The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P(C) No.24533 of 2022 Surendra Kumar Moharana …. Petitioner Mr. B.S. Tripathy-1, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr.H.M.Dhal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.03.2024 Order No. 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present writ petition inter alia with the following prayer:- the impugned stipulation “i) quash the office order dt.12.02.2020 under Annexure-9 for denial of financial benefit to the petitioner for the period from 20.05.1994 to 12.02.2020 by holding the same as not only bad, illegal and contrary to law but also violative of Article 300A of the Constitution of India; and thereby in ii) direct the opp. parties to forthwith release the entire financial benefits of the petitioner in the scale of pay of Rs.750-940/- (pre-revised) w.e.f. 20.05.1994 to 12.02.2020 with all consequential financial revision and financial up gradation under RACP/MACP Scheme”. 4. It is contended that even though Petitioner was appointed as a Peon by the Managing Committee of Biramaharajpur High School, Biramaharajpur w.e.f. // 2 // 20.05.1994, but his services when was not approved and rejected vide office
Decision
order dtd.22.02.1995 so communicated by the School vide order dtd.27.04.1995 under Annexure-4, petitioner challenging the same approached the Tribunal initially in O.A No.4330(C) of 1997. The matter was subsequently transferred to the Principal Bench of the Tribunal and was renumbered as O.A. No.413 of 2000. 4.1. The Tribunal vide order dtd.09.10.2007 when was not inclined to interfere with the order dtd.22.02.1995 while disposing the matter under Annexure-5, the matter was carried to this Court in W.P.(C) No.16766 of 2007. This Court vide order dtd.26.04.2018 under Annexure-8, while quashing the impugned order dtd.09.10.2007 directed the Inspector of School, Sonepur Circle (after bifurcation of the District) to approve the appointment of the Petitioner as per 1974 Recruitment Rules. 4.2. It is contended that pursuant to the order passed by this Court on 26.04.2018, services of the Petitioner though was approved by the D.E.O., Sonepur- Opposite Party No.3, vide order dtd.12.02.2020 under Annexure-9 w.e.f. 20.05.1994 with the prescribed scale of pay, but it was held that Petitioner will get the benefit from 20.05.1994 on notional basis. 4.3. Learned counsel for the Petitioner contended that since Petitioner was duly appointed by the Managing Committee of the School as a Peon w.e.f. 20.05.1994 and his services was also so approved as against the said post Page 2 of 6 // 3 // w.e.f.20.05.1994 vide order under Annexure-9, the benefit as due and admissible from the date of appointment of Petitioner should have been extended instead of extending the same on notional basis. 4.4. It is also contended that the Headmaster of the School while providing information to the then Inspector of School, Bolangir Circle in his letter dtd.31.10.2006 under Annexure-13, clearly indicated that Petitioner w.e.f. 20.05.1994 was allowed to continue as a Peon of the School. 4.5. It is accordingly contended that since there is no dispute that Petitioner on being appointed w.e.f. 20.05.1994 discharged the duty of Peon without any break in service, he is eligible and entitled to get the financial benefit w.e.f. 20.05.1994, which was not extended vide the impugned order under Annexure-9. It is accordingly contended that the impugned order is not sustainable in the eye of law. 5. Mr. H.M. Dhal, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3. Placing reliance on the stand taken in Para-10 of the affidavit, Mr. Dhal, learned AGA contended that since as per the report submitted by the Headmaster, Petitioner after being appointed as a Peon w.e.f. 20.05.1994 discharged his duty by putting his signature in the attendance Register till 31.07.2007 and from 01.08.2007 to 11.02.2020, he never put his Page 3 of 6 // 4 // signature in the Attendance Register, Petitioner because of such break in discharging his duty, is not eligible and entitled to get the benefit of salary w.e.f. 20.05.1994 and it has been rightly extended on notional basis vide the impugned order under Annexure-9. The stand taken in Para-10 of the counter affidavit is reproduced hereunder:- “10. It is respectfully submitted that In the meantime a report was called from the Headmaster of the Government Boys' High School. Birmaharajpur under letter No.6685 dtd.24.11.2022 to submit a report in connection with the case of Surendra Kumar Maharana to defend the case by filing counter to refute the allegations made