The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22510 of 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Mamata Rani Sahoo …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. B.K. Pattanaik, Advocate For Opp. Parties : Mr. Sangram Jena, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:15.11.2023 and Date of Order: 08.12.2023 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J. 1. Heard Mr. B.K. Pattanaik, learned counsel for the petitioner and Mr. S. Jena, learned Addl. Govt. Advocate for the State. 2. Present Writ Petition has been filed inter alia with the following prayer:- “Under the above facts and circumstances, it is most respectfully prayed that this Hon’ble Court be graciously pleased to issue Rule NISI calling upon the Opp. Parties to show cause as to why:- // 2 // i) The action of the Opp. Parties issuing an order under Annexure-10 in regularizing the service of the petitioner w.e.f. 09.01.2013 instead of her date of joining in service dated 01.11.1989 shall not be declared illegal, arbitrary and unsustainable in the eyes of law as the same is not inconsonance with the orders of this Hon’ble Court and the Hon’ble Apex Court. ii) A specific direction shall not be issued to the opp. parties to regularize the service of the petitioner from the date of her joining instead of 09.01.2013 and further allowing the petitioner for pay revision, pay fixation with higher scale of pay and also to pay from differential 01.11.1989 to till date.” amount the 3. It is the case of the petitioner that the petitioner with having the requisite qualification was sponsored by the Employment Exchange for her appointment as a PET in terms of the letter issued by the Director, Secondary Education on 19.08.1989 under Annexure- 1. The petitioner in terms of Annexure-2 so issued by the then Inspector of Schools, Balasore Circle face the interview for her appointment as against the post of PET. The petitioner on coming out successful in the said interview was appointed as PET in Talapada Girls High School in the existing vacancy on temporary basis vide order dated 27.10.1989 under Annexure-3. In the said order of appointment issued under Annexure-3, it was indicated that the petitioner was so appointed till Page 2 of 17 // 3 // the post is filled up regularly with due sponsoring of a Selection Board Candidate.
Legal Reasoning
petitioner before this Court in W.P.(C) No.9538 of 2003. During pendency of the matter before this Court in W.P.(C) No.9538 of 2003 and basing on an interim order passed by this Court on 28.06.2005 in Misc. Case No.7921 of 2005, the petitioner was again engaged as a PET on contract basis vide office order dated 08.12.2006, where she joined on 27.12.2006 in Subarnamukhi High School, Jasotikiri in the district of Bhadrak. The petitioner taking into account her engagement as a Contractual PET w.e.f. 27.12.2006, was regularized w.e.f. 09.01.2013 vide order dated 22.08.2013, so issued by the DEO, Bhadrak under Anneure-10. Page 5 of 17 // 6 // 3.6. It is contended that W.P.(C) No.9538 of 2003 was disposed of by this Court vide order dated 05.01.2011 inter alia with a direction that the Opp. Parties are to allow the petitioner and treat her as a PET in the School and go on paying her salary as a PET till the Selection Board Candidate is sponsored to the School. 3.7. It is further contended that seeking review of order dated 05.08.2011, the State filed Review Petition No.215 of 2012. But by the time the Review was taken
Arguments
3.1. It is contended that while continuing as a PET in terms of the order issued under Annexure-3 w.e.f. 1.11.1989, when District Selection Board Candidate was sponsored to the School in question to work as PET in place of the petitioner, the petitioner challenging such action of the authority approached this Court in OJC No.5247 of 1991. This Court while disposing the matter on 07.07.1992, directed the authorities to allow the petitioner to continue as a PET till the post is filled up in accordance with law. It is contended that the order passed by this Court on 07.07.1992 was assailed by the State Machinery before the Hon’ble Apex Court in Civil Appeal Nos.9002-9003 of 1994. In the meantime the school in question was taken over by the Government w.e.f. 07.06.1994. However, Hon’ble Apex Court vide its order dated 03.09.1997 set aside the order passed by this Court on 07.07.1992 in Civil Appeal Nos.9002-9003 of 1994. 3.2. It is contended that when Government in the Department of School & Mass Education took a Page 3 of 17 // 4 // decision to regularize the services of 525 Nos. of Adhoc- teachers who have been appointed on or after 01.01.1985 under LSES cadre and the case of the petitioner was not considered, petitioner being aggrieved approached the Tribunal in O.A. No.1749 of 1998. 