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2021 DIGILAW 303 (ORI)

Geet Rosalyn v. State Of Orissa

2021-07-09

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - By way of this petition the Petitioner has sought for the following relief: "Relief(s) sought for:- In view of the facts stated in para-6 above, the applicant prays for the following relief(s):- (a) The Original Application be allowed; (b) The order of fresh engagement dt.21.10.2017 under Annexure-13 be modified to the extend reinstating the Applicant in service w.e.f. 28.2.2013 with regularization of service w.e.f. 2013. (c) The Respondents be directed to release the arrears of salary from 28.2.2013 till date of reinstatement dt.21.10.2017. (d) Such other order/orders be passed granting complete relief to the applicant." 2. Short and undisputed background involved in the case is that pursuant to an advertisement vide Annexure-1 issued by the Opposite Party No.2 for filling up of the posts of teacher in High Schools, the Petitioner applied against the T.G.(C.B.Z) post and appears to have been selected against such post. Consequent upon her selection the Petitioner was posted in the P.N. High School, Dolasahi vide Annexure-2. While the Petitioner was continuing as such, on 3.01.2013 the State Government created 609 nos. of T.G. post for regularization of contractual teachers like that of the Petitioner. It appears, at the relevant point of time list of contractual teachers was also prepared and in the said list the name of the Petitioner finds place at Sl.No.8 (Annexure-4). It further appears, while the Petitioner's case was to be considered for regularization, due to the Petitioner remaining three days unauthorized absent on 17.11.2012 the Petitioner was issued with show cause notice vide Annexure-5. Pursuant to such notice dated 17.11.2012, on 19.12.2012 the Petitioner submitted her response explaining the reason of absent for three days. It is alleged that in absence of any inquiry the Petitioner was issued with a notice to respond on the proposed punishment for disengagement vide Annexure-8. Pleadings further disclose that on 25.02.2013 the Petitioner submitted the reason of unauthorized absence. Basing on the response filed by the Petitioner, the Opposite Party No.3 on 28.02.2013 passed an order of disengagement of the Petitioner. Challenging the order of disengagement vide Annexure-9 the Petitioner instituted an original application before the State Administrative Tribunal, Cuttack Bench vide O.A. No.1062 (C) of 2013. Basing on the response filed by the Petitioner, the Opposite Party No.3 on 28.02.2013 passed an order of disengagement of the Petitioner. Challenging the order of disengagement vide Annexure-9 the Petitioner instituted an original application before the State Administrative Tribunal, Cuttack Bench vide O.A. No.1062 (C) of 2013. The above original application was finally disposed of on contest of the parties, where the State Administrative Tribunal came to observe that the punishment of termination /disengagement on account of three days of unauthorized absence is highly disproportionate and on this observation alone the Tribunal remanded the matter to the authority for reconsideration of such issue. It is needless to observe here that this order of the Tribunal has not been challenged by any of the parties and undisputedly the Tribunal disapproved the order of disengagement. It, therefore, appears, both the parties have accepted the said order and for the observation made the Tribunal, it was necessary on the part of the authority to consider the case of the Petitioner on any punishment other than disengagement. But however, on reconsideration of the case of the Petitioner depending on the direction of the State Administrative Tribunal in disposal of the O.A. No.1062(C) of 2013, the Opposite Party No.3 by its order dated 31.12.2015 vide Annexure-11 reiterated its earlier order of disengagement. The Petitioner here claimed that this order was not, however, communicated to her for long time. In the meantime the Petitioner undertook the exercise of contempt vide C.P. No.163 (c) of 2016. It appears, in the contempt proceeding the contemnors filed their response thereby enclosing the order of rejection dated 31.12.2015 vide Annexure-11. It is after coming to know about the order of rejection through the contempt proceeding and its reiteration of the disengagement order, it appears, the Petitioner again approached the State Administrative Tribunal by filing another original application bearing O.A. No.856 (C) of 2017. This original application being taken for admission and interim order, even though notice involving the above original application was issued on 30.03.2017, however, the Tribunal refused to grant interim protection to the Petitioner involving the order of rejection vide Annexure-11. Being aggrieved with the no interim protection by the State Administrative Tribunal, the Petitioner approached a Division Bench of this Court by way of W.P.(C) No.8888 of 2017; which matter appears to have been disposed of with an order of reinstatement of the Petitioner vide Annexure-12. Being aggrieved with the no interim protection by the State Administrative Tribunal, the Petitioner approached a Division Bench of this Court by way of W.P.