State Of Odisha And Others vs Kamalakanta Ghosh And
2022 Latest Caselaw 7478 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P (C) No. 31781 of 2020

State of Odisha and others            .....                                      Petitioners
                                                           Mr. S. Jena, SC, S&ME Deptt.
                                      Vs.
Kamalakanta Ghosh and                 .....                                Opposite Parties
another
                                                              Mr. S.K. Mishra, Advocate

             CORAM:
                DR. JUSTICE B.R. SARANGI
                   MR. JUSTICE BIRAJA PRASANNA SATAPATHY

                                               ORDER

13.12.2022

Order No. This matter is taken up through hybrid mode.

09.

2. Heard Mr. S. Jena, learned Standing Counsel for School & Mass Education Department for the State-Petitioners and Mr. S.K. Mishra, learned Counsel for opposite party no. 1.

3. The State functionaries have filed this writ petition seeking to quash the order dated 24.05.2019 passed by the learned Odisha Administrative Tribunal in O.A. No. 2398 of 2015, whereby the tribunal directed the present petitioners to regularize the service of opposite party no.1 as Peon in Raghunath Academy, Saraswatipur, Balasore from the date of filing of the O.A. It was also directed that the entire exercise shall be completed within three months from the date of receipt of a copy of the order.

4. Mr. Jena, learned Standing Counsel for School & Mass Education Department contended that the case of opposite party no.1 is that since

roll strength of Raghunath Academic, Saraswatipur exceeded 100, the Managing Committee vide its Resolution dated 06.12.2013 promoted the first peon to the post of Datary and adjusted the opposite party no.1 against the first post of Peon as the other two peons were non-matric. The Managing Committee of the school submitted the proposal before the Inspector of School, Balasore for approval, but the same has not been done. Therefore, opposite party no.1 approached this Court by filing OJC No. 4461 of 1996. The said writ petition was disposed of directing the present petitioners to consider the claim of opposite party no.1. But the same was not considered. When similarly situated persons like opposite party no.1 were enjoying the benefit and the same was not extended to opposite party no.1, opposite party no.1 approached the State Administrative Tribunal, Cuttack Bench by filing O.A. No. 500 (C) of 2013, which was subsequently transferred to the Bhubaneswar Bench and renumbered as O.A. No. 2398 of 2015. However, the claim of the opposite party no.1 was rejected vide order dated 18.09.2013, i.e. after seventeen years of the order passed in OJC No. 4461 of 1996 dated 12.11.1996 on the ground that the claim of opposite party no.1 does not come under the purview of the law and the guidelines. However, O.A. No. 2398 of 2015 was allowed and the Tribunal directed the present petitioners to regularize the service of opposite party no.1 as Peon with all service and financial benefits. Due to non-compliance of the order passed by the Tribunal dated 24.05.2019, opposite party no.1 filed W.P.(C) No. 7425 of 2020 praying inter alia for a direction to the opposite parties to implement the orders of the Tribunal. This Court vide order dated 16.03.2021 disposed of the writ petition directing the opposite parties to consider the claim of opposite party no.1. Thereafter due to non-compliance of the order, opposite party no.1 filed CONTC

No.4630 of 2021, which was disposed of directing the petitioners to comply the order dated 16.03.2021. Since the same was not complied with, opposite party no.1 filed CONTC No. 6743 of 2021. However, the present petitioners challenged the order dated 24.05.2019 passed in O.A. No. 2398 of 2015 in the present writ petition. This Court passed the interim order and as a consequence thereof, the order of the tribunal could not have been complied with.

4.1 It is further contended that pursuant to the decision of the apex Court in the case of State of Orissa and others v. Rajendra Kumar Das and another, (2003) 10 SCC 411, the Government in the Department of School & Mass Education issued an office order dated 07.05.2008 fixing the guidelines, which has been placed on record at Annexure-F/1 to the affidavit filed on behalf of opposite party no.1. The modalities as has been prescribed therein with regard to absorption of the 4th Peon post, and accordingly the same has to be done. But the tribunal without taking into consideration the same, passed the order impugned which cannot sustain in the eye of law.