3.3. Pursuant to the order passed by the Tribunal on 16.10.1998, petitioner was again engaged as an Adhoc PET on 1.11.1998 and posted as such to Talapada Girls High School. However, when District Selection Board, Balasore recommended 3 (three) names for their appointment as PET which includes in place of present petitioner on 10.03.2000, the petitioner challenging such action of the authority once again approached the Tribunal in O.A. No.1041(c) of 2000. 3.4. It is contended that in terms of the order passed by the Tribunal on 05.04.2000 in O.A. No.1041(c) of 2000, petitioner was again appointed as a PET in Asurali High School on 44 days basis. However, vide order dated 14.09.2003 when the Tribunal while disposing the O.A., held the petitioner not having the required training qualification of CPED and observed Page 4 of 17 // 5 // that on such acquisition of the Training, petitioner may be considered for appointment as a Primary School Teacher otherwise the petitioner may be appointed as Para-teacher or Sikshya Sahayak subject to her making application for such assignment 3.5. It is contended that the order passed by the Tribunal on 14.05.2003 in O.A. No.1041 of 2000 and O.A. No.1467 of 2000 was assailed by the present
Decision
up and finally disposed of vide order dated 14.05.2014, petitioner since had already been regularized w.e.f. 09.01.2013 vide order dated 22.08.2013 under Annexure-10, the Review Petition was disposed of on the issue that the petitioner since has been regularized during pendency of the Review Petition, it requires no adjudication. 3.8. Learned counsel for the petitioner contended that since the petitioner was initially engaged as a PET vide order dated 27.10.1989 on temporary basis with the condition that the petitioner will continue till a candidate is sponsored by Selection Board, when a candidate was sponsored by the Board, petitioner was Page 6 of 17 // 7 // relieved from the post of PET on 29.10.1991. Subsequently in terms of the order passed by this Court in OJC No.5247 of 1991, she was again re- engaged on 23.11.1992. The petitioner after being terminated for the 2nd time w.e.f. 28.03.2000, was appointed once again vide order dated 08.12.2006 in terms of the order passed by this Court on 28.06.2005 in W.P.(C) No.9538 of 2003. It is contended that in view of such continuance, petitioner is eligible and entitled to get the benefit of regularization from her initial date of appointment i.e. w.e.f. 01.11.1989. 3.9. It is further contended that since because of the illegal action of the Opposite Parties, the petitioner was kept out of employment for different spell, the petitioner having no fault for such break in service is eligible and entitled to get the benefit of regularization from her initial date of joining i.e. 01.11.1989 in place of 09.01.2013, which was the date of regularization reflected in order dated 22.08.2013 under Annexure- 10. 4. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand Page 7 of 17 // 8 // taken in the Counter Affidavit and further affidavit filed in terms of the order dated 06.04.2022. 4.1. Learned Addl. Govt. Advocate contended that the petitioner was initially appointed as a PET on temporary basis vide order dated 27.10.1989 under Annexure-A/3 to the counter. Since in the order of appointment it was clearly indicated that on sponsoring of State Selection Board Candidate, the petitioner will have to part with her services and Selection Board Candidate when joined on regular basis against the post of the petitioner, the petitioner was relieved from the post of PET w.e.f. 29.10.1991. 4.2. Being aggrieved by such action, petitioner approached this Court in O.J.C. No.5247 of 1991. Pursuant to the order passed by this Court on 23.11.1992, the petitioner was again allowed to join as a PET. However, the order passed by this Court on 23.11.1992 in OJC No.5247 of 1991 was challenged by the State Authority before the Hon’ble Apex Court in Civil Appeal No.9002-9003 of 1994. Hon’ble Apex Court vide order dated 03.09.1997 was pleased to set aside the order dated 23.11.1992, so passed by this Court in Page 8 of 17 // 9 // OJC No.5247 of 1991. Apprehending her termination in view of the order passed by the Hon’ble Apex Court, petitioner again approached the Tribunal in O.A. No.1748 of 1998. The Tribunal vide its order dated 16.10.1998 disposed of the O.A. with a direction on the State Authority to consider the case of the petitioner. O.P. No.2 on due consideration of the matter rejected the petitioner’s claim vide order dated 10.03.2000 under Annexure-C/3. While rejecting such claim, Opp. Party No.2 also directed the District Selection Board for sponsoring Selection Board Candidate to replace the petitioner. 