The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P(C) No.750 of 2018 Manaswini Prusty …. Petitioner Mr. S. Mallik, Advocate -versus- MC, General Nursing Midwifery Training School, MCL, Anugul & Others …. Opposite Parties Mr.P.R. Pattnaik, Adv. for O.P.1 to 5 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 18.03.2024 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Facts
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “1. Quash the impugned contractual terms of appointment order under Annexure-7, 8 & 11 and the order under Annexure-12 directing the petitioner to continue at her own cost. 2. Direct/order that the appointment of the petitioner under annexure-7 dt.28.2.2008 shall be treated as regular appointment on completion of three years satisfactory performance of service in terms of appointment order and terms and conditions of advertisement under the annexure-6. Direct/order that the arrear salary of the petitioner 3. from July, 2017 till date shall be paid immediately. // 2 // Pass such other orders as maybe deemed fit and 4. proper in the interest of justice”. 4. It is contended that pursuant to the advertisement issued by Opposite Party No.1 on 15.03.2003 under Annexure-3, Petitioner was initially engaged as a Nursing Tutor on Ad hoc basis vide order of engagement issued on 04.06.2003 under Annexure-4. 4.1. It is contented that while so continuing a fresh advertisement was issued by the self-same Opposite Party No.1 under Annexure-6 on 11.01.2008 inviting application for appointment to the post of Sister Tutor in the School in question with regular scale of pay. Petitioner again made her application and was selected. Accordingly, another order of appointment was issued in favour of the Petitioner on 28.02.2008 under Annexure-7. 4.2. It is contended that while so continuing when the Petitioner made prayer for regularization of her services, she was abruptly terminated from her services vide order dtd.23.12.2017 under Annexure-12 so issued by Opposite Party No.5. 4.3. Learned counsel for the Petitioner contended that since Petitioner by facing due recruitment process was initially engaged as a Sister Tutor on Ad hoc basis and thereafter with regular scale of pay vide order issued on 28.02.2008 under Annexure-7, she should not have been terminated from her services without assigning any reason and without issuing any show cause whatsoever. Page 2 of 7 // 3 // 4.4. It is also contended that as on today the post from which Petitioner was terminated vide order dtd. 23.12.2017 under Annexure-12, has not yet been filled up and is lying vacant along with other similar posts in the establishment of Opposite Party No.1. 4.5. It is accordingly contended that the order of termination so passed under Annexure-12 is required to be interfered with by this Court, with passing of appropriate order.
Legal Reasoning
contended that though there is no dispute that Petitioner was engaged in terms of the initial advertisement issued under Annexure-3 and subsequent advertisement issued under Annexure-6 as a Sister Tutor but because of the fact that various irregularities were found in the Office of Principal-In-charge to which Petitioner was holding, she was terminated from her service. 5.1. It is accordingly contended that because of such irregularities which was found against the Petitioner no further extension was allowed and accordingly she was terminated vide order dtd.23.12.2017 under Annexure-12. 5.2. It is also contended that Petitioner at no point of time was appointed as a Sister Tutor on regular basis and the advertisement issued under Annexure-6 is not for Page 3 of 7 // 4 // recruitment to the post of Sister Tutor on regular basis. Rather it was the payment of remuneration was to be made on consolidated basis. 5.3. It is accordingly contended that since the Petitioner’s further extension was not allowed because of the irregularities found with her performance as Principal-in-Charge no illegality or irregularity can be found with the authority while issuing
Arguments
5. Mr. P.R. Pattnaik, learned counsel appearing for Opposite Parties on the other hand made his submission basing on the stand taken in the counter affidavit. It is
Decision
order dtd.23.12.2017 under Annexure-12. 6. To the stand taken in the counter affidavit, learned counsel for the Petitioner contended that since in the impugned order under Annexure-12 nothing has been indicated with regard to any irregularities found on the part of the Petitioner during her continuance in the establishment of Opposite Party No.1 as Sister Tutor- cum-Principal-In-Charge of the College, the ground taken by the Opposite Parties in the counter for terminating the Petitioner from her services is not acceptable, in view of the decision taken in the case of Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Others reported in A.I.R 1978 SC-851. Hon’ble Apex Court in Para-8 has held as follows:- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 (at p.18): Page 4 of 7 // 5 // "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the or order of what he meant, or of what was in Ms mind, what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older: A Caveat”. 6.1. It is accordingly contended that since the impugned order dtd.23.12.2017 under Annexure-12 has been passed without complying the principle of natural justice and without assigning any reason, the same is not sustainable in the eye of law. 6.2. With regard to the contention raised by the learned counsel for the Petitioner that some arrear salary has not been paid from July, 2017, learned counsel for the Opposite Parties contended that same has already been disbursed since 04.06.2018. 7. Having heard learned counsel appearing for the Parties and the materials placed before this Court, it is found that Petitioner was initially engaged on Ad hoc basis vide order of engagement issued on 04.06.2003 under Annexure-4 basing on the advertisement issued by Opposite Party No.1 on 15.03.2003 under Anneure-3. Subsequently while so continuing, further advertisement issued by Opposite Party No.1 on 11.01.2008 under Annexure-6. Petitioner was engaged vide order of engagement issued on 28.02.2008 under Annexure-7 Page 5 of 7 // 6 // with a prescribed scale of pay. But as contended by the learned counsel for the Petitioner that order of appointment is with regular scale of pay, this Court is unable to accept the plea, as no scale of pay was indicated in the advertisement. However, Petitioner in terms of Annexure-6 was appointed vide order of engagement issued on 28.02.2008 under Annexure-7. Subsequently, the continuance of the Petitioner was extended from time to time till the impugned order dtd.23.12.2017 under Annexure-12 was issued wherein Petitioner’s further extension was refused. 7.1. It is found from Annexure-12 that no reason has been assigned while deciding not to extend the continuance of the Petitioner beyond 31.12.2017. The stand taken in the counter affidavit that because of various irregularities services of the Petitioner was not further extended is not acceptable, as no such reason was indicated while issuing the impugned order under Annexure-12, in view of the decision of the Hon’ble Apex Court in the case of M.S.Gill as cited (supra). 7.2. Since no reason whatsoever has assigned while issuing the order under Annexure-12 and that too without following the principle of natural justice, placing reliance on the decisions as cited (supra), this Court is inclined to quash the order dtd.23.12.2017 under Annexure-12. While quashing the same and considering the submissions of the learned counsel for the Petitioner that the post from which the Petitioner was disengaged in Page 6 of 7 // 7 // terms of Annexure-12, is lying vacant along with various other posts, it is observed that if any application is moved by the Petitioner seeking her reengagement / reappointment to the post in question or any available post, the same shall be considered by Opposite Party No.2 taking a sympathetic view of the matter and the long continuance of the Petitioner for around 14 years. 7.3. It is observed that if such an application is filed within a period of three (3) weeks hence, Opp. Party No.2 shall do well to take a lawful decision on the same within a period of three (3) months from the date of receipt of such application. The order so passed by Opp. Party No.2 be communicated to the petitioner. 8. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Mar-2024 18:24:50 Page 7 of 7