The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3016 of 2015 Suren Kumar Pradhan …. Petitioner Mr. M. Bisoi, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 13.12.2023 Order No 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. M. Bisoi, learned counsel appearing for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. At the outset learned counsel appearing for the Petitioner made a prayer that he does not intend to challenge the corrigendum issued by the D.E.O. on 26.02.2013 under Annexure-11. 4. The present writ petition has been filed inter alia challenging the order dtd.20.12.2012 so passed by the D.E.O., Sambalpur - Opp. Party No. 3 under Annexure-10. Vide the said order the period of service for the period from 27.02.2001 to 20.12.2012 was treated as leave without pay. 5. It is the case of the Petitioner that Petitioner was appointed as an Additional Section Teacher in Kala High School w.e.f.23.08.1984. // 2 // The appointment of the Petitioner as Additional Section Teacher was approved w.e.f.07.06.1994 vide order dtd.29.04.1995 in untrained T.G. scale. Since the Petitioner acquired the B.Ed. qualification on 06.07.1997, he was allowed with the T.G. scale w.e.f.06.07.1997 and subsequently adjusted as against the sanctioned post in Kalla High School with payment of salary w.e.f.12.06.1998. 5.1. It is contended that while so continuing, when Govt. in the Department of School & Mass Education issued a circular on 24.04.2000 under Annexure-3 holding therein that any appointment of Additional Section Teacher having no B.Ed./I.A.(C.T.)/Matric (CT) qualification as on 07.06.1994 will be treated as illegal, Petitioner apprehending termination from his service approached the Tribunal challenging the communication dtd.24.04.2000 in O.A. No. 1852 of 2000. The Tribunal though passed interim order protecting the interest of the Petitioner, but when that was vacated on 10.01.2001, Petitioner was terminated from his service w.e.f.27.02.2001 basing on the letter issued by the Inspector of Schools on 27.02.2001. 5.2. It is contended that the notification issued by the Govt. on 24.04.2000 under Annexure-3, which was the subject matter of challenge in O.A. No. 1852 of 2000 was quashed by the Tribunal vide order dtd.20.04.2005 under Annexure-5. The Tribunal while quashing the communication dtd.24.04.2000 directed that the applicant be taken back to his service from the date he was terminated/discharged and he will be granted all benefits attach to the post except the period from which he was out of service. It is contended that in spite of the order passed by the Tribunal on Page 2 of 6 // 3 // 20.04.2005, Petitioner was never reinstated till he was so reinstated vide order dtd.20.12.2012 under Annexure-10. It is contended that in order dtd.20.12.2012 though the date of termination of the Petitioner was held as 27.02.2011, but while issuing the corrigendum under Annexure-11, the date of termination of the Petitioner was corrected as 27.02.2001. It is also contended that while issuing the order of reinstatement vide order dtd.20.12.2012 under Annexure-10, the period from 27.02.2001 till the date of reinstatement was treated as leave without pay. Petitioner being aggrieved by such order of the Opp. Party No. 3 is before this Court. 5.3. Learned counsel for the Petitioner contended that since the clarification issued by the Govt. on 24.04.2000 under Annexure-3 was quashed by the Tribunal in its order dtd.20.04.2005 and while disposing the matter, the Tribunal held that the Petitioner be taken back to his service from the date he was discharged and he be granted all benefits attach to the post except for the period from which he was out of service, Opp. Party No. 3 on the face of such order should not have treated the period from the date of termination till Petitioner as leave without pay. It is accordingly contended that on the face of the order passed by the Tribunal on 20.04.2005 the period of service from 27.02.2001 till 20.12.2012 should not have been treated as leave without pay. It is also contended that even though the Tribunal allowed the original application vide order dtd.20.04.2005, but the authorities took more than 7 years to implement the order while reinstating the Petitioner vide order dtd.20.12.2012 under Annexure-10. It is accordingly contended that the action of the Opp. Party No. 3 in treating the period from 27.02.2001 to 20.12.2012 as leave without pay while not Page 3 of 6 // 4 // implementing the same for more than 7 years is not sustainable in the eye of law and it requires interference of this Court. 