6. Mr. S.K. Mishra, learned counsel appearing for opposite party no.1 vehemently contended that opposite party no.1 has already rendered more than 28 years of service as 4th peon. As the senor most peon having been promoted to the post of Daftary, a clear cut vacancy was made available, against which he was appointed and continuing as such. But till date, by some plea or other the service of opposite party no.1 has not been regularized causing harassment to him. As a result of which, he seeks that taking into consideration the judgment of the apex court in the case of Rajendra Kumar Das (supra) his service should have been regularized and he should have been extended with all the benefits as due and

admissible to him in accordance with law, which has been considered by the Tribunal and basing upon which, the order impugned has been passed. Thereby, there is no illegality or irregularity committed by the tribunal by passing such order, which require any interference by this Court at this stage.

7. Having heard learned counsel for the parties and after going through the records the undisputed fact is that opposite party no.1 was appointed as the 4th post of peon against the clear cut vacancy. His service since has not been regularized, the tribunal directed for regularization of the same in the order impugned. So far as employment of 4th peon post is concerned, the issue is no more res integra in view of the decision of the apex court in Rajendra Kumar Das (supra). As consequence thereof, the tribunal is well justified by passing the order impugned to regularize the service of opposite party no.1. But the modalities for regularization have been prescribed as per the office order dated 07.05.2008, which has been placed on record in Annexure-F/1 to the affidavit dated 16.10.2022 filed by opposite party no.1.

8. The modalities which has been prescribed in the said order dated 07.05.2008 is as follows.

"In accordance with the above observations and directions contained in the judgment dt. 29.8.03, of the Hon'ble Supreme Court of India, the proposal of the Director, Secondary Education, Orissa vis-à-vis detail information furnished by the Inspector of Schools concerned were examined and found that the Managing Committee of the concerned High Schools under respective Education Circle had appointed the 4th Peon mentioned against each High School as per list enclosed. At that point of time, the students strength of the school was above 100. As such, one post of Daftary in the said

school is admissible as per yardstick for adjustment of 4th Peon against the consequential vacancy in accordance with the principle laid own in the judgment dt. 29.08.2003 of the Hon'ble Supreme Court.

That, after careful consideration, Government have been pleased to allow the Management to give promotion to one of the existing Class-IV employees to the post of Daftary taking into consideration the merit-cum- suitability with due regard to the seniority and to adjust the so called 4th peon as mentioned in the list enclosed in the consequential vacancy of Class-IV post in the said School.

(i) In case of the following so called 4th Peon out of the enclosed list who is over aged at the time of appointment, age limit may be relaxed by the Managing Committee through adoption of appropriate Resolution. Sri Chandrasekhar Nayak-Kuruda High School, Kuruda, Balasore Circle (Sl.27)

(ii) In case of the following so-called 4th peon out of the enclosed list who were found under-aged at the time of appointment, a condition may be imposed in his appointment order that the service rendered prior to attaining the age of 18 years shall not be taken into account as per Clause-6 (1) of the Orissa Aided Educational Institutions Employees Retirement Benefit Rules, 1981.

Xxx xxx xxx The adjustment shall be prospective in nature and the aforesaid so called 4th Peon so adjusted is entitled for salaries (grant-in-aid) only after he/she resumes duty in the said post.

9. Thereby, there is no doubt with regard to regularization of the service of opposite party no.1 in terms of the guidelines prescribed vide office order dated 07.05.2008 under Annexure-F/1. As a consequence thereof, the petitioners have to take into consideration the same and pass

appropriate order in accordance with law. Therefore, the case of the opposite party no.1 has to be considered in the light of the ratio decided in the case of Rajendra Kumar Das (supra) and the subsequent guidelines issued vide office order dated 07.05.2008 in Annexure-F/1 to the affidavit filed by opposite party no.1. Accordingly, the order passed by the Tribunal is modified to the extent indicated above. All other benefits as admissible to him after regularization be extended in terms of the order passed by the tribunal. Needless to say that the entire exercise shall be done by the State-Petitioners within a period of four months from the date of communication of the order.

10. With the above observation/direction the writ petition stands disposed of.

11. Issue urgent certified copy as per rules.

                                        (DR. B.R. SARANGI)
                                             JUDGE



Arun                                   (B. P. SATAPATHY)
                                              JUDGE