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2003 DIGILAW 434 (ORI)

Tarulata Parida v. State of Orissa

2003-06-26

B.P.DAS, B.PANIGRAHI

body2003
JUDGMENT B. P. DAS, J. — The petitioner in this application under Article 226 of the Constitution of India has sought for a direc¬tion to the opposite parties to implement the orders as per Annex¬ure 1 and 5 to the writ petition and to allow her to join her post in P.N. College and to pay her salary with effect from 11.7.2001 till the date of her joining. 2. In this writ application as the facts narrated tend to reveal, the petitioner was appointed as Lecturer in Botany and on 12.5.1998 she joined as Lecturer in Botany against the first post in Nachuni Mahavidyalaya, Nachuni in Khurda district which came into the grant-in-aid fold in the year 1993. On 3.9.1999 the husband of the petitioner was transferred on promotion as Princi¬pal, Indira Gandhi Institute of Cooperative Management to Lucknow (U.P.) and since then the petitioner had been representing for her transfer to a college within the vicinity of Bhubaneswar.On 30.6.2001 vide the order Annexure-1, the petitioner was trans¬ferred from Nachuni College and posted at P.N. College, Khurda in place of Dr. S. K. Naik, opposite party No.4 and opposite party No.4 was asked to join in place of the petitioner at Nachuni College. The petitioner was relieved by the Principal, Nachuni College with effect from 10.7.2001 A.N. and when she submitted her joining report to the Principal, P.N. College, Khurda, i.e., opposite party No.3 on 11.7.2001, opposite party No.3 refused to accept the joining report and directed her to come on 12.7.2001. On 12.7.2001, opposite party No.3 made an endorsement on the joining report of the petitioner that as per the telephonic direction of the Director, Higher Education, the petitioner was to meet the Director regarding her joining. It is alleged that in order not to disturb opposite party No.4, opposite party No.3 is not implementing the order, Annexure-1, and as she has already been transferred and relieved from Nachuni College since 10.7.2001, it is submitted that it is expedient to direct the opposite parties to allow the petitioner to join at P.N. College and to release her salary with effect from 11.7.2001 treating the intervening period as duty period. It was further argued that Annexure B/2 dated 28.7.2001 purported to have been issued can¬celling the transfer order of the petitioner to P.N. College, Khurda, is illegal and arbitrary and the said order has not yet been received by the writ petitioner. It appears that Annexure B/2 disclosing cancellation of the order of transfer of the petitioner was brought to the notice of this Court through the counter affidavit filed by the opposite party No.2 for which the writ application was duly amended challenging the said order, Annexure B/2. 3. This Court by order dated 2.5.2002 directed the Director of Higher Education, Orissa, inter alia, to consider the posting of the petitioner in any college within Bhubaneswar jurisdiction and also whether the petitioner could be re-posted at P.N. Col¬lege, Khurda. That apart, this Court by the aforesaid order directed opposite party No.2 to pay the salary of the petitioner from the date of her relief, i.e., 10.7.2001 to the date of cancellation of transfer, i.e., 14.9.2001, within one month from the date of the order. The order passed by this Court on 4.7.2002 indicates that the petitioner has been posted at S.J. College of Education and Technology, Naharkanta, Bhubaneswar which was in part compliance with the order of this Court dated 2.5.2002. As regards the salary for the period from 10.7.2001 to 14.9.2002, learned counsel appearing for the State stated before the Court on 4.7.2002 that such salary would be paid only after the peti¬tioner joined at S.J. College of Education and Technology, Na¬harkanta. But this Court while observing that since the order of this Court was very clear that the petitioner’s salary was to be paid within one month from the date of the order (2.5.2001), directed the Director of Higher Education Orissa to file an affidavit by 11.7.2002 in proof of payment of salary for the aforesaid period, failing which suo motu proceeding for contempt would be initiated against the said Director, opposite party No.2. 4. In this background the only question to be decided by this Court is whether the salary of the petitioner for the period from 10.7.2001 to 14.9.2001 was to be released by the opposite parties as she had not been informed about cancellation of her transfer, in which event she was to report to duty at Nachuni Mahavidyalaya, Nachuni. 4. In this background the only question to be decided by this Court is whether the salary of the petitioner for the period from 10.7.2001 to 14.9.2001 was to be released by the opposite parties as she had not been informed about cancellation of her transfer, in which event she was to report to duty at Nachuni Mahavidyalaya, Nachuni. Ultimately, by the intervention of this Court the petitioner has been given posting at S.J. College of Education and Technology as per the order dated 29.6.2002 of opposite party No.2. 5. In the counter affidavit filed on behalf of opposite party No.2, the Director of Higher Education, Orissa, it is stated that opposite party No.2 vide the order in Annexure-1 transferred the petitioner from Nachuni College to P.N. College, Khurda vide Shri S. K. Nayak, (Opposite party No.4). Thereafter, opposite party No.4 made a representation to the Director, Higher Education, stating therein that he was undertaking a U.G.C. programme and four Research Scholars were working under his supervision for Ph. D. Examination and considering the said representation, the order of transfer was cancelled and the said order of cancellation was communicated to the petitioner by the Principal Nachuni College on 15th September, 2001 vide Annexure F/2 in her home address as well as in the address disclosed in the affidavit. The transfer order sent at her permanent home address was received by one Ashok Kumar Pradhan, but no body received such order sent in her present address. The copies of the letters of the Principal Nachuni Mahavidyalya addressed to the petitioner at her two different addresses are annexed to the writ petition as Annexure F/2. It is further stated in the counter affidavit that the salary for the period from 10.7.2001 to 14.9.2001 has already been paid to the petitioner and the petitioner is now posted at Shri Jayadev College of Education and Technology, Naharkanta, Bhubaneswar. The sum and substance of the counter affidavit is that even if the petitioner was aware of cancellation of her transfer order, she deliberately did not rejoin at Nachuni College, for which the said period cannot be treated as on duty as she had not performed any duty. The Peti¬tioner was relieved on 10.7.2001 from Nachuni College and she ultimately joined S.J. College of Education and Technology at Naharkanta on 3.7.2002. 