(C) No.8888 of 2017; which matter appears to have been disposed of with an order of reinstatement of the Petitioner vide Annexure-12. Basing on the direction of the High Court in the aforesaid writ petition, the order dated 21.10.2017 vide Annexure-13 was issued giving a fresh appointment to the Petitioner. For the order at Annexure-13 remaining contrary to the direction of the Division Bench of the High Court, the Petitioner was constrained to file O.A. No.2(C) of 2018 before the Odisha Administrative Tribunal, Cuttack Bench. In this original application notice was issued on 18.01.2018, but for the closure of the Tribunal, pursuant to a direction of this Court in W.P.(C) No.28853 of 2019, the above original application got transferred to this Court for disposal and the same is, accordingly, registered as WPC(OAC) No.2 of 2018. During pendency of the above proceeding in the Tribunal it appears, the Opposite Party No.3 had already filed counter affidavit, but a rejoinder affidavit appears to have been filed after transfer of the matter to this Court. 3. Mr. Mohanty, learned counsel for the Petitioner taking this Court to the above developments, contended that at the first instance for the observation of the Tribunal, it was a clear direction to the Opposite Party no.3 to consider the case of the Petitioner on any other punishment other than the order of disengagement for there is merely three days unauthorized absence by the Petitioner. Mr. Mohanty, learned counsel for Petitioner, therefore, submitted that the Opposite Party No.3 went wrong in passing the order vide Annexure-11, thereby once again reiterating its earlier order of disengagement and therefore, Mr. Mohanty, learned counsel for Petitioner claimed that the order vide Annexure-11 remains contrary to the direction of the Tribunal in disposal of the O.A. No.1062(C) of 2013. Mr. Mohanty, learned counsel for Petitioner, therefore, submitted that the Opposite Party No.3 went wrong in passing the order vide Annexure-11, thereby once again reiterating its earlier order of disengagement and therefore, Mr. Mohanty, learned counsel for Petitioner claimed that the order vide Annexure-11 remains contrary to the direction of the Tribunal in disposal of the O.A. No.1062(C) of 2013. Mr. Mohanty, learned counsel for Petitioner further contended that in the second round of litigation vide O.A. No.856(C) of 2017 for the Tribunal declining to grant interim protection the Petitioner was constrained to approach the Division Bench of this Court in W.P.(C) No.8888 of 2017, which writ petition was finally disposed of giving a clear direction for reinstatement of the Petitioner, thereby leaving nothing to be adjudicated in the pending original application; which ought to have been treated to be infructuous. Mr. Mohanty, learned counsel thus alleged that for the direction of the Division Bench for reinstatement of the Petitioner and in absence of any challenge to the JUDGMENT of the Division Bench by the competent authority, the only option available with the Opposite Parties was to reinstate the Petitioner into service from the date she was disengaged also with all consequential service benefits. Further taking this Court to the impugned order vide Annexure-13, Mr. Mohanty, learned counsel for the Petitioner alleged that the Opposite Party No.3 had no right to give fresh engagement to the Petitioner in the guise of compliance of the order of the Division Bench and for passing of such order they are already in contempt. It is, in this view of the matter and giving due regard to the direction of the Division Bench indicated hereinabove coupled with the earlier order of the Tribunal, Mr. Mohanty, learned counsel for Petitioner requested this Court for allowing the writ petition. 4. Mr. Mohapatra, learned Standing Counsel for the School & Mass Education Department in his strongest opposition to the claim made by Mr. Mohanty, learned counsel for Petitioner requested this Court for allowing the writ petition. 4. Mr. Mohapatra, learned Standing Counsel for the School & Mass Education Department in his strongest opposition to the claim made by Mr. Mohanty, learned counsel for the Petitioner but while not disputing the facts narrated hereinabove up to filing of the O.A. No.856(C) of 2017, however, contended that for the refusal of the Tribunal in the matter of grant of interim protection as against the order of rejection vide Annexure-11, even assuming that the Petitioner had right to approach the Division Bench in filing W.P.(C) No.8888 of 2017, but the Division Bench should have restricted its adjudication to the no grant of interim order only. Mr. Mohapatra, learned Standing Counsel further contended that in disposal of the writ petition bearing W.P.(C) No.8888 of 2017 thereby directing for reinstatement of the Petitioner into service and thereby in the ultimate disposal of the O.A. No.856(C) of 2017 was improper. Mr. Mohapatra, learned Standing Counsel, however, did not dispute that the Opposite Party No.3 had never challenged the direction of the Division Bench in disposal of the W.P.(C) No.8888 of 2017 and further also did not dispute the order passed by the Opposite Party No.3 vide Annexure-13 indicating therein that the said order is passed in compliance of the direction of the Division Bench of the High Court in disposal of the W.P.