon being duly sanctioned/created and having fallen vacant since 01.12.1997 on account of transfer of one Sri Subrat Behera, 4th peon to Town High School, Balasore, the respondent was adjusted in Heramba Chandra Academy, Bhograi vide Office Order No.11343, dated 07.09.1998 of the Inspector of Schools, Balasore Circle, Balasore with effect from 01.12.1997. As his post was duly approved in the said School, he was allowed to draw monthly salary with effect from 09.09.1998 by virtue of Office Order No.14305, dated 16.10.2000. While the matter stood as such, said order of approval was cancelled/withdrawn by issue of Office Order No.13172, dated 25.06.2001 of the Inspector of Schools, Balasore on the ground that his appointment was void/invalid.

2.2. Challenging the said Order dated 25.06.2001, the respondent approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing O.A. No. 2693 (C) of 2001. The Tribunal vide Order dated 04.11.2010, quashed the Order dated 25.06.2001 and observed that the respondent shall not be entitled to any salary or other related benefits other than seniority on the principles of ‘no work no pay’ and also observed that the authorities are at liberty to rectify such error in procedure and issue appropriate order observing principles of natural justice.

2.3. Since said Order of the Tribunal was not complied with, the respondent filed contempt petition being C.P. No. 382 (C) of 2011. In response to the notice issued therein, the Inspector of Schools, Balasore Circle, Balasore filed show cause taking a stand that he has already moved the Government/Director, Secondary Education, Odisha giving details of service particulars of the respondent and sought for necessary order/approval for his adjustment pursuant to the order passed by the Tribunal in O.A. No. 2963 (C) of 2001. When the Tribunal insisted for compliance of its order, the authorities filed affidavit disclosing that by virtue of the Order No.4016, dated 11.03.2013 of the District Education Officer, Balasore the approval already accorded in favour of the respondent has been withdrawn.

FURTHER MATERIAL ON RECORD:

Aggrieved by Order dated 11.03.2013 of the District Education Officer, Balasore the respondent preferred Original Application which was registered as O.A. No.2701 (C) of 2014 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief(s):

“Under the above circumstances, it is humbly prayed that the Original Application be allowed: And

(a) The impugned order dated 11.03.213 which was communicated later to the applicant by serving a copy of the compliance affidavit in C.P. No.382(C) of 2011 under Annexure-8 may be quashed/set aside and the applicant may be allowed to continue in his former post with all service and consequential benefits and his salary for the intervening period and his current salary may also be paid; And

(b) Any other order/orders or direction/directions be issued so as to give complete relief to the applicant.”

After notices were issued to the opponents, the said Original Application has been converted to Writ Petition, being re-registered in this Court as WPC (OAC) No.2701 of 2014, after abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).], dated 2nd August, 2019).

The learned Single Judge upon hearing the counsel for the writ petitioner and the Standing Counsel for the School and Mass Education Department and taking into consideration the pleadings exchanged between the parties, discussed the material on record threadbare and came to hold as follows while allowing the writ petition:

“8. In the light of the judgment in Rajendra Kumar Das, mentioned supra [State of Odisha Vrs. Rajendra Kumar Das, AIR 2003 SC 1009 = (2003) 10 SCC 411], after lapse of five years of implementation of the said judgment of the apex Court, an office order dated 07.05.2008 was issued providing the modalities for promotion to the post of ‘Daftary’ and consequential approval of 4th peon in that School as per the prevalent yardstick, which is evident from Annexure-10 to the rejoinder affidavit filed by the petitioner. Thereby, as per the law laid down by the apex Court read with the modalities provided by the State Government, vide order dated 07.05.2008, large number of 4th Peons have been approved in those Schools. This fact is elucidated in Annexure-10 to the rejoinder affidavit filed by the petitioner. As such, there is no denial of such document by filing any reply by the opposite parties. After approval of 4th peon in consequential vacancy, this Court directed for payment of their salary in the interregnum period as per the judgment of this Court in Prasanna Kumar Rout Vrs. State of Odisha and others (WP (C) No. 3472 of 2014 disposed of on 30.10.2017).

So far as the case in hand is concerned, instead of approving the post of the petitioner as a 4th peon in the consequential vacancy, his appointment was cancelled in gross violation of principle laid down by the apex Court in Rajendra Kumar Das and Deepak Kumar Sahoo [Dipak Kumar Sahoo Vrs. State of Odisha, 1999 (II) OLR 176], mentioned supra, which cannot sustain in the eye of law.

