Swapna Mohanty v. State Of Odisha And Others, Supreme Court Of India, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Appeal No. 8425 of 2018†, decided on August 21, 2018

Disposition

allowed

Advocates

Suresh Chandra Tripathy, Vinoo Bhagat, Rutwik Panda, Ms Nikhar Berry, Ms Anshu Malik, Rajesh Kumar, Sibo Sankar Mishra, Ms Shriya Maini, Niranjan Sahu, Anup Kumar and Ms Neha Jaiswal, Advocates, for the appearing parties.

Judges

S.A. Bobde
L. Nageswara Rao, JJ.

Acts

Section 24-B of the Odisha Education Act, 1969
Section 5, Subsection 2 of the 1983 Income Tax Act
The Odisha Education Act

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Smart Summary

Factual and Procedural Background

Swapna Mohanty (“the Appellant”) was originally appointed to the 2^nd post of Lecturer in English at Indira Gandhi (Junior) Mahavidyalaya, Nimapara, Odisha. Upon the resignation of the incumbent of the 1^st post on 24 November 1991, she was elevated to that 1^st post and Respondent No. 4 was appointed to the vacated 2^nd post. On 29 July 2001 the Appellant’s services were terminated, after which Respondent No. 4 was placed in the 1^st post (14 October 2001).

The Appellant challenged her termination by an appeal dated 3 August 2002 before the Director, Higher Education (“DHE”). While the College was subsequently brought under the grant-in-aid scheme effective 1 January 2004, the DHE allowed the appeal on 21 February 2006 and reinstated the Appellant in the 1^st post.

When Government approval and grant-in-aid were not released, she approached the State Education Tribunal in GIA Case No. 120/2006, which on 3 December 2008 directed approval of her appointment and release of grants. The High Court, on 25 November 2009, ordered implementation of the Tribunal’s decision.

Respondent No. 4 in turn filed GIA Case No. 36/2010 seeking approval of his own appointment in the 1^st post. The Tribunal dismissed that claim; however, on appeal the High Court reversed the Tribunal, holding in favour of Respondent No. 4 and declaring the earlier Tribunal order obtained by the Appellant to be void for breach of natural justice and lack of jurisdiction in the DHE. The present Supreme Court appeal challenges that High Court judgment.

Legal Issues Presented

Whether the Director, Higher Education had jurisdiction to entertain and decide the Appellant’s 2002 appeal after the College came under the grant-in-aid scheme in 2004.
Whether the Tribunal’s 2008 decision in favour of the Appellant was void for violation of the principles of natural justice owing to non-impleadment of Respondent No. 4.
Consequently, which of the two claimants is entitled to occupy the 1^st post of Lecturer in English and receive grant-in-aid benefits.

Arguments of the Parties

Appellant’s Arguments

The appeal against termination was actually filed on 3 August 2002, not on 7 July 2005; the latter was merely a reminder, so there was no four-year delay.
The DHE retained jurisdiction over the pending appeal even after the College entered the grant-in-aid fold, as no statutory provision transferred such pending matters to the Tribunal.
Respondent No. 4 was not a necessary party to GIA Case No. 120/2006 because that case concerned only consequential benefits flowing from the setting aside of her termination.

Respondent No. 4’s Arguments

The Appellant filed the appeal belatedly without any application for condonation of delay.
Neither party possessed the requisite qualifications on initial appointment, and Respondent No. 4 acquired them earlier, making him senior and therefore entitled to the 1^st post.
Failure to implead him before the Tribunal violated natural justice, rendering the 2008 order void.

State of Odisha’s Submissions

Produced the file showing that while the original 2002 appeal was missing, the 2005 reminder corroborated its existence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commissioner of Income Tax, Orissa v. Dhadi Sahu, 1994 Supp (1) SCC 257	A statute changing the forum does not ipso facto divest the original forum of pending matters unless the new law expressly provides for transfer.	Relied upon to hold that the DHE, having seisin of the appeal filed in 2002, continued to possess jurisdiction to decide it even after the College obtained grant-in-aid status.
Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786	Definition of “necessary” and “proper” parties.	Used to conclude that Respondent No. 4 was not a necessary party to the Appellant’s Tribunal case because effective relief could be granted without his presence.

