The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4147 of 2022 Ranjita Dwivedy …. Petitioner Mr. M. Basu, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. S.K. Jee, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 24.01.2025 Order No. 09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Pursuant to the order passed by this Court on 08.11.2024, instruction provided by the Principal, College of Teacher Education, Balasore vide letter dated 22.01.2025 be kept in record.
Legal Reasoning
3. Heard learned counsel for the parties. 4. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “The petitioner therefore prays that this Hon’ble Court may graciously be pleased to admit this writ petition, issued Rule NISI in the nature of Writ of Mandamus or any other writ(s) as this Hon’ble Court deems fit and proper by calling upon the // 2 // Opp. Parties to show cause as to why the impugned order dtd.23.03.2007 issued under Annexure-4 shall not be quashed and if the opp. Parties fail to show cause or show any insufficient cause, the Rule be made absolute. And in the interest of justice the impugned order dated 23.03.2007 issued by the Opp. Party No.3 under Annexure-4 may kindly be quashed.”
Legal Reasoning
4.1. It is contended that petitioner while continuing as a Jr. Clerk, she was promoted to the post of Sr. Clerk vide office order dated 09.01.2007 under Annexure-2 basing on the recommendation of the DPC. In terms of such order of promotion, petitioner also joined in her promotional post of Sr. Clerk and accordingly pay fixation was made vide office order dated 03.02.2007 under Annexure-3. 4.2. It is contended that while so continuing in her promotional post, without issuing any prior notice and without giving any opportunity of hearing, order of promotion extended in favour of the petitioner vide office order dated 09.01.2007 was cancelled vide the impugned order dated 23.03.2007 under Annexure-4. It is contended that challenging such order of cancellation dated 23.03.2007, petitioner approached the Tribunal by filing O.A. No.857(C) of 2007. 4.3. When the Tribunal declined to pass any interim order in favour of the petitioner vide order dated 30.03.2007, petitioner challenging the same, approached this Court by filing W.P.(C) No.5316 of 2007. This Court Page 2 of 7 // 3 // vide order dated 07.05.2007 under Annexure-5, while disposing the Writ Petition held that the order of cancellation will be kept in abeyance and petitioner be allowed to continue in her promotional post during pendency of O.A. No.857(C) of 2007. 4.4. This Court further directed for filing of the counter affidavit and disposal of the original application as expeditiously as possible. It is contended that in terms of the order passed by this Court on 07.05.2007 and considering the fact that the impugned order dated 23.03.2007 was kept in abeyance, petitioner was not only allowed to continue in her promotional post of Senior Clerk, but also vide office order dated 09.12.2020 under Annexure-6, she was allowed to remain as In-charge Section Officer till regular appointment of Section Officer. 4.5. It is however contended that O.A. No.857(C) of 2007 on being transferred to this Court and after being renumbered as W.P.C(OAC) No.857 of 2007 was disposed of vide order dated 24.12.2021, inter alia giving the liberty to the petitioner to approach appropriate forum, if any cause of action still survives. 4.6. It is contended that on the face of such order passed by this Court on 24.12.2021, petitioner was allowed to continue in her promotional post of Senior Clerk till she attained the age of superannuation on 30.06.2023. It is contended that since the petitioner in terms of order Page 3 of 7 // 4 // dated 09.01.2007 was allowed to continue as against the post of Sr. Clerk till she attained the age of superannuation on 30.06.2023 and even after disposal of W.P.C(OAC) No.857 of 2007 vide order dated 24.12.2021, petitioner was never reverted from the post of Sr. Clerk and was allowed to continue in that capacity till 30.06.2023, the order dated 23.03.2007 is required to be set aside by holding that the said order stands lapsed. It is also contended that the impugned order is also not sustainable in the eye of law as the same was issued without following the principle of natural justice. 