The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.3340 of 2012 Renubala Samantaray …. Petitioner Mr. J.K. Rath, Sr. Advocate along with Mr. S. Das, Advocate -versus- Collector-cum-C.E.O., Nayagarh & Others …. Opp.Parties Mr. S.K. Jee, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 08.07.2025 28. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia with the following prayer:- “Under the above circumstance, it is therefore humbly prayed that this Hon’ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by directing the opposite parties to treat the period of service of the petitioner from 17.9.2009 to 17.6.2011 as continuity of service of the petitioner for all purposes and to communicate the same to the petitioner within a time frame. And for this act of kindness, as in duty bound, the petitioner shall ever pray”. 4. It is contended that Petitioner while continuing when was put under transfer vide order dtd.17.09.2009, // 2 //
Facts
she challenged the same by filing W.P.(C) No.14618 of 2009. This Court vide order dtd.07.10.2009 though stayed the order of transfer, but on the face of such order, Petitioner was not allowed to continue in Bentapada Primary School. 4.1. It is further contended that this Court ultimately vide order dtd.09.08.2010 while disposing W.P.(C) No.14618 of 2009, directed the Opposite Party No.6 therein to cause an enquiry and submit a report to the Collector-Opposite Party No.1 therein. This Court further directed the Collector to take further action in the matter.
Legal Reasoning
Counter affidavit has been filed wherein at paragraph-9 it has been stated that on the basis of the order passed by this Court in W.P.(C) No.14618 of 2009 District Project Coordinator has taken decision and on the basis of the finding of the enquiry it was felt necessary to transfer the petitioner from Bentapada PS to Rajingi UGME School of the same block. Accordingly, fresh transfer order was issued on 25.9.2010 by the District Inspector of Schools, Nayagarh. Accordingly, petitioner was relieved from Bentapada PS to Rajingi UGME School and joined on 27.9.2010 but the petitioner has not obeyed the said order. Grievance of the petitioner that she has never been communicated with the order of transfer dated 25.9.2010 said to have been issued by the District Inspector of Schools by which she has been order to be transferred from Bentapada PS to Rajingi UGME School and relieved in consequence thereof. Finally by virtue of order passed on 13.6.2011 (Annexure-4) petitioner has joined at Mohanpada PPS and she is continuing. In course of argument learned Senior counsel for the petitioner argued that when the order of transfer dated 25.9.2010 and relieving order dated 27.9.2010 has not been communicated to her hence there is no question of disobedience of the same and as such the petitioner dated continued 13.6.2011(Annexure-4) at Bentapada PS.
Arguments
4.2. It is contended that basing on the order passed by this Court on 09.08.2010 in W.P.(C) No.14618 of 2009, Petitioner vide order dtd.25.09.2010 of the then D.I. of Schools, Nayagarh was transferred and posted to Rajingi UGME School vide order enclosed to the Addl. Affidavit filed by the District Project Coordinator, Nayagarh under Annexure-F/2. 4.3. It is contended that in terms of such order of transfer passed on 25.09.2010, Petitioner though was shown relieved by the headmaster of the School on 27.09.2010, but Petitioner at no point of time was communicated with the order of transfer passed on 25.09.2010 nor the relieve order issued on 27.09.2010. Page 2 of 11 // 3 // 4.4. It is accordingly contended that in absence of such order of transfer and the relieve order, Petitioner could not join in her new place of posting at Rajingi UGME. However, on coming to know that such an order has been passed, Petitioner when went to the School in question and submitted her joining on 19.04.2011, the School Management of Rajingi School did not allow the Petitioner to join. 4.5. It is contended that subsequently vide another order issued on 13.06.2011 by the then D.I. of Schools, Nayagarh vide Annexure-E/2, Petitioner was posted to Mohanpada PPS, where she joined on 18.06.2011. 4.6. It is contended that since the order of transfer passed on 25.09.2010 and the relieve order issued on 27.09.2010 were never communicated to the Petitioner, Petitioner could not join in her place of transfer i.e. Rajingi UGME School. 4.7. It is also contended that on coming across order dtd.25.09.2010, Petitioner , when joined by submitting the joining report on 18.04.2011, the same was not accepted by the School. However, basing on the subsequent order issued on 13.06.2011, Petitioner joined in her place of transfer on 18.06.2011. 4.8. It is accordingly contended that since for the laches on the part of the Opposite Parties, Petitioner could not Page 3 of 11 // 4 // discharge her duty for the period 17.09.2009 to 17.06.2011, the same period is required to be regularized with extension of all service and financial benefits. 