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  1st post  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.   

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( I )

1. The  Appellant  was  appointed  as  a  Lecturer  in

English  against  the  2nd post  in  the  Indira  Gandhi

(Junior) Mahavidyalaya, Nimapara (hereinafter referred

to  as  “the  College”).   On 24th November,  1991,  the

Appellant was elevated to the 1st post of Lecturer in

English  due  to  the  resignation  of  Chaudhury

Ramakanta  Dash.  Respondent  No.4  was  appointed

against the 2nd post which was held by the Appellant

prior to her being appointed to the 1st post of Lecturer.

The services of the Appellant were terminated on 29th

July,  2001  by  the  Special  Officer  of  the  College.

Thereafter, Respondent No.4 was appointed to the 1st

post of Lecturer in English on 14th October, 2001.  On

3rd August,  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. 1st

January, 2004.  By a letter dated           7th July, 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 2 | P a g e

order  dated  21st February,  2006  allowed  the  appeal

and set aside the order dated 29th July, 2001 by which

the            Appellant’s services were terminated.  The

Appellant was reinstated as Lecturer in English in the

1st post on 28th February, 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    1st post  of  Lecturer  in

English in the College and to release grant-in-aid w.e.f.

1st January, 2004.  The State Education Tribunal by its

judgment dated 3rd December, 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  25th November,

2009.   The  State  Government  was  directed  to

implement  the  judgment  of  the  State  Education

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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 1st post 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 1st post of Lecturer in English by an

order dated            13th January, 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 3rd  December,  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 1st post of Lecturer in English.   ( II )

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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

1st post 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  3rd December,  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, 5 | P a g e

Higher Education was filed on 7th July, 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 29th July, 2001.  As the

College was admitted to grant-in-aid on 20th February,

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 7th July,  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 3rd August,  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                3rd August,

2002 is missing from the records.  He submitted that

the letter dated 7th July, 2005 is available which would

indicate that an Appeal was indeed filed on 3rd August,

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2002.  If the High Court was aware of the Appeal being

filed  on      3rd August,  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 20th February,

2004  w.e.f.  1st January,  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 7th July,  2005  i.e. after  the College was

admitted  to  grant-in-aid  which  is  factually  incorrect.

The Appeal was filed on 3rd August, 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

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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 3rd August, 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 21st

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 1994 Supp (1) SCC 257  

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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 3rd December, 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  1st post  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 1st post 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  1st post  of

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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 1st post 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  21st February,  2006  by  which  she  was

directed to be reinstated in the 1st post 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

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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 1st

post of Lecturer in English, Respondent No.4 has to be

relegated  back  to  his  original  post  i.e. 2nd post  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     3rd August, 2002 and there was no application

filed  for  condoning  the  said  delay.   He  further

2 AIR 1963 SC 786  

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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 1st post

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.

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