Afr Niranjan Sethi vs State Of Odisha & Others
2022 Latest Caselaw 4863 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No. 9916 of 2020

       An application under Articles 226 & 227 of Constitution of
       India.
                                   ---------------
AFR    Niranjan Sethi                                ......    Petitioner

                              -Versus-

       State of Odisha & others                      .......   Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

       For Petitioner         :    M/s. Sameer Kumar Das, P.K. Behera,
                                   N. Jena, Advocates

       For Opp. Parties       : Mr. B. Mohanty, Standing Counsel
                                for S & ME Department.
       _______________________________________________________

       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

20th September, 2022

SASHIKANTA MISHRA, J.

The petitioner was appointed as Sikshya

Sahayak as per order issued on 28.11.2013 by the Chief

Executive Officer, Zilla Parishad-cum-Collector, Balasore

and joined as such on 30.11.2013 in Sarugaon U.P.

School. Upon completion of three years of service as

Sikshya Sahayak he was appointed as Junior Teacher

w.e.f. 30.11.2015 pursuant to Officer Order dated

24.07.2017. While discharging his duties as Junior

Teacher, the petitioner was implicated in Khaira P.S. Case

No.251 dated 28.10.2018 for the alleged commission of

offence under Sections 341/323/325/307/34 of IPC. The

petitioner was taken to custody on 30.10.2018 and was

released on bail on 03.12.2018. The District Project

Coordinator, SSA, Balasore (opposite party no.4) issued a

show cause notice to the petitioner on 01.12.2018 asking

him to explain as to why he will not be disengaged from

service on the ground of unauthorized absence from duty

and for remaining under judicial custody from 30.10.2018.

The petitioner submitted his reply on 11.12.2018 denying

the allegations but he was not allowed to work in the

School. No further action was taken in the matter for which

the opposite party no.4 by letter dated 28.12.2018 sought

clarification from the State Government as to whether the

petitioner can be allowed to join in duty or not. Since

nothing was done in the matter, the petitioner approached

the erstwhile Odisha Administrative Tribunal,

Bhubaneswar in O.A. No. 1140 of 2019, which was

disposed of on 26.03.2019 directing the Principal Secretary

to the Government in Department of School and Mass

Education to dispose of the representation of the petitioner

keeping in view the letter of the DPC dated 28.12.2018

within one month. In the meantime, the criminal case

instituted against the petitioner was put to trial in S.T.

Case No.120 of 2019 and as per judgment delivered on

29.06.2019, learned Trial Court acquitted the petitioner of

the charges. Upon receipt of certified copy of the judgment,

the petitioner moved the authorities to do the needful. The

opposite party no.4 forwarded the representation of the

petitioner along with the judgment of acquittal to the State

Government by letter dated 06.07.2019 seeking

instructions in the matter. The Director, Elementary

Education (opposite party no.2) in his letter dated

26.09.2019 also requested the Government to take a

decision in the matter. Since no action was taken, the

petitioner submitted another representation before the

opposite party no.1 on 16.09.2019. It is the case of the

petitioner that since there was no order of termination

passed against him, he is deemed to be continuing in

service and as such, became eligible for regularization as a

regular teacher on completion of six years of service w.e.f.

30.11.2013. The opposite party no.4 in his letter dated

07.09.2019 requested the concerned Block Education

Officer to verify the certificates of all the Junior Teachers

eligible for regularization including that of the petitioner,

whose name finds place at serial no. 54 of the said list.

Despite all the aforementioned facts, the opposite party

no.1 by order dated 29.02.2020 rejected the claim of the

petitioner on the ground that a criminal proceeding was

pending against him. The said order enclosed as Annexure-

12 to the writ petition is impugned in the present writ

application which has been filed by the petitioner seeking

the following relief:

"Under the above circumstances, it is humbly prayed that the Hon'ble Court be graciously pleased quashed the order dtd:29.02.2020 of the opposite party no.1 under Annexure-12 and direct the opposite parties to grant all consequential service benefits including regular salary as a

regular Teacher to the petitioner with all consequential service and financial benefits within a stipulated period as deem fit and proper;

And/or pass any other appropriate order/orders in the fitness of the case.

And for this act of kindness as in duty bound the petitioner shall ever pray."

2. A counter affidavit has been filed by the

District Project Coordinator (opposite party no.4). The

basic facts of the case relating to engagement of the

petitioner as a Sikshya Sahayak and Junior Teacher and

his involvement in the criminal case as also the fact of

acquittal of the petitioner therein have been admitted but

the rejection of his representation has been justified on the

ground that a criminal case was pending against him.

3. Heard Mr. Sameer Kumar Das, learned

counsel for the petitioner and Mr. B. Mohanty, learned

Standing Counsel for School and Mass Education

Department.

4. Mr. Das would argue that the impugned order

is completely illegal and opposed to the fundamental

principles of law. According to him, the condition that the

engagement shall be cancelled if the candidate is criminally

proceeded against, was only applicable to the petitioner at

the time of his engagement as Sikshya Sahayak.

