Niharika Behera State of Odisha and others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 35693 of 2022 Niharika Behera State of Odisha and others ….. Vs. ….. Petitioner Mr. L.K. Mohanty, Advocate Opposite Parties State Counsel CORAM: DR. JUSTICE B.R. SARANGI
Decision
ORDER 07.02.2023 Order No. 01. This matter is taken up through hybrid mode. 2. Heard Mr. L.K. Mohanty, learned counsel for the petitioner and Mr. S. Jena, learned Standing Counsel for School & Mass Education Department. 3. The petitioner has filed this writ petition seeking to quash the order of rejection dated 07.05.2022 issued by the opposite party no.2 under Annexure-9, which has been passed in compliance to the order dated 11.01.2022 passed in W.P.(C) No. 31201 of 2021 and to grant the actual financial benefits in the post of Headmaster M.E. School in favour of the husband of the petitioner for the period from 26.03.1993 to 31.01.2008 and the arrears as due and admissible in accordance with law. 4. Mr. L.K. Mohanty, learned counsel for the petitioner at the outset makes an innocuous prayer stating that the petitioner has made a representation under Annexure-10 before the Director, Elementary Education, claiming the benefit for the period from 26.03.1993 to 31.01.2008 and a direction may be issued for disposal of the said representation. 5. Mr. S. Jena, learned Standing Counsel for School & Mass Page 1 of 4 Education Department vehemently objected to such innocuous prayer made by the petitioner and contended that in view of the own admission of the petitioner in the writ petition and also the material available on record, the petitioner is not entitled to get the relief prayed before this Court. Accordingly, he seeks for dismissal of the writ petition. 6. Having heard learned counsel for the parties, it appears that the petitioner is the wife of the deceased M.E. School Teacher namely Jagdish Behera having Matric C.T. qualification and joined as a Primary School Teacher on 16.12.1972 at Indraprastha Primary School of Champua Education District vide order dated 09.12.1972 of the D.I. of Schools, Champua. Her husband passed B.A. Examination and B.Ed in the year 1982 as a non collegiate candidate from Utkal University, Vani Vihar, Bhubaneswar. The husband of the petitioner had discharged his duties as a Primary School Teacher in different primary/UGME (UP) Schools as per the requirement of the Department authorities till retirement on 31.01.2008. A gradation list of a Primary School Teachers and Assistant Teachers of M.E. School having B.Ed qualification was prepared by opposite party no.3 on the basis of passing of date of B.Ed examination. Passing of B.Ed is a criteria for promotion to the post of Headmaster of M.E. School. After preparation of gradation list, promotions were given to the persons. One Gagan Chandra Das was granted promotion to the post of Headmaster of M.E. Schools vide order dated 25.03.1993, who was junior to the husband of the petitioner. Challenging such promotion order, the petitioner and some other teachers approached the Orissa Administrative Tribunal, Cuttack in O.A. No. 1481 (C) of 1993, which was dismissed by the Tribunal vide order dated 04.08.2010 on the ground that a guideline has been issued by the Government on 02.12.1991 regarding fixation of seniority on the basis of passing of B.Ed Examination. The husband of the petitioner alleging Page 2 of 4 that the Tribunal while passing the order has not taken note of the Full Bench decision in the case of Surendranath Pal, again approached the Tribunal by filing T.A. No. 154 of 2011. The Tribunal relying upon the decision in the case of Sundranath Pal v. State of Orissa, allowed the case vide order dated 03.05.2018 with a direction to grant notional benefit to the husband of the petitioner from the date his juniors were promoted. Accordingly the opposite parties vide order dated 28.03.2019 granted notional benefit to the late husband of the petitioner with effect from 26.03.1993. But the husband of the petitioner expired on 29.12.2019 leaving behind his wife, the present petitioner. It was the contention of the petitioner that the husband of the petitioner was illegally deprived from promotion in the year 1993, whereas juniors to him were promoted on the basis of the gradation list of Assistant Teachers of M.E. Schools prepared by the opposite party no. 3 on the basis of passing of B.Ed, which would not have been granted as the same is contrary to the resolution dated 02.12.1991. Therefore, she claims for such benefit. 7. Fact remains that the husband of the petitioner has never discharged the duties and responsibility of higher post. The petitioner claiming that her husband is entitled to get the benefit from 26.03.1991, had approached this Court by filing W.P.(C) No. 31201 of 2021. The said writ petition was disposed of on 11.01.2022 directing the authorities to consider the grievance of the petitioner. Vide order dated 07.05.2022 under Annexure-9, the authorities have taken into consideration that after retirement from government service on 31.01.2008, late Jagadish Chandra Behera had filed O.A. No. 1591 of 2011 before the Tribunal for promotion to the post of Headmaster, M.E. School as his junior Sri Gagan Chandra Dash was promoted to the post of Headmaster, M.E. School vide order dated 25.02.1993 and he was deprived from Page 3 of 4 promotion to the Headmaster of M.E. School in the year 1993. As per order of the Tribunal in O.A. No. 1591 of 2011, the husband of the petitioner got promotion to the post of Headmaster UGME Schools, notionally with effect from 26.03.1993, i.e. the date of promotion of Sri Gagan Chandra Das vide order dated 21.05.2018 of the District Education Officer, Keonjhar. After grant of notional promotion to the husband of the petitioner, his scale of pay was fixed thereafter and he had been extended with the retiral benefits as due and admissible to him. But after the death of the husband of the petitioner, the present petitioner filed W.P.(C) No. 31201 of 2021 before this Court with a prayer for release of the benefit for the period from 26.03.1993 to 28.02.2011 as his junior namely Gagan Chandra Dash was given such benefit. The said writ petition was disposed of vide order dated 11.01.2022 with a direction to opposite party no.3 to consider the representation dated 07.04.2021. Accordingly the representation was disposed of rejecting the claim of the petitioner. Once this relief has already been rejected while considering the representation of the petitioner in compliance to the order passed by this Court, now in the present writ petition, the petitioner seeks the very same relief for disposal of representation under Annexure-10, which is not admissible. 8. Accordingly the writ petition merits no consideration and, the same stands dismissed. Arun (DR. B.R. SARANGI, J.) Page 4 of 4