Ahalya Dei vs State Of Odisha & Others
2022 Latest Caselaw 5698 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                 WPC(OAC) No.3445 of 2016
     In the matter of an application under Section 19
          of the Administrative Tribunals' Act, 1985.
                         ..................

  Ahalya Dei                           ....                 Petitioner

                               -versus-

  State of Odisha & Others             ....         Opposite Parties


           For Petitioner          :M/s. S.K. Das, Advocate

           For Opp. Parties        :M/s. N.N. Satapathy,
                                    Standing Counsel

PRESENT:
     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 23.09.2022 and Date of Judgment: 19.10.2022
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Biraja Prasanna Satapathy, J.

1. Heard Mr. Samir Kumar Das, learned counsel

appearing for the petitioner and Mr. N.N. Satapathy,

learned Standing Counsel appearing for the State-Opp.

Parties.

2. The present writ petition has been filed with the

following prayer.

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"To quash the order dated 16.4.2015 under Annexure-6 and further direct the respondents to release her pension and pensionary benefits of the applicant like Gratuity, Leave Salary, GPF including unpaid arrear salary of the applicant for the period 1.11.2007 to 31.5.2013 within a stipulated period and deem fit and proper."

3. It is submitted that the petitioner while working

as a Primary School Teacher in Badadanda Primary

School, she was deployed work as such in Mathasahi

Primary School vide order dated 28.9.2007 of the then

D.I of School Anandapur. It is submitted that the said

order of deployment passed on 28.9.2007 was challenged

by the petitioner before the learned Tribunal in O.A.

No.2562(C ) of 2007. Learned counsel for the petitioner

submitted that the said Original Application in O.A.

2562(C ) of 2007 was disposed of vide order dated

31.10.2017 with a direction on the Director, Elementary

Education to treat the averment made in the O.A as her

representation and pass appropriate order within a

period of 15 days from the date of receipt of the order. It

is submitted that while passing such order and disposing

the matter vide order dated 31.10.2007, learned Tribunal

directed for maintenance of status quo. Learned counsel

for the petitioner submitted that by virtue of the said

// 3 //

order dated 31.10.2007, the petitioner was allowed to

continue in her place of posting i.e. Badadanda Primary

School. Learned counsel for the petitioner further

submitted that while so continuing, when the claim of

the petitioner as directed by the learned Tribunal, was

rejected vide order dated 12.11.2008, the petitioner

challenging the same, once again approached the learned

Tribunal in O.A. No.2910(C ) of 2008.

4. It is submitted that learned Tribunal while

issuing notice of the matter vide order dated 8.12.2008

passed an interim order to the effect that the petitioner

be allowed to continue in her present place of posting.

Learned counsel for the petitioner submitted that

pursuant to the order passed by the learned Tribunal on

31.10.2007 in O.A. NO.2562(C) of 2007 and the order

dated 8.12.2008 passed in O.A. No.2910 (C ) of 2008

under Annexure-3, the petitioner continued as a Primary

School Teacher in Badadanda Primary School. It is

further submitted that during pendency of the matter in

O.A. No.2910(C ) of 2008, the petitioner was allowed to

retire from her service on attaining the age of

superannuation on 31.05.2013 vide order under

Annexure-1.

// 4 //

5. Learned counsel for the petitioner submitted that

even though the petitioner was allowed to continue in

terms of the interim order passed by the learned Tribunal

as stated hereinabove in Badadanda Primary School and

was allowed to retire on attaining the age of

superannuation w.e.f 31.5.2013, but when her salary for

the period from 1.11.2007 till her retirement was not

paid nor her retiral benefits were released after her

retirement, the petitioner filed O.A. No.1382(C ) of 2014

before the learned Tribunal. It is submitted that the said

Original Application was disposed of vide order dated

20.1.2015 under Annexure-5 with a direction on Opp.

Party NO.3 to take a decision on the petitioner's claim

with regard to release of the arrear salary from 1.11.2007

till her retirement and the retiral benefits as due and

admissible.

6. Learned counsel for the petitioner submitted that

Opp. Party No.3 without considering the fact that the

petitioner continued as a Primary School Teacher in

Badadanda Primary School in terms of the order passed

by the learned Tribunal on 31.10.2007 and subsequent

order passed on 8.12.2008, rejected the prayer of the

petitioner with regard to her claim for arrear salary from

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1.11.2007 till her retirement on 31.5.2013 vide the

impugned order dated 16.4.2015 under Annexure-6. It is

submitted that in the said impugned order though it was

indicated that the provisional pension and pensionary

benefits as admissible has been sanctioned and paid to

the petitioner, but the petitioner save and except the

provisional pension, has not been sanctioned with any

pensionary benefit due to non-regularization of her

service for the period from 1.11.2007 till her retirement

on 31.5.2013.

