The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.2652 of 2018 Surya Nandan Parija State of Odisha&Ors. Petitioner Mr. S. Behera, Advocate Opposite Parties Mr. M.K. Balabantaray, AGA -versus- ..... CORAM: THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 06.08.2024 Order No.02 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. S. Behera, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order dtd.10.07.2018 so passed by Opp. Party No. 2 under Annexure-10 series and consequential order issued by Opp. Party No. 3 on 17.09.2018. Vide the said order benefit extended in favour of the Petitioner in terms of order dtd.24.02.2011 in O.A. No. 441(C) of 2011 under Annexure-5 was directed to be recovered from the Petitioner. 4. Learned counsel for the Petitioner contended that Petitioner was appointed under the provisions of Rehabilitation Assistance Scheme vide order of appointment issued on 03.11.1997 under Annexure-1. But subsequently by taking his appointment to have been made under the non-formal scheme, when he was terminated, the matter was carried to the Tribunal in O.A. No. 441(C) of 2011. Page 1 of 5. 4.1. The Tribunal while disposing the matter vide order dtd.24.02.2011 under Annexure-5 held as follows:- “The case of the applicant being squarely covered by the aforesaid judgment, the respondents are directed to settle the claim of the applicant in accordance with the following para of the aforesaid judgment. In view of the decision of this Tribunal in the case of S.K. Hoata-Vrs- State (O.A. No. 1019/2004, decided on 7.5.2008 reported in (2008) 2 ATT (OAT) 69, the applicants will be eligible for full payment from their date of retrenchment till their reappointment and also be allowed benefit of seniority and continuity of service from their respective dates and initial appointment as Rehabilitation Assistance Appointments constitute a different category and as applicant was appointed against regular vacancy and wrongly deprived of his service benefits.” 4.2. Learned counsel for the Petitioner contended that in terms of the order passed by the Tribunal which was never assailed by the State, Petitioner was extended with the benefit of arrear salary amounting to Rs. 1,45,150/- for the period from 01.04.2001 to 9.07.2003 vide order dtd.15.09.2017 of Opp. Party No. 2 under Annexure-9. It is contended that after being extended with the benefit in terms of the order passed by the Tribunal, the impugned order was issued by the self same Opp. Party No. 2 on 10.07.2018 under Annexure-10 series inter alia holding that Petitioner is not similarly situated as like one S.K. Hota. 4.3. Learned counsel for the Petitioner contended that since the Petitioner was appointed under the provisions of Rehabilitation Assistance Scheme vide order issued under Annexure-1 and the Tribunal while disposing the matter, clearly held that Petitioner is Page 2 of 5. similarly situated as like Sri S.K. Hota and in terms of the said order, the benefit was extended in favour of the Petitioner vide order dtd.15.09.2017 under Annexure-9, the ground on which the impugned order was issued by Opp. Party No. 2 on 10.07.2018 and consequential order issued by Opp. Party No. 3 on 17.09.2018 under Annexure-10 series are not sustainable in the eye of law and requires interference of this Court. It is also contended that the Tribunal while issuing notice of the matter vide order dtd.20.11.2018 stayed the operation of the impugned order. 5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though in terms of the order passed by the Tribunal under Annexure-5, Petitioner was extended with the benefit vide order dt.15.09.2017 under Annexure- 9, but since Petitioner was appointed under the non-formal scheme, he was not found similar to that of Sri S.K. Hota. The stand taken in Para 10 & 11 of the counter affidavit is reproduced hereunder:- “10. That it is humbly submitted that the petitioner was retrenched from the service along with 3 others vide office order No.3904 dt.31.03.2001 of Inspector of Schools, Jagatsinghpur Circle which was based on closure of non-formal scheme vide Order No.6519 dated 29.03.2001 of the Director, Elementary Education, Odisha, Bhubaneswar. The copy of the Order No.3904 dt.31.03.2001 of Inspector of Schools, Jagatsinghpur is annexed herewith as Annexure-B/3. the-then 11. 11. That, it is humbly submitted that pursuant to Letter No.17346/SME dt.18.07.2003 of Govt. of Odisha, Department of School & Mass Education, Odisha, Bhubaneswar and Memo No.28144/SME dt.24.07.2003 of the Director Secondary Education, Odisha, Bhubaneswar, the petitioner re-instated in service and posted in Ratha Bidyapitha, Mahira as Jr. Clerk vide office Order No.7203 dt.28.07.2003 of the Inspector of Schools, the Order No7203 Jagatsinghpur Circle. The copy of dt.28.07.2003 is annexed herewith as Annexure-C/3.” Page 3 of 5. 5.1. It is accordingly contended that since Petitioners’ initial appointment is under non-formal scheme, he is not similarly situated as like Sri S.K. Hota. After extending the benefit vide order under Annexure-9 when it was found so, the impugned order was issued under Annexure-10 series. It is accordingly contended that the impugned order has been rightly issued as the Petitioner was extended with the benefit wrongly. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the Petitioner was appointed under the provisions of Rehabilitation Assistance Scheme vide office order dtd.03.11.1997 under Annexure-1. In spite of being appointed under the provisions of Rehabilitation Assistance Scheme by taking his appointment to have been made under the non-formal scheme when he was terminated from his services vide order dtd.31.03.2001 and subsequently reinstated vide order dtd.28.07.2003 under Annexure- 4, Petitioner claiming extension of the benefit of salary for the period from 01.04.2001 to 29.07.2003 approached the Tribunal in O.A. No. 441(C) of 2011. 6.1. The Tribunal by holding the Petitioner similarly situated as like Sri S.K. Hota, allowed the O.A. vide order dtd.24.02.2011 under Annexure-5. The order passed by the Tribunal was also duly implemented by Opp. Party No. 2 vide his office order dtd.15.09.2017 under Annexure-9. Petitioner was released with the arrear salary amounting to Rs.1,45,150/- for the period from 01.04.2001 to 29.07.2003. But on the ground that the Petitioner is not similarly situated as like Sri S.K. Hota, the impugned order under Annexure-10 series was issued. Page 4 of 5. 6.2. Since Petitioner was never appointed under the non-formal scheme and no such order is enclosed to the counter affidavit, this Court taking into account the appointment of the Petitioner under Annexure-1, held the appointment of the Petitioner to have been made under the provisions of Rehabilitation Assistance Scheme. The Tribunal while disposing the O.A. also held that the Petitioner is similarly situated as like Sri S.K. Hota and the said order was never assailed by the State. 6.3. Therefore, after implementing the order passed by the Tribunal vide order dt.15.09.2017 under Annexure-9, the ground on which the impugned order dt.10.07.2018 and consequential order dt.17.09.2018 under Annexure-10 series have been issued are not sustainable in the eye of law. Therefore, this Court is inclined to quash both the orders issued under Annexure-10 series. While
Decision
quashing the same, this Court allows the writ petition. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 19:45:46 Page 5 of 5.