6. The Peti¬tioner was relieved on 10.7.2001 from Nachuni College and she ultimately joined S.J. College of Education and Technology at Naharkanta on 3.7.2002. 6. The prayer of the petitioner is that the period from the date of her relief from Nachuni Mahavidyalaya till she was permitted to join another college, i.e., S.J. College of Educa¬tion and Technology, be treated as on duty with all consequential benefits. The petitioner prays that her service for the period from 11.7.2001 till 3.7.2002 be treated as on duty, because according to the learned counsel for the petitioner, she was not given any posting order for the said period. 7. Learned counsel for the petitioner draws our attention to Sub-Section (7) of Section 10(c) of the Orissa Education Act, which reads as follows : “Whenever an employee belonging to a common cadre is posted or transferred to an institution the Managing committee, or as the case may be the governing body of that institution shall be bound to employ him in the service of the institution and to pay all amounts due to such employee on account of his pay, allowanc¬es and other dues from out of its funds or from the aid received, directly or otherwise, from the State Government and he shall be deemed to be an employee of such institution for all purpose.” 8. Relying on the aforesaid provision, learned counsel for the petitioner submitted that the petitioner, who was an employee of Nachuni Mahavidyalaya, after being transferred by opposite party No.2 was relieved by the Principal -cum- Secretary of Nachuni Mahavidyalaya vide Annexure-2 and having submitted her joining report before the Principal P.N. College, Khurda vide Annexure-3, she became for all purposes an employee of P.N. College, Khurda and ceased to be as an employee of Nachuni Maha¬vidyalaya. Since the Principal, P.N. College did not accept the joining report of the petitioner on some plea or other, the petitioner submitted her joining report before the Director. Therefore, the Director, in his turn, became the Disciplinary and Controlling Authority of the petitioner by virtue of the provi¬sions of Rule 6(4) of the Orissa Aided Educational Institutions Employees Common Cadre and Inter Transferability Rules 1979. Therefore, the Director, in his turn, became the Disciplinary and Controlling Authority of the petitioner by virtue of the provi¬sions of Rule 6(4) of the Orissa Aided Educational Institutions Employees Common Cadre and Inter Transferability Rules 1979. According to the petitioner as the Director, opposite party No.2, had not given a posting order and had not communicated the order of cancellation to the petitioner, she is entitled to get the relief sought for and her service for the period from 11.7.2001 to 3.7.2002 is to be treated as on duty. 9. During the course of argument, our attention was drawn to the affidavit filed on behalf of opposite party No.2, Director of Higher Education, Orissa to which the letter of transfer issued by post, the postal receipt and acknowledgement are an¬nexed to strengthen the averment that the order of cancellation of transfer of the petitioner from Nachuni College to P.N. Col¬lege had been duly communicated to the petitioner. Being not satisfied with the same, this Court called for the relevant record which has been produced before this Court. On perusal of the aforesaid record, we find that the petitioner submitted her joining report before the Director, Higher Education, Orissa indicating therein that as the principal of P.N. College, Khurda did not receive her joining report she was compelled to submit her joining report before the Director of Higher Education, Orissa on 12.7.2001 giving her address as “E/71, Unit VIII, Bhubaneswar”. The record further discloses that the Department of Higher Education pursuant to Government Order No.44561 dated 26.7.2001, cancelled the order of transfer of the petitioner and the same was communicated to the principal, Nachuni College, vide Director’s office order No.41107 dated 28.7.2001 under Memo No. 41108 dated 28.7.2001. Further the record reveals that the Director of Higher Education being the disciplinary and controlling authority of the petitioner, either the Director or the Principal of the College ought to have commu¬nicated the order of cancellation of transfer to the petitioner. It is stated that the order of transfer was communicated to the petitioner by the Principal, Nachuni Mahavidyalaya as per the address found from the service book. From the affidavit of oppo¬site party No.2, it appears that the order of cancellation was communicated to the Principal, Nachuni Mahavidyalaya for intimat¬ing the same to the petitioner in her home address as well as in her address available in the telephone directory. From the affidavit of oppo¬site party No.2, it appears that the order of cancellation was communicated to the Principal, Nachuni Mahavidyalaya for intimat¬ing the same to the petitioner in her home address as well as in her address available in the telephone directory. From the copy of the registered letter so returned back being undelivered the following address is indicated : “Dr. T.L. Parida Ex-Lecturer in Botany At/-PO. Badapari Via-Tangi, Dist. Khurda” The letter issued in her permanent address was received by one Ashok Kumar Pradhan as per the postal acknowledgement. But the petitioner expressed her ignorance saying that she does not know any Ashok Kumar Pradhan, who received the letter. The fact re¬mains that the letter issued directly at the address given by the petitioner before the Director, Higher Education, Orissa has not been received by her in her address witch was returned back as ‘Left’, Therefore, no fault can be found with the authority because the letter issued in her address given by her has not been received and the letter issued in her home address though it was received by one Ashok Kumar Pradhan, has also been disputed by the petitioner. All these facts being disputed question of fact, we are afraid it cannot be dealt with in this writ applica¬tion. 10. Accordingly, the writ application is devoid of merit and is dismissed. It is open to the petitioner to approach the common law forum. B. PANIGRAHI, J. I agree. Petition dismissed.