The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OA) No.588 OF of 2015 Kedarnath Mahapatra …. Appellant -versus- State of Odisha & Others …. Opp. Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 16.02.2023 5. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.K. Das, learned counsel appearing for the Petitioner and Mr. D.K. Mohanty, learned Additional Standing Counsel appearing for the State-Opp. Parties. 3. The Petitioner has filed this Writ Petition inter alia with the following prayer. (i) To quash Annexure-7 and direct the Respondents to regularize the service of the applicant by treating the period from 08.06.1984 joined again on 08.04.2013 duty and to extend all service benefits in the interest of justice. till he 4. It is contended that the petitioner while continuing as a Hindi Teacher, he was terminated from his service w.e.f 06.06.1984 vide order issued under Annexure-1 of the Collector, Kandhamal, Phulbani. The Petitioner challenging such order of termination when moved the Government-Opp. Party No.1, Special Officer-cum- // 2 // Under Secretary to Government, Harijan and Tribal Welfare the Department Vide Annexure-2, held the termination of the Petitioner having not been made properly, recommended his case for absorption as Tailoring/Hindi Teacher to the Collector, Phulbani. In spite of such recommendation, when the Collector-Opp. Party No.3 did not take any step, Petitioner approached the Tribunal in O.A. No.373(C ) of 1996. The Tribunal
Decision
vide order dated 08.02.1996 disposed of the matter with a direction on Opp. Party No.3 to take a decision on the claim of the Petitioner. 4.1. It is contended that without following the direction issued by the Government under Annexure-2, Opp. Party No.3 rejected the Petitioner’s claim for absorption vide order dated 18.10.1996 under Annexure-4. The Petitioner being aggrieved by the said order once again approached the Tribunal in O.A. No.1585 of 1997. The Tribunal vide order dated 18.01.2012 though was pleased to quash the order issued by the Collector on 18.10.1996 under Annexure-4, but directed the Opp. Party No.3 to reconsider the case of the Petitioner for his appointment on prospective basis. 4.2. It is contended that in terms of the said order, the petitioner was appointed vide order dated 30.03.2013 under Annexure-6 i.e. about more than one year of the order passed by the Tribunal. After receipt of the information, when the Petitioner made an application to treat the period of service from 08.06.1984 to Page 2 of 6 // 3 // 08.04.2013 i.e. the date of joining pursuant to Annexure-6 by extending all service and financial benefits for the said period, Petitioner’s claim was rejected vide impugned communication dated 09.01.2015 under Annexure-7. 4.3. Learned counsel for the Petitioner contended that though the Tribunal while disposing O.A. No.1585 of 1997 vide order under Annexure-5 directed to consider the case of the Petitioner for his prospective appointment, but there is no order with regard to consideration of the period for which the petitioner remained out of employment i.e. from 08.06.1984 to 08.04.2013. But the Opp. Party No.1 basing on the order passed by the Tribunal under Annexure-5 refused to regularize the service for the period in question and accordingly, the Petitioner was deprived to get service and financial benefit for the said period. It is also contended that because of the fault committed by the Opp. Party No.3 in not following the order passed by the Government under Annexure-2, the Petitioner suffered for around 23 years. It is accordingly contended that the impugned order passed under Annexure-7 needs interference of this Court. 5. Mr. D.K. Mohanty, learned Additional Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit filed by Opp. Party No.3. It is contended that the direction issued by the Government in its letter dated 04.05.1990 under Annexure-2 is not mandatory and does not create any Page 3 of 6 // 4 // right in favour of the Petitioner for his absorption. Thereafter pursuant to the order passed by the Tribunal in O.A. No.373(C ) of 1996, Opp. Party No.3 considered the grievance of the Petitioner and passed a speaking order vide order dated 18.10.1996 under Annexure-4. It is also contended that since the Petitioner was appointed against the vacancy meant for S.C/S.T, the same is a void one and the claim of the Petitioner was rightly rejected. 5.1. Mr. Mohanty also contended that since the Tribunal while disposing the matter vide order at Annexure-5 directed to consider the case of the Petitioner for his prospective appointment and accordingly, he was provided with the appointment vide order at Annexure-6, his claim for regularization of the period of service as made in the Writ Petition cannot be considered in view of the specific order passed by the Tribunal. 6. Having heard learned counsel for the parties and after going through the materials available on record, it is found that the petitioner when was terminated from his service on the ground that he was appointed as against the vacancy meant for S.C/S.T, Government- Opp. Party No.1 vide its letter under Annexure-2 clarified the said position and while clarifying that, it was clearly indicated that the Petitioner has not been appointed as against the vacancy meant for S.C/S.T and his termination on the said ground is irregular. While holding so, Opp. Party No.1 also requested the Page 4 of 6 // 5 // Collector, Kandhamal, Phulbani to absorb the petitioner as a Tailoring/Hindi Teacher. Instead of complying the said direction when the Collector-Opp. Party No.3 sat over the matter, the Petitioner approached the Tribunal in O.A. No.373 (C ) of 1996. The Tribunal when disposed of the matter with a direction on the Collector- Opp. Party No.3 to consider the grievance of the Petitioner, the said Opp. Party without following the order passed by the Government under Annexure-2, rejected the claim of the Petitioner by taking similar stand that the Petitioner was appointed against the vacancies meant for S.C/S.T. The Tribunal, on being approached in O.A. No.1595 of 1997, though was pleased to quash the order passed by the Collector, Kandhamal under Annexure-4, but held that the appointment of the Petitioner shall be treated as a prospective appointment. From the order available at Annexure-5, it is found that the Tribunal has not dealt with the claim of the petitioner for regularization of the period, save and except by holding that the appointment shall be a prospective one. Therefore, the ground on which the claim of the Petitioner has been rejected vide Annexure-7, as per considered view of this Court, is not sustainable in the eye of law. 6.1. Therefore, while interfering with the same and taking into account the order passed by the Government under Annexure-2, this Court directs Opp. Party No.1 to reconsider the matter and take a lawful decision on the claim of the Petitioner. Opp. Party No.1 Page 5 of 6 // 6 // while taking such a decision shall take into consideration the order at Annexure-2 and the view of this Court that the Tribunal while disposing the matter vide order under Annexure-5 has not dealt with the claim with regard to the period for which the Petitioner remained out of employment. The entire exercise shall be completed within a period of three months from the date of receipt of this order. 7. Since it is submitted at the Bar that the Petitioner has retired in the meantime and considering the submission made by Mr.S.K Das, learned counsel appearing for the Petitioner that the petitioner only prays for regularization of the period on notional basis, it is observed that Opp. Party No.1 shall take into consideration that aspect while taking a decision in the matter. 8. With the aforesaid observation and direction, the Writ Petition stands disposed of. sangita (Biraja Prasanna Satapathy) Judge Page 6 of 6