The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36183 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India, 1950 ……………… Suratha Behera …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. K.K. Swain, Advocate along with Mr. J.R. Khuntia, Advocate For Opp. Parties : Mr. S.Das, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:21.07.2025 and Date of Judgment:21.07.2025 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia challenging the order dtd.12.01.2023 so passed by // 2 // Opposite Party No.3 under Annexure-3. Vide the said order, claim of the Petitioner to get the benefit of pension and other pensionary benefits as well as arrear salary was rejected. 4. Learned counsel appearing for the Petitioner contended that Petitioner entered into service as a Hindi Teacher vide order issued by the Managing Committee of Panchayat High School, Biripali in the district of Bolangir on 25.07.1990 under Annexure-1. While so continuing, the School on being notified to receive grant-in-aid w.e.f. 01.06.1994 as per the GIA order, 1994, services of the Petitioner was approved as against the post of Hindi Teacher vide order dtd.01.11.1995 under Annexure-2. Petitioner accordingly became entitled to get the benefit of grant-in-aid w.e.f. 01.06.1994. 4.1. It is contended that while the matter stood thus, Petitioner tendered his resignation from his services on 26.03.2004 under Annexure-4 on the ground that he is willing to contest the next general assembly election of the State. Such resignation submitted by the Petitioner was also accepted by the then Inspector of School, Bolangir Circle vide his office order dtd.27.03.2004, after Petitioner deposited one month salary in lieu of one month notice. Accordingly, Petitioner’s resignation having been accepted vide office order dtd.27.03.2004, Petitioner stands relived from his service. Page 2 of 12 // 3 // 4.2. It is however contended that since by the time resignation submitted by the Petitioner was so accepted by the then Inspector of School vide
Decision
order dtd.27.03.2004, Petitioner was working in an aided Institution, as provided under Section-10-A of the Orissa Education Act, without prior approval of the Director, Secondary Education (Inspector of School being in charge of the Managing Committee) resignation of the Petitioner could not have been accepted. 4.3. It is also contended that there is no such provision for submission of resignation under The Orissa Education (Establishment, Recognition & Management of Private Junior Colleges/ Higher Secondary Schools) Rules, 1974. As provided under Rule-18 of the 1974 Rules, an employee can only be terminated by giving notice of at least 1 (one) month. Rule-18 of the 1974 Rules reads as follows:- “18.Termination of service after notice-[ Any employee may after giving notice of at least one month relinquish his office whereupon his service shall stand terminated.]” 4.4. It is contended that since prior to completion of the period of one month in terms of the provisions contained under Rule-18 of the 1974 Rules, resignation submitted by the Petitioner on 26.03.2024 was accepted on 27.03.2024, which amounts to termination, it is not permissible under law. Not only that in absence of prior approval of the Director, resignation submitted by the Page 3 of 12 // 4 // Petitioner could not have been accepted vide order dtd.27.03.2004 under Annexure-5, as Petitioner was working in an aided School. 4.5. In support of his aforesaid submission, reliance was placed to a decision of this Court in the case of Sushila Tiria vs. Sri Sambhunath Nayak, reported in 1986 (I) OLR-117. This Court in Para-10 of the said judgment held as follows:- “10. Rule-18 of the Conditions of Service Rules prove manner of relinquishment of office by an employees. It reads: the "An employee may after giving notice of at least one month relinquish his office whereupon his service shall stand terminated." The only manner of relinquishment of service by an employee of an aided educational institution is to give notice for one month and after one month the service automatically stands terminated. Relationship of employer and employee, therefore, continues till expiry of one month from the date of notice. Once the relinquishment is regulated by the statute by providing for the manner and fixing the time, the employer has no right to bring to an end the relationship otherwise or earlier. On expiry of the period of one month as provided under Rule 18, the termination of service being automatic, acceptance of the notice of relinquishment is not provided for in the rules. In absence of any statutory rule giving option to the employer to permit relinquishment earlier than the statutory period or to refuse such relinquishment acceptance of notice of relinquish-ment is redundant. There being no provision for resignation as such, the. letter of resignation is to be treated to be a notice of relinquishment by the employee under Rule 13. Relieving the employee from duties by acceptance of the notice before the expiry of one month amounts to termination of service by the employer. Termination of service of a teacher of school requires prior approval by the Circle Inspector of Schools under Sec. 10-A of the Act.” Page 4 of 12 // 5 // 4.6. It is contended that since prior to completion of one month statutory