BICHITRANANDA BEHERA vs. STATE OF ORISSA AND ORS.

1 2023 INSC 902 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. OF 2023 ( @ SPECIAL LEAVE PETITION (CIVIL) NO.16238 OF 2017 ) BICHITRANANDA BEHERA … APPELLANT VERSUS STATE OF ORISSA AND OTHERS … RESPONDENTS R1: State of Orissa represented through the Commissioner- cum- Secretary, State of Orissa School and Mass Education Department R2: Director, Secondary Education R3: Inspector of Schools, Puri Circle, Puri R4: Managing Committee, Gram Panchayat High School, Sailo R5: Pramod Kumar Mohanty S/o Narayan Mohanty R6: The State of Odisha Board of Secondary Education R7: Judhistir Khuntia S/o Late Kulamani Khuntia R8: Kanhu Chaan Nayak S/o Late Khanduri Nayak J U D G M E N T AHSANUDDIN AMANULLAH, J. Signature Not Verified Digitally signed by POOJA SHARMA Date: 2023.10.11 17:03:33 IST Reason: Heard learned counsel for the parties. 2 2. Leave granted. 3. The present appeal is directed against the Judgment dated 18.01.2017 in F.A.O. No.497 of 2008 (hereinafter referred to as the “Impugned Judgment”) passed by the High Court of Orissa at Cuttack (hereinafter referred to as the “High Court”) whereby the appeal filed by the appellant against judgment dated 15.11.2008 in GIA Case No.39 of 2005 of the State Education Tribunal, Orissa (hereinafter referred to as the “Tribunal”) directing the Respondents No.1 & 2 to approve the appointment of Respondent No.5 on the post of Physical Education Trainer (hereinafter referred to as “PET”) in the Gram Panchayat School, Sailo at Nadhana (hereinafter referred to as the “School”), District Puri and release of block grant in 1 his favour with effect from 01.01.2004, has been dismissed. 1 Hereinafter shortened and referred to as “w.e.f.”. 3 THE FACTUAL PRISM: 4. The School was established in the year 1987 and was also recognized. On 29.11.1990, the first Managing Committee of the School was constituted and as a stop- gap arrangement, a retired government school Physical Education Trainer was appointed on the post of PET on 18.05.1991. The Managing Committee was reconstituted by the Inspector of Schools, Puri Circle, Puri vide order dated 15.12.1992. However, the Inspector of Schools on 28.12.1992 modified the composition of the Managing Committee by substituting some names. The approval given to the Managing Committee constituted on 28.12.1992 was challenged by the Secretary of the Managing Committee constituted on 15.12.1992, in O.J.C. No.80 of 1993 before the High Court, which by interim order dated 11.01.1993, stayed the operation of the order dated 28.12.1992 reconstituting the Managing Committee. The Managing Committee constituted on 15.12.1992 appointed the appellant on the post of 4 PET on 14.05.1994. However, the interim order dated 11.01.1993 of the High Court was vacated on 18.12.1995, as term of the Managing Committee approved on 15.12.1992 stood expired. When on the recommendation of the proposal submitted by the outgoing Managing Committee, the new Managing Committee was reconstituted and approved on 03.07.1996, the same was again challenged in O.J.C. No.6687 of 1996. By a common order dated 23.07.1999 in both the Writ Petitions (O.J.Cs. No.80 of 1993 and 6687 of 1996), the High Court quashed the order of approval dated 03.07.1996 and directed the Inspector of Schools to remain in-charge of the management of the School. Later, when applications were invited to receive block grant(s) under the Grant-in-Aid Order, 2004 with effect from 01.01.2004, the Inspector of Schools passed an order on 02.04.2005 approving the appointment of teaching and non-teaching staff, where the name of appellant found place and he was held entitled to receive the Block Grant. 5 5. This led to Respondent No.5 filing GIA Case No.39 of 2005 under Section 24-B of the Orissa Education Act, 1969 challenging the approval order of the appellant before the Tribunal. The Respondent No.5 claimed to be continuing as the PET in the school in question w.e.f. 10.01.1993 on the basis of Resolution dated 07.01.1993 issued by the Managing Committee constituted on 28.12.1992. The Tribunal vide judgment dated 15.11.2008 quashed the order dated 02.04.2005 by which approval was given to the service of the appellant and further directed approval of the appointment of Respondent No.5 and for release of block grant in his favour w.e.f. 01.01.2004. The challenge by the instant appellant to the same before the High Court came to be rejected by the Impugned Judgment. SUBMISSIONS BY THE APPELLANT: 6. Learned counsel for the appellant submitted that the advertisement dated 20.04.1994 was issued by the 6 Managing Committee constituted on 15.12.1992 much after stay was granted in its favour, and interviews were conducted on 11.05.1994 for the PET and 3 other posts. 