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2016 DIGILAW 1205 (ORI)

Keshab Ch. Garnaik v. State of Odisha

2016-12-06

D.DASH

body2016
JUDGMENT In this appeal under Section 24-C of the Odisha Education Act, 1969 (hereinafter in short called as the ‘Education Act’), the appellant has called in question the legality and propriety of the order dated 05.12.2011 passed by the learned State Education Tribunal in G.I.A. Case No. 115 of 2010 refusing the petitioner’s entitlement to the continuity of service from 26.09.2001 to 15.11.2001 as also his consequential entitlement to the service benefit thereof. 2. Facts essential for the purpose may be stated hereunder: The appellant filed an application under Section 24-B of the Education Act before the Tribunal to condone his break of service from 26.09.2001 to 15.11.2001 and to treat the entire service form 14.08.1990 till his superannuation as qualifying service with the entitlement of all benefits including the release of increments from 01.06.1994 to 25.09.2001. The appellant’s case is that he being a Commerce graduate was appointed as clerk in Panchayat High School Fulapada in the district of Angul vide Office Order dated 14.08.1990. Pursuant to the same, he joined on 16.08.1990. The school was notified to receive grant-in-aid w.e.f. 01.06.1994. The appellant being entitled to the grant-in-aid, the same was however, withheld as someone else being never appointed therein as such advanced the claim for the same. The director, Secondary Education found the said claim of the person to be ingenuine. So, the petitioner was found entitled to be released with the grand-in- aid. At that stage the Director finding the father of the petitioner to be the Secretary of the Managing Committee of the school and taking other factors into consideration observed that his service need be terminated Pursuant to the said observation, the Inspector of Schools by order dated 25.09.2001 issued the termination order. This was challenged by the appellant before the Tribunal in Appeal Case No. 11 of 2001. The matter then took the turn. On 19.10.2001, an advertisement was issued by the Managing Committee of the said school. The appellant again stood as an applicant to the post and being selected therein joined in the school on 16.11.2001. Thereafter, the Headmaster of the said school submitted the proposal to the Inspector of Schools for approval of the service of the petitioner and his release of grant-in-aid w.e.f. 01.06.1994. The learned Tribunal finally by judgment dated 05.05.2003 allowed the above appeal and directed for payment of salary to the appellant from 01.06.1994 to 25.09.2001. Thereafter, the Headmaster of the said school submitted the proposal to the Inspector of Schools for approval of the service of the petitioner and his release of grant-in-aid w.e.f. 01.06.1994. The learned Tribunal finally by judgment dated 05.05.2003 allowed the above appeal and directed for payment of salary to the appellant from 01.06.1994 to 25.09.2001. since no action was taken in compliance to the above order of the Tribunal, the petitioner approached the High Court in W.P.(C) No. 9978 of 2003. This was allowed by judgment dated 29.10.2007. In view of that the service of the petitioner was approved from 01.06.1994 to 25.09.2001. But no increment was paid to him for the aforesaid period extending to seven years. The petitioner thereafter filed G.I.A. No. 40 of 2004 for approval of his service w.e.f. 15.11.2001. That was allowed by order dated 01.09.2005. This order again being not complied with, the appellant carried W.P. (C) No. 2698 of 2007, which was disposed of on 29.03.2008 directing the authority to implement the order within three months. The respondent nos. 1 to 3 being aggrieved by the said order dated 01.09.2005 filed F.A.O. No. 158 of 2007 before this Court. by order dated 29.03.2008, the service of the petitioner was finally approved as pet letter dated 21.12.2009. The appeal then stood dismissed as infructuous on 08.03.2010. Thus, it is said that although the service of the appellant has been approved from 01.06.1994 to 24.09.2001 and from 25.11.2001 onwards, the intervening period from 26.09.2001 to 1.11.2001 stood non-regularized. This is said to have caused deprivation of service benefits to the appellant. So, the matter was carried to the Tribunal. 3. The respondent nos. 1 to 3 contested the case that in the absence of any order for continuation of service from 26.09.2001 to 15.11.2001, the petitioner is not entitled to the benefits as claimed. The respondent no. 4- the Managing Committee of the school in its counter while admitting the appointment of the petitioner as a clerk in the school on 14.08.1990 has stated that because of the dispute between the appellant and one Mr. P.K. Tripathy, the service of the appellant could not be approved and thereafter as per the order of the Director, Secondary Education dated 18.06.2001, his service was terminated and later on being selected afresh, he was appointed on 15.11.2001. P.K. Tripathy, the service of the appellant could not be approved and thereafter as per the order of the Director, Secondary Education dated 18.06.2001, his service was terminated and later on being selected afresh, he was appointed on 15.11.2001. After disposal of the Appeal Case No. 11 of 2001 by order dated 05.05.2005, they submitted proposal for approval of the appellant’s service and as per the order of the High Court dated 29.10.2007, the service of the appellant has been approved by order dated 16.07.2009 from 01.06.1994 to 25.09.2001. The appellant was afresh been allowed with the increment. 4. The Tribunal considering the dispute to be roaming within the circle having small circumference formulated the following questions for decision: “(i) Whether the petitioner is entitled to continuity of his service from 26.09.2001 to 15.11.2001? (ii) Whether the petitioner is entitled to continuity of service from 14.08.1990 till superannuation? (iii) Whether the petitioner is entitled to incremental benefit from 01.06.1994 to 25.09.2001?” All these above, practically is covered under one and the same umbrella, being dependent upon the claim of continuity of the service of the appellant from 26.09.2001 to 15.11.2001. This has been finally answered in the negative and that is what the precise challenge in this appeal. 5. Fact remains that on account of pendency of O.J.C. No. 14086 of 2001, no order as regards continuity of service of the appellant beyond 25.09.2001 was made. Thereafter as per the direction of this Court in the said writ application, the appellant’s service was terminated w.e.f. 25.09.2001. After that, he having applied to the post pursuant to an advertisement made by the respondent no. 4, offering his candidature for appointment against that post, he has been finally selected and appointed afresh on 25.11.2001. This is not challenged and rather has been accepted. The appellant on the basis of the selection has been appointed afresh as clerk of the said school on 15.11.2001. Thus, there remains no order of continuity of service from 26.09.2001 to 15.11.2001. Therefore, learned Tribunal did commit no mistake in holding to be having no further scope for the appellant to get the benefit of continuity of service for the period as stated above and his entitlement to the consequential service benefit in the absence of any order to the effect in Appeal No. 11 of 2001 of from the competent authority. 10. 10. In the wake of aforesaid, the appeal stands dismissed. No order as to cost. Appeal dismissed.