7. Learned counsel for the petitioner accordingly

submitted that since the petitioner in terms of the order

passed by the learned Tribunal on 31.10.2007 and

8.12.2008 was allowed to continue as a Primary School

Teacher in Badadanda Primary School till her retirement

on 31.5.2013, the petitioner is entitled to get salary for

the period from 1.11.2007 to 31.5.2013 as well as the

retiral benefits as due and admissible.

8. Mr. Satapathy, learned Standing Counsel on the

other hand made his submission basing on the stand

taken by Opp. Party No.3 in his counter.

9. It is submitted that the petitioner was relieved

from her duties as Primary School Teacher of Badadanda

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Primary School on 31.10.2007 and after such relieve, the

petitioner never joined in her original place of posting at

Mathasahi Primary School. It is submitted that since the

petitioner was relieved from her duties on 31.10.2007

from Badadanda Primary School and she never joined,

after being relieved, in Mathasahi Primary School till her

retirement on 31.5.2013, the petitioner is not eligible and

entitled to get the salary for the said period. It is also

submitted that unless and until the period from

1.11.2007 till 31.05.2013 is regularized, the petitioner is

not eligible and entitled to get her retiral benefits. But it

is submitted that after her retirement on 31.5.2013, the

petitioner is getting the provisional pension.

10. This Court after going through the stand taken

by the petitioner and the opp. Party No.3, directed Opp.

Party No.3 to file an affidavit by producing the

Attendance Register of Badadanda Primary School from

the month of November onwards vide order dated

26.8.2022. Pursuant to the said order, Opp. Party No.3

filed an affidavit and produced the Attendance Register of

the said School before this Court on 23.9.2022. In the

affidavit, it is submitted that the petitioner though was

relieved from Badadanda Primary School on 31.10.2007,

// 7 //

but she forcefully signed in the Attendance Register upto

1.12.2008 and the said fact is also reflected in the

Attendance Register of the school produced by Opp. Party

No.3 along with his affidavit dated 23.9.2022.

11. In view of the affidavit filed by Opp. Party No.3 on

23.9.2022, learned Standing Counsel submitted that

since the petitioner has not attended the school even

though admitting that she has signed in the Attendance

Register up to 1.12.2008, the petitioner is not entitled to

get her salary from 2.12.2008 till her retirement on

31.5.2013.

12. On being queried by this Court about such

factual dispute, learned counsel for the petitioner failed

to produce any document showing her continuance in

Badadanda Primary School beyond 1.12.2008. But

learned counsel for the petitioner fairly submitted that

even though admitting the stand of the opp. Party no.3,

that the petitioner never attended her duty in Badadanda

Primary School after 1.12.2008 nor she joined in

Mathasani Primary School w.e.f 2.12.2008, but the

petitioner was allowed to retire from her service on

attaining the age of superannuation w.e.f 31.5.2013 by

// 8 //

showing her as an Assistant Teacher at Mathasahi

Primary School under Annexure-1.

13. It is accordingly submitted that since the

petitioner was allowed to retire on attaining the age of

superannuation w.e.f 31.5.2013 and for such alleged

negligence on the part of the petitioner in not joining in

her duty w.e.f 01.11.2007 till her retirement on

31.5.2013, no notice was ever issued by the opp. Parties

directing her to resume her duty nor any proceeding was

ever initiated, the petitioner is eligible for regularization

of the said period of service. But it is fairly submitted by

the learned counsel for the petitioner that the petitioner

in view of such disputed fact will not claim any salary for

the period from 2.12.2008 till 31.5.2013, if the entire

period from 1.11.2007 to 31.5.2013 will be regularized

and the petitioner will be sanctioned with her retiral

benefits.

14. Learned Counsel for the petitioner further

submitted that even though the petitioner has retired

from service w.e.f 31.5.2013 but save and except the

provisional pension, the petitioner is going without the

retiral benefits and thereby she is suffering immensely.

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15. Heard learned counsel for the parties. Perused

the materials available on record.

16. This Court after going through the same finds

that even though the petitioner is shown relieved from

Badadanda Primary School on 31.10.2007, but in view of

the fact that she was allowed to sign in the attendance

register of Badadanda Primary School upto 1.12.2008, it

cannot be said that the petitioner was relieved from

Badadanda Primary School on 31.10.2007. The petitioner

is accordingly eligible and entitled to get her salary for

the period from 1.11.2007 till 30.11.2008. This Court

while holding so directs opp. Party no.3 to release the

salary of the petitioner as due and admissible for the

period from 1.11.2007 to 30.11.2008. This Court further

direct opp. Party no.3 to regularize the entire period of

service of the petitioner from 1.11.2007 to 31.5.2013 and

take step for sanction of the retiral benefits of the

petitioner as due and admissible on such regularization

of the period of service, as directed hereinabove. This

Court directs opp. Party no.3 to complete the entire

exercise within a period of three months from the date of

receipt of this order.

// 10 //

17. The Writ Petition is disposed of with the aforesaid

observation and direction.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 19th of October, 2022/sangita