7. It was submitted that the appellant, along with three others, was appointed on 14.05.1994 and was still working, being duly qualified and rendering service uninterruptedly. 8. Learned counsel submitted that though the claim of the Respondent No.5 is based on his appointment letter and joining letter of the year 1993, but he has failed to produce any document to establish his continuity in service from 1993 to 2005 or even thereafter. It was contended that the appointment letter and resolution of the Managing Committee in favour of the Respondent No.5 was void and fabricated as Respondent No.5 was appointed within 14 days of the constitution of the Managing Committee on 28.12.1992 7 i.e., on 10.01.1993 which is one day before the stay order of the High Court dated 11.01.1993. It was submitted that despite the dates clearly indicating a sham process of appointment, the Tribunal and the High Court granted relief to the Respondent No.5 only on the basis of the aforesaid two documents without any document/record showing that the Respondent No.5 actually performed his duties in the School so as to entitle his service being approved, which is a condition precedent for salary in the shape of grant- in-aid/block grant. It was contended that after due verification/perusal of the Managing Committee’s Resolution Book and Staff Attendance Register from 1994 to 2005 and other material(s) like Inspection Report dated 11.07.2006, it was established that Respondent No.5 was appointed and also worked, as a teacher in another school viz . the Sri Thakur Nigamananda High School, Terundia. 9. Learned counsel submitted that facts have been duly verified from the records of advertisement, 8 resolution, appointment letter, attendance register and renewal register pertaining to the appellant by the competent authority; and in this background, he was approved by the order dated 02.04.2005 as eligible to receive block grant. 10. Learned counsel further submitted that the Inspector of Schools in his counter affidavit has clearly stated that there is no other appointee and also no record available, either in the School or in the Inspectorate, relating to the appointment of Respondent No.5. Thus, it was contended that the Tribunal has not given any finding with regard to the records relating to the appointment of Respondent No.5 and the High Court has also clearly erred in ignoring the relevant factual matrix as disclosed in the concerned contemporaneous records duly verified by the competent authority of the State. It was further contended that the two fora below have wrongly interpreted the term ‘Competent Management’ in the 9 order dated 23.07.1999, which was only in reference to sending of a proposal with regard to the future reconstitution of the Managing Committee and has no relevance on the issue of appointment having been made by the Managing Committee constituted on 15.12.1992, which in no way can be said to be incompetent or illegal even on the principle of ‘ de facto doctrine’ , more so, when the Managing Committee constituted on 15.12.1992 had managed the school for six years and the High Court has not invalidated any action or decision taken by it during the said period. 11. It was contended that even on merit, on the day the Respondent No.5 is said to have been appointed i.e., 10.01.1993, he did not possess BPED or CPED qualification and thus, could not have been appointed. He further submitted that the recommendation for renewal in favour of the appellant was sent every year as per the requirement and he was also assigned election duty on three occasions. 10 SUBMISSIONS OF THE STATE: 12. Learned counsel for the State has filed the counter-affidavit. The State has supported the case put forth by the appellant. SUBMISSIONS ON BEHALF OF RESPONDENT No.5: 13. Learned counsel for Respondent No.5, per contra , submitted that the High Court in its order dated 23.07.1999 has noted that the Managing Committee constituted on 28.12.1992 was the only competent Managing Committee which has appointed the Respondent No.5, hence the same is valid. It was submitted that the appellant, having been appointed by the Managing Committee constituted on 15.12.1992, could not have been so appointed without lawful termination of the service of Respondent No.5 and most importantly, the order dated 23.07.1999, having not been challenged, had attained finality. With regard to the 11 qualification of Respondent No.5 i.e., his non- fulfilment of the criteria of appointment on 10.01.1993, learned counsel submitted that, later, on 03.06.1996, Respondent No.5 did acquire the training qualification of B.P.Ed. which was permissible for in- service candidates as per Rule 16 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. In this