In the matter of an application under Articles 226 & 227 of Constitution of v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 19417 OF 2015 In the matter of an application under Articles 226 & 227 of Constitution of India. --------------- AFR Sabita Biswal …… Petitioner - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocates appeared in the case through hybrid mode: _______________________________________________________________ For Petitioner : M/s. Aurovinda Mohanty, P. Mohanty, S. Swain, D. Jena & B. Mishra, Advocates
Legal Reasoning
16012 of 2010. In any case, this Court in WP(C) No. 19186 of 2012, on 07.02.2014, passed the following order:- “In this writ petition, petitioner has made prayer to quash Office order No. 19 dated 04.01.2012 passed by the Collector & District Magistrate, Cuttack under ANNEXURE-4, The order. which is self explanatory, reads as follows: "Hon’ble High Court, Odisha vide their order dtd. 23/09/2010 in misc. case No. 15036/10 arising out of W.P.(C) No. 16012/10-Narayan Behera... Vrs.... Kishore Chandra Mohanty and another have directed that one post shall not be filled up without leave of the Court till 30/11/2010. But as the above order was not placed before the DPC in due time, all the 8 posts of Junior Officer (Lady Supervisor) sanctioned were filled up. Action is being taken against the Dealing Assistant for the lapse. However, pursuant to the above order of the Hon’ble High Court, promotion of Smt. Sabita Biswal being the last in the appointment order issued vide District Office order No. 3675, dated 29/12/2010 is hereby withdrawn to keep the vacant and she to continue as is directed Anganwadi Worker in her previous place in torala Page 6 of 9 Anganwadi Centre under Cuttack City ICDS Project until further orders." Learned counsel for the petitioner contends that interim order of this Court passed in Misc. Case No. 15036 of 2010 was simply to keep one post vacant till 30.11.2010. However, without affording any opportunity of being heard to the petitioner, the petitioner’s appointment order was withdrawn. It is strenuously contended that the petitioner ought to have been given an opportunity of being heard before withdrawal of the appointment order and, thereby, principle of natural justice has blatantly violated by opp. Party no. 2- Collector & District Magistrate, Cuttack. In the counter affidavit filed on behalf of the opp. Party nos. 2 and 3, there is no indication of giving any show-cause or opportunity of being heard to the petitioner before her appointment order was withdrawn. It appears that due to the conduct of officials subordinate to opp. Party no. 2- Collector & District Magistrate, Cuttack, interim order of the Court was not brought to notice by the time DPC was held. Instead of approaching this Court seeking appropriate direction, opp. Party no. 2- Collector & District Magistrate, Cuttack has passed the in impugned order. It has been averred paragraph- 8 of the counter affidavit that after discussing the matter with the State Counsel with regard to compliance of the impugned order, the order of withdrawal was passed. Prima facie, the action on the part of the oppo. Party no. 2 in order unilaterally withdrawing appears to be arbitrary and without sanction of law and principle of natural justice. Therefore, the impugned order is not sustainable in law. appointment
Arguments
For Opp. Parties : Mr. A. R. Dash, Addl. Government Advocate ________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 24th September, 2024 SASHIKANTA MISHRA, J. The petitioner, while working as Anganwadi Worker, was selected for engagement as Lady Supervisor on promotion on contractual basis as per order dated Page 1 of 9 29.12.2010 of the CDPO (Child Development Project Officer), Cuttack. However, while working as such, by office order dated 04.01.2012, the Collector, Cuttack, referring to the interim order dated 23.09.2010 passed by this Court in WP(C) No. 16012 of 2012, directed withdrawal of the appointment order issued in favour of the petitioner purportedly to keep the post vacant, while allowing the petitioner to continue as Anganwadi Worker in her previous place. Subsequently, by order dated 02.04.2014, the Collector, taking note of order dated 07.02.2014 passed by this Court in another writ application, being WP(C) No. 19186 of 2012, wherein the office order dated 04.01.2012 withdrawing order of promotion was quashed, permitted the petitioner to continue as Lady Supervisor under Kantapada ICDS Project with immediate effect subject to result of WP(C) No. 16012 of 2010. Being aggrieved, the petitioner has approached this Court in the present writ application seeking the following relief:- “It is, therefore, most respectfully prayed that, this Hon’ble Court may be graciously pleased to admit this writ application, and direct the opposite parties more particularly opposite party no. 2 to pay the salary of petitioner for the period Page 2 of 9 from 04.01.2012 to 02.04.2014 i.e., from the date of reversion to date of re-insteatment with other consequential service benefits. And further be pleased to direct the opposite party No. 2 to consider the said period of service i.e., from 04.01.20125 to 02.04.2014 as regular period of service towards future promotion and future retirement benefits. to Further be pleased issue writ of mandamus to quash / the observation as made in office order dated 02.04.2014 and under Annexure 5 and 6 relating to continuation of the petitioner in the post of Anganwadi Lady Supervisor subject to result of W.P.