TaxTMI 
TaxTMI 
2023 (10) TMI 1584
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....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 his favour with effect from [Hereinafter shortened and referred to as "w.e.f."] 01.01.2004, has been dismissed. 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 stopgap 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....
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....m 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 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 grantin-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 ....
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....ned 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 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.E d. 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 appoin....
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....al 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 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 ....
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....tiny and verification of relevant records about the factum of Respondent No.5 having worked in the Sri Thakur Nigamananda High School, Terundia from 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 not, from the record before us, appear to have approached the authorities in the interregnum. 21. Profitably, we may reproduce relevant passages from c....
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....e non-consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court. Laches 21. The word "laches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy. 22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such ....
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....y 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 court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by t....
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....ndant'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 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....