The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11221 of 2021 Banalata Mishra …. Petitioner Mr. D.K. Mohapatra, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. H.M. Dhal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 01.03.2024 Order No 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. D.K. Mohapatra, learned counsel for the Petitioner and Mr. H.M. Dhal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia challenging the letter issued by the Govt.-Opp. Party No. 1 on 21.01.2021 under Annexure-4, wherein Opp. Party No. 2 was requested to issue orders of premature retirement on the Petitioner basing on the decision taken by the Review Committee in its meeting held on 02.12.2020. 4. It is contended that in terms of the letter issued by the Govt.-Opp. Party No. 1 on 21.01.2021 under Annexure-4, Petitioner was issued with the order of premature retirement vide office order dtd.17.02.2021 under Annexure-3 of Opp. Party No. 2. // 2 // 4.1. Learned counsel for the Petitioner contended that in terms of the provisions contained under Rule 71(a) of the Odisha Service Code, the Review Committee reviewed the performance of a no. of employees including the present Petitioner working in the district of Sundergarh on 02.12.2020 under Annexure-D/2. In the said proceeding of the review meeting without assessing the performance of each of the employees, whose names were placed for consideration, a general view was taken that the employees concerned are found to be ineffective for service and accordingly authorization was given to the D.E.O. to issue order of premature retirement to all the employees, which includes the present Petitioner. 4.2. Learned counsel for the Petitioner contended that as provided under Rule 71(a) of the Odisha Service Code, such a step can be taken, if the further continuance of an employee is not in public interest. Rule 71(a) of the Odisha Service Code, with its proviso reads as follows:- “71.(a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31 March 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service up to the date of the completion of the age of 58 years or retired on completing the age of 55 years in public interest. Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire or by giving the said notice to the said authority before such shorter period as Page 2 of 6 // 3 // Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if enquiries against him are in progress. The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years’ qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such notice". The word "public interest" being not defined, Clause 7 of the notification issued by the State Government in General Admn. Deptl. No.30495-G.A., dated the 24th November, 1987 are as follows: "7. It will not be in public interest to retain an employee in service if - (a) he is clearly lacking in integrity, or (b) although his integrity is not in doubt, his physical or mental condition is such as to make him inefficient for further service, or even though his work in a lower grade was satisfactory. (C) he clearly lacks in the standard of efficient required to discharge the duties of the post he presently holds.” 4.3. It is contended that without taking any decision as to whether further continuance of the Petitioner is in public interest or not, the Review Committee in its meeting dtd.02.12.2020 under Annexure- D/2 to the counter affidavit, simply held that Petitioner is found to be ineffective for service and accordingly took the decision, which was complied by Govt.-Opp. Party No. 1 vide Annexure-4 and by Opp. Party No. 2 vide order under Annexure-3. 4.4. It is also contended that after making the Petitioner to retire prematurely vide order under Annexure-3, Petitioner has not been released with any pension and pensionary benefits as due and admissible till date, save and except the 3 (three) months pay and allowance in lieu of three (3) months notice so paid in terms of the Page 3 of 6 // 4 // provisions contained under the proviso to Rule 71(a) of the Code. It is accordingly contended that since while taking the decision, the Review Committee in its proceeding under Annexure-D/2 has not taken into consideration as to whether the further continuance of the Petitioner is in public interest or not, which is a mandatory requirement, such a decision could not have been taken, so also the action of Opp. Party No. 1 in following the same with issuance of the letter dtd.21.01.2021 under Annexure-4 and consequential order issued by Opp. Party No. 2 on 17.02.2021 under Annexure-3. It is accordingly contended that the impugned communication issued under Annexure-4 and consequential order issued under Annexure- 3 are not sustainable in the eye of law and requires interference of this Court. 5. Mr. H.M. Dhal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that in terms of the provisions contained under Rule 71(a) of the Odisha Service Code, the Review Committee reviewed the performance of various Group-C & Group-D employees working in Sundergarh District on 02.12.2020 and the case of the Petitioner was also placed along with a no. of Group-C & Group-D employees. Since the Committee found that the present Petitioner and the other employees are not fit to continue in service, they decided to move the Govt. to take appropriate action. Basing on such decision of the Review Committee, Govt.-Opp. Party No. 1 issued letter on 21.01.2021 under Annexure-4 directing Opp. Party No. 2 to issue order of premature retirement to the Petitioner. The said direction was complied by Opp. Party No. 2 vide order dtd.17.02.2021 under Annexure-3. Page 4 of 6 // 5 // 5.1. However, learned Addl. Govt. Advocate fairly contended that the Review Committee in its proceeding dtd.02.12.2020 under Annexure-D/2 has not dealt with the issue as to whether further continuance of the Petitioner is in public interest or not. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that in the proceeding of the Review Committee meeting held on 02.12.2020 under Annexure-D/2 to the counter affidavit, continuance of Group-C and Group-D employees was taken into consideration simultaneously without considering the claim on individual basis. It is also found that the Review Committee in its meeting under Annexure-D/2 has not taken into consideration nor anything has been indicated as to whether further continuance of the Petitioner is in public interest or not. Since the word ‘Public Interest’ as indicated in the proviso to Rule 71(a) of the Rule is a mandatory requirement, the same having not been followed by the Committee in its meeting held under Annexure-D/2, the recommendation made by the said Committee which was acted upon by Opp. Party No. 1 with issuance of letter under Annexure-4 and consequential order passed by Opp. Party No. 2 on 17.02.2021 under Annexure-3 as per the considered view of this Court are not sustainable in the eye of law. 6.1. Therefore, this Court is inclined to quash notice issued by Opp. Party No. 1 on 21.01.2021 under Annexure-4 so far as it relates to the Petitioner and consequential order issued by Opp. Party No. 2 on 17.02.2021 under Annexure-3. While quashing the same, this Court directs Opp. Party No. 2 to reinstate the Petitioner in her service with service continuity. The amount received by the Page 5 of 6 // 6 // Petitioner towards three (3) months pay and allowance in lieu of the 3 (three) months notice as provided under the proviso to Rule 71(a) be adjusted from the financial benefits that will be due to the Petitioner on such re-instatement of the Petitioner as directed. Such an order of reinstatement be issued in favour of the Petitioner within a period of two (2) weeks from the date of receipt of this order.
Decision
7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Mar-2024 18:10:05 Page 6 of 6