Bijaya Kumar Giri State of Odisha and others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 12931 of 2010 Bijaya Kumar Giri State of Odisha and others ….. Vs. ….. Petitioner Mr. Amrit Mishra, Advocate Opposite Parties Mr. B. Mohanty, AGA CORAM: DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY ORDER 18.03.2024 Order No. 15 This matter is taken up through hybrid mode. 2.
Legal Reasoning
for the State-opposite parties contended that there is no dispute that twice the petitioner was terminated from service and again reinstated and due to that the gap has occurred. It is contended that when second termination was made, he was recruited afresh. Therefore, whatever gap period is made available that gap cannot be waived out so as to regularize the service of the petitioner. Thereby, the tribunal has not committed any error apparent on the face of the record so as to cause interference of this Court. 6. Having heard learned counsel for the parties and after going through the records, this Court finds that the petitioner was serving as a Revenue Inspector in the district of Mayurbhanj and while he was serving at Udala, he was transferred from Udala Tahasil to Rairangpur Tahasil vide order dated 19.06.1968. Even though he was relieved, he did not join in the new place of posting and submitted before the authority that he was suffering from illness. Thereafter, he was issued with an order of termination from service with effect from 12.07.1968. Consequentially, Page 2 of 4 he made a representation before the RDC, Central Division, Cuttack, who subsequently sent the representation of the petitioner to Government. However, the RDC issued instructions to take back the petitioner into service against any available vacancy pending decision of the Government. Consequentially, the petitioner was appointed again vide order dated 17.07.1974, by which the Government held that the order of termination of the petitioner passed by the Collector, Mayurbhanj dated 24.10.1968 was valid, but it would be effective from the date of issue of order, i.e., 24.10.1968 and not from 12.07.1968. Pursuant to the order of the Government, again the service of the petitioner was terminated by the ADM, Mayurbhanj vide order dated 09.08.1974. Thereafter, the petitioner made a representation to the Government against the said order of termination. The Government in Revenue Department directed to appoint the petitioner as R.I., if not already appointed, as soon as a vacancy in the post of R.I. would occur, and that his service would be counted as a R.I. from the date of his appointment, whereas the period of his previous service till the date of his termination would be counted for pension only. Accordingly, the petitioner was appointed by the Collector, Mayurbhanj, pursuant to which he joined and continued in service. Therefore, for the gap period, which has occurred, the petitioner claimed for regularization by filing representation before the authority. The same having been rejected, in pursuance of the order dated 15.03.2007 passed by the tribunal in O.A. No. 1274 of 2003, the petitioner again approached the tribunal by filing O.A. No. 1610 of 2007 claiming for regularization of the gap period from 24.10.1968 to 05.06.1974 and 09.08.1974 to 22.11.1977. But fact remains, the petitioner, having accepted the offer of appointment, has already abandoned the period, which he is asking for regularization of service treating to be the gap period. If the petitioner accepted the terms and conditions of the offer of appointment, subsequently he cannot claim for filling up of the gap period by way of regularization of service. In any case, after the subsequent order when he joined in service and made grievance before the authority for Page 3 of 4 regularization of the gap period, the same was rejected and, as such, the petitioner has challenged the same before the tribunal. The tribunal taking into consideration all aspects observed that Sub-rule 2 of Rule-36 of OCS (Pension) Rule, 1992 prohibits to treat the gap period as qualifying service. Since the petitioner seeks to regularize the gap period during which he had not worked, question of regularization for the said period does not arise. As such, the petitioner was appointed as a fresh appointee and in absence of any rule or guidelines governing the field, the gap period cannot be treated for regularization of service. 7. In such view of the matter, since the appointment of the petitioner is fresh one, the pensionary benefits as due and admissible have already been released and in the meantime the petitioner already expired and his legal representatives have brought on record, in the opinion of this Court, they are entitled to get the family pension in terms of the benefit granted to the deceased petitioner. 8. In view of the above, this Court does not find any error apparent on the face of the order dated 11.03.2010 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.1610 of 2007 under Annexure-11 so as to interfere with the same, since regularization of the
Arguments
Heard Mr. Amrit Mishra, learned counsel appearing for the petitioner and Mr. B. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties. 3. The petitioner has filed this writ petition seeking to quash the order dated 11.03.2010 passed in O.A. No.1610 of 2007 under Annexure-11, by which the Orissa Administratie Tribunal, Bhubaneswar has not taken into consideration the gap period, as the petitioner has not worked for the said period; and further seeks direction to the opposite parties to consider the past service period for the purpose of pension and accordingly release the pensionary benefits in favour of the petitioner. As such, after death of the petitioner, the family pension also paid to his legal representatives. 4. Mr. Amrit Mishra, learned counsel appearing for the petitioner vehemently contended that the petitioner had faced termination twice and, therefore, the gap, which has been created, should be counted for the purpose of grant of pensionary benefits and the service of the petitioner should be regularized so that more financial benefits could be admissible to the petitioner. It is further contended that the Revenue Divisional Commissioner had already recommended the case of the petitioner to restore back his service, and that the period of absence from 12.07.1968 Page 1 of 4 to the date be treated as on duty and, as such, the RDC placed the matter before the Government for necessary orders at an early date. Thereafter, the petitioner was reinstated on 01.06.1974 and, as such, even if recommendation was made by the RDC, no decision was taken by the authority with regard to the gap period. Thereafter, the petitioner was again terminated from service, which was taken effect from the date of the order (24.10.1968) and not retrospectively from 12.07.1968, and that the period of absence of the petitioner from 12.07.1968 to 23.10.1968 is to be treated as leave due to him according to the rules. It is contended that the tribunal has not taken into consideration the said fact and, as such observed that the gap period will not be taken into consideration, as the petitioner has not worked for the said period. It is contended that once the RDC recommended the case of the petitioner to get the benefit, the same should have been taken into consideration by the tribunal. Therefore, the order so passed by the tribunal cannot be sustained in the eye of law. 5. Mr. B. Mohanty, learned Addl. Government Advocate appearing
Decision
gap period, as claimed in the writ petition, is not prescribed in the rules nor any guidelines is made available therefor. 9. Accordingly, the writ petition merits no consideration and the same is hereby dismissed. Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA Date: 19-Mar-2024 15:48:13 (DR. B.R. SARANGI) JUDGE (G. SATAPATHY) JUDGE Page 4 of 4