5. Mr. S.K. Jee, learned Addl. Govt. Advocate on the other hand placing reliance on the stand taken in the counter affidavit so filed by O.P. Nos.1, 2 and 3 and the instruction provided by the O.P. No.3 vide letter dated 22.01.2025, though does not dispute the continuance of the petitioner in the promotional post of Sr. Clerk in terms of order at Annexure-2 till she attained the age of superannuation on 30.06.2023, contended that since petitioner by virtue of the order passed by this Court on 07.05.2007 in W.P.(C) No.5316 of 2007 continued in the promotional post, that gives no right to the petitioner to hold the post of Sr. Clerk. The stand taken in Para-11 of the counter affidavit reads as follows:- “11. That, in reply to the averments made by the applicant that during the pendency of her case her juniors have been promoted it is humbly submitted that the only post of Sr. Clerk at CTE, Balasore was holding by the applicant by virtue of the stay order of Page 4 of 7 // 5 // the Hon’ble Court and taking the plea of pendency of O.A./WPC(OAC) No.857/2007 she managed to continue on stay in the said promotional post w.e.f. 23.03.2007 to 30.06.2023 i.e. till her retirement by keeping secrete about the disposal of the above O.A./WPC(OAC) w.e.f. 24.12.2021 from her authority. In fact she had knowingly deprived others to get their due promotion in due time to the single post of Sr. Clerk during her tenure of service at CTE, Balasore admitting that no remark has been made in her service book and/or in her personal file about any reversion order or Court case order/decision though she had been dealt with the Office Establishment Section and Court case files till her retirement which is unjust, improper, arbitrary and unethical.” 5.1. Basing on the instruction, it is also contended that since petitioner continued in the promotional post till she attained the age of superannuation on 30.06.2023, Govt. has been requested to provide the instruction with regard to settlement of the pension and pensionary benefits as due to the petitioner. 5.2. Learned Addl. Govt. Advocate accordingly contended that since because of the interim order, petitioner continued in the promotional post till she attained the age of superannuation on 30.06.2023, it cannot be held that petitioner is eligible and entitled to hold the promotional post, on the face of the order passed under Annexure-4 on 23.03.2007. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner while continuing as a Jr. Clerk basing on the recommendation of the DPC held on 03.01.2007, she was promoted to the post of Sr. Clerk vide order dated Page 5 of 7 // 6 // 09.01.2007 under Annexure-2. On such promotion and joining in the post of Sr. Clerk, pay of the petitioner was accordingly fixed vide office order dated 03.02.2007 under Annexure-3. Thereafter, when order passed on 09.01.2007 was cancelled vide office order dated 23.03.2007 under Annexure-4, the matter was challenged by the petitioner before the Tribunal in O.A. No.857(C) of 2007. 6.1. The Tribunal when did not protect the interest of the petitioner and rejected the prayer for interim relief on 30.03.2007, matter was carried to this Court in W.P.(C) No.5316 of 2007. This Court vide order dated 07.05.2007
Decision
under Annexure-5 while disposing the Writ Petition, held that the order dated 23.03.2007 was to remain in abeyance and petitioner be allowed to continue in the promotional post till disposal of the original application. 6.2. Even though original application after being transferred to this Court was disposed of vide order dated 24.12.2021 without interfering with order dtd.23.03.2007, but on the face of such order, petitioner was allowed to continue in the promotional post of Sr. Clerk till she attained the age of superannuation on 30.06.2023. 6.3. In view of the aforesaid analysis and continuance of the petitioner in the promotional post of Sr. Clerk from 09.01.2007 to 30.06.2023, it is the view of this Court that Page 6 of 7 // 7 // the order passed under Annexure-4 on 23.03.2007 stands lapsed. It is also the view of this Court that the impugned order dtd. 23.03.2007 since has been passed without following the principle of natural justice, it is not tenable in the eye of law. This Court accordingly held the petitioner to have retired from her service while holding the post of Sr. Clerk in terms of order dtd.09.01.2007. 7. The Writ Petition accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jan-2025 18:37:24 Page 7 of 7