The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (TAC) No.12 of 2014 Radheshyam Patra …. -versus- Petitioner Mr. B.Pradhan, Adv. A. State of Odisha & Others … Opp. Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 30.01.2024 15. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. P.K. Pradhan, learned counsel appearing on behalf of Mr. P.N. Mishra, learned counsel appearing for the Petitioner and Mr S.K. Samal, learned Addl. Govt. Advocate. 3. The Petitioner has filed the present Writ Petition inter alia with the following prayer. “The Petitioner most respectfully prays that this Hon’ble Court may be graciously pleased to allow this writ application and issue a writ of direction in the nature of mandamus or any other appropriate writ or direction quashing the order dated 12.11.1996 vide Annexure-8 and further be pleased to issue a writ or direction in the nature of mandamus or any other the appropriate writ or direction commanding Opposite Party Nos.1 to 3 to accord approval of Petitioner’s appointment and to release grant in favour of the Petitioner forthwith.” 4. It is the case of the Petitioner that Petitioner was appointed as a Jr. Clerk in Khaprakhol High School vide order of appointment issued on 27.01.1993 under // 2 // Annexure-1. In terms of the said order, Petitioner joined as a Jr. Clerk in the School on 01.02.1993 vide Annexure-2. 4.1. It is contended that while so continuing as against the post of Jr. Clerk and due to the superannuation of the existing Jr. Clerk of the School, the Managing Committee in its proceeding dt.24.01.1994 under Annexure-3 resolved to appoint the Petitioner as against the post of Jr. Clerk on
Legal Reasoning
regular basis due to superannuation of Sri Rabindra Sahu and permitted the Secretary to move the Department for approval of the services of the Petitioner as against the post of Jr. Clerk. The Petitioner on being so allowed to continue as against the post of regular Jr. Clerk in terms of the decision taken by the Managing Committee in its proceeding dt.24.01.1994, continued in the school as against the post Jr. Clerk. 4.2. It is contended that while the matter stood thus and the school when was taken over by the State Government w.e.f 07.06.1994, Petitioner moved the then Inspector of School, Bolangir Circle (now DEO, // 3 // Bolangir) with a prayer to approve his services as against the post of Jr. Clerk on 18.12.1995 under Annexure-5. On receipt of the representation so submitted by Petitioner under Annexure-5, the then Opp. Party No.3 vide his letter dt.10.01.1996 under Annexure-6 requested the Headmaster to submit the Managing Committee Resolution Register showing the appointment of the Petitioner for verification and doing the needful. 4.3. It is contended that even though the Headmaster of the School complied the request made by Opp. Party No.3., but when no further action was taken to approve the services of Petitioner, petitioner again moved the then Opp. Party No.3 on 07.08.1996 under Annexure-7. However, while Petitioner so continuing vide office order dt.12.11.1996 under Annexure-8, one Himani Pattanaik when was appointed as against the post of Jr. Clerk in the school in question, petitioner challenging the same, approached this Court in the present Writ Petition. 4.4. This Court while issuing notice of the matter vide order dt.20.11.1996, passed an interim order directing // 4 // for maintenance of status quo as against the post of Jr. Clerk until further orders. 4.5. It is contended that in terms of the order passed on 12.11.1996 , though Himani Pattanaik never joined in the school and Petitioner was allowed to continue, but on the face of the interim order passed by this Court on 20.11.1996, one Girish Das was appointed as against the post of Jr. Clerk on 04.04.2001 and Petitioner accordingly was not allowed to work w.e.f 04.04.2001. Sri Girish Das after continuing till 04.12.2003 when left the school, Petitioner was again allowed by the Head Master of the school to discharge the duties of Jr. Clerk. But thereafter, one Minati Meher was appointed as Jr. Clerk on 01.11.2007 and she also continued till 25.04.2010. After relieve of Minati Meher, one Ramakanta Bhoi continued as against the post of Jr. Clerk on transfer vide order dt.12.06.2011 and the said Ramakanta Bhoi is continuing as against the post of Jr. Clerk. 