(C0 No 16012 of 2010. And/or further be pleased to pass any other appropriate writ/writs or to pass such other order/ orders, direction/ directions as this Hon’ble Court deems just, fit, equitable and proper in the facts and circumstances of the present case;” 2. Counter affidavit has been filed by the CDPO, Cuttack admitting the relevant facts. It is further stated that the petitioner was never promoted to the post of Lady Supervisor and the order dated 29.12.2010 mentioning so was a mistake. Reference has also been made to the writ application filed by another Anganwadi Worker being WP(C) No. 16012 of 2010, wherein this Court directed, as an interim measure, not to fill up one post without leave of the Court. It is stated that since order of this Court was inadvertently not placed by the Dealing Assistant, engagement orders were wrongly issued to several Page 3 of 9 candidates including the petitioner to work as contractual Lady Supervisor and since a contempt application was filed by the petitioner in the other writ application, the mistake was rectified by issuing order dated 04.01.2012 by withdrawing the appointment of the petitioner, who was the last selected candidate. 3. Heard Shri Aurovinda Mohanty, learned counsel for the petitioner and Shri A.R. Dash, learned Addl. Government Advocate appearing for the State-opposite parties. 4. Shri Mohanty would argue that the petitioner’s engagement as Lady Supervisor has got no nexus with the order impugned in the other writ application being WP(C) No. 16012 of 2010. Moreover, the order withdrawing the appointment has since been quashed by this Court in another writ application being WP(C) No. 19186 of 2012. Since the authorities have already reinstated her, she is entitled to get the pay and other service benefits for the period during which she had been illegally reverted. Page 4 of 9 5. Shri Dash, learned Addl. Government Advocate submits that the impugned order was passed bonafide, as otherwise it may have had legal complications. Since during the relevant period the petitioner had not discharged duties as Lady Supervisor, she would not be entitled to get any pay during that period on the principle of ‘No Work No Pay’. 6. Considering the rival submissions, the sole point that falls for determination is whether the pendency of WP(C) No. 16012 of 2010 has any nexus with the order dated 29.12.2010 whereby the petitioner was promoted/appointed as Lady Supervisor. It would be useful to extract herein below the prayer made in the writ application:- “The petitioner, therefore humbly prays that Your Lordships would graciously be pleased to issue Rule NISI, calling upon the Opp. Parties to show cause as to why the Resolution dtd. 8.2.2010 under Annexure-3 shall not be quashed and if the Opp. Parties fail to show cause, or show false or insufficient cause, be pleased to make the said Rule absolute and further be pleased to issue writ of mandamus directing the Opp. Parties to consider the petitioner’s candidature for promotion to the post of ICDS Supervisor in Cuttack district as per issue any the ORV Act and Rules, and/or writ/direction or pass any other order as deemed fit and proper in the circumstances;” Page 5 of 9 7. As is evident, in the said case the challenge was to the resolution dated 08.02.2010 and for considering the writ petitioner’s candidature for promotion to the post of ICDS Supervisor as per the ORV Act and Rules. On the contrary, the order dated 29.12.2010 is an innocuous order whereby eight Anganwadi Workers, including the petitioner, were appointed/promoted on contractual basis in the ICDS Projects. This Court fails to understand as to what nexus the above order has with the prayer made in WP(C) No.
Decision
In view of the above, the writ petitioner is allowed. Office order under Annexure-4 passed by opp. Party no. 2- Collector and District Magistrate, Cuttack is quashed. xx xx." Page 7 of 9 8. Thus, this Court having already held that withdrawal of the order of appointment unilaterally was arbitrary being without sanction of law and the principles of natural justice, nothing further remains to be decided in the present writ application. Moreover, the petitioner has already been reinstated as Lady Supervisor. 9. As regards the claim of salary and other benefits for the period during which the petitioner was reverted, it is well settled that in ordinary circumstances the principle of ‘No Work No Pay’ would apply. But this is a case where the petitioner, having been promoted/ appointed as Lady Supervisor, was wrongly reverted as Anganwadi Worker for no fault of her, but due to misinterpretation of orders of this Court passed in different writ applications by the concerned authorities at the relevant time. Obviously, the petitioner cannot be deprived of her legitimate claim for salary and other benefits that would have ordinarily accrued to her, but for the mistake committed by the authorities. Depriving her of the same would be akin to adding insult to injury which cannot be countenanced in law. Page 8 of 9 10. The writ application is, therefore, allowed. The Collector, Cuttack-opposite party no.2 is hereby directed to pass necessary order for disbursal of the salary of the petitioner for the period from 04.01.2012 to 02.04.2014 by treating her to have continued in service without any further delay and in any case, not later than one month from the date of production of a certified copy of this order. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 24th September, 2024/ GDS Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Sep-2024 18:19:01 Page 9 of 9