period, resignation of the Petitioner was accepted, which amounts to termination, in absence of prior approval of the Directory as provided under Rule- 10-A of the Rule, as during the relevant time Inspector in School was discharging the duty of Managing Committee, no such order could have been passed. With regard to prior approval of the Director reliance was also placed to a decision of this Court in the case of Managing Committee, Sayed S. High School vs. State of Orissa and Ors. This Court in Para-4 of the said judgment has held as follows:- in that have been “4. The next point urged on behalf of the appellant is that in view of the order of the Director Secondary Education as contained in Annexure F to the application for leave to urge additional grounds (pages 36-37 of Vol. II of the paper book), it should be held that the prior approval of the Director was available and this would be sufficient compliance of the requirement of Section 10A. The order indicates that the Director agreed with the proposal of the Managing Committee the matter of removal of respondent No. 4 from service and expressed the view that the allegations against him found established are grave in nature and his presence is not conducive to the smooth running of the school and its healthy administration and that the services of the respondent No. 4 were therefore fit to be terminated in the interest of the institution. At the bottom of the said document, it is also mentioned that a copy of the same be forwarded to the Secretary of the School for information and necessary action. The reply of the learned Counsel of respondent No. 4 is that while Section 10A(1)(b) requires the prior approval of the Inspector, the aforesaid order was passed by the Director and not the Inspector. In our opinion, the Director being the Head of the Department and a superior officer to the Inspector, his approval must be treated to be sufficient for Managing Committee, the purpose of the section”. Page 5 of 12 // 6 // 4.7. It is accordingly contended that since the provisions contained under Rule-18 of the 1974 Rules was never followed nor the provision contained under Section-10-A of the Act, resignation submitted by the Petitioner so accepted on 27.03.2004 is not legally sustainable and Petitioner is deemed to have been continued in service till he attained the age of superannuation. 4.8. In support of the same, reliance was also placed to a decision of this Court in the case of State of Orissa & Ors. Vs. Bhagaban Nahak. This Court in Para-7 of the said judgment has held as follows:- “7. As required u/s 10A of the Education Act, prior approval of the Inspector of Schools is required for termination of service of a teacher of an aided non- Government High School. Even if a teacher remains unauthorisedly absent from the School, yet his services cannot be terminated without prior approval of the Inspector of School. In such a case, it is open to the Managing Committee to proceed against the teacher concerned and impose suitable punishment. In the case at hand, no such approval was obtained before terminating the services of opp. party, so the order of termination is void ab initio. In the eye of law, opp. party is deemed to have been continuing in service.” 4.9. Making all the submission, learned counsel appearing for the Petitioner contended that Petitioner is deemed to have been continued in service till he attained the age of superannuation and accordingly he is eligible and entitled to get the benefit of pension and pensioanry benefit as well as arrear salary. However, without proper appreciation of the claim made by the Petitioner, which Page 6 of 12 // 7 // was directed to be considered by this Court in its order dtd.18.11.2021 in W.P.(C) No.33907 of 2021, the same was rejected vide the impugned order dtd.12.01.2023 under Annexure-3. 4.10. A further submission was also made that since by the time such resignation was accepted vide order dtd.27.03.2004, Petitioner had already rendered more than nine years nine months and twenty five days of service, in terms of the provisions contained under the proviso to Rule-8(2)A of the 1981 Rules, the qualifying period is required to be rounded up to ten years and thereby making the Petitioner entitled to get the benefit of minimum pension. 4.11. It is accordingly contended that in any view of the matter rejection of the Petitioner’s claim vide the impugned order is not sustainable in the eye of law. 5. Learned Addl. Government Advocate for the State on the other hand contended that Petitioner in order to participate in the election to the State Legislature submitted his resignation before the then Inspector of School, Bolangir Circle on 26.03.2004 under Annexure-4. Because of the urgency involved, and on the request made by the Petitioner, the same was accepted by the then Inspector of School after Petitioner made a deposit of one month salary in lieu of the one month notice, in Page 7 of 12 // 8 // terms of the provisions contained under Rule-18 of the 1974 Rules. 5.1. It is contended that after acceptance of his resignation vide order dtd.27.03.2004, Petitioner participated in the State Assembly Election by filing his nomination on 31.03.2004 (document of which was produced by the Petitioner in Court pursuant to the order dtd.23.06.2025). 