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2018 DIGILAW 316 (ORI)

Tapas Kumar Roy v. State Of Odisha

2018-03-27

SUJIT NARAYAN PRASAD

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ORDER Sujit Narayan Prasad, J. - This writ petition is against the order dated 29.7.2017 passed by the Director of Higher Education, Odisha, Bhubaneswar under Annexure-10 whereby and whereunder the claim of the petitioner for giving a declaration that he has continued in service beyond 20.11.1981 has been rejected being devoid of merit. 2. The facts of the case of the petitioner is that he was initially appointed against the 1st post of Lecturer in English in Kanpur Anchalika Mohavidyalaya, Kanpur by the decision taken by the Governing Body of the said college vide order dated 18.12.1978. The said college has got recognition aria affiliation from Utkal University in the year 1980 and came under grant-in-aid w.e.f. 1986-87. Thereafter, the college acquired the status of an aided educational institution within a meaning of Section 3(b) of the Orissa Education Act, 1969. The petitioner, being the senior most lecturer of the said college, was appointed as Principal-in-Charge on 09.09.1981 vide Governing Body Resolution No. 7 dated 29-10-1981. The petitioner while continuing as such, the then Secretary of the Governing Body, has forced him to tender his resignation. Succumbing to said compulsion, he has tendered his resignation on 24.8.1981. But he immediately thereafter made several representations to the Director, Higher Education, Odisha, Bhubaneswar as also lodged the F.I.R. against the Secretary of the College before the local police station, but it was not entertained by the local police station and thereafter, he was relieved. The petitioner thereafter has got another appointment in M.S. College, Baramba, Cuttack and joined there on 11.1.1989. Petitioner claimed that he be treated in service right from 28.11.1981 till 11.1.1989 and thereby the intervening period be counted for the purpose of pensionary benefit. The grievance of the petitioner is that he has made series of representations before his resignation, but when it has not been taken into consideration, he having no option, has approached to this Court by filing a writ petition being O.J.C. No.5113 of 1993 which was disposed of vide order dated 4.10.1993 by directing the opposite party No. 1 to take decision on the representation within period of three months. In view thereof, the petitioner has represented, but the Collector has rejected the same by a non-speaking order dated 7-10-1994. In view thereof, the petitioner has represented, but the Collector has rejected the same by a non-speaking order dated 7-10-1994. The petitioner has again approached this Court by filing another writ petition being O.J.C. No. 18360 of 1997 assailing the order dated 7.10.1994 passed by the Collector, Cuttack and this Court vide order dated 4.5.1998 disposed of that writ petition with an observation that the petitioner may file an-appeal before the Director, Higher Education, Odisha, Bhubaneswar who, in turn, was directed to dispose of the appeal, but the Director, Higher Education, Odisha, Bhubaneswar has dismissed the said appeal on 25.3.2000 on the ground that the college has already been admitted to the grant-in-aid fold in the year 1986-87. The petitioner has again approached this Court by filing a writ petition being O.J.C.No. 5334 of 2000 challenging the order dated 25.3.2000 passed by the Director, Higher Education, Odisha, Bhubaneswar and this Court, vide order dated 5.1.2012 while disposing of the said writ petition, has directed the Director, Higher Education, Odisha to pass an order afresh after giving opportunity of hearing to both the parties. In pursuant thereto, the petitioner has taken additional ground that the period from 28.11.1981 till the subsequent appointment be counted as a continuous service, but the Director, Higher Education, Odisha has rejected the claim of the petitioner vide order dated 29.7.2017, against which, the instant writ petition has been filed. 3. Learned counsel for the petitioner contends that the Director, Higher Education, Odisha, Bhubaneswar has passed an order without appreciating the material aspect, especially the resignation part, since the petitioner has taken specific plea that he has not tendered resignation, rather he was forced to tender his resignation and accordingly the period after 28.11.1981 cannot be construed to be break in service till joining in the subsequent college i.e. 11.1.1989 and in consequence thereof, he is getting less pension. 4. Mr. 4. Mr. B.P. Tripathy, learned Additional Government Advocate appearing for the State-opposite parties, while defending the order, has submitted that the Director, Higher Education, Odisha, Bhubaneswar while passing an order, has not committed any illegality, rather the order has been passed providing adequate opportunity of being heard to the petitioner as also taking into consideration the relevant documents and on the basis of the said document, the Director has came to conclusion that the contention raised by the petitioner that he has forcefully asked to tender his resignation, which could not have not been established and the same can also not be established at the belated stage, since the petitioner has failed to produce documentary evidence that he has registered its displeasure before any forum at the relevant time. It has been submitted that the petitioner, after relieving from duty in view of the resignation tendered by him on 20.11.1981, has got a fresh appointment in another college, namely, M.S. College, Baramba, Cuttack and joined on 11.1.1989. Thereafter, he has also retired from service w.e.f. 31.1.2014 after getting the benefit of grant-in-aid. Now, at this belated stage, the period from 28.11.1981 till 11.1.1989 cannot be said to be extended in favour of the petitioner, since at this belated stage, he has inserted a new prayer in the representation. Hence, he submits that on this ground the order impugned is not fit to be interfered with by this Court. 