The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P(C) (OAC) No.1648 of 2009 Snigdharani Nayak Petitioner …. Mr. J.K. Rath, Sr. Adv. State of Odisha and Others -versus- …. Opposite Parties Mr. B. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 14.09.2023 Order No. 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. J.K. Rath, learned Senior Counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State. 3. The Petitioner has filed the present Writ Petition challenging the office order dtd.25.04.2009 so issued under Annexure-9 and consequential order issued on 13.05.2009 under Annexure-10. 4. It is contended that pursuant to the order passed by the Tribunal on 08.11.2006 in O.A No.738(C)/1993, the District Inspector of Schools, Pattamundai passed an order on 05.12.2007 to the following effect:- “ In honour to the judgment of the Hon’ble Supreme Court of India, in SLP (Civil) No.10778(91) T.A. No.19190 of the State Administrative Tribunal, Orissa and OJC No.2536/89 of the Hon’ble High Court, Orissa and order No.14 dt.08.11.2006 of the Hon’ble O.A.T., Cuttack Smt. Snigdharani Nayak, a D.S.C. selected candidate, Asst. Teacher, Dosautuni Primary School under Rajkanika Block, who has joined as a Sikshyakarmi on // 2 // 27.10.89, now is allowed to draw the scale of pay Rs.1080-30- 1442-EB-30-1900- with usual D.A. as admissible from time to time with effect from the date of joining i.e. 27.10.89 with the date of next Her services are regularized as a regular Govt. Primary School Teacher with effect from 27.10.89”. increment on 01.10.90. 4.1. It is contended that the order passed by the Tribunal was challenged before this Court as well as before the Hon’ble Apex Court and after affirmation of the order passed by Tribunal, the order was implemented vide order dated 05.12.2007. Thereafter, on the ground that no sanction has been obtained from the Government District Inspector of Schools, Pattamundai suo motu recalled the order dtd.05.12.2007 vide the impugned order dtd.25.04.2009 under Annexure-9. Subsequently, a consequential order was passed on 13.05.2009 under Annexure-10, directing for recovery of certain amount from the Petitioner, Petitioner has filed the present writ petition challenging the order at Annexures-9 & 10. The Tribunal while issuing notice of the matter vide order dtd.21.08.2009, passed an interim order by directing the Opposite Parties not to take any coercive action against the Petitioner. 4.2. It is contended by the learned Senior Counsel that during pendency of the matter, the Petitioner was not only sanctioned with the revised scale of pay with all financial benefits, but also she was promoted to the post of Headmaster. Considering such submission of the learned Senior Counsel, this Court passed an order on 10.04.2023 to the following effect:- Page 2 of 5 // 3 // “2. Heard Mr. J.K. Rath, learned Senior Counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel for the State. 3. It is contended that pursuant to the order passed by the Tribunal on 08.11.2006, the services of the Petitioner was regularized as a Primary School Teacher w.e.f. 27.10.1989 vide order dated 05.12.2007 under Annexure-8. Subsequently, the order of regularization passed under Annexure-8 was recalled by the Opposite Party No.3- District Inspector of Schools, Pattamundai vide order dated 25.04.2009 under Annexure-9. In the said order, it is indicated that the fresh order will be passed after receipt of necessary sanction from the Government in compliance of the order passed by the Tribunal on 08.11.2006. 4. Mr. Rath, learned Senior Counsel contended that after filing of the Writ Petition, the Petitioner was allowed to continue as a regular Primary School Teacher and in the meantime she has not only be sanctioned with regular scales of pay with all financial benefit but also she has been promoted to the post of Headmaster. 5. In view of such submission made by Mr.Rath, this Court directs the learned counsel for the Petitioner to obtain instruction as to whether as indicated in the order at Annexure-9, any fresh order has been passed with due communication in compliance to the order dated 08.11.2006. Such instruction shall be provided to this Court by the learned counsel for the Petitioner before the next date. 6. of May, 2023”. As requested, list this matter in the week commencing 8th 4.3. Pursuant to the order so passed by this Court on 10.04.2023, B.E.O, Rajkanika has provided the instruction to the learned Addl. Standing Counsel vide his letter dtd. 11.07.2023. From the said instruction, it is found that after issuance of Annexure-9, on the ground that no sanction has been obtained from the Government, no such sanction as yet been accorded by the Government. The instruction provided by the learned ASC be kept in record. Page 3 of 5 // 4 // 5. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that District Inspector of Schools, Pattamundai in compliance of the order passed by the Tribunal so confirmed by this Court as well as by the Hon’ble Apex Court passed the office order dtd.05.12.2007 under Annexure-8 by allowing the scale of pay from the date of joining of the Petitioner i.e. 27.10.1989 and her services was regularized as a regular Government Primary School Teacher w.e.f. 27.10.1989. It is found that thereafter without issuing any prior notice and without following the principle of natural justice, the order dtd.05.12.2007 was withdrawn on the ground that no sanction has been obtained from the Government. After withdrawing the order dtd.05.12.2007, vide order dtd.25.04.2009, direction was issued to the Petitioner to pay back the excess amount drawn for the period from 27.10.1989 to 31.03.2009 under Annexure-10. 5.1. It is found that prior to recalling the order dtd.05.12.2007 vide order dtd.25.04.2009 under Annexure-9 with issuance of the consequential order on 13.05.2009 under Annexure-10, since the Petitioner was never given an opportunity of hearing with issuance of a show cause and principle of natural justice was not at all followed, as per the considered view of this Court the order under Annexure-9 and consequential order under Annexure-10 are not sustainable in the eye of law. While Page 4 of 5 // 5 // quashing both the orders on the ground of non- compliance of the principle of natural justice, this Court
Decision
allows the writ petition. However, quashing of the orders under Annexure-9 & 10 will not debar D.I. of School, Pattamundai now B.E.O., Rajakanika from taking appropriate action against the Petitioer by following the principle of natural justice and by giving due opportunity of hearing to the Petitioner, in which this Court expresses no opinion. 6. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:28:31 Page 5 of 5