In view of the law laid down by the apex Court, as well as this Court and as per the resolution passed by the Government, on the point in issue, the order dated 11.03.2013 passed by the District Education Officer in Annexure-8 cancelling approval of the post held by the petitioner, cannot sustain in the eye of law. Thereby, the said order is liable to be quashed and is accordingly, quashed. The matter is remitted back to the District Education Officer, Balasore with a direction to approve the appointment of the petitioner against the post of 4th peon as per the yardstick laid down in order dated 08.07.1981, which was in force, and since the roll strength of the school was more than 100, the post of 4th peon, against which the petitioner was appointed, was justified as per the yardstick. The entire action shall be taken as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment.”

THE WRIT APPEAL:

The functionaries of the State of Odisha as appellants preferred this intra-Court appeal on the grounds inter alia that the learned Single Judge committed gross error by allowing the writ petition inasmuch as there was no concept of post of 4th peon and as such he should have upheld the decision of the authorities in withdrawing the approval accorded to an invalid appointment. It is further ground of attack that initially the roll strength of School as per yardstick specified in G.O. No.28465/EYS of the Education & Youth Services Department of the Government of Odisha was required to be 100 students, so as to justify one post of “daftary”, but said number was enhanced to 500 in the year 1992. Therefore, it is submitted by the appellants that “since the post is non-existent and beyond yardstick, therefore the Office Order No.11343 dated 07.09.1998 and No.9501 dated 10.07.1999 were withdrawn”.

HEARING OF THE WRIT APPEAL:

This matter was on board on 27.02.2024 under the heading “Admission”. Counsel for the both sides conceded that this case has a chequered career and the dispute has been continuing since long. Therefore, this Court took up the matter for final hearing and heard Sri Sangram Keshari Jena, learned Additional Government Advocate for the appellants and Sri Kunal Kumar Swain assisted by Sri Soubhagya Chandra Devdash, learned Advocates for the respondent.

SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:

Stemming on the grounds of appeal, Sri Sangram Keshari Jena, learned Additional Government Advocate urged that since there was no concept of appointing 4th peon in School, the authorities, upon scrutiny of records after taking over of the aided school by the Government of Odisha by virtue of Resolution dated 16.12.1994, have taken right decision vide Order dated 25.06.2001 withdrawing/revoking the approval accorded to such post on 07.09.1998, inasmuch as the 4th post is a non-existent post and beyond the yardstick specified by the Government of Odisha in Education & Youth Services G.O. No.28465/EYS, dated 08.07.1981, as modified in 1992.

8.1. Drawing distinction on facts which turned on rendering of decision in State of Odisha Vrs. Rajendra Kumar Das, AIR 2003 SC 1009 = (2003) 10 SCC 411, the learned Additional Government Advocate vehemently urged that in the present scenario there was nothing on record to show that the senior most peon has been promoted to the post of “Daftary”. Therefore, he submitted that the learned Single Judge has erred in allowing the writ petition of the respondent.

8.2. Reiterating the argument as advanced before the learned Single Judge, Sri Sangram Keshari Jena, learned Additional Government Advocate submitted that since the respondent was appointed against the 4th post of peon and his post was approved because of the adjustment made against the 2nd post in a nearby School cannot sanctify an erroneous action and, hence, the authorities are competent to rectify the illegality or irregularity.

Per contra, Sri Kunal Kumar Swain, learned Advocate for the respondent submitted that the writ appeal is liable to be knocked down in limine as no factual perversity has been shown to have crept in the judgment of the learned Single Judge. Intra-Court appeal being not matter of course, unless grave illegality is demonstrated, this Court cannot be insisted upon to sit in re-appreciating evidence and material particulars which have been considered by the learned Single Judge in appropriate perspective.

9.1. Advancing argument further he submitted that as per the yardstick dated 08.07.1981 for three-Class High School four Class-IV posts were admissible viz.

(i) Office Peon,

(ii) Science Attendant,

(iii) Night Watcher-cum-sweeper.

Note-C(ii) of the yardstick dated 08.07.1981 provides that where the roll strength of School exceeds 100, one post of Daftary is admissible. Since the roll strength of both the Schools was more than 100 at the relevant time, the post of 4th Peon against which the respondent was appointed was justified as per the yardstick dated 08.07.1981. Therefore, rightly his appointment was approved by the Inspector of Schools, Balasore Circle, Balasore against the post of 4th Peon. The yardstick dated 08.07.1981 was modified by virtue of Government Circular No.15500, dated 27.03.1992 which came into force with effect from 01.01.1992 providing for admissibility of 4th Peon (Daftary) where the roll strength of the School exceeds 500. Since the respondent was appointed prior to modified yardstick dated 27.03.1992 came into force, i.e., 01.01.1992, the 4th post of Peon (Daftary) is admissible to the present facts as the roll strength of the Schools exceeded 100.