6. Mr. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that while the Petitioner was continuing as an Additional Section Teacher with due approval of his service and sanction of Trained Graduate scale of pay w.e.f.07.06.1997. But Govt. while issuing Annexure-3 on 24.04.2000 clearly held that any appointment of Additional Section Teacher having no B.Ed. qualification as on 07.06.1994 be treated as illegal and void ab initio. It is contended that the Petitioner challenging such communication issued under Annexure-3 though approached the Tribunal in O.A. No. 1852 of 2000 and the Tribunal passed an interim order in his favour, but the interim order when was vacated vide order dtd.10.01.2001, Petitioner was terminated from his services w.e.f.27.02.2001. It is also contended that pursuant to the order passed by the Tribunal on 20.04.2005 under Annexure-5 Petitioner was reinstated in his service vide order dtd.20.12.2012, where he joined on 21.12.2012. 6.1. Learned Additional Govt. Advocate further brought to the notice of this Court the direction issued by the Tribunal in its order dtd.20.04.2005 under Annexure-5. It is contended that the Tribunal while disposing the matter by directing reinstatement of the Petitioner, held that the intervening period from the date of discharge/termination till his reinstatement be treated as leave of any kind. It is contended that in view of such nature of order passed by the Tribunal, the period from 27.02.2001 to 20.12.2012 was treated as leave without pay. It is accordingly contended that there is Page 4 of 6 // 5 // no illegality or irregularity by the Opp. Party No. 3 in treating the period in question as leave without pay and it requires no interference. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioner while continuing as an Additional Section Teacher with his date of appointment as 23.08.1984, his services was approved w.e.f.07.06.1994 as per Govt. order No.12631 dtd.29.04.1995 in untrained trained graduate scale of pay. As found from the record Petitioner since acquired the B.Ed. qualification on 06.07.1997, he was extended with the benefit of T.G. scale w.e.f.06.07.1997 itself. However, while so continuing when Annexure-3 was issued the matter was carried to the Tribunal in O.A. No. 1852 of 2000. Even though the Tribunal passed an interim order in favour of the Petitioner, but when the same was vacated on 10.01.2001, Petitioner was terminated from his services w.e.f.27.02.2001. 7.1. It is found that the Tribunal while disposing the matter vide order dtd.20.04.2005 under Annexure-5 directed the authorities to reinstate the Petitioner with the observation that the Petitioner be granted with all benefits attached to the post except for the period for which he was out of service. While holding so, the Tribunal also observed that the intervening period from the date of discharge till reinstatement be treated as leave of any kind. In view of such nature of order passed by the Tribunal, the period from the date of termination till reinstatement of the Petitioner i.e.27.02.2011 to 20.12.2012 has been treated as leave without pay. Page 5 of 6 // 6 // 7.2. But this Court finds that the Tribunal though allowed the matter vide order dtd.20.04.2005, but the authorities took more than 7 years to reinstate the Petitioner in his service with passing of the order on 20.12.2012. The Tribunal as per the considered view of this Court gave two different view with regard to treating the break period of service. 7.3. Since the Petitioner on the face of the order passed by the Tribunal was reinstated after more than 7 years, as per the considered view of this Court, the period from the date of passing of the order i.e.20.04.2005 to 20.12.2012 is required to be treated as leave due and admissible. The period from 27.02.2001 to 19.04.2005 be treated as leave without pay. While holding so, this Court directs Opp. Party No. 3 to pass a modified order as directed hereinabove within a period of three (3) months from the date of receipt of this order. On passing of such a fresh order, consequential follow up action be taken as it is contended that the Petitioner has retired from his service w.e.f.31.05.2021.
Decision
8. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Dec-2023 20:00:18 Page 6 of 6