5. Heard the learned counsel for the parties and on appreciation of their rival submission, it is evident that the petitioner has joined his service as a Lecturer in English (1st Post) in Kanpur Anchalika Mohavidyalaya, Kanpur w.e.f. 18.12.1978. He, while working there, has tendered his resignation on 20.11.1981 and thereafter was relived from his duty. The ground for resignation put-forth by the petitioner was for getting better job. The petitioner subsequently has raised objection by filing series of representations before the authorities by saying that the resignation was not voluntary tendered, rather it was under coercion and to that effect, he has also approached before this Court by filing a writ petition being O.J.C. No.5113 of 1993. In the said writ petition, the petitioner has assailed the letter dated 28.1.1992 which has been passed in pursuant to the representation dated 11.11.1991 (Annexure-4), the letter dated 28.1.1992 has been refused to be entertained by the concerned principal in the said year. In the said writ petition, the petitioner has assailed the letter dated 28.1.1992 which has been passed in pursuant to the representation dated 11.11.1991 (Annexure-4), the letter dated 28.1.1992 has been refused to be entertained by the concerned principal in the said year. It is evident from Annexures-4 and 5 that the main grievance raised by the petitioner to reinstate in the 1st post of Lecturer in English but has not sought for any direction for counting the period from 28.11.1981 till his reengagement in another college. The petitioner, being aggrieved with the letter dated 28.1.1992, has approached this Court by filing a writ petition being O.J.C. No. 5113 of 1993 and this Court, while disposing of that writ petition vide order dated 4.10.1993, has directed the opposite party No. 1 to dispose of the representation, the Collector, Cuttack, who happens to be the opposite party No.l in that writ petition has rejected the representation vide communication dated 7.10.1994. The petitioner, being aggrieved with, has approached to this Court by filing writ petition being O.J.C. No. 18360 of 1997 and while disposing of the said writ petition vide order dated 4.5.1998, has granted liberty to the petitioner to file an appeal before an appropriate authority. In terms thereof, the petitioner has filed an appeal before the Director, Higher Education, Odisha, Bhubaneswar, but the Director, while passing the order on 25.03.2000, has rejected the appeal of the petitioner which is under Annexure-7 on the ground that his resignation has been accepted by the Governing Body vide its resolution dated 28.8.1981 and after long lapse of time, it requires no consideration since the college has already been admitted in grant-in-aid fold from the academic session 1986-87. The petitioner has again approached this Court by filing a writ petition being O.J.C. No. 5334 of 2000 assailing the order dated 25.3.2000 passed by the Director, Higher Education, Orissa, Bhubaneswar and this Court, while disposing of that writ petition vide order dated 5.1.2012, has directed the Director, Higher Education, Orissa, Bhubaneswar to take fresh decision after giving opportunity of hearing to both the parties. In View thereof, the order has been passed by the Director on 29.7.2017 rejected the claim of the petitioner on the ground that the petitioner has failed to produce any relevant document to substantiate that the resignation tendered by him was not as per his wish, rather it was forceful. In View thereof, the order has been passed by the Director on 29.7.2017 rejected the claim of the petitioner on the ground that the petitioner has failed to produce any relevant document to substantiate that the resignation tendered by him was not as per his wish, rather it was forceful. Further, on the ground that in the meanwhile, the petitioner has got his appointment and also retired by taking aid of the grant-in-aid order. Accordingly, has given a declaration that the appellant has not continued in service w.e.f. 20.11.1981, since no document has been produced by the petitioner for substantiating the plea of continuation of service beyond 20.11.1981. 6. It is admitted position that the petitioner has been separated from service w.e.f. 20.11.1981 and also relieved. He has subsequently been-appointed as Lecturer in English 4th post in M.S. College, Baramba, Cuttack and joined therein on 11.1.1989, ultimately retired on 31.1.2014 from service while working in M.S. College, Baramba, Cuttack as Lecturer in English 4th post. 7. The original prayer made by the petitioner in the writ petition being O.J.C. No. 5113 of 1993, is for reinstatement in service, but after his reappointment in M.S. College, Baramba, Cuttack w.e.f. 11.1.1989, he cannot be reinstated in service. 