9.2. This Court in the case of Dipak Kumar Sahoo Vrs. State of Orissa, 1999 (II) OLR 176 has dealt with both the yardstick dated 08.07.1981 and the modified yardstick dated 27.03.1992 and held that since by virtue of Government Letter No.36118/SME dated 13.11.1996 the post of Daftary was to be filled up by way of promotion from amongst the Peons in respect of non-Government Aided High Schools only with effect from 13.11.1996, Daftary is considered as promotional post. It has been held that if anybody has been appointed against the 4th post of Peon (Daftary) prior to 13.11.1996 and prior to 01.01.1992 having roll strength of more than 100 his appointment as 4th Peon cannot be said to be invalid in any manner and his appointment is to be approved as his post is admissible.

9.3. The position of law laid down in the case of Dipak Kumar Sahoo Vrs. State of Odisha, 1999 (II) OLR 176 continued to govern the field till the judgment of Hon’ble Supreme Court in the case of State of Odisha Vrs. Rajendra Kumar Das, 2004 (I) OLR (SC) 517 decided on 29.08.2003, wherein the Hon’ble Supreme Court in paragraph-9 of the said judgment held that since the post of Daftary carries higher scale of pay, the same is to be filled up by way of promotion amongst Class-IV employees of the same institution. In paragraphs-9 and 10 of the said judgment it has also been held that if a School was entitled to have a ‘Daftary’ as per the yardstick dated 08.07.1981 or as per the yardstick dated 27.03.1992 certainly the appointment was to be made by promoting one of the three Peons, i.e., Office Peon, Office Attendant and Night-Watcher-cum-Sweeper. It is held that the Management of the concerned institution would move the concerned authorities for approval of the promotional appointment of a Class-IV employee as ‘Daftary’. The decision was to be taken within three months from the date of submission of the recommendation in accordance with law keeping in view the operative yardsticks in force at the time of appointments were made. It was further held that even if there has been refusal earlier, the matter shall be considered in the light of the said judgment.

9.4. The State Government took around five years to comply with the terms of judgment in Rajendra Kumar Das (supra), and issued an Office Order No.9087 dated 07.05.2008 providing the modalities for promotion to the post of ‘Daftary’ and consequential approval of post of 4th Peon in that School as per the prevalent yardstick.

9.5. It is submitted by the learned counsel for the respondent that on the basis of decision in Rajendra Kumar Das, 2004 (I) OLR (SC) 517 read with the modalities provided by the State Government vide Office Order No.9087 dated 07.05.2008, in respect of large number of 4th Peons, appointments were approved in those Schools. After approval of the post of 4th Peons against vacancies, this Court directed for payment of their salary in the interregnum period vide, Prasanna Kumar Rout Vrs. State of Odisha, W.P.(C) No.3472 of 2014 disposed of on 30.10.2017.

9.6. Therefore, in view of the aforementioned judgment of this Court and the Supreme Court, the Order dated 11.03.2013 is not tenable in law as at the relevant time when the respondent was appointed the yardstick dated 08.07.1981 was in force and since the roll strength of both the Schools were more than 100, the post of 4th peon was justified as per the said yardstick.

9.7. Under the aforesaid fact-situation, it is fervently prayed by the learned counsel for the respondent Sri Kunal Kumar Swain that there being no substance in the appeal, the same be dismissed.

CONSIDERATION OF RIVAL CONTENTIONS AND REASONS FOR THE DECISION:

Circular bearing No.28465/EYS, dated 8th July, 1981, issued by the Government of Odisha in Education and Youth Services, so far as relevant for the present purpose, is reproduced hereunder:

“I am directed to say that the question of fixation of standard staff for the non-Government Secondary Schools has been felt necessary by the Government due to introduction of the revised syllabus under 10 years schools pattern. After careful consideration of various aspects, Government have now been pleased to decide that the standard staff both teaching and non-teaching for different categories of non-Government Secondary Schools shall be follows:

A.   For the Schools having no additional sections:

Category       of       staff (1)

3-Class (2)

5-

Class (3)

7-

Class (4)

1    to

8

***

9.

Peons—

(i) Office peon

1

1

1

(ii) Science Attendant

1

1

1

(iii)  Night  Watcher- cum-Sweeper

1

1

1

Note.—

***

(C) Additional post of Clerks/Peons.—

(i) Where the roll strength of the school exceeds 1,000 or more one post of U.D.C. would be admissible in addition to the existing post of L.D.C.

(ii) Where the roll strength of the school exceeds 100 one post of Daftary is admissible.

(iii) For the schools running in shift system for shortage of accommodation one additional post of peon is admissible.

The above yardstick will come into force with effect from 1st July, 1981. ***”

10.1. Aforesaid  Circular  dated  8th  July,  1981  has  been modified by way of issue of Circular bearing No. 15500-SVIIEP-50/91/E, dated 27th March, 1992, with respect to  the  post  of  “Peon”  and  “Daftary”  to  the  following extent:

“I am directed to say that the question of fixation of revised yardstick for appointment of Class IV employees in Non-Government Secondary Schools shall be as follows:

Category of staff

(1)

3- Class (2)

5- Class (3)

7- Class (4)

(i)

Office Peon

1

1

1

(ii)

Science Attendant

1

1

1

(iii)

Night Watcher-cum-Sweeper

1

1

1

Where the roll strength of a 3-class High School is 500 (five hundred) or more one post of Daftary is admissible.