4.3. Basing on the order passed by the O.P. No.2 on 10.03.2000 under Annexure-C/3, petitioner was relieved from her services from Talapada Girls High School w.e.f. 28.03.2000. Being aggrieved by such action of the Authority concerned, petitioner again approached the Tribunal in O.A. No.1041 of 2000. The Tribunal vide order dated 14.05.2003 under Annexure- D/3 disposed of the Original Application by directing the petitioner to appear the C.T. Examination and observed that after acquisition of such Training Page 9 of 17 // 10 // Qualification, petitioner may be appointed as Primary School teacher or in the alternative she may be engaged as a Sikshya Sahayak or a Para Teacher. 4.4. Petitioner being aggrieved by the order dated 14.05.2003, so passed in O.A. No.1041 of 2000 approached this Court in W.P.(C) No.9538 of 2003. Pursuant to the interim order passed by this Court on 28.06.2005 in Misc. Case No.7921 of 2005 and 4516 of 2004 arising out of W.P.(C) No.9538 of 2003, petitioner vide order dated 08.12.2006 was appointed as a contractual PET and posted as such to S.N. High School, Jasotikiri, in the district of Bhadrak. In terms of the order dated 08.12.2006, petitioner joined as PET on contractual basis in S.N. High School, Jasotikiri on 27.12.2006. 4.5. It is contended that while continuing as a Contractual Teacher w.e.f. 27.12.2006, W.P.(C) No.9538 of 2003 was disposed of vide order dated 05.08.2011 under Annexure-A/3 to the counter by directing that the petitioner be allowed to continue, till a Selection Board Candidate is sponsored to the School in question. Page 10 of 17 // 11 // 4.6. Being aggrieved by suh order passed by this Court on 05.08.2011, State preferred Review Petition No.215 of 2012. During pendency of the Review Petition, petitioner vide order dated 22.08.2013 of the DEO, Balasore under Annexure-10 to the Writ Petition was regularized as a PET w.e.f. 09.01.2013. 4.7. Learned Addl. Govt. Advocate contended that pursuant to the interim order passed by this Court on 28.06.2005 in W.P.(C) No.9538 of 2003, petitioner was appointed as a Contractual PET vide order dated 08.12.2006. Basing on the resolution issued by the G.A. Department, petitioner was regularized in her services on completion of 6 (six) years service w.e.f. 09.01.2013 vide order dated 22.08.2013 under Annexure-10 to the Writ Petition. It is contended that the petitioner at no point of time challenged her appointment as a Contractual PET so issued on 08.12.2006. It is also contended that since the petitioner at no point of time challenged her appointment as a contractual PET, where she joined on 27.12.2006, the prayer made in the present Writ Page 11 of 17 // 12 // Petition to regularize her services w.e.f. 01.11.1989 is not at all entertainable. 4.8. It is also contended that the petitioner in terms of the order dated 27.10.1989, though joined as a PET on temporary basis on 01.11.1989, but petitioner was relieved from her duty w.e.f. 29.10.1991 on the joining of the Selection Board Candidate in Talapada Girls High School. Pursuant to the order passed by this Court in OJC No.5247 of 1991, petitioner though was again allowed to join as a PET on 23.11.1992, but she was again disengaged from her services on 28.03.2000. Petitioner remained out of employment w.e.f. 28.03.2000 till she was again appointed on contractual basis vide order dated 08.12.2006 in terms of the interim order passed by this Court on 28.06.2005 in W.P.(C) No.9538 of 2003. It is accordingly contended that in view of such break in service of the petitioner and the appointment of the petitioner as a Contractual PET vide order dated 08.12.2006, prayer of the petitioner to regularize her services w.e.f 01.11.1989 is not entertainable. It is accordingly contended that the Page 12 of 17 // 13 // prayer as made in the Writ Petition requires no consideration by this Court and liable for rejection. 5. To the submissions made by the learned Addl. Govt. Advocate, learned counsel for the Petitioner contended that the petitioner while continuing w.e.f. 01.11.1989, she was relieved from her services w.e.f. 29.10.1991. But subsequently in terms of the order passed on 20.05.1998 so issued under Annexure-11, petitioner was again allowed to continue as a PET on adhoc basis in Talapada Girls High School. The petitioner while so continuing in terms of order dated 20.05.1998, was again relieved from her duty w.e.f. 28.03.2000. However, basing on the interim order passed by this Court in W.P.