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2010 DIGILAW 208 (ORI)

Chandra Sekhar Patro v. State of Orissa

2010-03-25

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. — The dispute in this writ petition has a chequered career inasmuch as it has travelled to this Court thrice earlier i.e. in O.J.C. Nos.2645 of 1989, 410 of 1990 and 3573 of 1993 disposed of on 8.3.1990, 14.1.1993 and 14.12.1998 respectively. 2. Kabi Samrat Upendra Bhanja College, Bhanjanagar, in short, “KSUB College” was established in the year 1958. It was recognized in the year 1960 and was brought within the grant-in-aid fold in the year 1974. In the year 1981 the Governing Body of the college decided to create a new post of Lecturer in Botany, according to the students strength. The petitioner applied for the said post and on being selected, was appointed on 2.9.1981. The proposal sent by the Governing Body of the College to approve creation of an extra post of Lecturer in Botany was provisionally approved by the Director, Higher Education by order dated 24.5.1988 (Annexure-2). In the year 1989, the Government enacted Orissa Aided Educational Institution (Appointment of Teachers Validation) Act, 1989. The services of the petitioner was vali¬dated by the Director vide order dated 29.5.1989 (Annexure-3) in consonance with the said Act with effect from 7.12.1981. 3. While matter stood thus, one Sri Purna Chandra Tripa¬thy, who was appointed as Lecturer in Botany on 14.4.1981 against a leave vacancy, filed a writ application before this Court praying to approve his appointment against the 3rd post of Botany and to grant regular salary. In fact, one Smt. Sanitalata Mishra, who was serving as a Lecturer in Botany opted for study leave and left the college to prosecute higher studies. Consequently, said Purna Chandra Tripathy was appointed temporarily against the said leave vacancy post. Considering the facts and circumstances, this Court taking a liberal view disposed of the writ application stating that Purna Chandra Tripathy shall be entitled to salary of a regular teacher with effect from 30.4.1984 for the period he was working as ad hoc lecturer. After receiving the order passed by this Court, the opposite parties accommodated Sri Tripathy against the 3rd post and adjusted the petitioner against 4th post. Opposite party No.2 also directed not to release the salary of the petitioner and further directed that the validation of the services of the petitioner as against 3rd post be cancelled. After receiving the order passed by this Court, the opposite parties accommodated Sri Tripathy against the 3rd post and adjusted the petitioner against 4th post. Opposite party No.2 also directed not to release the salary of the petitioner and further directed that the validation of the services of the petitioner as against 3rd post be cancelled. The said order was assailed by the petitioner before this Court in OJC No.3573 of 1993 and this Court disposed of the same on 14.12.1998 directing the opposite parties to adjust the petition¬er in any other college and to decide the inter se seniority between the petitioner and Sri Purna Chandra Tripathy. After receiving the said order, opposite party No.2 adjusted the peti¬tioner against a direct payment post in Rairangpur College with effect from 1.4.2000, but then directed that an amount of Rs.1,86,523/- which was paid to him should be recovered. On 10.11.2000 opposite party No.2 transferred the petitioner against a vacant direct payment post at KSUB College, Bhanjanagar subject to recovery of the amount paid to him. That apart, opposite party No.2 fixed the salary of the petitioner at the basic scale of Junior Lecturer. It appears, in the meanwhile the petitioner has been transferred to Rayagada College. Being aggrieved by the aforesaid order, the petitioner has approached this Court. 4. According to the petitioner, he joined against the 3rd post of Lecturer on 12.9.1981 which was newly created, whereas Sri Tripathy was appointed against a leave vacancy post on 14.4.1981. The appointment of the petitioner was duly approved against 3rd post by order dated 7.12.1981 and his appointment was validated with effect from 29.1.1990. That apart, it is stated that this Court while disposing of OJC No.410 of 1990 though directed that Sri Tripathy was entitled to full salary did not pass any order with regard to the validity or otherwise of the appointment of the petitioner against 3rd post. In view of the aforesaid fact, it is stated that the authorities had acted illegally and with material irregularity in cancelling the vali¬dation of the petitioner and directing to recover a sum of Rs.1,86,523/, which was paid to him against the 3rd post. The said order (Annexure-7) was passed behind the back of the peti¬tioner and without giving him any opportunity of hearing and is not sustainable in law. The said order (Annexure-7) was passed behind the back of the peti¬tioner and without giving him any opportunity of hearing and is not sustainable in law. Fact remains, the petitioner assailed the said order before this Court in OJC No.3573 of 1993. The Division Bench of this Court after discussing the facts of the case in extenso observed as follows : “xx xx xx xx If the order dated 12.9.1981 has been made pursuant to the order of the High Court in an earlier case to which the petition¬er was a party and, if his counsel made any wrong submission, it is for the petitioner to seek review or pray for recalling the order as the law would permit. He cannot come by an independent writ application and challenge the order, i.e., Annexure-12, which was passed on the order of the High Court. We dispose of the writ application, accordingly, holding inter alia that in case the petitioner’s service has been vali¬dated, he should be adjusted in another college and inter se seniority between him and opp.party No.4 should be decided. He cannot have a claim against the 3rd post in the college. There shall be no order as to cost.” 5. It appears that in consonance with the direction of this Court, the authorities appointed the petitioner against a direct payment post as Lecturer in Botany at Rairangpur College with effect from 1.4.2000 but then insisted that a sum of Rs.1,86,523/- should be recovered from him on the ground that the said amount has been paid to him during the period he was occupy¬ing the 3rd post of Lecturer in Botany at KSUB College, Bhanjana¬gar. 6. After receiving notice, counter affidavit has been filed by the opposite parties taking the stand that the appoint¬ment of the petitioner against 3rd post was cancelled in conso¬nance with the direction issued by this Court in OJC No.410 of 1990. It is further stated that in consonance with the said order, Sri Tripathy was adjusted against 3rd post and he was paid his salary. Thus, the authorities decided to recover the amount paid to the petitioner towards salary meant for 3rd post of Lecturer in Botany. 