(C) No.8888 of 2017. Admission of the Department that the order of the Division Bench was not challenged, rather vide Annexure-13 there is compliance of the direction of the Division Bench, the question raised on the direction of the Division Bench has no leg to stand. In an attempt to justify the order vide Annexure-13 Mr. Mohapatra, learned Standing Counsel further contended that for the direction in disposal of the O.A.No.1062 (C) of 2013, the order vide Annexure-13 does not require any interference of this Court. While avoiding reiteration of the undisputed facts, this Court here only takes note of the relevant materials required for adjudication of the case at hand. Mohapatra, learned Standing Counsel further contended that for the direction in disposal of the O.A.No.1062 (C) of 2013, the order vide Annexure-13 does not require any interference of this Court. While avoiding reiteration of the undisputed facts, this Court here only takes note of the relevant materials required for adjudication of the case at hand. On reading of the order passed in disposal of the O.A. No.1062 (C) of 2013, this Court finds, in disposal of the aforesaid O.A. the Tribunal was pleased to pass the following order : " Considering the submissions of learned counsel for the applicant and learned Standing Counsel, we note that the applicant has been appointed as a contractual teacher and her service was terminated vide order dated 28.02.2013 as at Annexure-6 on the ground that she remained unauthorized absent from duty from 18.07.2012 to 20.07.2012. It appears that the applicant has made prolonged correspondence with higher authorities expressing her grievance against the harassment meted out to her by the staff, but no action seems to have been taken. The impugned order reveals that the applicant did not perform her duty to the satisfaction of the D.E.O. and she was found negligent in duty. It may be noted at the cost of repetition that the allegation which the applicant has made has never been taken into consideration while considering the show cause of the applicant and by a cryptic order the impugned order of termination from service has been passed. The order of the termination appears to be disproportionate to the nature of allegation i.e. unauthorized absent from 18.07.2012 to 20.07.2012. Nothing also appears that the applicant has been given due opportunity of being heard in person. Considering the materials and on perusal of the order we remit the matter to the respondent No.4 to re-consider the order of the termination on the basis of the show cause filed by the applicant and pass a reasoned order within a period of three months from the date of receipt of a copy of this order. However, we are not inclined to interfere with the impugned order as the order of termination has been passed as long back as on 28.02.2013 and no interim protection has been given to the applicant. However, we are not inclined to interfere with the impugned order as the order of termination has been passed as long back as on 28.02.2013 and no interim protection has been given to the applicant. With these orders, the O.A. is disposed of." Above order has clear indication that the termination order involved therein was disproportionate and thus there was remand of the issue for consideration otherwise. There is no dispute that on admission of the O.A. No.856(C) of 2017, there was refusal to grant interim order and that too the Petitioner has undertaken a process before the Division Bench through W.P. (C) No.8888 of 2017. This Court here from the order vide Annexure-12 finds, the Division Bench in disposal of the above writ petition in unnumbered paragraph nos.5 & 6 have directed as follows: "Considering the above fact and circumstances and as the finding of the Tribunal in O.A. No.1062 (C) of 2013 was final and not challenged by anybody, the Tribunal after examining the materials available on record and after giving opportunity of hearing to the parties, came to a conclusion that the order of termination was disproportionate and natural justice has not been complied with. The opposite party No.3-District Education Officer, Bhadrak passed the order dated 31.12.2015 without complying the Tribunal's order and also has not given opportunity of hearing to the petitioner as reveals from the said order which is appended to the writ petition at page 49. The show cause filed by the petitioner has not been considered in its proper perspective and the order was passed on 31.12.2015. The said order also reveals that the opposite party No.3 has given stress to the conditions of the agreement entered into by the petitioner prescribed for all contractual teachers. The final order pronounced by the Judicial Authority has to be respected unless it was challenged before the higher forum. The Opposite Party No.3 is not the higher forum of the Tribunal to sit over it. As such the order dated 31.12.2015 is not sustainable. Remittance of the matter back to the authority will amounts to further harassment to the Petitioner. The Opposite Party No.3 is not the higher forum of the Tribunal to sit over it. As such the order dated 31.12.2015 is not sustainable. Remittance of the matter back to the authority will amounts to further harassment to the Petitioner. In view of the above, we dispose of the writ petition by quashing the order dated 31.12.2015 passed by the opposite party no.3 in exercising the jurisdiction under Article 227 of the Constitution of India, with a direction to the said opposite party to reinstate the petitioner on production of the certified copy of this order. The O.A. No.856(C) of 2017 as well as the interim application filed by the petitioner before the Tribunal is also disposed of." After the above direction there remains no dispute that for the order of the Division Bench dated 23.06.2017 passed in W.P.(C) No.8888 of 2017 having not been challenged by the Opposite Party No.3, not only becomes final but also binds both the parties to lis. 5. Now looking to the impugned order vide Annexure-13, it appears, the Opposite Party No.3 by its order dated 21.10.2017 in the first paragraph therein has passed the following: "In obedience to order No.03 Dated. 