connection, reliance was placed by learned counsel on the decision in Bibekananda Das v State of Orissa , 1997 (II) OLR 122 , holding that a teacher appointed prior to 18.12.1993, without having the training/qualification for the post, cannot be terminated or denied approval, but such employee was to be allowed to undergo training in course of his employment and on completion of the training, he/she would become entitled to trained scale of pay. Thus, it was submitted that Respondent No.5’s appointment cannot be said to be illegal for lack of training/qualification at the time 12 of appointment and moreover, it was submitted that in the counter-affidavit filed on behalf of the Board of Secondary Education, Orissa, it has been stated that both the appellant and the Respondent No.5 were untrained at the time of their respective appointments and thus, no benefit on this score can accrue to the appellant. Even apropos the stand of the appellant and the Inspector of Schools showing that Respondent No.5 was continuing in service from 04.01.1995 to 18.08.2002 in the Sri Thakur Nigamananda High School, Terundia, it was contended that the same is false and fabricated as the said school obtained permission only in 2000 and recognition was granted in 2002. On this issue, it was submitted that at best, even if the Respondent No.5 was appointed in some other school, still his appointment in the present school would not be nullified, as there can be, possibly, a charge of misconduct, for which proceedings can be or could have been initiated, but no such proceedings have in fact been initiated. Insofar as the stand taken by the 13 appellant that he has continuity on the post is concerned, learned counsel submitted that continuing in service for a long period would not make an ab initio invalid appointment valid. ANALYSIS, REASONING AND CONCLUSION : 14. Having considered the matter, the Court finds that in the face of competing submissions and rival claims of the appellant and the Respondent No.5, a balanced view is to be taken of the events which have actually taken place, keeping in mind the law. 15. On the factual scenario, the appellant was appointed by the Managing Committee constituted on 15.12.1992 and given appointment on 14.05.1994 during the time when a stay order granted by the High Court in favour of the Managing Committee constituted on 15.12.1992 was continuing i.e., since 11.01.1993. Thus, the appointment made by the said Managing 14 Committee (constituted on 15.12.1992) of the appellant cannot be labelled illegal per se nor termed void ab initio . From the record it also transpires that the then incumbent, namely Kapil Sasmal, who was appointed as PET in the School, continued till 15.10.1993, when he was terminated by the Managing Committee for absence vide resolution No.39 dated 15.10.1993. Thus, in the absence of the post being vacant on 07.01.1993, the appointment of Respondent No.5 on the said single post held by Mr. Kapil Sasmal, Respondent No.5 could not have been appointed by way of the resolution dated 07.01.1993 followed by the appointment letter, which came to be issued on 10.01.1993. We may, in addition, note that when the interim order dated 11.01.1993 passed in OJC No.80 of 1993 was vacated, the term of the Managing Committee approved on 15.12.1992 was already over. Therefore, from 11.01.1993 till 14.12.1995, the Committee constituted on 15.12.1992 was functioning in terms of the interim order of the High Court. It is also noteworthy that the High Court 15 only took a view with regard to reconstitution of the Managing Committee and even in its final order dated 23.07.1999, there is no whisper that any/all action(s) taken by the Managing Committee constituted on 15.12.1992, even though in terms of the interim order of the High Court, would lose their efficacy and/or validity. 16. It is also noted that the Respondent No.5, for the first time, raised the issue before the Tribunal challenging the approval order dated 02.04.2005 of the appellant on the basis of resolution dated 07.01.1993 of the Managing Committee constituted on 28.12.1992. In the period of over 12 years (from 07.01.1993 to 04.05.2005), Respondent No.5 had not moved before any forum, be it a Court of Law or a Tribunal or an Authority asserting his claims qua the solitary post of PET in the School in question. 