The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.2516 of 2016 Lokanath Satapathy …. Petitioner Mr. S.B. Mohanty, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. R.N.Mishra, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.09.2023 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.B. Mohanty, learned counsel appearing for the Petitioner and Mr. R.N. Mishra, learned Addl. Government Advocate for the State. 3. Petitioner has filed the present Writ Petition challenging the order dtd.16.05.2015 so passed by Government-Opposite Party No.1 under Annexure-7. Vide the said order, the prayer of the Petitioner to accept his claim for change of option under different ORSP Rules was rejected by Opposite Party No.1. 4. Learned counsel for the Petitioner contended that the Petitioner while working as a Classical Teacher in Nirakar High School under D.E.O., Bhadrak-Opposite // 2 // Party No.3, he made his application seeking change of option under ORSP Rules, 1985, 1989 & 1998 under Annexure-1. 4.1. It is contended that the application so submitted by the Petitioner under Annexure-1 for change of option was duly forwarded to Opposite Party No.2 by Opposite Party No.3 on 03.12.2014. But in the meantime and prior to exercise of such option, the services of the Petitioner was already regularized under the provisions of Validation Act, 1989 vide order under Annexure-2. 4.2. It is contended that subsequent to the submission of the application under Annexure-1, Government in the Department of Finance issued a Memorandum on 26.05.2012 under Annexure-3 inter alia permitting those Government employees who have not changed their options as yet, but desire to have the benefit in different ORSP Rules in terms of Finance Department, Office Memorandum dtd.22.09.1999, will have to apply for change of option as per rules and submit the same to the authority concerned within a period of three months from the date of issue of the Office Memorandum, otherwise their cases shall not be considered. 4.3. It is contended that vide Office Memorandum dtd.22.09.1999 under Annexure-4, Government in the Finance Department had permitted the submission of Page 2 of 8 // 3 // application for change of option on exceptional circumstances only. The same was further modified vide Office Memorandum issued on 26.05.2012 under Annexure-3. 4.4. It is contended that basing on the stipulation contained in the Office Memorandum dtd.26.05.2012 under Annexure-3 and Office Memorandum dtd.22.09.1999 under Annexure-4, Opposite Party No.1 vide his letter dtd.03.06.2013 under Annexure-5 with regard to acceptances of the application submitted by the Petitioner for change of option requested Opposite Party No.2 to provide certain information / document for taking further action in the matter. 4.5. It is also contended that prior to receipt of Annexure-5, Opposite Party No.3 vide his letter dtd.07.01.2013 under Annexure-6 had already furnished the original service book of the Petitioner as desired with regard to consideration of the Petitioner’s application for change of option under ORSP Rules, 1985, 1989 & 1998. However, it is contended that though everything was complied, but Opposite Party No.1 without proper appreciation and on the ground that the Petitioner has joined the promotional post on 26.06.2006 held the Petitioner not entitled to get the benefit of change of option and rejected the prayer as made in Annexure-1 Page 3 of 8 // 4 // vide the impugned order dtd.16.05.2015 under Annexure-7. 4.6. Learned counsel for the Petitioner contended that since the Petitioner in terms of office Memorandum issued under Annexure-3 coupled with Annexure-4 had made his application for acceptances of his change of option under different ORSP Rules vide Annexure-1 on 03.09.2011, the claim of the Petitioner could not have been rejected on the face of the stipulation contained in the Office Memorandum issued under Annexure-3. It is accordingly contended that the rejection so available at Annexure-7 is not sustainable in the eye of law and it requires interference of this Court. 5. Mr. R.N. Mishra, 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. It is contended that the Petitioner was appointed as a Classical Teacher on Ad hoc basis in between two spell of appointment and the Ad hoc appointment of the Petitioner was regularized as per the Validation Act, 1989 vide order dtd.15.01.2000 and 16.02.2001 of Opposite Party No.3. After such regularization of service, the pay of the Petitioner was fixed under ORSP Rules and by that time the Petitioner never intended to exercise his option in terms of Office Memorandum issued on 22.09.1999 under Annexure-4. 