The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.2937 of 2015 Krishna Chandra Routray …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 23.02.2023 Order No 04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. K.C. Sahu, learned counsel for the Petitioner and Mr. N.N. Satapathy, learned Standing Counsel appearing for the Opp. Parties. 3. The Petitioner is aggrieved by the order dtd.02.11.2015 passed by the B.E.O., Bhapur-Opp. Party No. 4 under Annexure-19, whereby the benefit extended in favour of the Petitioner vide office order dtd.24.07.2015 under Annexure-15 was withdrawn. 4. Learned counsel for the Petitioner contended that seeking his promotion from the date his juniors were given such promotion, the Petitioner approached the Tribunal in O.A. No. 793 of 2012. The Tribunal vide its order dtd.18.07.2014 disposed of the Original Application inter alia with the following order:- “Accordingly, the O.A. is allowed and the State-respondents are directed to consider the promotion of the applicant to the post of Headmaster against the vacancies available prior to 12.08.1997 with effect from the date his junior respondent // 2 // No. 5 got such promotion. Since the applicant has already retired the financial benefits may be extended to him by fixing his pay on notional basis and retiral benefits be extended accordingly. However, he will not be entitled to actual financial benefit for the period he has not performed his duty in the higher post. The entire exercise be completed within a period of three moths from the date of communication of this order.” 4.1. Learned counsel for the Petitioner contended that in terms of the order passed by the Tribunal O.P. No. 3 vide his letter dtd.08.07.2015 directed the Opp. Party No. 4 to give promotion to the Petitioner from the date his junior was given such promotion on notional basis and to sanction the pensionary benefits in favour of the Petitioner. In terms of the said communication issued by the Director on 08.07.2015 under Annexure-14 the Petitioner was given the benefit of notional promotion vide letter/order dtd.24.07.2015 under Annexure-15 and 15/1. The Petitioner was also sanctioned with the benefit of pension and other pensionary benefits. 4.2. But, it is contended that while the matter stood thus and without providing any notice/show-cause and in complete violation of the principle of natural justice the impugned order was passed under Annexure-19 on 02.11.2015 basing on the order at Annexure- 18 by withdrawing the benefit so extended in favour of the Petitioner vide office order dtd.24.07.2015. 4.3. Learned counsel for the Petitioner contended that since the impugned order under Annexure-19 was passed in complete violation of the principle of natural justice and that too without assigning any reason whatsoever, the same is not sustainable in the eye of law. It is also contended that the impugned order at Page 2 of 4 // 3 // Annexure-19 was stayed by the Tribunal while issuing notice of the matter vide order dtd.12.11.2015 and the same is in force as on date. 5. Mr. N.N. Satpathy, learned Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that subsequent to the extension of the benefit in favour of the Petitioner vide order dtd.24.07.2015 it was found that the Petitioner is junior to Sri Gobinda Chandra Swain i.e. Opp. Party No. 5 in the present writ petition. Accordingly, it is contended that in view of such finding that the Petitioner is junior to Opp. Party No. 5, the benefit extended in his favour was withdrawn vide the impugned order at Annexure-19 basing on the order at Annexure-18. It is accordingly contended that in view of such subsequent finding the benefit was rightly withdrawn and no interference is called for. 6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner seeking his promotion from the date Opp. Party No. 5 was so promoted, approached the Tribunal in O.A. No. 793 of 2012. In the said Original Application the present Opp. Party No. 5 was also a party to the proceeding being arrayed as Respondent No. 5 also. The Tribunal after hearing all concerned, disposed of the matter vide order dtd.18.07.2014 with a direction on the Opp. Parties to consider the promotion of the Petitioner to the post of Headmaster w.e.f. the date O.P. No. 5 was given such promotion. In consideration of that order the Petitioner was given the benefit of promotion vide order/letter dtd.24.07.2015 under Annexure-15 & 15/1. Page 3 of 4 // 4 // 7. It is also found that prior to disposal of the mater by the Tribunal the Petitioner had already retired from his service on 31.03.2010. Since the benefit in favour of the Petitioner was extended in terms of the order passed by the Tribunal and the said order of the Tribunal was never assailed by the Opp. Parties at any point of time, the Opp. Parties are not entitled to withdraw the benefit after such extension vide the impugned order at Annexure-19. It is also found from the record that prior to passing of the impugned order at Annexure-19, the Petitioner was never given an opportunity to show-cause. No reason has also been assigned, while issuing the order at Annexure-19. 8. Hence on the ground of non-compliance of principle of natural justice the impugned order is not sustainable in the eye of law. Not only that, the impugned order at Annexure-19 since does not indicate any reason basing on which the benefit extended in favour of the Petitioner was withdrawn, the stand taken by the Opp. Parties in Para 8 of the counter cannot be entertained in view of the decision of the Hon’ble Apex Court in the case of M.S. Gill & Anr. Vs. the Chief Election Commissioner, New Delhi & Ors. (1978 AIR 851). Hence, in any view of the matter it is the view of this Court that the impugned order under Annexure-18 and 19 have been passed without following due process of law. Therefore, this Court is inclined to interfere with the impugned order and while interfering with the same, quash the order at Annexure-18 & 19. 9. The writ petition accordingly succeeds and disposed of. (Biraja Prasanna Satapathy) Judge Sneha Page 4 of 4