16 17. On the legal aspect, since the Managing Committee constituted on 15.12.1992 continued for its full term by virtue of the interim order of the High Court dated 11.01.1993 and even in the final order disposing of the case on 23.07.1999, no adverse comment made on actions taken by the said Managing Committee, coupled with the fact that the appellant continued to discharge the duties on the post right since his appointment on 14.05.1994, which is documented in the school register and verified by the Inspector of Schools, with his having been sent on election duty thrice, in our view, are sufficient pointers that the appellant had actually worked and continued on the post. Further, there was no complaint before any authority, either with regard to the appellant not joining or discharging his duty or the Respondent No.5 being prevented from joining or discharging his duty, from any quarter, much less, Respondent No.5 himself, till 2005. Even with regard to the finding of Respondent No.5 having worked in 17 another school during the period in question, such finding has not really been contested. In any event, the material sought to disprove such factual assertion is not quite forthcoming from the record. 18. An issue that deserves some attention, as per Respondent No.5, is that since the Sri Thakur Nigamananda High School, Terundia got permission in 2000 and received recognition in 2002, the Respondent No.5 could not have been working there from 04.01.1995 to 18.08.2002. In this context, it is not incorrect to point out that it is fairly well-known that schools are started much prior to getting official permission/recognition, which follows after many years, if at all. Moreover, in the present case, the competent authorities have come to a finding, upon scrutiny and verification of relevant records about the factum of Respondent No.5 having worked in the Sri Thakur Nigamananda High School, Terundia from 18 04.01.1995 to 18.08.2002, which this Court has no reason to disbelieve. 19. The decision by a Division Bench of the High Court in Bibekananda Das ( supra ), is not of any help to the Respondent No.5 as we have not delved into the issue of eligibility for appointment on the post of PET on the relevant date(s). 20. On an overall circumspection, thus, in the present case the Respondent No.5 should have been non-suited on the ground of delay and laches, which especially in service matters, has been held consistently to be vital, juxtaposed with the sign of acquiescence. To the mix, we add that the State has supported the factual circumstances concerning the appointment of the appellant, his continuance in service as also the Respondent No.5 having worked during the said period in another school viz . the Sri Thakur Nigamananda High School, Terundia. Notably, the Respondent No.5 does 19 not, from the record before us, appear to have approached the authorities in the interregnum. 21. Profitably, we may reproduce relevant passages from certain decisions of this Court: (A) Union of India v Tarsem Singh , (2008) 8 SCC 648 :

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(emphasis supplied) (B) Union of India v N Murugesan , (2022) 2 SCC 25 :

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(C) Chairman, State Bank of India v M J James , (2022) 2 SCC 301 : " 36.  What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the 24

25 statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. 26 Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 12- 13) “12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows: ‘In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and (ii) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay 27 are most material. Upon these considerations rests the doctrine of laches.’ 13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious 28 financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” 39.  Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express 29 approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence. 40.  Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel   in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the 30 respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation. ” (emphasis supplied) 22. For reasons aforesaid, the judgments of the High Court as also the Tribunal deserve to be, and are accordingly, set aside. 23. The appellant is held entitled to continuance on the post of PET in the School, with service counted from 14.05.1994. As a sequel thereto, all consequential benefits, to be determined as per records, shall flow. 24. The appeal stands allowed in the afore-mentioned terms. No order as to costs. 25. However, for complete justice, we cannot leave Respondent No.5 in the lurch, given the time taken by 31 the adjudicatory process. As such, in exercise of power under Article 142 of the Constitution of India, we direct the State of Odisha to grant a lump-sum of INR 3 lakhs to Respondent No.5. Further, if any monies were paid to Respondent No.5, the same shall also not be recovered. This paragraph shall not constitute precedent. ....................J. [VIKRAM NATH] ......................J. [AHSANUDDIN AMANULLAH] NEW DELHI OCTOBER 11, 2023