Court's Reasoning and Analysis

The Supreme Court scrutinised the record and accepted that the appeal against termination was in fact lodged on 3 August 2002, when the DHE indisputably had appellate authority over service matters of unaided colleges. Applying the principle in Dhadi Sahu, the Court held that jurisdiction once properly invoked did not lapse merely because the College later entered the grant-in-aid scheme; absent a statutory transfer clause, the DHE was competent to decide the pending appeal in 2006.

Regarding the allegation of violation of natural justice, the Court reasoned—on the basis of Udit Narain Singh—that Respondent No. 4 was not a party whose presence was indispensable for effective adjudication of the Appellant’s claim, which arose solely out of the illegality of her termination and the consequential entitlement to benefits. Since setting aside her termination automatically reinstated her to the 1^st post, Respondent No. 4’s interests were merely consequential. The Tribunal’s failure to implead him therefore did not vitiate its order.

The Court expressly declined to examine new contentions about delay, qualifications, and seniority that were never addressed by the lower forums. It rejected the High Court’s finding that the Appellant had played fraud on the court, describing that conclusion as factually and legally unsustainable.

Holding and Implications

APPEAL ALLOWED; HIGH COURT JUDGMENT SET ASIDE.

The Tribunal’s order approving the Appellant’s appointment to the 1^st post of Lecturer in English and directing release of grant-in-aid stands restored. Respondent No. 4 must revert to the 2^nd post. The decision clarifies that:

Where an appeal is validly filed before a competent authority, subsequent statutory changes to the appellate forum do not oust that authority’s jurisdiction absent express legislative mandate.
Non-impleadment of a person who is not a “necessary party” does not render proceedings void for breach of natural justice.

No new precedent was set, but existing principles on forum jurisdiction and necessary parties were reaffirmed and applied to service disputes in aided educational institutions.

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Swapna Mohanty v. State Of Odisha And Others

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.8425 of 2018

(Arising out of Special Leave Petition (Civil) No.32405 of 2015)

Swapna Mohanty .... Appellant Versus

The State of Odisha & Ors. ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted. The controversy in this case pertains to the competing claim of the Appellant and Respondent No.4 to the 1^stpost of Lecturer, English in Indira Gandhi (Junior) Mahavidyalaya, Nimapara in Odisha. The decision by the State Education Tribunal, Odisha, in favour of the Appellant was reversed by the High Court. Hence, the Appeal.

( I )

1. The Appellant was appointed as a Lecturer in English against the 2^ndpost in the Indira Gandhi (Junior) Mahavidyalaya, Nimapara (hereinafter referred to as "the College"). On 24^thNovember, 1991, the Appellant was elevated to the 1^stpost of Lecturer in English due to the resignation of Chaudhury Ramakanta Dash. Respondent No.4 was appointed against the 2^ndpost which was held by the Appellant prior to her being appointed to the 1^stpost of Lecturer. The services of the Appellant were terminated on 29^th July, 2001 by the Special Officer of the College. Thereafter, Respondent No.4 was appointed to the 1^st post of Lecturer in English on 14^thOctober, 2001. On 3^rdAugust, 2002, the Appellant filed an appeal challenging the order of termination of her service. The College was admitted to grant-in-aid w.e.f. 1^st January, 2004. By a letter dated 7^thJuly, 2005, the Appellant requested the Director, Higher Education to expedite the hearing of her Appeal dated 3 ^rd August, 2002. The Director, Higher Education vide

order dated 21^stFebruary, 2006 allowed the appeal and set aside the order dated 29^thJuly, 2001 by which the Appellant's services were terminated. The Appellant was reinstated as Lecturer in English in the 1^stpost on 28^thFebruary, 2006.

2. The Appellant approached the State Education Tribunal, Odisha by filing GIA Case No.120 of 2006 under Section 24-B of the Odisha Education Act, 1969 seeking a direction to the Government of Odisha and the Director, Higher Education to approve her appointment against the 1^stpost of Lecturer in English in the College and to release grant-in-aid w.e.f. 1^stJanuary, 2004. The State Education Tribunal by its judgment dated 3^rdDecember, 2008 allowed GIA Case No.120 of 2006 by granting the relief prayed for. Aggrieved by the non-implementation of the directions issued by the State Education Tribunal, the Appellant filed a Writ Petition in the High Court of Odisha which was allowed by a judgment dated 25^thNovember, 2009. The State Government was directed to implement the judgment of the State Education

Tribunal in GIA Case No. 120 of 2006 within a period of six months.