23.06.2017 of the Hon'ble High Court, Odisha, Cuttack passed in W.P.C No.8888 of 2017, Contc. No.1088/2017 and in pursuance of letter No.19603/SME Dated. 17.10.2017 of the Govt. of Odisha Department of School & Mass Education and communicated vide memo No.35258 Dated 18.10.2017 of the Director, Secondary Education, Odisha, Bhubaneswar, Geet Rosalyn, D/o. Gopal Chandra Sethy, Vil.- Jagannathpur, Po/Ps.-Bhadrak, Dist.-Bhadrak is hereby engaged as Cont. Tr. In TGT CBZ at J.U.B. Chingudipur, Dist.-Bhadrak for a period w.e.f. 23.10.2017 to 28.02.2018 on a fixed monthly remuneration of Rs.16880/- (Sixteen Thousand Eight Hundred Eighty) Only on the following terms and conditions." 6. This Court here looking to the language used in the order at Annexure-13 finds, the Opposite Party No.3 has passed the said order rather in compliance of the direction of the Division Bench in W.P(C) No.8888 of 2017 and also in CONTC No.1088 of 2017. This Court here looking to the language used in the order at Annexure-13 finds, the Opposite Party No.3 has passed the said order rather in compliance of the direction of the Division Bench in W.P(C) No.8888 of 2017 and also in CONTC No.1088 of 2017. This Court, therefore, finds, there remains no room for the Opposite Party No.3 to reengage the Petitioner instead of treating the Petitioner to have been reinstated to her services from the date she was illegally disengaged and consequently, as in the meantime a regularization process involving the Petitioner and similarly situated persons has already taken place and as the name of the Petitioner finds place at Sl.No.8 in the said regularization list, in the event the other persons in the said list have been regularized, then on reinstatement of the Petitioner pursuant to the direction of the Division Bench, this Court is of the opinion that the authority while granting the Petitioner at least notional continuation, could have considered the case of the Petitioner for regularization of her service keeping in view the judgment of the Division Bench and also the development through Annexure-4 and under the premises that there was break in the services of the Petitioner. 7. Looking to the background of the case and the development taken place through disposal of the W.P.(C) No.8888 of 2017 on 23.06.2017, there remains no doubt that in disposal of the writ petition the Division Bench of the High Court has not only finalized the issue involving O.A. No.856(C) of 2017, but has also given a clear direction to the Opposite Parties to reinstate the Petitioner into service on production of a certified copy of the order dated 23.06.2017. Undisputedly this order has not been challenged in higher forum. It is, on the other hand, it appears from the document vide Annexure-13 that the competent authority in obedience to the orders passed in W.P.(C) No.8888 of 2017 and in CONTC No.1088 of 2017 has made an attempt to apply the direction therein. 8. Undisputedly this order has not been challenged in higher forum. It is, on the other hand, it appears from the document vide Annexure-13 that the competent authority in obedience to the orders passed in W.P.(C) No.8888 of 2017 and in CONTC No.1088 of 2017 has made an attempt to apply the direction therein. 8. Considering the rival contentions of the parties and taking into account the challenge to the order vide Annexure-13 this Court is of the opinion that for the attempt of the competent authority to comply the direction of this Court in W.P.(C) No.8888 of 2017 and in CONTC No.1088 of 2017, the only option left with the competent authority is to reinstate the Petitioner into her service from the date she was disengaged. By the impugned order the authorities have illegally re-engaged the Petitioner herein for a period from 23.10.2017 to 28.02.2018 on fixed monthly remuneration basis in clear violation of the direction in W.P.(C) No.8888 of 2017 & CONTC No.1088 of 2017. The short term engagement in the garb of compliance of the direction of the Division Bench in W.P.(C) No.8888 of 2017 is, therefore, not sustainable in the eye of law. This Court, therefore, while interfering with the order vide Annexure-13, sets aside the same and directs the competent authority to treat the Petitioner to be continuing in service from the date of disengagement in question and for the period of disengagement from 28.02.2013 to till 23.06.2017, the services of the Petitioner even though required to be regularized for the pendency of the matter in Court, this may be treated as notional regularization, but after 2017 i.e. after the date of judgment of the Division Bench to till this judgment, the Petitioner will be entitled to full salary, which benefit may be calculated and released in favour of the Petitioner by completing the entire exercise within a period of six weeks from the date of communication of a copy of this judgment by the Petitioner. Further as the Petitioner would have been entitled to get the benefit on regularization of her services at par with the persons finds place at page 22 vide Annexure-4 and further taking into account the date of regularization of the persons in the list at page 22 of the brief, the Petitioner will be entitled to be placed at least above her juniors in the said list got regularized by virtue of Annexure-4. 9. The entire exercise shall be completed within a period of six weeks from the date of communication of an authenticated copy of this judgment by the Petitioner. 10. The writ petition succeeds. No cost. 11. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.