7. The original prayer made by the petitioner in the writ petition being O.J.C. No. 5113 of 1993, is for reinstatement in service, but after his reappointment in M.S. College, Baramba, Cuttack w.e.f. 11.1.1989, he cannot be reinstated in service. The representation which the petitioner has filed in terms of the order passed by this Court in O.J.C. No.5113 of 1993 and the decision taken by the authority in terms of the directions passed by this Court in O.J.C. No.5113 of 1993 which is under Annexure-6, for rejection of the appeal which has been passed in the light of the representation dated 11.11.1991 which is at Annexure-4 to the writ petition and from its perusal, it is evident that the petitioner has sought for a direction for reinstatement as Lecturer in English against 1st post and from the date of invoking jurisdiction of this Court by filing O.J.C. No.5113 of 1993 upto filing of writ petition being O.J.C. No.5334 of 2000, the grievance of the petitioner was for reinstatement and this Court while disposing of the writ petition, has directed the Collector to pass an order who has passed order on 29.7.2017, impugned in this writ petition, wherein also the claim of the petitioner for reinstatement has been rejected, thus the petitioner-s claim, all along, is for reinstatement in service, but when he has got an appointment in M.S. College, Baramba, Cuttack on 11.1.1989 there cannot be any direction for reinstatement in service under the Kanpur Anchalika Mohavidyalaya, Kanpur, more so, also on the ground that the petitioner has failed to substantiate that he has forcefully asked to tender his resignation, rather thereafter he has got a fresh appointment and has discharged his duty till he attained the age of superannuation dated 31.1.2014. Petitioner, in this writ petition, is now praying to count the service rendered by him from the date of initial appointment i.e. 18.12.1978 till his joining in M.S. College, Baramba, Cuttack on 11.1.1989 as qualifying service, referring to the provision of Rule 6 of the Odisha Aided Educational Institutions-Employees Retirement Benefit Rules, 1981, this Court is of the view that after lapse of long delay i.e. cause of action which accrued to the petitioner way back in the year 1989 now he is raising his grievance for regularization of the said period for the purpose of counting his pensionary benefit by assailing the order passed by the Director, Higher Education, Odisha, Bhubaneswar dated 29.7.2017, the same is not fit to be entertained mainly for the reasons - First is that he for the first time raising this grievance i.e. in the third writ petition, secondly, after lapse of 26 years and third, if the period will be directed to be regularized, it will amounts to allowing the prayer which the petitioner has not taken in earlier writ petitions although even if the same was available and the Court has declined to interfere with the order of termination rather directed the authorities to take decision and the authorities have taken decision by not interfering with the order of termination and if at this juncture prayer for regularization will be allowed, it will amount to interfering with the order of termination, which according to my view will not be proper. 8. Learned counsel for the petitioner has emphasized the provision of Rule 6 of the Odisha Aided Educational Institutions-Employees Retirement Benefit Rules, 1981. After going to the said provision of the said rule, it is evident that in computing the length of qualifying service of an employee retiring on or after the 1st day of April, 1982, all previous services except those rendered prior to his attaining the age of eighteen years, whether temporary, officiating or permanent either in one or more than one recognized educational institutions, shall, subject to the conditions specified in sub-rules (2), (3), (4) and (5), be taken into account for the purpose retirement benefits under these rules. There is no dispute about the legal provision as provided under Rule 6 of the Odisha Aided Educational Institutions-Employees Retirement Benefit Rules, 1981, but the said benefit cannot be extended in view of the fact that there is declaration given by the Director, Higher Education, Odisha, Bhubaneswar that the petitioner has tendered his resignation and as such, in case of resignation, the counting of the period rendered by an incumbent who has tendered his resignation will not come under the fold of Rule 6 of the Odisha Aided Educational Institutions-Employees Retirement Benefit Rules, 1981. It is settled position of law that after tendering resignation, the past service rendered by a public servant will be forfeited for all practical purposes. 9. In view of the discussion made hereinabove and according to the considered view of this Court, the petitioner has failed to make out a case for showing interference in the impugned order dated 29.7.2017 passed by the Director of Higher Education, Odisha, Bhubaneswar or the prayer for counting the past services rendered by him for the purpose of pensionary benefit is having no merit. Accordingly, the writ petition is devoid of merit and as such, the same is dismissed.