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2017 DIGILAW 483 (ORI)

Pramod Kumar Mall v. State of Odisha

2017-04-27

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India whereby and where under the order dtd.23.11.2016 passed by the Odisha Administrative Tribunal, Bhubaneswar in O.A. No.3373(C) of 2014 is under challenge by which the claim of the petitioner to disburse his salary from the month of March, 1996 till date, has been refused to be granted. 2. The brief facts of the case of the petitioner is that he was appointed as Science Attendant (2nd post of peon) on the basis of the Roll strength of 421 of the Naindipur High School while the yard stick issued by the Government of Odisha through its Education and Youth and Services Department dtd. 8.7.1981 was in vogue. The petitioner submitted his joining report on 1.8.1986, allowed to discharge his duty as a Science Attendant, but the Inspector of Schools, Kendrapara did not approve his appointment, he filed writ petition before this Court being O.J.C. No.9170 of 1992 which was disposed of vide order dtd.24.10.1992 with a direction to the opposite party - Inspector of Schools, Kendrapara Circle to dispose of the case of the petitioner for approval within four months. The authorities, in pursuance to the order passed by this court in O.J.C. No.9170 of 1992, has approved the appointment of the petitioner vide order issued in this regard under memo No.4244 dtd.04.09.1995 as science attendant in the scale of Rs.570-790/- with effect from 01.08.1986. After his appointment and post having been approved, the petitioner was granted the revised scale of pay of 2nd peon (science attendant) with arrears from the month of September, 1995 till February, 1996 with periodical increments. But from the month of March, 1996 he has not been given his monthly salary till date. Accordingly, he has made request to the authority but however to no effect, having no option, he had filed original application being O.A. No.3082(C) of 1999 before Odisha Administrative Tribunal, Cuttack Bench, Cuttack, the Tribunal, while disposing the original application vide order dtd.03.12.1999, has issued direction to the Inspector of Schools, Kendrapara Circler to examine the matter and arrive at a decision within two months from the date of receipt of copy of the order but no action has been taken. 3. 3. According to the petitioner, the matter which is the issue involved in this case, has already been set at rest by the Hon’ble Apex Court in the case of State or Orissa Vrs. Rajendra Kumar Das and Another, Civil Appeal No.6844 of 2003 but even thereafter the salary is not been released and when he has approached the Tribunal, the Tribunal has also not appreciated this aspect of the matter and rejected the plea of the petitioner on the ground that no pleading is made by him regarding class-IV Daftary., 4. The opposite party – state has filed counter affidavit inter alia stating therein that there is no post of 4th peon as per the circular applicable, as such the appointment of the applicant made by the Managing Committee, without following the recruitment procedure as per Orissa Education Rules, 1974 as well as instruction contained therein, is illegal and void ab initio. It has been contended therein that prior to taken over of the petitioner’s school by the Government there were 4 nos. of class-IV employee including the petitioner serving in the school appointed by the Managing Committee, out of above 4 peons the second peon post of the school was filled up by the Managing Committee in the year 1974 prior to introduction of yard-stick dtd 08.07.1981 when the picture of science attendant post specifically in the staffing patter of High School introduced by government was not come into existence. After the school was taken over w.e.f. 7.6.1994, the 3 employees against Class-IV posts were adjusted and the petitioner being at sl. no.4, could not have been taken into regular establishment, as such he has got no case and that is the reason he is not getting his salary. 5. Learned counsel representing School and Mass Education Department however, has fairly submitted that as per the yard stick dtd.08.07.1981, the Roll strength for creation of 4th post of Daftary was available. 6. We have heard learned counsels for the parties and perused the documents available on record. 5. Learned counsel representing School and Mass Education Department however, has fairly submitted that as per the yard stick dtd.08.07.1981, the Roll strength for creation of 4th post of Daftary was available. 6. We have heard learned counsels for the parties and perused the documents available on record. We have also gone through the judgment pronounced by Hon’ble apex court in Civil Appeal no.6844 of 2003 wherein their lordships of Hon’ble Apex Court, while dealing with the issue, have been pleased to direct the authorities as follows:- “We, therefore, while allowing these appeals direct that the management of the concerned institution shall move the concerned authorities for approval to the promotional appointment of a class-IV employee, as “Daftary”. Simultaneously, it can also recommend for appointment to the class-IV post, in case approval is accorded to the recommendation for appointment of “Daftary” on promotion. The decision on both motions shall be taken within three months from the date of submission of the recommendation in accordance with law keeping in view the operative yardsticks in force at the time of appointments were made. Even if there has been refusal earlier, the matter shall be reconsidered in the light of what has been stated above.” We, on examination of the direction passed in Civil Appeal No.6844 of 2003, have found that the Tribunal has not erred in passing the order regarding justification of 4th class-IV post of daftary which has not been pleaded by the petitioner and as such the Tribunal has given correct finding that in absence of pleading in this regard, no consideration can be made regarding the 4th class-IV post of daftary, but considering the submission having been made by the learned counsel representing the State of Odisha, who has fairly submitted that as per the yardstick, the consideration regarding creation of 4th class-IV post of daftary has not been decided and it cannot be decided in absence of pleading. Accordingly and considering the submission advanced on behalf of the parties as well considering the judgment passed in Civil Appeal No.6844 of 2003 and taking into consideration the fact that the petitioner is continuing since long, are of the considered view that the case of the petitioner is to be considered in the light of the judgment passed by the Hon’ble Apex Court in Civil Appeal No.-6844 of 2003, accordingly we though it proper to remit the matter before the authority to consider the case of the petitioner in the light of judgment passed in Civil Appeal No.6844 of 2003 and pass speaking order within reasonable period, preferably within six weeks from the date of receipt of copy of this order and to take consequential steps. Accordingly the writ petition stands disposed of.