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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 16660 of 2012 An application under Sections 226 and 227 of the Constitution of India) --------------- Smt. Gurei Dei ... Petitioner -Versus- State of Odisha and Others ... Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : Mr. R.K. Mohapatra, Advocate For Opp. Parties : Mr. A.R. Dash, [Additional Government Advocate] M/s. R.C. Mohanty, S.S. Mohanty, and P.C. Parida, (For O.P.No.3) Advocates _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 24th September, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court with the following prayer:- Page 1 of 9 “It is therefore respectfully prayed that notice of this application be issued to the Opposite Parties and on their failure to show cause or on their showing insufficient cause, the application be allowed the order/letter No. 19177 dtd 20.04.93 (ANNEXURE 5) of the Director and the order dated 20.01.2007 passed by the Commissioner cum Secretary (Annexure-10), be quashed ; The Opp. Parties No. 1 to 3 be directed to correct the date of entry of the petitioner to service and direct payment fold as 1.02.80 in place of 1.02.88 in the service records and the direct payment of her arrear salary forthwith; Or The services of the petitioner be regularized with effect from 1.2.80 holding her entitled to draw direct scale of pay from that date ; And; The pension of the petitioner be recalculated taking her date of entry into service and the arrear pension be paid to her forthwith And any other order as deemed fit and proper in the circumstances be passed. And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. The case of the petitioner, briefly stated, is that her husband Siddheswar Mallik was working as a Sweeper in Nimapara College. He met with an untimely death on 18.12.1979 because of an accident. He left behind his widow, the present petitioner, and five minor children. Considering the sudden financial distress thrust upon the family, the Management of the College decided to appoint Page 2 of 9 the Petitioner as a Sweepress in the college, in the post occupied by her husband on sympathetic consideration. The matter was intimated to the DPI seeking approval of the appointment as per letter dated 06.05.1980 of the Secretary of the Managing Committee. In the said letter, it is clearly mentioned that the petitioner is working as a Sweeper since 01.02.1980, after death of her husband on 20.03.1980 due to a bus accident. The Deputy Director of Public Instructions (DPI), vide letter dated 16.05.1980, wrote to the Secretary to the Government in the erstwhile Department of Education and Youth Services, seeking approval of the government for filling up the post of Sweepress as a special case. Subsequently, the DPI Odisha by order dated 09.09.1980, in exercise of the power conferred under Article 133 of the Odisha Education Code approved the appointment of the petitioner as Sweepress with effect from 01.02.1980 in place of her husband. Notwithstanding the above communication clearly indicating the date of appointment of the petitioner as 01.02.1980, in another letter, i.e., dated 25.02.1993 of the government relating to Page 3 of 9 regularization of services of non-teaching staff of Nimapara College, the date of joining of the petitioner was mentioned as 01.02.1988. In view of this discrepancy, the petitioner brought the same to the notice of the College Management which led to verification of the records of the College by the Director. Again, by order dated 20.04.1993, the petitioner’s services were regularized by stating her date of appointment as 01.02.1988. Being aggrieved, the
Legal Reasoning
petitioner had approached this Court in W.P.(C) No. 8598
Decision
of 2023. Said writ petition was disposed of by order dated 03.09.2024 by the Division Bench of this Court, inter alia, with the following order:- “Heard. The grievance of the petitioner is that she is not getting her pay in the revised scale from 1998 due to an error crept in her service book mentioning the date of her coming to the direct instead of payment “1.02.1980”. “1l.02.1988” fold as As it reveals from the writ petition the petitioner’s husband was working as a Sweeper in Nimapara College and after his death on 18.12.1979, the petitioner was appointed in his place with on compassionate ground under the Rehabilitation Assistance Scheme. The Director of Public Instruction, Orissa approved the appointment of 1.2.1980 effect from Page 4 of 9 the petitioner as sweeper with effect from 1.2.1980. During the course of hearing our attention was drawn to the several letters written in this regards by the Principal of Nimpara College to the Director, Higher Education, Orissa drawing his attention the aforesaid error and requesting him to take necessary action to correct the date of her coming to the direct payment fold, but no action has not yet been taken by the Director. As it appears the Principal of the College wrote letters on 17.11.2002, 09.07.2002 and the latest being 16.04.2003. to This being the position, we direct the Director, Higher Education, opposite party No.2 to look into the matter and take a decision on the letters of the Principal by passing a reasoned order within a period of six weeks from the date of receipt of this order and communicate the the Principal, Nimapara College, to same Nimapara. The writ application is disposed of accordingly.” 