For the schools running in shift system for shortage of accommodation one additional post of peon is admissible.

The above yardstick will come into force with effect from

01.01.1992 and Government order referred to above stands modified to the extent indicated above.”

10.2. Undisputed fact unfurled in the instant case is that on the date of appointment of the respondent in the 4th post of Peon, the school was having roll strength of more than 100. Further fact not controverted is that the Inspector of Schools, Balasore had approved the appointment of the respondent by the Management with effect from 19.05.1995.

10.3. Rule 30(k) of the Odisha Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991, reads as follows:

“30. Powers and functions of the Management Committee.—

Subject to the provisions of the Act and these Rules, the Managing Committee shall exercise the powers and discharge the functions, as follows:

(a) to (j) ***

(k) appointment of teaching and non-teaching staff in accordance with the provisions contained in the Act, these Rules and instructions of the Department.”

10.4. The Management being conferred with power under aforesaid Rules, appointed the respondent against the post of 4th  Peon and such appointment was duly approved by the Inspector of Schools vide Letter dated 27.05.1995.

10.5. It is beyond pale of controversy that appointment of the respondent in the post of Peon was accorded approval with effect from 19.05.1995 as he was appointed by the Management on the basis of yardstick delineated in the Circular dated 8th July, 1981 in the year 1991 and not as per modified yardstick specified in Circular No. 15500-SVIIEP-50/91/E, dated 27th March, 1992, which has been given effect to from 01.01.1992. This view can be countenanced by the following observation made in Dipak Kumar Sahoo (supra):

“7. Now let us look at the facts of the case. The approval of the petitioner was not made by the Inspector of Schools basing on the yardstick prescribed by the Government in Order No.15500/E, dated 27.03.1992 at Annexure-A. The aforesaid revised yardstick was brought into force with effect from 01.01.1992, i.e., after joining of the petitioner in the School on 18.12.1991. There is no dispute that at the time of joining of the petitioner, the yardstick prescribed by the Government in Letter No.28465/EYS, dated 08.07.1981 was in force which provided for admissibility of a 4th Peon (Daftary) if the roll strength of the School exceeded 100. At the relevant time the roll strength of the School was more than 100.”

10.6. While the yardstick vide Circular dated 08.07.1991 specified  under  the  heading  “Additional  post  of Clerks/Peons” that where the roll strength of the school exceeded 100, one post of Daftary was admissible, the Clarification issued by the Government in Letter No.36118/SME, dated 13.11.1996 mentioned about the manner of filling up of the post of “Daftary”. Said letter is reproduced hereunder:

“Sub: Filling up of the post of Daftary in Government High Schools.

I am directed to say that in this Deptt. Letter No. 28465/EYS dated 8.7.1981 it has been laid down that where the roll strength of a High School exceeds 100 tone hundred) one post of Daftary is admissible in addition to the Class IV employees such as one Office Peon, one Science Attendant and one Night Watcher-cum-Sweeper The norm of appointment of Daftary has been revised in this Department Letter No. 15500/E. dated 27.3.1992 and accordingly where the roll Strength of a High School is 500 (five hundred) or more one post of Daftary is admissible in addition to the above posts.

Certain doubts have been raised at some quarters as to how the post of Daftary shall be filled up, whether by direct recruitment or by promotion from among the Class-IV employees of the same school.

As per the erstwhile P&S Deptt. Letter No. 29787/GEN dated 15.12.1979 posts of Daftaries in State Govt. Offices shall be filled up by promotion from among the Peons, Orderly Peons etc. of the same office on the basis of suitability with due regard to seniority.

It is, therefore, hereby clarified that the same principles may also be followed while filling up the post of Daftary in a High School in order to avoid legal complications.

The above instructions may please be brought to the Notice of all concerned for their guidance.”