7. A rejoinder affidavit has been filed by the petitioner taking the stand that the facts stated in the counter affidavit are unfounded. Thus, the authorities decided to recover the amount paid to the petitioner towards salary meant for 3rd post of Lecturer in Botany. 7. A rejoinder affidavit has been filed by the petitioner taking the stand that the facts stated in the counter affidavit are unfounded. It is stated that the petitioner was appointed against a clear vacancy of 3rd post of Lecturer in Botany whereas Sri Tripathy was appointed against a leave vacancy post. That apart, the appointment of the petitioner was not only approved but also validated. These facts were not brought to the notice of this Court in course of hearing of OJC No.410 of 1990 as a result of which the aforesaid direction was made. It is further submit¬ted that the petitioner in fact discharged his duties against 3rd post of Lecturer in Botany and he has received salary meant for the said post. Thus, the order passed to recover the amount is unjustified. 8. Heard learned counsel for the parties diligently. Perused the pleadings and documents annexed thereto meticulously. Fact remains, the petitioner was appointed against the 3rd post, which was created by the Governing Body of the college in the year 1981. His appointment was duly approved by the concerned authorities. The lacuna in his appointment was also rectified and his services were validated in consonance with the provisions of the Validation Act, 1989. The petitioner was all along discharg¬ing his duties against a 3rd post and has received salary. But then, in consonance with the judgment of this Court in the case filed by Sri Tripathy, which was registered as OJC No.410 of 1990, the opposite parties adjusted Sri Tripathy against the 3rd post of Lecturer in Botany and directed to recover the amount paid to the petitioner on the ground that the said amount has to be paid to Sri Tripathy. The petitioner assailed the said order and this Court after hearing learned counsel for the parties, observing that certain vital facts were not brought to the notice of this Court in course of hearing of OJC No.410 of 1990, direct¬ed the authorities to appoint the petitioner against an approved post. The said order has been duly compiled with. The petitioner assailed the said order and this Court after hearing learned counsel for the parties, observing that certain vital facts were not brought to the notice of this Court in course of hearing of OJC No.410 of 1990, direct¬ed the authorities to appoint the petitioner against an approved post. The said order has been duly compiled with. The authorities however, did not take note of the further direction issued by this Court to the effect that they should consider the inter se seniority between the petitioner and Sri Tripathy so as to deter¬mine as to who is senior among the two. That apart, the opposite parties acted illegally in cancelling the order validating the services of the petitioner inasmuch as there was no such direc¬tion by this Court at any time. Fact remains, in the meanwhile the petitioner has been appointed against an approved post. Even otherwise, the order cancelling the approval of the petitioner’s appointment against 3rd post can only prospective and cannot be retrospective. 9. In the aforesaid scenario, we dispose of this writ petition directing the authorities to determine the inter se seniority between the petitioner and Sri Tripathy as per the direction issued by this Court in OJC No.3573 in 1993. So far as recovery is concerned, this Court finds that the petitioner in fact discharged his duties against the 3rd post of Lecturer in Botany and has received salary meant for the said post. That apart, the petitioner is a lecturer. The authorities paid his salary, which he received in due course of business. Even other¬wise he was holding the 3rd post and has received salary meant for the said post. It is well settled that a person after receiv¬ing salary does not preserve it. He has to spend same for himself and for his family members. Thus, directing the petitioner to refund the amount after lapse of so many years is unjust and illegal. It is needless to state that the authorities should have been more careful before disbursement of the salary in favour of the petitioner. Having not done so, now they cannot turn back and call upon the petitioner to return the amount which he has legit¬imately accepted. He was in fact holding the 3rd post of Lecturer in Botany and received the salary meant for the said post and the order of cancellation cannot operate retrospectively. 10. Having not done so, now they cannot turn back and call upon the petitioner to return the amount which he has legit¬imately accepted. He was in fact holding the 3rd post of Lecturer in Botany and received the salary meant for the said post and the order of cancellation cannot operate retrospectively. 10. In view of the aforesaid facts and circumstances, we quash the direction issued by opposite party No.2 to recover the amount of Rs.1,86,523/- from the salary of the petitioner and dispose of the writ petition directing the authorities to deter¬mine the seniority between the petitioner and Sri Tripathy. B.N. MAHAPATRA, J. I agree. Petition disposed of.