The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.25792of 2023 Kuntalini Dei ..... Petitioner Ms. A. Nayak, Advocate State of Odisha&Ors. -versus- ..... CORAM: Opposite Parties Mr.S. Rath, ASC THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 26.07.2024 Order No.10 1. This matter is taken up through hybrid mode.
Legal Reasoning
passed by this Court in W.P.(C) No. 15797 of 2021, Opp. Party No. 3 should have taken a decision on the claim of the Petitioner as directed. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court find that Petitioner when was made to retire prematurely vide office order dtd.17.02.2021 under Annexure-5, she approached this Court in W.P.(C) No. 15797 of 2021. This Court vide order dtd.30.04.2021 under Annexure-7 directed Opp. Party No. 3 to take a decision on the claim of the Petitioner to get the benefit of reinstatement. But as found from the record instead of a decision being taken by Opp. Party No. 3, Opp. Party No. 4 passed the impugned order Page 4 of 5. dtd.01.10.2021 under Annexure-9 while confirming his earlier order so passed on 17.02.2021 under Annexure-5. 6.1. Considering the nature of order passed by this Court on 30.04.2021 in W.P.(C) No. 15797 of 2021, this Court is of the view that Opp. Party No. 3 should havetaken a decision as directed. Therefore, in view of such material irregularity, which is apparent, this Court is inclined to quash office order dtd.01.10.2021 so issued by Opp. Party No. 4 under Annexure-9 for the present. While quashing the same, this Court directs Opp. Party No. 3 to take a decision in the light of the order passed by this Court on 30.04.2021. 6.3. It is however observed that while taking such a decision, relevancy and effect of the provisions contained under Rule 71(a) and decision as cited supra be taken into consideration by Opp. Party No. 3 in its proper perspective. Such a fresh decision as directed be taken within a period of two (2) months from the date of receipt of this order. Petitioner is directed to provide a copy of this order along with copy of the Judgment as cited supra before Opp. Party No. 3 for compliance.
Arguments
2. Heard Ms. A. Nayak, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order dtd.17.02.2021 so passed under Annexure-5, further confirmed vide order dtd.01.10.2021 under Annexure-9. 4. Learned counsel appearing for the Petitioner contended that Petitioner while continuing as Headmistress in Govt. Primary School, Bankibahal in Sundergarh Block, she was prematurely retired from her service vide order dtd.17.02.2021 under Annexure- 5 taking recourse to the provisions contained under Rule 71(a) of the Odisha Service Code. Rule 71(a) of the Odisha Service Code reads as follows:- “71.(a)Except as otherwise provided in the other clause of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government Page 1 of 5. service on the 31st 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 upto 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 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.” 4.1. It is contended that even though no public interest was involved by the time the order of premature retirement was issued on 17.02.2021 under Annexure-5, which is a basic requirement to be followed in terms of the provisions contained under Rule 71(a) of the Odisha Service Code, but Opp. Party No. 4 without indicating anything as to whether such premature retirement of the Petitioner is in the public interest, issued the impugned office order Page 2 of 5. dtd.17.02.2021 under Annexure-5. It is also contended that this Court in its Judgment dtd.31.10.2023 in W.P.(C) No. 37932 of 2021 while considering similar issue and the question of public interest has expressed the following view in Para 38 of the Judgment. Para 38 of the Judgment dtd.31.10.2023 reads as follows:- “38. Similarly, Clause-15 of the GA and PG Dept. guideline dated 29.10.2021 prescribes a procedure to be followed in a case of doubtful integrity. It further provides that if the enquiry ultimately leads to a reasonable inference of lack of integrity, the employee concerned can be proceeded against either departmentally or under the criminal law, but it would not be correct to conclude that an employee is lacking in integrity merely because some allegations against him are under inquiry. In other words, allegations which have not been inquired into or in respect of which the inquiry is not completed should be ignored. Even in regard to allegations which have been inquired into by the Vigilance organization, a conclusion of lack of integrity may not be drawn straight away. The facts of the case should be carefully considered and it should be examined if the ends of justice will be better served by a Departmental Proceeding. The Rule, normally should be that before any such conclusion is drawn, the explanation of employee concerned should have been considered.” 4.2. It is however contended that challenging such order of premature retirement so issued by Opp. Party No. 4 on 17.02.2021 under Annexure-5, Petitioner when approached this Court in W.P.(C) No. 15797 of 2021, this Court vide order dtd.30.04.2021 under Annexure-7 while disposing the matter directed Opp. Party No. 3 to take a decision on the claim of the Petitioner, which she had raised under Annexure-4 series. It is contended that even though this Court vide order dtd.30.04.2021 under Annexure-7 Page 3 of 5. directed Opp. Party No. 3 to take a decision on the claim of the Petitioner to get the benefit of reinstatement, but the self-same Opp. Party No. 4 without any authority decided the issue and passed the impugned order on 01.10.2021 under Annexure-9 while confirming the earlier order passed by him on 17.02.2021 under Annexure-5. 4.3. It is contended that since this Court in its order dtd.30.04.2021had directed Opp. Party No. 3 to take a decision on the claim of the Petitioner to get the benefit of reinstatement, Opp. Party No. 4 could not have taken the issue with passing of the impugned order under Annexure-9. It is accordingly contended that impugned order is not sustainable in the eye of law. 5. Even though Mr. S. Rath, learned Addl. Standing Counsel while supporting the impugned order so issued under Annexure-5 and further confirmed vide order under Annexure-9 made his submission, but he also fairly contended that in terms of the order
Decision
7. The writ petition is disposed of accordingly. (BIRAJA PRASANNA SATAPATHY) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jul-2024 14:26:32 Page 5 of 5.