LEGAL POSITION WITH RESPECT TO POST OF 4TH PEON VIS-À-VIS DAFTARY:

At the relevant point of time, there was dichotomy whether the post of “Daftari” is a promotion post. This question has been answered in the matter of Dipak Kumar Sahoo (supra). This Court, while taking note of Circular dated 08.07.1981, held as follows:

“6.  ***  On  careful  reading  of  the  aforesaid  letter [Government Letter No. 36118/SME dated 13.11.1996 bearing Subject— Filling up of the post of Daftary in Government High Schools], we are of the considered opinion that the Government for the first time in the said Letter declared that since in the State Government offices the post of Daftary is filled up by promotion from among the peons, orderly peons etc. on the basis of suitability with due regard to seniority, as prescribed in the erstwhile P&S Department Letter No. 29787/Gen. dated 15.12.1979, the same principle should also be followed while filling up of the posts of Daftary in High Schools. The aforesaid decision that the post of Daftary in non-Government aided High Schools is a promotional post is applicable or effective only from the date of issue of the letter. It has got no retrospective effect. In the order dated 8.4.1997 of this Court in Misc. Case No. 10326 of 1996 (arising out of OJC No. 7723 of 1995) reference has been made to the Government Circular dated 15.12.1979. Reference to the said circular obviously means to the erstwhile P&S Department Letter No. 29787/Gen., dated 15.12.1979 mentioned in Govt. Letter No. 36118/SME dated 13.11.1996 (extracted above). We make the position clear by stating that as per the erstwhile P&S Department Letter No. 29787/Gen., dated 15.12.1979 post of Daftary in State Government offices are to be filled up by promotion from among the Peons, Orderly Peons etc. The said norm for filling up of the post of Daftary in Govenment offices has been made applicable to High Schools (Non-Govt. Aided) for the first time by Letter No. 36118/SME dated 13.11.1996. By virtue of this decision, the post of Daftary in non-Government Aided High Schools is to be filled up by way of promotion from among the peons etc.”

11.1. The issue was carried before the Hon’ble Supreme Court by the State of Odisha. Said Hon’ble Court in the case of Rajendra  Kumar  Das  (supra),  repelling  the  stance “According to State Government the post of ‘Daftary’ is a promotional post and therefore, the concept of ‘forth peon as sought to be canvassed by the writ petitioners is without any legal foundation”, expressed the view by holding that:

“It is to be noted that post of ‘Daftary’ carries higher scale of pay and is a promotional post for Class IV employees. That being the position, the High Court was not justified in directing approval of the writ petitioners’ services as ‘fourth peon’. But one significant aspect cannot be lost sight of. If a school was entitled to have a ‘Daftary’, certainly the appointment was to be made by promoting one of the three persons i.e. Office Peon, Office Attendant and Night Watcher-cum-Sweeper, there being no other class IV post in the institution. It is for the Managing Committee of the institution to decide who is to be promoted and thereafter seek approval of the concerned authorities. That way the claims of the writ petitioners could have been considered by the authorities, on being appropriately moved by the Management. It is undisputed that the writ petitioners were appointed by the Managing Committee, may be under a misreading of the relevant Government Orders.”

11.2. In view of said Judgment of the Hon’ble Supreme Court in the case of Rajendra Kuumar Das (Supra) and the Judgment of this Court in Dipak Kumar Sahoo (Supra), there is no manner of doubt persists that the post of “Daftari” is a promotional post and is to be filled up by promotion from amongst the Peons on the basis of merit- cum-suitability with due regard to seniority.

11.3. As has already been noted, there was dilemma with regard to “Daftari” as a promotional post and this has been clarified not only by this Court but also by the Hon’ble Supreme Court. The case of Rajendra Kumar Das (supra), was a case of 4th post of peon appointed by the Management Committee which was not accorded approval, yet in such circumstance, the Hon’ble Supreme Court came to direct as follows:

“10. We, therefore, while allowing these appeals direct that the Management of the concerned institution shall move the concerned authorities for approval to the promotional appointment of a Class IV employee, as ‘Daftary’. Simultaneously, it can also recommend for appointment to the Class IV post, in case approval is accorded to the recommendation for appointment of ‘Daftary’ on promotion. The decision on both motions shall be taken within three months from the date of submission of the recommendation in accordance with law keeping in view the operative yardsticks in force at the time of appointments were made. Even if there has been refusal earlier, the matter shall be reconsidered in the light of what has been stated above.”

11.4. While complying with the direction as made in Rajendra Kumar Das (supra), the Government of Odisha in Department of School and Mass Education issued Office Order No.9087-IX-SME(HC)-19/06(Pt.1)/SME, dated 7th May, 2008, allowed the claim as follows:

“That after careful consideration, Government have been pleased to allow the Management to give promotion to one of the existing Class-IV employees to the post of Daftary taking into consideration the merit-cum-suitabiliity with due regard to seniority and to adjust the so called 4th peon as mentioned in the list enclosed in the consequential vacancy of Class-IV post in the said School.”