4.9. It is also contended that taking into account the claim raised in the Writ Petition, this Court passed the following order on 25.09.2015:- “Petitioner has filed this writ petition for issuance of direction upon the opposite parties to treat the service period from 17.9.2009 to 17.6.2011 as continuity of service. Case of the petitioner is that she has been engaged as Swechhasevi Sikshya Sahayak vide order No.4478 dated 29.9.2005 and posted at Bentapada (Annexure-2). She was transferred on 17.9.2009 to Raigadia Project Primary School upon which she challenged before this Court vide W.P.(C) No.14618 of 2009, interim order was passed on 7.10.2009 staying operation of the order of transfer dated 17.9.2009. District Inspector of Schools, Nayagarh vide order dated 20.10.2009(Annexure-3) has allowed the petitioner to continue at Bentapada Primary School in terms of the order passed by this Court and the petitioner continued at Bentapada Primary School. The writ petition being W.P.(C) No.14618 of 2009 was disposed of vide order dated 9 .8.2010 by which this Court has directed District Project Coordinator, Nayagarh to enquire into the allegations made by the petitioner and placed the Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh to take final decision. Case of the petitioner that she has never been communicated with the order of transfer having been passed by the District Project Coordinator dated 25.9.2009, as such she continued at Bentapada Project Primary School in terms of the interim order passed by this Court. Grievance of the petitioner is that when she became entitled for absorption as Junior Teacher after Page 4 of 11 // 5 // completion of six years of service which was completed on 29.9.2 011 although his counterpart has been taken as Junior Teacher. Cause of action arisen to file this writ petition when other similarly situated Swechhasevi Sikshya Sahayak who after completion of six years of service have been taken in service as Junior Teachers but the case of the petitioner has not been considered perhaps on the ground the period from 17.9.2009 to 17.6.20 11 has been treated to be unauthorized absence, hence this writ petition.
Decision
order till In view of the above, learned counsel for the opposite party-State file additional affidavit to substantiate the fact as to whether order of transfer dated 25.9.2010 or the relieving order dated 27.9.2010 has ever been communicated upon the petitioner or not. is directed to Page 5 of 11 // 6 // The affidavit shall be filed by the next date. On the prayer of the learned counsel for the opposite party-State, list the matter immediately after Durga Puja Holidays.” 4.10. It is further contended that basing on the order passed by this Court on 25.09.2015, in addition to the stand taken in the counter affidavit, an addl. Affidavit was filed by the District Education Officer-cum-District Project Coordinator, Nayagarh on 26.02.2020. However, in the said affidavit, nothing was indicated specifically about service of the order of transfer and the relieve order on the Petitioner, save and except taking a stand that the relieve order dtd.27.09.2010 was communicated to the Petitioner vide Memo No.30, dtd.27.09.2010. 4.11. It is accordingly contended that since pursuant to the order passed by this Court and in the affidavit so filed it was never brought to the notice of this Court that orders dtd.25.09.2010 and 27.09.2010 were served on the Petitioner, it is to be held that those orders were never served and accordingly Petitioner could not join in her place of transfer, till she ultimately joined pursuant to another order on dtd.18.06.2011. 4.12. It is accordingly contended that period in question is required to be regularized with all service and financial benefits as prayed for. 5. Learned Addl. Government Advocate for the State on the other hand basing on the stand taken in the Page 6 of 11 // 7 // counter affidavit and the addl. Affidavit filed pursuant to the order dtd. 25.09.2015 contended that Petitioner vide order dtd.25.09.2010 under Annexure-F/2 was transferred and posted to Rajingi UGME School, pursuant to the order passed by this Court on 09.08.2010 in W.P.(C) No.14618 of 2009. The said order was communicated vide Memo No.4879 dtd.25.09.2010 to the Petitioner as well as the Headmaster of the School. Pursuant to such order, the Headmaster vide office order dtd.27.09.2010 relieved the Petitioner for joining in her place of transfer and the said order was also communicated to the Petitioner vide Memo No.30, dtd.27.09.2010. 5.1. It is contended that in terms of the said order of transfer and subsequent relieve order, Petitioner never joined till she approached the School, with submission of her joining on 18.04.2011. However, when the School in question did not allow the Petitioner to join, taking into account the extra ordinary situation, Petitioner was posted to another school vide order dtd.13.06.2011 under Annexure-E/2. Pursuant to said order, Petitioner joined in the School on 18.06.2011. 5.2. It is accordingly contended that since in terms of the order of transfer and the relieve order, which was duly communicated to the Petitioner, Petitioner never joined till she joined on 18.06.2011, Petitioner is not Page 7 of 11 // 8 // eligible and entitled to get the benefit of regularization for the period from 17.09.2009 to 17.06.2011. 