Admittedly, the criminal proceeding was initiated when the

petitioner was no longer a Sikshya Sahayak but had

become a Junior Teacher. Even though the work of

Sikshya Sahayak and Junior Teacher are same, but their

status is entirely different. That apart, the opposite party

no.1 has not taken note of the fact that the petitioner was

honourably acquitted in the criminal case.

5. Mr. B. Mohanty on the other hand has referred

to the conditions of engagement of the Sikshya Sahayak, a

copy of which has been enclosed as Annexure-1 to the writ

petition. Clause-13 of the terms and conditions clearly

provide that the engagement shall be cancelled if the

person concerned is criminally proceeded against. Since

there can be no distinction between Sikshya Sahayak and

Junior Teacher, the same condition would apply

notwithstanding the fact that the petitioner had become a

Junior Teacher at the relevant time.

6. The facts of the case being undisputed, the

only point that arises for consideration in the present case

is, whether the condition referred to in the impugned order

can be made applicable to the case of a Junior Teacher.

The said condition has been incorporated in

the engagement order dated 28.11.2013 in respect of the

petitioner at serial no. 13 and is as follows:

"The engagement shall be cancelled, if any fraudulent testimonial is detected in future and if he/she is criminally proceeded against."

7. There is no dispute that the petitioner was

engaged as Sikshya Sahayak on the strength of the said

engagement order and became a Junior Teacher pursuant

to office order dated 24.07.2017. The said office order

provides for appointment as Junior Teacher after

completion of three years of continuous satisfactory

engagement subject to fulfillment of the following

conditions.

"(i) the Sikshya Sahayak (SS) must have rendered 3 years of continuous service satisfactorily from the date of engagement;

(ii) The Sikshya Sahayak (SS), must have ensured 90% (at least) attendance of children in respective schools in all classes;

(iii) The VEC/School Managing Committee must have given positive certificate about attendance and performance of the SS in the schools for the last 3 years.

(iv) The Sikshya Sahayak (SS) must not have any adverse reports during last 3 years of service in the School as SS. They must have ensured Minimum Level of Learning (MIL) for the students as prescribed by the competent authority; and

(v) The Sikshya Sahayak(SS) must have reduced the drop out of children of Primary and Upper Primary School to below 10% and they must have performed all other duties assigned to them successfully."

8. Thus, it is only upon fulfillment of the

aforementioned conditions that a person engaged as

Sikshya Sahayak becomes eligible to be appointed as

Junior Teacher. In the same office order it is mentioned

that the assignment of Junior Teacher is same as that of

Sikshya Sahayak and also that the same renders other

necessary works as would be entrusted upon them from

time to time. Much emphasis has been laid on this aspect

by the Standing Counsel for School and Mass Education

Department. However, on a careful reading of the terms

and conditions laid down for engagement of Sikshya

Sahayak and that of Junior Teacher, this Court fails to see

as to how both can be treated as equal. Firstly, a fresher

can be engaged as Sikshya Sahayak but not as Junior

Teacher. Only a Sikshya Sahayak with three years

satisfactory engagement and fulfilling the aforementioned

terms and conditions is eligible to be engaged as Junior

Teacher. Though the basic work assignment of both appear

be same, yet in so far as Junior Teacher is concerned, it is

clearly mentioned in the office order dated 24.07.2017 that

they (Junior Teachers) can be entrusted with "other

necessary works from time to time". Therefore, it can be

safely held that the position of a Junior Teacher is at a

different if not higher level than that of Sikshya Sahayak.

Of course, while considering the eligibility for regularization

of service, the entire period of engagement as Sikshya

Sahayak and Junior Teacher shall have to be taken into

consideration but the same does not mean that they are

absolutely equal. If such was the intention of the

Government, there would have been no necessity for

engagement of Junior Teacher in the first place and a

person engaged only as Sikshya Sahayak continuously for

six years would have been eligible to be regularized. This

Court therefore, does not accept the argument advanced on

behalf of the State that the terms and conditions for

engagement as Sikshya Sahayak would be applicable also

to Junior Teacher. Therefore, this Court is of the view that

the opposite party no.1 committed an illegality in applying

the condition linked to the engagement of Sikshya Sahayak

in the case of the petitioner as a ground for rejecting his

representation.

9. Even otherwise, the petitioner stands on a

different footing inasmuch as, the case in which he was

implicated, has ended in his acquittal. Therefore, as on

date, there is neither any criminal proceeding pending nor

any stigma of conviction against him. After perusing the

impugned order, this Court is constrained to hold that the

opposite party no.1 has not considered these vital aspects

in the proper perspective at all. As such, the impugned

order cannot be sustained in the eye of law.

10. For the foregoing reasons therefore, this court

has no hesitation in allowing the writ petition by quashing

the impugned order and by directing the opposite party

authorities to treat the petitioner as being in service all

through with all consequential service benefits. Necessary

orders shall be passed by the opposite party Nos.1 and 2 in

this regard within a period of two weeks from the date of

communication of this order and the consequential

financial benefits shall also be paid to the petitioner within

a further period of four weeks thereafter.

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 20th September, 2022/ A.K. Rana, P.A.