4.6. It is however, contended that this Court while issuing notice of the matter since passed an interim // 5 // order on 20.11.1996 directing for maintenance of status-quo, Petitioner should have been allowed to continue as Jr. Clerk by the Opp. Parties, instead of appointing different persons for different spell. It is accordingly contended that since Petitioner was duly appointed by the then Managing Committee and his services was regularized after retirement of the incumbent Jr. Clerk w.e.f 01.02.1994 by the Managing Committee in its proceeding dt. 24.1.1994 under Annexure-3, Petitioner should have been allowed to continue without disturbing his appointment and with due approval of his services after the school was taken over w.e.f 07.06.1994. 4.7. Because of the inaction of Opp. Party No.3, Petitioner is going without employment since 04.04.2001. It is accordingly contended that taking into account appointment of Petitioner as against the post of Jr. Clerk which was validly made by the Managing Committee and as on the date of taken over of the school since the petitioner was in the pay roll of the school, his services should have been taken over with due approval as against the post of Jr. Clerk. It is also contended that petitioner though worked in the // 6 // school as against the post of Jr. Clerk w.e.f 01.02.1994 to 03.04.2001 and during the period no body was appointed, but he was not paid with his salary. Opp. Party No.3 without allowing the Petitioner to continue appointed different persons to discharge the duties of Jr. Clerk for different spell causing serious prejudice to the Petitioner. Making all these submissions, learned counsel appearing for the Petitioner contended that appropriate order be passed, directing Opp. Party No.3 to approve his services as against the post of Jr. Clerk w.e.f 01.02.1994 and by repatriating the incumbent Jr. Clerk Ramakanta Bhoi, who was so appointed vide order dt.12.06.2011 on his repatriation from Government Upgraded High School, Uparbahal with all service and financial benefits. 5. Learned Addl. Govt. Advocate initially made the submission that Petitioner since 03.04.2001 is not in service and in place of Petitioner initially one Girish Dash was appointed w.e.f 04.04.2001 and he continued as such till 04.09.2003. Thereafter, Minati Meher was appointed on 01.11.2007 and she // 7 // continued upto 22.04.2010. Lastly, Sri Ramakanta Bhoi who was repatriated from Govt. upgraded High School on 12.06.2011 and he is continuing as against the post of Jr. Clerk till date. This Court taking into account the stand taken by Opp. Party in the counter passed the following order on 07.12.2023. “Order 07.12.2023 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Copy of the counter filed by Opposite Party No.4 on 18.06.1997 and Additional Affidavit on 31.08.1997 be served on the learned Addl. Standing Counsel in course of the day for enabling him to obtain instruction on the claim of the Petitioner as well as the interim order passed by on 20.11.1996 directing maintenance of status quo with regard to the post of Junior Clerk in the School in question. this Court 3. As requested by Mr. Rath, learned Addl. Standing Counsel for the State, list this matter on 18th December, 2023.” 5.1. Pursuant to the order passed by this Court on 07.12.2023, Opp. Party No.3 produced instruction before this Court vide his letter dt.15.12.2023. Basing on the instruction so provided, learned Addl. Govt. Advocate contended that even though Petitioner was appointed as against the Post of Jr. Clerk vide order dt.27.01.1993 under Annexure-1 and the Managing Committee resolved to appoint him as against the said post on regular basis due to superannuation of // 8 // the Jr. Clerk Sri Rabindra Sahu on 31.01.1994, but Petitioner after 01.02.1994 though was allowed to continue, but after the school was taken over w.e.f 7.6.1994, the services of the Petitioner was never approved as against the Post of Jr. Clerk. The instruction provided by the D.E.O with regard to continuance of different persons as against the post of Jr. Clerk is reproduced hereunder. Sl.No Name of the Junior Clerk Period of working Khaprakhol Khaprakhol in HS, Remark 1 1. 