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2018 DIGILAW 572 (ORI)

Swarnalata Sahoo v. State of Odisha

2018-05-17

D.DASH

body2018
JUDGMENT This writ application has been filed with the prayer for quashing the approval orders of the Govt. dated 12.11.2015 issued by the opposite parties under Annexure-4 series. 2. Facts necessary for the purpose of disposal of the present application are as under:- The petitioner was duly appointed against the 1st post of Lecturer in Home Science in Neetrananda Sahoo Women’s (Jr) College, Kakatpur in the district of Puri and as has been continuing in the post since 01.02.1994. Pursuant to the order dated 19.12.2013 passed in W.P.(C) No. 16944 of 2013, the petitioner filed a representation along with copy of the judgment of this Court in case of Nabaghana Nanda vs. State of Orissa and others passed in OJC No. 12385 of 1997, passed on 10the April, 2001 for consideration of her claim and a decision thereon as regards approval of her service and payment of grant-in-aid in adherence to the ratio decided in the said case. The case of the petitioner was verified by the Director (opp.party No. 2) on 29.11.2014 and on the basis of recommendation, the Govt. in the Department of Higher Education by order dated 26.03.2015 approved the appointment of the petitioner as against the 1st post of Lecturer in Home Science in the said College with effect from 01.06.1994. Subsequently, the opp.party No. 2 also passed office order on 07.05.2015 by approving the appointment of the petitioner (Annexure-3 series). Basing upon the same, the petitioner has been getting the current salary. While the matter stood thus, on 12.11.2015, the Govt. in the Department of Higher Education issued another order modifying clause-3 of the earlier approval order and basing on such approval order dated 12.11.2015, the Director (opp.party no.2) issued a corrigendum on 23.02.2016 (Annexure-4 series). The modification is to the extent that in so far as the arrear claim of the petitioner is concerned, the same would be disbursed as per the judgment rendered in case of Union of India vs. Tarsem Singh (2008) 8 SCC 648 that is limiting to a period of three years next before the filing of the writ application. This subsequent order of the Govt. This subsequent order of the Govt. in the Department of Higher Education dated 12.11.2015 in supersession of its earlier order dated 26.03.2015 as regards the arrear claim as admissible to the petitioner and the consequential corrigendum issued by the Director (opp.party no.2) on 23.02.2016 under Annexure-4 series have now been called in question in this writ application. 3. Learned counsel for the petitioner submitted that such subsequent order of the Govt. dated 12.11.2015 and the corrigendum issued by the opp.party no. 2 on 23.02.2016 are not sustainable in the eye of law. It was submitted that the ratio decided in case of Tarsem Singh (supra) has no applicability to the case in hand and more particularly when this Court vide order dated 19.12.2013 passed in W.P.(C) No. 16944 of 2013 has not given any direction for considering the grant of arrear claim of the petitioner in terms of the ratio decided in case of Tarsem Singh (supra), the impugned order holding that the arrear salary of the petitioner would be calculated for the period limiting to three years and paid as per the ratio decided in the said case, the impugned order and corrigendum are unsustainable in law. He therefore submitted that such subsequent order of the Govt. in the Department of Higher Education dated 12.11.2015 and corrigendum issued by the opp.party no. 2 on 23.02.2016 under Annexure-4 series are arbitrary. He also submitted that the Govt. in the Department of Higher Education while approving the service of one Smt. Suprava Sahoo, who is the Demonstrator in the very same Department of Home Science of the said College where the petitioner is holding the 1st post of Lecturer has not applied the ratio of decision in case of Union of India vs. Tarsem Singh (supra) in so far as her arrear claim towards salary is concerned and that order of approval dated 26.03.2015 still holds the field which directly runs in conflict, that when the concerned Demonstrator is not deprived of the arrear financial benefits, the Lecturer is denied with the same. He therefore submitted that the impugned order is liable to be quashed and the earlier orders of the Govt. in the Department of Higher Education dated 26.03.2015 followed by office order issued by the opp.party no. 2 on 07.05.2015 under Annexure-3 series are to be restored. 4. Learned Addl. Govt. He therefore submitted that the impugned order is liable to be quashed and the earlier orders of the Govt. in the Department of Higher Education dated 26.03.2015 followed by office order issued by the opp.party no. 2 on 07.05.2015 under Annexure-3 series are to be restored. 4. Learned Addl. Govt. Advocate submitted that in many cases this Court while giving direction for consideration of the matter of approval of the service of teaching and non-teaching staff of different colleges following the ratio of the decision rendered in case of Nabaghana Nanda (supra) has put the rider that the arrear due, if any, shall be paid in consonance with the judgment rendered by the Apex Court in case of Tarsem Singh (supra) and in that view of the matter, no fault can be found with the impugned orders under Annexure-4 series. He further submitted that the ratio decided in case of Tarsem Singh (supra) is squarely applicable to the case in hand. 5. In order to address the rival submission, let us have a quick run through the facts of the case of in case of Tarsem Singh (supra). In that case, the petitioner had approached the Court for disability pension in the Indian Army after having been invalidated out of Army; service, in medical category, on 13.11.1983. The Court initially restricted the relief to thirty eight (38) months prior to the filing of the writ petition which being challenged in appeal, the Court granted the same with effect from the date, it fell due, to be paid with interest 6% per annum. In that factual setting of the case, because of the fact that the claimant had approached the Court after sixteen years, the Court did not find the case of the petitioner therein to be falling under the exception to the underlying principles of continuing wrong or recurring/successive wrongs. Therefore, the Court found fault with the order of the High Court in appeal in directing payment of arrear relief for sixteen years and that to, with interest. The facts of the instant case are quite different. 6. In the present case, the Govt. upon consideration found the case of the petitioner to be fit in every respect for approval. Therefore, while approving her service had directed the disbursement of the arrear claim as per the actual differential by deducting the salary received by the petitioner from the Govt. 6. In the present case, the Govt. upon consideration found the case of the petitioner to be fit in every respect for approval. Therefore, while approving her service had directed the disbursement of the arrear claim as per the actual differential by deducting the salary received by the petitioner from the Govt. subject to the provision of under Section 7(C) of the Orissa Education Act, 1969. Accordingly, the opp.party No. 2 scrutinizing the records of the College with regard to the said arrear claim had issued necessary office order which has subsequently been superseded in so far as the said arrear claim is concerned for its disbursement keeping in view the judgment in case of Tarsem Singh(supra). 7. In the facts and circumstances of the case, in my considered opinion, there remains no justification on the part of the opp.parties in issuing the impugned orders under Annexure-4 series in supersession of their earlier orders under Annexure-3 series in so far as the claim of the petitioner towards her arrear salary is concerned. Accordingly, the impugned order of the Govt. dated 12.11.2015 and the order dated 23.02.2016 issued by the opp.party no.2 under Annexure-4 series are hereby quashed. It is needless to say that in view of the quashment of the orders under Annexure-4 series, the earlier orders under Annexure-3 series as had been passed stand restored. The writ petition is accordingly disposed of. Petition disposed of.