(C) No.9538 of 2003, petitioner was appointed as a contractual PET vide order dated 08.12.2006. It is accordingly contended that since because of the admitted latches of the Opp. Parties in not allowing the petitioner to continue without any break and taking into account her continuance w.e.f. 01.11.1989, Petitioner is eligible and entitled to get the benefit of regularization w.e.f. 01.11.1989 as prayed for. Instead of w.e.f. 09.01.2013 Page 13 of 17 // 14 // as has been extended vide order dated 22.08.2013 under Annexure-10. 6. I have heard learned counsel for the petitioner and Mr. S. Jena, learned Addl. Govt. Advocate for the State. On the consent of learned counsels appearing for the parties, the matter was taken up for disposal at the stage of admission with due exchange of pleadings. 7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the petitioner was initially appointed as a PET on temporary basis vide order dated 27.10.1989 under Annexure-3. In terms of the said order, petitioner joined as a PET in Talapada Girls High School on 01.11.1989. From the record, it is found that the petitioner while continuing as such, she was relieved from her post w.e.f. 29.10.1991 on the joining of the regular PET. It is also found that pursuant to the order passed by this Court in OJC No.5247 of 1991, petitioner though was allowed to join as a PET in Talapada Girls High School w.e.f. 23.11.1992, but petitioner was again relieved from her service w.e.f. 28.03.2000. Page 14 of 17 // 15 // 7.1. Petitioner thereafter in terms of the interim order passed by this Court on 28.06.2005 in W.P.(C) No.9538 of 2003 was engaged as a PET on contractual basis vide order dated 08.12.2006. In terms of the order dated 08.12.2006 so issued by the then Inspector of Schools, Bhadrak Circle, petitioner joined as a contractual PET in S.N. High School, Jasotikiri on 27.12.2006. It is found from the record that at no point of time, petitioner assailed the office order dated 08.12.2006 wherein she was engaged as aContractual PET in S.N. High School, Jasotikiri. In the alternative, in terms of the order dated 08.12.2006, petitioner joined as a contractual PET in S.N. High School, Jasotikiri on 27.12.2006. It is also found from the record that while continuing as a Contractual PET w.e.f 27.12.2006, in terms of order dated 08.12.2006, petitioner was regularized in her services w.e.f. 09.01.2013 vide order dated 22.08.2013 under Annexure-10 on completion of six years of service. 7.2. Petitioner after being so regularized w.e.f. 09.01.2013 vide order dated 22.08.2013 also did not make any application seeking her regularization w.e.f. Page 15 of 17 // 16 // 01.11.1989. Instead petitioner straight away filed the present Writ Petition on 20.12.2016 inter alia with a prayer to direct the Opp. Parties to regularize her services w.e.f. 01.11.1989 in place of 09.01.2013. It is not disputed that petitioner was initially engaged as a PET on temporary basis where she joined on 01.11.1989. But petitioner was relieved from her duty for the first time on 29.10.1991 on joining of the selection board candidate. Petitioner thereafter though was again allowed to join as a PET on temporary basis w.e.f. 23.11.1992, but she was again relieved from her post w.e.f. 28.03.2000. While so continuing out of service, in terms of the interim order passed by this Court in OJC No.9536 of 2000, petitioner was appointed as a contractual PET vide order dated 08.12.2006. In terms of the order dated 08.12.2006, petitioner joined as a contractual PET in a new school on 27.12.2006. Since at no point of time petitioner assailed the order dated 08.12.2006, wherein she was appointed in a new School as a contractual PET, as per the considered view of this Court petitioner cannot claim the benefit of regularization from her initial date of appointment i.e. 01.11.1989. Page 16 of 17 // 17 // 7.3. It is also found from the record that against the order passed by this Court finally on 05.08.2011 in W.P.(C) No.9538 of 2003, the State preferred Review Petition No.215 of 2012. The said Review Petition was disposed of on 14.05.2014 with the observation that since the petitioner has already been regularized w.e.f. 09.01.2013 vide order dated 22.08.2013, no review of the order is required to be made. The petitioner has also not challenged the order dated 14.05.2014, so passed in Review Petition No.215 of 2012. 7.4. In view of such position and taking into account the fact that the petitioner was appointed as a Contractual PET w.e.f. 28.03.2000 where she joined on 27.12.2006, this Court is not inclined to allow the prayer as made in the Writ Petition. 8. The Writ Petition is accordingly dismissed. Orissa High Court, Cuttack Dated the 8th December, 2023/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: Senior Stenographer Reason: Authentication of order Location: High Court of Orissa, Cuttack Date: 16-Dec-2023 12:52:18 Page 17 of 17