5.2. It is contended that since on the request of the Petitioner, the resignation submitted on 26.03.2004 was accepted vide order dtd.27.03.2004 with deposit of one month salary so made by the Petitioner and Petitioner participated in the election process by filing his nomination on 31.03.2004, claim made by the Petitioner to get the benefit of pension and pensionary benefits is not entertainable. 5.3. It is also contended that the decisions relied on by the learned counsel appearing for the Petitioner are also not applicable to the facts of the present case, as the resignation of the Petitioner was accepted with deposit of one month salary in lieu of notice by the Petitioner itself on 27.03.2004. Not only that after such acceptance of his resignation on 27.03.2004, Petitioner filed the nomination to contest the State Assembly Election on 31.03.2004. Page 8 of 12 // 9 // 5.4. A further submission was also made that in order to be eligible to get the benefit of pension under the 1981 Rules, provision contained under Rule-4 of the said Rules govern the field. Rule-4 of the 1981 Rules reads as follows:- “4. Subject to the conditions in other rules under this Chapter, an employee shall be, eligible for pension or gratuity, as the case may be. (1) on retirement by reason of his attaining the age of superannuation, or after completion of thirty years of qualifying service or the age of fifty (2) on voluntary retirement or retirement by the appointing authority years; or (3) on retirement before the superannuation on medical certificate of permanent incapacity for further service; or (4) on termination of service due to the abolition of the post; or (5) on closure of the College or school, as the case may be, due to withdrawal of recognition of the said College or School or other causes”. 5.5. Placing reliance on the aforesaid provisions, it is contended that since claim of the Petitioner does not fall within any of the five categories reflected in Rule-4, Petitioner is also not eligible to get the benefit of pension and other pensionary benefits. 5.6. A further submission was also made that Petitioner’s resignation / termination though was accepted on 27.03.2004, but Petitioner after about 17 years approached this Court by making a representation to get the benefit of pension and pensionary benefits. Even Page 9 of 12 // 10 // though this Court directed for consideration of such claim of the Petitioner, but the factum of delay was never take into consideration by this Court. Since no plausible explanation has been given by the Petitioner for making such a claim after 17 years of the acceptance of his resignation, Petitioner’s claim is also time barred. 5.7. Making all the submissions, learned Addl. Standing Counsel for the State contended that Petitioner’s claim has been rightly rejected and it requires no interference of this Court. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner’s services was approved as against the post of Hindi Teacher vide order of approval issued on 01.01.1995 under Annexure-2. Basing on such order of approval, Petitioner got the benefit of grant-in-aid under GIA Order, 1994 w.e.f. 01.06.1994. 6.1. It is not disputed by the Petitioner that while so continuing he submitted his resignation before the then Inspector of School on 26.03.2004 under Annexure-4. It is also not disputed that Petitioner’s resignation was accepted on 27.03.2004 under Annexure-5 when petitioner deposited one month salary in lieu of one month notice. It is also not disputed by the Petitioner that after acceptance of his resignation vide order dtd.27.03.2004, Petitioner participated in the election to Page 10 of 12 // 11 // the State Legislature by filing his nomination on 31.03.2004. 6.2. Since in order to contest the general election to the State Assembly, Petitioner’s resignation was accepted on 27.03.2004 with deposit of one month salary in lieu of one month notice, it is the view of this Court that Petitioner is not permitted to raise any further claim against the State relying on any provision. 6.3. Since on the request made by the Petitioner his resignation was accepted and he also contested the election by filing his nomination on 31.03.2004, it is the view of this Court that Petitioner is not eligible and entitled to get any further benefit from the State. It is also view of this Court that Petitioner’s claim does not fall under Rule-4 of the 1981 Rules. The decisions relied on by the Petitioner are also not applicable in view of the peculiar facts and circumstances under which his prayer for resignation was accepted. 6.4. In view of such peculiarity involved, this Court finds no illegality or irregularity with the impugned order. It is also the view of this Court that the claim made by the Petitioner is barred by time as after acceptance of his resignation on 27.03.2004, Petitioner made a claim to get the benefit in the year 2021 i.e. after about 17 years. In any view of the matter, Petitioner’s claim has been rightly rejected vide the impugned order dtd.12.01.2023 under Page 11 of 12 // 12 // Annexure-3, and this Court is not inclined to interfere with the same. 7. Accordingly, the Writ Petition stands dismissed. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 21st July, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Jul-2025 17:56:38 Page 12 of 12