11.5. This Court in the case of Prasanna Kumar Rout (supra) taking note of yardstick dated 8th July, 1981 and case laws on the subject held as follows:

“In view of the continuous orders of this Court right from OJC No.796 of 2000, OJC No.10789 of 2001 and W.P.(C) No.1862 of 2012, the Petitioner being in continuous working with approval of his post as 4th Peon, he cannot be denied the benefits. Moreover, the Judgment of the Hon’ble Supreme Court in the aforesaid case by modifying the order of this Court only to create a post of Daftary, who is to be adjusted from senior most peon and the 4th Peon is to be adjusted in the 3rd post, the Office Order dated 7th May, 2008 cannot be said to be prospective in nature in case of this petitioner. Apart from this, it is reiterated that Office Order dated 7th may, 2008 being not a policy decision of the Government but an order to implement the order of the Hon’ble Supreme Court, the same has to be construed as operative from the date of Hon’ble Supreme Court directs. It is needless to say that Hon’ble Supreme Court has directed on 29th August, 2003 to implement the concept of 4th Peon within a period of three months from the date of recommendation made by the concerned school. The plea of the Opposite Parties expressed through Annexure-9 that the so called 4th Peon being only adopted on 7th May, 2008 by the Government, the Petitioner is not entitled to receive the salary from 1st April, 1999 to 23rd May, 2008 not only violated order of Hon’ble Supreme Court but also against the order passed by this Court time and again. From the impugned order vide Annexure-9, it appears that the Petitioner has been adjusted against 4th Peon only with effect from 23rd May, 2008 but not before that although he has been working as such is a sorry state of affairs. Hence, Annexure-9 is illegal and improper to the extent it is made prospective for the Petitioner.”

11.6. In the case of Rajakishor Pradhan Vrs. State of Odisha & Others, WPC(TAC) No.35 of 2014 & WPC(OAC) No.2620 of 2016 vide Judgment dated 05.07.2022 it has been held as follows:

“10. Coming to the grounds on which the proposal for approval of the appointment of the petitioner Raj Kishore for the post of peon was turned down, it is stated that the appointment was made against a post which was not created. In the case of Shakuntala Biswal Vrs. State of Orissa reported in 2008 (Supp.-II) OLR 653, this court held that if the yardstick provides for a post and such post is admissible considering the roll strength and the Managing Committee of the school appointed a teacher and sought for approval of such appointment, creation of the post is a mere formality and the proposal submitted by the Managing Committee cannot be turned down only on the ground that the post had not been created. The same analogy can be drawn in relation to the post of a peon also. Therefore the plea taken by the opposite parties that the post had not been created/sanctioned is not tenable in the eye of law.

***

Both the petitioners have rendered service for more than two decades. As per the law laid down by the Apex Court in the case of Rajendra Kumar Das (supra), thus, their appointment requires to be approved by the authorities. It is for the Management to promote anyone among the 3 class-IV employees to the post of Daftary by submitting necessary proposal to the Government. Significantly, the Govt. in School and Mass Education Department issued an order on 07.05.2008 prescribing modalities for implementation of the Judgment of the Apex Court in Rajendra Kumar Das’s case. In the case of Prasanna Kumar Rout Vrs. State of Odisha and others, reported in MANU/OR/0728/2017, this Court held that the Office Order dated 07.05.2008 cannot be held as prospective in nature.”

11.7. This  aspect  has  been  clarified  by  this  Court  in Bhabagrahi Maharana Vrs. State of Odisha, W.P.(C) No.13158 of 2013, etc., vide Judgment dated 21.11.2017, which was rendered in the context of appointment of 4th peon and non-payment of arrear salary. This Court held as follows:

“12. In the Judgment in the above case [Narayan Dash Vrs. State of Odisha, W.P.(C) No.19969 of 2015, vide Judgment dated 18.10.2017], this Court has specifically observed that as per direction of the Hon’ble Supreme Court read with the direction of this Court, the direction of the Hon’ble Supreme Court cannot be lost sight of even if the Office Order dated 07.05.2008 is made prospective inasmuch as the said Office Order cannot be allowed to contravene the direction of the Hon’ble Supreme Court to comply same within three months from the date of recommendation. Similarly situated employees should get the benefit of the order of the Hon’ble Supreme Court.

The Government Order dated 07.05.2008 cannot be considered as prospective but should be retrospective by paving way of the order of the Hon’ble Supreme Court and this Court to be complied as the same are binding on both parties. On the other hand, the petitioners are entitled to continuance to the post of 4th peon from the respective period they are approved as such by the order of this Court passed in their respective earlier writ petitions and by the aforesaid order of the Hon’ble Supreme Court.

***

Thus, the opposite parties are hereby directed to calculate the arrear salary of the petitioners for the period they asked for in their respective writ petitions and after due calculation, make payment of the same to the petitioners within a period of four months from today failing which the same shall be paid with interest at the rate of 9% per annum. ***”

11.8. Pertinent here to refer to the following observation of this Court rendered in the case of Bairagi Charan Sahoo Vrs. State of Odisha, 2022 SCC OnLine Ori 3474:

“10. Be that as it may, this Court reiterates that if the School is found to have met the criteria relating to roll strength as per the 1981 yardstick, the ratio in the case of Rajendra Kumar Das (supra) would apply in full force. Consequently, one of the three Class-III employees could be given promotion as Daftary and the vacancy so created, can be adjusted by the so called 4th Peon and his service can be duly approved. A perusal of the impugned order reveals that Opposite Party No. 1 has simply held that the post of 4th Peon is not available in the standard yardstick without rendering a specific finding as to if the 1981 yardstick was applicable or not. Moreover, no effort seems to have been made by Opposite Party No. 1 to examine the applicability of the ratio decided in the case of Rajendra Kumar Das (supra) to the facts of the case.”