3. Respondent No.4 filed GIA Case No. 36 of 2010 in the State Education Tribunal seeking approval of his appointment in the 1^stpost of Lecturer in English in the College. During the pendency of the said appeal, the State Government approved the appointment of the Appellant in the 1^stpost of Lecturer in English by an order dated 13^thJanuary, 2011 and released the grant-in-aid in favour of the Appellant. It is relevant to note that the appeal filed by the State Government against the order dated 3^rdDecember, 2008 of the State Education Tribunal was rejected by the High Court. The Tribunal dismissed GIA Case No. 36 of 2010 filed by Respondent No.4. Respondent No.4 challenged the judgment of the State Education Tribunal in the High Court. The High Court allowed the appeal filed by Respondent No.4. Respondent No.4 was declared to be entitled to receive the grant-in-aid against the 1^stpost of Lecturer in English.

( II )

4. While dismissing the GIA Case No.36 of 2010 filed by Respondent No.4, the State Education Tribunal held that the Appellant is admittedly senior to Respondent No.4. It was further held that the Appellant was entitled for release of grant-in-aid in respect of the 1^stpost of Lecturer in English as a natural consequence of the order of termination of her services being set aside. The High Court reversed the order passed by the State Education Tribunal on the ground that the order passed in favour of the Appellant by the State Education Tribunal on 3^rdDecember, 2008 was in violation of principles of natural justice and thus, void. The High Court held that Respondent No.4 ought to have been impleaded by the Appellant in the case filed by her before the Tribunal. Another ground which found favour with the High Court is that the Director, Higher Education had no jurisdiction to decide the appeal filed by the Appellant against the order of termination of her service.

( III )

5. The High Court proceeded on the basis that the appeal preferred by the Appellant to the Director,

Higher Education was filed on 7^thJuly, 2005. The High Court found fault with the Appellant for filing an appeal after a delay of four years from the date of the order of termination of her service on 29^thJuly, 2001. As the College was admitted to grant-in-aid on 20^thFebruary, 2004, the High Court held that Director, Higher Education did not have jurisdiction to entertain the appeal.

6. The counsel for the Appellant referred to the letter dated 7^thJuly, 2005 addressed to the Director, Higher Education which was only a reminder with a request to dispose of the appeal that was filed earlier on 3^rdAugust, 2002. To satisfy ourselves about the correctness of the claim of the Appellant, we directed the counsel appearing for the State of Odisha to produce the records pertaining to the Appeal. Mr. Sibo Sankar Mishra, learned counsel for the State of Odisha informed us that the Appeal dated 3^rdAugust, 2002 is missing from the records. He submitted that the letter dated 7^thJuly, 2005 is available which would indicate that an Appeal was indeed filed on 3^rdAugust,

2002. If the High Court was aware of the Appeal being filed on 3^rdAugust, 2002, it would not have concluded that there was a delay of four years in filing the Appeal and that the Director, Higher Education did not have jurisdiction to entertain the Appeal. The College was admitted to grant-in-aid on 20^thFebruary, 2004 w.e.f. 1^stJanuary, 2004 and undisputedly, the Director, Higher Education was the competent authority to entertain appeals till then. The State Education Tribunal gets jurisdiction to decide the appeals in respect of colleges only from the date on which they are admitted to grant-in-aid. The High Court concluded that the Director, Higher Education did not have jurisdiction to entertain the Appeal which was filed on 7^thJuly, 2005 i.e. after the College was admitted to grant-in-aid which is factually incorrect. The Appeal was filed on 3^rdAugust, 2002 itself when the Director, Higher Education was competent to entertain the Appeal. We have also examined the point pertaining to the competence of the Director, Higher Education to hear the Appeal after the College

was admitted to grant-in-aid. In other words, even if the Appeal could be entertained by the Director, Higher Education when it was filed on 3^rdAugust, 2002, the point to be examined is whether the Director, Higher Education could have decided the Appeal after the College was admitted to grant-in-aid. The Appeal was allowed by the Director, Higher Education on 21^st February, 2006 which was, admittedly, after the College came into the fold of grant-in-aid. We are of the opinion that the Director, Higher Education continued to have jurisdiction to decide the Appeal that was filed before him prior to the admission of the College to grant-in-aid as there is no provision in the Odisha Education Act providing for a change-over of proceedings to the Tribunal. In a similar fact situation, this Court in Commissioner of Income Tax, Orissa

v. Dhadi Sahu¹ held as follows:

"18. It may be stated at the outset that the general principle is that a law which brings about a change in the forum does not affect pending actions unless intention to the contrary is clearly shown. One of the modes by which such an intention is shown is by making a provision for change-over of proceedings, from the court or the tribunal where they are

1 1 994 Supp (1 ) SCC 257

pending to the court or the tribunal which under the new law gets jurisdiction to try them."

( IV )

7. The other point which was found in favour of Respondent No.4 by the High Court is that there is violation of principles of natural justice which resulted in the order dated 3^rdDecember, 2008 in GIA Case No. 120 of 2006 being void. This is for the reason that the Appellant did not implead Respondent No.4 in the said case. The subject matter of GIA Case No.120 of 2006 filed by the Appellant was approval of her appointment against the 1^stpost of Lecturer in English in the College. There is no doubt about the order of termination of the services of the Appellant being set aside. The said order became final when the Appeal filed by the Government was rejected by the High Court. There is no dispute that the Appellant was holding the 1^stpost of Lecturer in English in the College on the date of termination of her services. It was only after the termination of the services of the Appellant, Respondent No.4 was appointed to the 1^stpost of

Lecturer in English in the resultant vacancy. The natural consequence of the order of termination being set aside is that the Appellant has to be appointed to the 1^stpost of Lecturer in English in the College. There is no doubt that only one post of Lecturer in English out of the two occupied by the Appellant and Respondent No.4 is admitted to grant-in-aid. The request of the Appellant was consequential to the order dated 21^stFebruary, 2006 by which she was directed to be reinstated in the 1^stpost of Lecturer in English. Respondent No.4 is not a necessary party either to proceedings pertaining to the termination of services of the Appellant or the consequential proceedings arising therefrom. A person whose presence before a forum may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for

complete and final decision on the question involved in the proceedings. [See:- Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar & Anr. ² ]

8. As GIA Case No. 120 of 2006 emanates from a dispute pertaining to the termination of services of the Appellant and the only dispute before the Tribunal being the grant of consequential benefits, we are of the considered opinion that Respondent No.4 was not a necessary party. We are aware of the fact that as a consequence of appointment of the Appellant in the 1^st post of Lecturer in English, Respondent No.4 has to be relegated back to his original post i.e. 2^ndpost of English. But, as stated earlier, that is a natural consequence of the order of termination of the services of the Appellant being set aside.

9. The counsel appearing for Respondent No.4 has submitted that there was delay of more than a year in the filing of an Appeal against the order of termination dated 3^rdAugust, 2002 and there was no application filed for condoning the said delay. He further

2 AIR 1963 SC 786

contended that both the Appellant and Respondent No.4 did not have requisite qualifications to hold the post of Lecturer in English in the College at the time of their initial appointment. Respondent No.4 acquired the necessary qualifications prior to the Appellant and so, he should be treated as senior to the Appellant which would entitle him to be appointed in the 1^stpost of Lecturer in English. It is not necessary for us to adjudicate on the points which were not raised and considered by either the Tribunal or the High Court. The High Court is not right in finding the Appellant to have played fraud on the Court by filing an Appeal before the Director, Higher Education who did not have jurisdiction or by not impleading Respondent No.4 as a party before the Tribunal.

10. For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed.

.....................................J.

[S.A. BOBDE]

.....................................J.

[L. NAGESWARA RAO]

New Delhi,

August 21, 2018.

Swapna Mohanty v. State Of Odisha And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant’s Arguments

Respondent No. 4’s Arguments

State of Odisha’s Submissions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Swapna Mohanty v. State Of Odisha And Others

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