3. However, pursuant to the said order, the matter was considered by the Commissioner-cum-Secretary to government in the department of Higher Education and the claim of the petitioner for correction of her date of appointment was rejected. The petitioner submitted several representations thereafter but to no avail. As such, she has approached this Court in the present writ Page 5 of 9 petition seeking the relief as has already been mentioned hereinbefore. 4. A counter affidavit has been filed on behalf of the Principal of the College entirely supporting the case of the petitioner that she was appointed and paid salary with effect from 01.02.1980 and not 01.02.1988. 5. No counter affidavit has been filed by the State but learned State Counsel has produced the attested copies of the relevant documents and the original file maintained in the office of the Director Higher Education duly attested by the Deputy Director. 6. Heard Mr. Rajesh Kumar Mohapatra, learned counsel for the petitioner, Mr. A.R. Dash, learned Addl. Government Advocate for the State and Mr. R.C. Mohanty, learned counsel appearing for the Nimapara College. 7. Mr. Mohapatra would argue that all the documents relating to the appointment of the petitioner as maintained in the college, in the Directorate and the government clearly shows that she was duly appointed and received her salary with effect from 01.02.1980. Therefore, only because there was an enquiry relating to Page 6 of 9 manipulation of records in respect of some other employees cannot, ipso facto, imply that the petitioner’s appointment was also under any doubt. According to Mr. Mohapatra, the petitioner’s case was treated as a special case and approved at the highest level. These aspects have not been considered by the Secretary while rejecting the representation. 8. Mr. Dash, learned Addl. Government Advocate referring to the documents produced by him today fairly submits that as per the letters of the Deputy Director dated 16.05.1980 and the order of approval of the Director of Public Instructions dated 09.09.1980, the date of appointment of the petitioner appears to be 01.02.1980. 9. Mr. Mohanty, learned counsel appearing for the College also fairly submits that as per the college records the petitioner was appointed and received her salary on 01.02.1980 and that her date of appointment being mentioned as 01.02.1988 which, in all probability, is a typographical error. He reiterates that the petitioner was in fact appointed on rehabilitation Assistance Scheme by the College Management on 01.02.1980 Page 7 of 9 10. Considering the submissions as above and on going through the documents enclosed to the writ petition and the documents available in the copy of the file produced by the State Counsel, this Court is left with no doubt that there is no ambiguity with regard to the fact that the petitioner was duly appointed on 01.02.1980. Her appointment being described in some documents/records as 01.02.1988 appears to be a typographical error. Since the College management as well as the Directorate have consistently maintained that the petitioner’s date of appointment is 01.02.1980, the same cannot be treated as 01.02.1988 under any circumstance. 11. Perusal of the impugned order passed by the Secretary reveals that these vital factual aspects of the matter have not been considered in the proper perspective for which the impugned order become vulnerable to challenge. 12. From what has been discussed and stated hereinbefore, this Court has no hesitation in holding that the impugned order cannot be sustained in the eye of law and warrants interference. In the result, the writ petition Page 8 of 9 is allowed. The impugned order dated 20.04.1993 of the Deputy Director and order dated 20.01.2007 passed by the Commissioner-cum-Secretary of Higher Education Department are hereby quashed. The opposite parties- authorities are directed to correct the date of appointment of the petitioner in all relevant records and to disburse all consequential service and financial benefits to her without any further delay and in any case, not later than two months from the date of production of certified copy of this order by the petitioner. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Sep-2024 19:41:37 Page 9 of 9