11.9. In identical fact-situation as that is obtained in this case, in the case of Sarat Ku. Kachhia Vrs. State of Odisha, W.P.(C) No. 15649 of 2010, vide Order dated 01.03.2021, this Court made the following observation and direction:

“*** This writ petition has been filed by the petitioner seeking direction to the Managing Committee of Ramnath Ucha Bidyapitha, Chalanpada under Kalahandi Education Circle to give promotion to the senior most peon Sri Lingaraj Behera to the post of Daftary and to adjust him in the consequential vacancy as peon and accordingly send the proposal to opposite parties No.1 to 3 for due approval of service of the senior most peon as Daftary and his service as peon in the consequential vacancy. ***

The brief fact of the case, in hand, is that Ramnath Ucha Bidyapitha at Chalanpada in the district of Nuapada was notified as an aided educational institution as per Section 3(b) of the Orissa Education Act with effect from 01.06.1994. When the school was an un-aided educational institution as per the yardstick dated 08.07.1981, the Managing Committee vide resolution dated 07.12.1990 resolved to appoint a 4th peon in the school and thereafter an advertisement was issued by the managing committee for filling up of the said post. Pursuant to such advertisement, the petitioner being an eligible candidate submitted application and after following due procedure, he was selected and accordingly he was issued with an appointment order on 09.02.1991. Thereafter, the petitioner joined as 4th peon in the school on 13.02.1991 and from the date of his initial joining, he has discharged his duty satisfactorily. Thereafter, the school became aided one and the staff position of the school was submitted by the Managing Committee of the school for due approval of the teaching and non-teaching staff of the school to enable them to receive grant-in-aid with effect from 01.06.1994. As such, the Inspector of School, Kalahandi Circle vide Office Order dated 03.08.1996 approved the services of the petitioner as 4th peon of the school w.e.f. 01.06.1994 and released the grant-in-aid in favour of the petitioner from the said date.

*** But all of a sudden, the Inspector of School, vide letter dated 21.10.1999, without assigning any reason, stopped the salary of the petitioner along with other 4th peons of the Circle. Therefore, the petitioner has approached this Court by filing the present writ petition.

When the matter was so pending, being aggrieved by the order of this Court in the case of one Rajendra Kumar Das Vrs. State of Orissa, wherein direction has been given for approval of his post who is a 4th peon in Dolagobinda High School, Dhobagadia under Balasore Education Circle, the State Government preferred SLP (C) No. 7032 of 2000, which was subsequently numbered as Civil Appeal No.6844 of 2033, wherein the Apex Court vide Order dated 29.08.2003 while allowing the appeal directed the management of the concerned institution to move the concerned authorities for approval to the promotional appointment of a Class-IV employee, as Daftary. Simultaneously, it can also recommend for appointment to the class-IV post, in case of approval is accorded to the recommendation for appointment of ‘Daftary’ on promotion.

As it appears, the petitioner has also made grievance with regard to promotion of senior most peon and consequentially in the vacancy he should be given appointment so that the petitioner can get the benefit of scale of pay admissible to the post and, as such, due to non-consideration of the same, the petitioner approached this Court. ***

In Srikanta Sahoo mentioned supra [WP(C) No.13158 of 2013, disposed of on 21.11.2017], claiming arrear salary, the petitioners approached this Court and this Court disposed of the said writ petition directing the opposite parties to calculate the arrear salary for the period they asked and after due calculation, make payment of the same to the petitioners within a period of four months, failing which the authority has to pay interest at the rate of 9% per annum.

Applying the aforesaid ratio decided by this Court as well as the Apex Court to the present case, this Court is of the considered  view  that  the  benefit  admissible  to  the petitioner should have been extended by giving promotion to the senior most persons to the post of ‘Daftary’ and the consequential vacancy should be given to the petitioner and, as such, non-consideration of the same cannot sustain in the eye of law. ***”

11.10. It  is  also  relevant  to  take  note  of  following observation of this Court in the case of Narayan Dash Vrs. State of Odisha, W.P.(C) No.19969 of 2015, vide Judgment dated 18.10.2017:

“It will not be out of place to mention that the petitioner has been already appointed as 4th peon with due approval of the State Government. It is only submitted by the learned Standing Counsel for the School and Mass Education Department that the approval of the erstwhile Inspector of Schools to the appointment of the petitioner as 4th peon is not operative does not hold good as the said order has been passed in pursuance of the order of this Court in OJC No.5108 of 1996. Moreover, the Hon’ble Supreme Court have also directed for introduction of Daftary system and consequently the concept of appointment of 4th peon in the manner as observed above.