5.1. It is contended that in the meantime, Petitioner was Page 4 of 8 // 5 // promoted to the post of Trained Graduate Teacher from LSES cadre on 26.06.2006 and also availed the scale of pay attached to the post of TGT. At the time of such fixation of pay as against the post of Trained Graduate Teacher, Petitioner never intended to exercise change of option. 5.2. It is contended that the Petitioner at no point of time prayed for change of option under different ORSP Rules in terms of Office Memorandum issued on 22.09.1999 under Annexure-4. The application submitted by the Petitioner under Annexure-1 was prior to issuance of the Office Memorandum issued on 26.05.2012 under Annexure-3. Since the Petitioner had made his application for change of option on 03.09.2011 under Annexure-1 prior to issuance of the Office Memorandum dtd.26.05.2012 under Annexure-3, the claim of the Petitioner for consideration of his claim for change of option in terms of Annexure-3 is not entertainable. Petitioner in terms of Annexure-3 never has submitted any application seeking change of options. Therefore, Petitioner cannot take the benefit of office Memorandum dtd.26.05.2012 so issued under Annexure-3. It is accordingly contended that since the Petitioner at no point of time made any application for change of option in terms of Annexure-3 and / or Annexure-4, the application of the Petitioner has been rightly rejected vide order dtd.16.05.2015 under Annexure-7 and it requires no interference. Page 5 of 8 // 6 // 6. Learned counsel for the Petitioner to the aforesaid submission of the learned State Counsel made further submission basing on the stand taken in the rejoinder affidavit. It is contended that since the services of the Petitioner was regularized on 16.02.2001, he had no occasion to make any application for change of his option in terms of Annexure-4, where the cut-off date was fixed to 22.09.1999. 6.1. It is also contended that the cut-off date fixed as 22.09.1999 in office Memorandum under Annexure-4 was quashed by the Tribunal vide order dtd.11.12.2001 in O.A No.2294/1999 and the said order was also confirmed by this Court in its order dtd.23.10.2008 in W.P.(C) No.38993/2008. 6.2. It is contended that in terms of the said order passed by the Tribunal so confirmed by this Court, Petitioner made his application under Annexure-1 on 03.09.2011, seeking change of his option but Opposite Party No.1 without proper appreciation of the office Memorandum issued under Annexures-3 & 4 rejected the claim vide the impugned order under Annexure-7. It is accordingly contended that the said order is not sustainable in the eye of law and requires interference of this Court. 7. Having heard learned counsel for the Parties and after going through the materials available on record, this Page 6 of 8 // 7 // Court finds that the Petitioner was regularized in his services while continuing as against the post on Ad hoc basis vide order dtd.15.01.2000 & 16.02.2001 respectively. On such regularization of his services, the pay of the Petitioner was fixed under ORSP Rules prevalent at that point of time. Petitioner never prayed for change of his option in terms of Office Memorandum issued on 22.09.1999 under Annexure-4. The cut-off date fixed in office Memorandum dtd.22.09.1999 under Annexure-4 though is alleged to have been quashed by the Tribunal in its order dtd.11.12.2001 so confirmed by this Court on 23.10.2008, but the Petitioner never made any application seeking change of option till he made the application on 03.09.2011 under Annexure-1. The said application submitted under Annexure-1 is also not in terms of Office Memorandum issued on 26.05.2012 under Annexure-3. 7.1. Since it is found that the Petitioner never made any application in terms of Office Memorandum dtd.26.05.2012 under Annexure-3, the plea of the Petitioner that his claim for change of option is covered by the Office Memorandum issued under Annexure-3 is not acceptable. Since at no point of time, Petitioner made any application in terms of Annexure-3 and the application so submitted under Annexure-1 is admittedly prior to coming into force of Annexure-3, this Court finds no illegality or irregularity with regard to the rejection of his Page 7 of 8 // 8 // claim vide the impugned order dtd.16.05.2015 under Annexure-7. Accordingly, this Court is not inclined to entertain the Writ Petition with the prayer as made and dismiss the same.
Decision
8. Accordingly, the Writ Petition stands dismissed. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 17:39:58 Page 8 of 8