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2017 DIGILAW 1145 (ORI)

Ajaya Kumar Barik v. State of Orissa

2017-10-12

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Article 226 and 227 of the Constitution of India wherein the office order No.39414 dated 10.08.2007 has been challenged whereby and where under the petitioner has been directed to be reinstated in service with immediate effect and be adjusted against the vacant TGT post available in the School which arose after resignation by one Sri Siba Ch. Khatoi, TGT (Arts) w.e.f. 25.12.2006. The petitioner has raised two fold contentions; (i). Prior to the issuance of the order of termination, he was working as Headmaster in-charge, as such he ought to have been reinstated as Headmaster in charge, the post which he was holding prior to the issuance of the order of termination. (ii). The Director has passed the order of reinstatement with immediate effect but simultaneously, it has been directed to adjust him in service w.e.f. 25.12.2006, the date on which one Sri S.C. Khatoi, TGT (Arts) after resignation from service. 2. Learned counsel for the petitioner contended that the petitioner although has been dismissed from service on account of the charge of unauthorized absence and mal handling of official records by the then Managing Committee while functioning as Headmaster in-charge but the enquiry having been conducted in which the allegation leveled against the petitioner has been found to be untrue, the Director after taking into consideration that aspect of the matter has found the charges leveled against the petitioner as not true and accordingly quashed the order of termination, hence directed for reinstatement with immediate effect but against the vacant post of TGT while he was working as Headmaster in-charge. The contention raised by him with respect to the second ground is that when there is an order of reinstatement, the implied meaning of the reinstatement from the date, when he has been terminated from service he will be said to be reinstated in service but ignoring the principle of reinstatement he has been directed to be reinstated in service w.e.f. 25.12.2006, thereby service period of 9 years has been taken away even in spite of the fact that charges leveled against the petitioner has been found not to be true. If this order will be allowed to continue the same will be allowed to punish the petitioner even after the charges having not found to be true, hence this writ petition. 3. If this order will be allowed to continue the same will be allowed to punish the petitioner even after the charges having not found to be true, hence this writ petition. 3. Learned counsel for the opposite party-State has defended the order passed by the Director by submitting that the petitioner has acted upon the order passed by the Director and thereafter his service has also been regularized, he has got benefit of grant-in-aid, hence he will be stopped from assailing the order passed by the Director and on this ground alone, the writ petition is fit to be dismissed. He further submits that the Director has taken a conscious decision in asking him to be reinstated in service against the post of TGT because it was his substantive post and the claim which the petitioner is making regarding reinstatement as Headmaster in-charge, the same is not his substantive post. It is settled proposition of law that reinstatement can only be made against the substantive post of the employee which he is holding prior to the date of issuance of the order of dismissal. He further contends that the petitioner has been directed to be reinstated in service as against the vacant post of TGT which was after the resignation having been made by one S.C. Khatoi, TGT (Arts) teacher w.e.f. 25.12.2006, hence there is no illegality in the same. 4. Learned counsel for the private opposite party has also defended the order passed by the Director and has submitted that he is now holding the post of Headmaster in-charge by virtue of the seniority and as such the petitioner cannot be directed to be posted as Headmaster in-charge since it is the prerogative and domain of the Managing Committee to post anybody to hold the post of Headmaster. Considering his seniority as on date, he is senior. He further contends that the petitioner after accepting the order passed by the Director has approached this Court, hence there is little scope of interference by this Court, once the order passed by the Director has accepted by the petitioner. Heard the learned counsel for the parties and perused the documents available on record. 5. He further contends that the petitioner after accepting the order passed by the Director has approached this Court, hence there is little scope of interference by this Court, once the order passed by the Director has accepted by the petitioner. Heard the learned counsel for the parties and perused the documents available on record. 5. The fact which is not in dispute that the petitioner while working in the School in question was proceeded for taking panel action by the decision of the Managing Committee and in course thereof, he has been terminated on the basis of the allegation leveled against him, has found to be true of unauthorised absence and mal handling of the official records. The petitioner being aggrieved with the decision of the Managing Committee has approached to the Director, Secondary Education, Orissa on the basis of the enquiry report submitted by the Inspector of Schools, wherein charges leveled against the petitioner has been found to be baseless. The Director, Secondary Education, Orissa after appreciating the submission of the parties and going through the enquiry report of the Managing Committee has found the charges of mal handling of official record by the petitioner as false and also the charge of unauthorized absence as untrue and accordingly, quashed the order of termination. The Director has passed the order of reinstatement of the petitioner with immediate effect with a direction to be adjusted against the vacant TGT post available in the School which arose after resignation by one Sri Siba Ch. Khatoi, TGT (Arts) teacher w.e.f. 25.12.2006. 6. The first grievance of the petitioner is that the order of reinstatement having been passed by the Director, he ought to have been reinstated as Headmaster in-charge. This ground is not sustainable in the eye of law, in view of the admitted position of the fact that the petitioner’s substantive post was of TGT and it is settled that working in-charge of any post does not confer upon any right upon the employee. This ground is not sustainable in the eye of law, in view of the admitted position of the fact that the petitioner’s substantive post was of TGT and it is settled that working in-charge of any post does not confer upon any right upon the employee. Further if there is any order of termination then, termination from the substantive post not in the in-charge capacity reason being that in-charge is only in consequence of the substantive post, as such direction of the Director to post him as against the post of TGT suffers from no illegality, since the petitioner is holding the substantive post of TGT, which is the admitted position in this case, hence the prayer of the petitioner to reinstate him as Headmaster in-charge is not tenable and accordingly, the same is rejected. 7. So far as the second relief sought for by the petitioner that reinstatement w.e.f. 25.12.2006 lead to another punishment in the garb of order of reinstatement, the same has got substance for the reason that when there is an order of reinstatement after the order of dismissal or termination having been quashed by the competent authority or court of law, order of termination/dismissal will be said to be vanished from the date of its issuance or existence from that date the concerned employee will be said to be in service. The Director ought to have taken into consideration this aspect of the matter while issuing the direction and the appropriate direction in considered view of this Court, to reinstate the petitioner w.e.f. from the date from which he has been terminated from service but instead of doing so, the petitioner has been directed to be reinstated in service against the vacant TGT post which arose after resignation by one Sri Siba Ch. Khatoi, TGT (Arts) teacher w.e.f. 25.12.2006 and as such by doing this, the petitioner has been deprived from his service benefit from the date of issuance of termination order till the date of adjustment till 25.12.2006, which is not proper and as such the same is held to be illegal. 8. Khatoi, TGT (Arts) teacher w.e.f. 25.12.2006 and as such by doing this, the petitioner has been deprived from his service benefit from the date of issuance of termination order till the date of adjustment till 25.12.2006, which is not proper and as such the same is held to be illegal. 8. Claim of the opposite parties is that the petitioner has accepted the order and the same has been given effect to and thereafter the same is being assailed by way of this writ petition, the same has got no substance, reason being that the petitioner being an employee and facing the rigor of termination having no option but to accept the condition, but it is evident from Annexure-7 that he has given joining report under protest. In view thereof, the contention raised by the opposite parties is being rejected. 9. In the consequence of the order passed herein above, the matter is being referred before the Director, Secondary Education, Odisha to determine the consequential benefit of the petitioner from the date of its termination and disburse the consequential benefit thereof, within a reasonable period preferably within eight weeks from the date of receipt of copy of this order. In view thereof, the writ petition stands allowed partly.