So, the petitioner is working as 4th peon from 02.05.1988 and continuing as such. When the Hon’ble Supreme Court by modifying the order of this Court directed for fresh recommendation and the same is also complied in the manner as stated above there is no logic to deny his continuance in the post of 4th peon for the period from October, 2002 to March, 2009. ***”

PARITY SOUGHT FOR BY THE RESPONDENT:

Drawing parity of fact with that of the afore-discussed cases of similarly circumstanced persons, it is irresistible to observe that there is no flaw in the opinion of the learned Single Judge of this Court to conclude that the respondent was appointed by the Managing Committee vide Letter No.365, dated 14.12.1991 against the post of 4th peon in Putineswar High School, Putina, Balasore in accordance with the yardstick contained in G.O. No.28465/EYS, dated 08.07.1981 and his post was duly approved by the Inspector of Schools, Balasore, vide Letter dated 27th May, 1995. Therefore, there is no infirmity in the findings of the learned Single Judge while delivering the Judgment dated 08.09.2021.

12.1. As the yardstick provides for a post, i.e., Daftary, and such post is admissible considering the roll strength, the appellants were required to consider the appointment of respondent by giving promotion to one of the peons as “Daftary”. In view of Bairagi Charan Sahoo (supra) and Rajakishor Pradhan (supra), creation of the post being mere formality, the proposal of the Managing Committee cannot be turned down only on the ground that the post had not been created.

SCOPE OF INTERFERENCE WITH THE JUDGMENT OF THE LEARNED SINGLE JUDGE IN WRIT APPEAL:

The Hon’ble Supreme Court of India in the case of N. Ramachandra Reddy Vrs. State of Telengana, (2019) 11 SCR 792 delineated the scope of intra-Court appeals by making following observation:

“43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra-Court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.”

13.1. In Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340 it has been observed as follows:

“Be that as it may, in an intra-Court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.”

13.2. In Wander Ltd. Vrs. Antox India (P) Ltd., 1990 Supp. SCC 727 following is the observation:

“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. Vrs. Pothan Joseph, (1960) 3 SCR 713 = AIR 1960 SC 1156: (SCR 721) “*** These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vrs. Jhanaton,1942 AC 130:

‘*** the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’. ***”

13.3. This Court is, therefore, of the considered opinion that the present writ appeal does not warrant indulgence in the Judgment of the learned Single Judge in the teeth of aforesaid ratio propounded by the Hon’ble Court.

CONCLUSION & DECISION:

Having analysed the pleadings and heard submissions of the counsel for the respective parties, this Court carefully scrutinised the documents enclosed to the brief as also perused the records of Writ Petition, which transpired that after taking into consideration the principles laid down in the case of Rajendra Kumar Das (supra) and Dipak Kumar Sahoo (supra) the learned Single Judge has rightfully relegated the matter to the District Education Officer, Balasore by holding that Order dated 11.03.2013 passed by said Authority cannot be sustained in the eye of law and directed the authority concerned to approve the appointment of the respondent against the post of 4th peon as per the yardstick laid down in G.O. No.28465/EYS, dated 08.07.1981 since roll strength of the subject-school was more than 100. The learned Single Judge has taken into consideration the legal position and decided the case of the respondent on the facts, which remained undisputed by the appellants.

A writ appeal is an appeal on principle where the legality and validity of the Judgment and/or Order of the Single Judge is tested and it can be interfered with only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has to be adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong, which would then give scope for interference by the Division Bench. (Ref.: Anindita Mohanty Vrs. Senior Regional Manager, H.P. Co. Ltd., Bhubaneswar, 2020 (II) ILR-CUT 398).

Since the learned Single Judge has elaborately discussed the factual matrix with well-reasoned order placing reliance on the evidence available on record, and the Judgments rendered on the subject, the decision rendered in WPC (OAC) No.2701 of 2014 vide Judgment dated 08.09.2021 does not suffer infirmity in law so as to warrant interference in exercise of powers under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 2 of Chapter-VIII of the Rules of the High Court of Odisha, 1948.

Keeping abreast of the scope of intra-Court appeal as propounded by the Hon’ble Supreme Court as well as this Court, for the reasons stated above and the discussions made in the foregoing paragraphs, no infirmity in the decision of the learned Single Judge vide Judgment dated 08.09.2021 is perceived and, therefore, this Court declines to show indulgence in the said Judgment in this writ appeal.

In the result, this writ appeal stands dismissed, but in the circumstances, there shall be no order as to costs.

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