therein. As per the report submitted by the Headmaster of the Government High School, it is revealed that the petitioner was appointed by the Managing Committee under Resolution No.14 dtd.12.05.1994 and ever since his appointment, the petitioner put his signature in the attendance register of the school from 20.5.1994 to 31.07.2007 (except May 2004). It was further indicated in the said report that there is no signature of the petitioner namely Surendra Kumar Maharana found from 01.08.2007 to 11.02.2020 as per attendance register available in the school. Hence it is found that the petitioner was not performing his duty for the period from 01.08.2007 to 11.02.2020. This being the report submitted by the Headmaster and the then District Education officer during his incumbency has passed the office order bearing office order No.971 dtd. 12.02.2020 wherein the services of the petitioner was approved w.e.f. 20.05.1994 and the specific report of the Headmaster as it appears that the petitioner worked in the school by signing the attendance register from 20.05.1994 to 31.07.2007 (except May 2004). It may be mentioned here that the period pertaining from 1.8.2007 to 11.02.2020 as per the records available in school as per the report submitted by the concerned Headmaster that he has never signed the attendance register and not worked for the said period, payment of salary pertaining to such period cannot be paid on the basis of principle of no work no pay. The report submitted by the Headmaster is annexed herewith as Annexure-A/3”. 6. To the stand taken in the counter affidavit, Mr. Tripathy, learned counsel for the Petitioner contented that in view of the report submitted by the Headmaster vide Annexure-13, it is not disputed that Petitioner w.e.f. 20.05.1994 continued to discharge his duty as a Peon till Page 4 of 6 // 5 // his services was ultimately approved in terms of the order passed by this Court on 26.04.2018 in W.P.(C) No.16776 of 2007. Petitioner therefore is eligible and entitled to get the financial benefit for the entire period in question. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that Petitioner was appointed as a Peon by the Managing Committee of the Biramaharajpur High School, Biramaharajpur from 20.05.1994. The services of the Petitioner when was not approved and was rejected vide order dtd. 22.02.1995, by the then Inspector of School, Bolangir Circle, the matter was challenged before the Tribunal in O.A No.4330 (C) of 1997. The Tribunal when vide order dtd.09.10.2007 under Annexure-5, was not inclined to interfere with the order dtd.22.02.1995, the matter was carried to this Court in W.P.(C) No.16766 of 2007. Pursuant to the order passed by this Court on 26.04.2018, services of the Petitioner was approved w.e.f. 20.05.1994 vide order dtd.12.02.2020 under Annexure-9. 6.1. This Court after going through the stand taken in Para-10 of the counter affidavit finds that the Headmaster of the School in his report under Annexure-9 reported that Petitioner on being appointed w.e.f. 20.05.1994, he put his signature in the attendance register till 31.07.2007 and Petitioner has not put his signature w.e.f. 01.08.2007 to 11.02.2000. No document has been enclosed by the Petitioner showing that he has signed in the Attendance Register for the period from 01.08.2007 to Page 5 of 6 // 6 // 11.02.2020 nor any document has been produced by the State showing that some other person discharged the duty from 01.08.2007 to 11.02.2020. 6.2. Taking into account the stand taken in Para-10 of the counter affidavit, this Court is of the view that Petitioner is eligible and entitled to get the benefit of salary for the period from 20.05.1994 to 31.07.2007. Since no contrary document is there showing that some other person discharged the duty of Peon for the period from 01.08.2007 to 11.02.2020, this Court is also of the view that for the said period, Petitioner is eligible and entitled to get the benefit of 50% of his emolument as due and admissible. 6.3. In view of the facts narrated above, this Court while interfering with the impugned order dtd.12.02.2020 under Annexure-9, held the Petitioner entitled to get the benefit of full salary for the period from 20.05.1994 to 31.07.2007 and salary @ 50% as due and admissible for the period from 01.08.2007 to 11.02.2020. This Court directs Opposite Party No.3 to extend the financial benefit as directed hereinabove in favour of the Petitioner within a period of three (3) months from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Mar-2024 12:53:12 Subrat (Biraja Prasanna Satapathy) Judge Page 6 of 6