5.3. However, basing on the instruction provided by the District Project Coordinator vide his letter dtd.07.01.2025, it is contended that in the meantime the period from 17.09.2009 to 30.06.2010 has been regularized and it has been counted towards service and other benefits in favour of the Petitioner. However, the period from 01.07.2010 to 17.06.2011 has not been treated as duty period as the Petitioner was unauthorized absent during that period and she is not eligible to get any benefit. 5.4. It is further contended that since services of the Petitioner has been regularized from 17.09.2009 to 30.06.2010 excluding the period from 01.07.2010 to 17.06.2011 on 26.10.2012, Petitioner has got no further grievance. 6. To the submissions made by the learned Addl. Government Advocate, learned Senior Counsel appearing for the Petitioner contended that initially Petitioner when was put under transfer vide office order dtd. 17.09.2009, the same was assailed by the Petitioner before this Court in W.P.(C) No.14618 of 2009. This Court while issuing notice of the matter vide order dtd.07.10.2009, stayed the order of transfer until further orders. Subsequently, vide order dtd.09.08.2010, the Writ Petition was Page 8 of 11 // 9 // disposed of with direction on the DPC and Collector to take appropriate action in the matter. Pursuant to order dtd.07.08.2010, Petitioner vide order dtd.25.09.2010 was posted to Rajingi UGME School. But due to non- communication of either order dtd.25.09.2010 and relieve order dtd.27.09.2010, Petitioner could not join in her place of transfer in Rajingi UGME School. Petitioner subsequently when desired to join by submitting her joining on 18.04.2011, the same was not accepted by the School Management of Rajingi School. However, pursuant to order dtd.13.06.2011 under Annexure-4, Petitioner could join on 18.06.2011. It is accordingly contended that the break period is required to be regularized. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner when was put under transfer initially vide order dtd.17.09.2009, the same was assailed by the Petitioner before this Court in W.P.(C) No.14618 of 2009. The order of transfer so passed on 17.09.2009 was stayed by this Court vide order dtd.07.10.2009. Subsequently, vide order dtd.09.08.2010, the Writ Petition was disposed of with the following direction:- “Therefore, without going into the merits of the case, this Court directs the District Project opposite party Co- ordinator, No.6 to enquire Nayagarh, into the allegations made by the petitioner and the counter-allegations made Page 9 of 11 // 10 // by the V.E.C. against the petitioner and given an independent report to the Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh, opposite party no.1 within a period of two weeks from the date of production of a certified copy of this order. Thereafter, on the basis of the said report, the Collector-cum-C.E.O. will take further action in the matter within a period of four weeks from the date of receipt of the report by him. The petitioner is directed to produce a certified copy of this order before the District Project Coordinator, Nayagarh, opposite party no.6 on or before the 13th of August, 2010”. 7.1. Pursuant to the order passed by this Court on 09.08.2010, Petitioner was transferred and posted to Rajingi UGME School vide order dtd.25.09.2010 under Annexure-F/2 and she was relieved vide order dtd.27.09.2010 of the Headmaster of the School. However, on the ground that those orders were not communicated to the Petitioner, Petitioner could not join in her place of transfer. Petitioner when came across the order of transfer and submitted her joining on 18.04.2011 in Rajingi UGME School, the same was not accepted and Petitioner vide another order passed on 13.06.2011 under Annexure-4 was posted to Mohanpada PPS, where she joined on 18.06.2011. 7.2. This Court considering the nature of order passed on 25.09.2015 and the affidavit filed by Opposite Party No.2 on 26.02.2020, is of the view that order dtd.25.09.2010 and 27.09.2010 were never communicated to the Petitioner, save and except indicating therein the Memo Number. No document has Page 10 of 11 // 11 // been filed showing service of order dtd.25.09.2010 and 27.09.2010 on the Petitioner by any mode. 7.3. In view of the aforesaid analysis and taking into account the regularization already made by Opposite Party No.3 for the period from 17.09.2009 to 30.06.2010, is inclined to direct for regularization of the period from 01.07.2010 to 17.06.2011. This Court directs Opposite Party No.3 (Now B.E.O., Nayagarh) to regularize the period from 01.07.2010 to 17.04.2011 on notional basis and the period from 18.04.2011 to 17.06.2011 with all service and financial benefits. This Court directs B.E.O., Nayagarh (earlier D.I. of Schools, Nayagarh - Opposite Party No.3) to pass an appropriate order in regularizing the aforesaid period as directed hereinabove within a period of two (2) months from the date of receipt of this order. 8. With the aforesaid observations and directions, 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: 11-Jul-2025 10:52:12 Page 11 of 11