2. 3. 4 5. 6 2 3 4 Rabindra Sahu 01.07.1965 31.01.1994 Post Vacant 01.02.1994 03.04.2001 Girish Dash 04.04.2001 04.09.2003 Post Vacant 05.09.2003 31.10.2007 Minati Meher 01.11.2007 22.04.2010 Post Vacant 23.04.2010 11.06.2011 5 - - Appointed undue RA Scheme Appointed under Scheme RA Appointed under Scheme RA RAmakanta Bhoi 12.06.2011 To till date Transfer other school from 5.2. However, it is fairly contended that since the incumbent Jr. Clerk, Sri Ramakanta Bhoi has been brought on transfer from Govt. Upgraded High School, Uparbahal, there will be no difficulty to repatriate him to his parent school and to allow the Petitioner to // 9 // continue as against the Post of Jr. Clerk with due approval of his services. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Petitioner was initially engaged as against the Post of Jr. Clerk vide order dt.27.01.1993. Since at that point of time one Rabindra Sahu was working as Jr. Clerk, on his retirement on 31.01.1994, the Managing Committee resolved to appoint the Petitioner as against the said vacant post of Jr. Clerk in its proceeding dt.24.01.1994 under Annexure-3. Considering the appointment of Petitioner on regular basis in terms of Annexure-3, when Petitioner made a request seeking approval of his services, after the school was taken over w.e.f 07.06.1994, as found from Annexure-6, Opp. Party No.3 requested the Headmaster to submit the Resolution Register and other relevant documents with regard to appointment of the Petitioner as against the post of Jr. Clerk for verification. 6.1. Even though the same was complied, but without approving the services of Petitioner when // 10 // Opp. Party No.3 appointed one Himani Pattanaik as against the post of Jr. Clerk vide order dt.12.11.1996 under Annexure-8, the same was challenged in the present Writ Petition. This Court while issuing notice of the matter vide order dt.20.11.1996 passed an interim order directing for maintenance of status quo against the post of Jr. Clerk and for its continuance until further orders. 6.2. As per considered view of this Court on the face of interim order passed on 20.11.1996, no other person should have been appointed as Jr. Clerk in the school instead of allowing the Petitioner to continue, when the said Himani Pattnaik did not join as against the post of Jr. Clerk. From the counter affidavit filed by Opp. Party No.3 as well as Opp. Party No.4 and the instruction provided by the D.E.O in terms of the order dt.07.12.2023, it is found that the post of Jr. Clerk has not been filled up on regular basis and different incumbents have been allowed to continue for different period. 6.3. As further found from the record, the post remained vacant as indicated by Opp. Parties for the // 11 // period from 01.02.1994 to 03.04.2001, 05.09.2003 to 31.10.2007 and 23.04.2010 to 11.06.2011. Since the post of Jr. Clerk is an essential post, the stand taken by Opp. Parties that the post remained vacant for different period is also not acceptable to this Court. In view of the interim order passed to this Court on 20.11.1996, petitioner should have been allowed to continue with due approval of his services as against the post of Jr. Clerk. 6.4. In that view of the matter and considering the stand taken by the learned Addl. Govt. Advocate that the incumbent Jr. Clerk Sri Ramakanta Bhoi can be repatriated to his parent School i.e. Govt. Upgraded High School, Uparbahal, this Court while disposing the Writ Petition directs Opp. Party No.3 to take immediate steps to repatriate Sri Ramakanta Bhoi, to his parent school and allow the Petitioner to continue as Jr. Clerk with due approval of his services. The entire exercise with regard to repatriation and allowing the Petitioner to continue with due approval of his services as against the post of Jr. Clerk be taken within a period of four (4) weeks from the date of receipt of this order. The Period the petitioner was // 12 // kept out of employment w.e.f 01.02.1994 to the date of re-instatement be regularized on notional basis. Petitioner is permitted to provide copy of this order before Opp. Party No.3 for compliance.
Decision
The Writ Petition is according disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 12-Feb-2024 17:39:15