Orissa High Court
Nandita Sutar vs State Of Odisha And Others ....... Opp. ... on 1 May, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 25231 of 2014
An application under Sections 226 and 227 of the Constitution of
India)
---------------
Nandita Sutar ...... Petitioner
-Versus-
State of Odisha and Others ....... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. J.K. Khuntia,
K. Ray & H.S. Deo,
Advocates
For Opp. Parties : Mr. S.N. Patanaik
[Additional Government Advocate]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
1st May, 2024
SASHIKANTA MISHRA, J.
The petitioner has filed this writ petition with
the following prayer.:-
"It is therefore prayed that this Hon'ble Court
may graciously be pleased to call NISI calling
upon the opp. parties to show cause as to why the
impugned order dated 21.11.2022 shall not be
quashed and why the service of the petitioner
shall not be regularized from 05.01.2010 to
11.02.2015 for 936 days with all consequential
service benefits including salary for that period
and if the opp. parties fail to show cause or show
insufficient case the Hon'ble Court may be
pleased to quash the impugned order under
Annexure - 6 and regularize the service of the
petitioner from 25.01.2010 to 11.02.2015 with all
service benefits including arrear salary, as per
order dated 24.4.12 passed in W.P.(C) No.
18110/09 vide Annexure -4.
And for the said act of kindness, the
petitioner shall as in duty bound ever pray."
2. Facts of the case, shorn of unnecessary details,
is that the petitioner joined as the trained graduate
teacher in Kamala Model High School, Ayatan, as per
appointment order dated 08.08.1991. By order of the
Secretary issued on 09.01.1992, she was allowed to
remain as in-charge Headmistress of School. After receipt
of Grant-in-Aid, the post of the petitioner was approved as
Headmistress-in-Charge of the school along with Ex-
Officio Secretary of the Managing Committee.
Subsequently, the Managing Committee of the school was
reconstituted and received approval by order dated
15.11.2008. While working as such, the petitioner received
notice in W.P.(C) No. 18110 of 2009, filed by the present
Opposite Party No.5, wherein several allegations were
made against her with prayer to re-constitute the
Managing Committee with her being the Secretary instead
of the petitioner. Originally, the writ petition was disposed
of on 04.01.2010 but being challenged in Writ Appeal
No.13 of 2010, was remanded for fresh disposal. By order
dated 24.04.2012, the writ petition was again disposed of
by directing the authorities to transfer the petitioner from
the present school to some other school. With regard to
her arrear salary, the question was left open with liberty
being granted to her to re-agitate after reconstitution of
the Managing Committee. The petitioner challenged the
order in Writ Appeal No.271 of 2012 but the same was
dismissed on 20.08.2014. The petitioner claims to have
attended the school everyday, but the Headmistress did
not allow her to join and sign in the attendance register.
Further, the order passed in the writ application was not
complied with till 11.02.2015, when she was deputed to
Nikirai Girls High School, Nikirai. The petitioner
repeatedly requested the Opposite Parties-Authorities for
release of her salary for the period from January, 2010 to
11.02.2015 but no action was taken.. On such facts, the
petitioner has filed the present writ application.
3. The State has filed a counter and an additional
counter stating therein that the petitioner was transferred
to Nikirai Girls High School pursuant to order passed by
this Court in W.P.(C) No.18110 of 2009. It is stated that
during pendency of the writ petition, order dated
21.11.2022 was passed by District Education Officer
regularizing the break period of her service from
25.01.2010 to 11.02.2015, i.e., a period of 963 days but
without entitlement to salary cost and GIA, but the period
was to be counted as qualifying service for other purposes.
Further, it was informed that she had absconded from the
earlier school from 25.01.2010 on several dates and had
been paid her due salary for the period during which she
had attended her duties. She never approached the
Managing Committee for release of her arrear salary and
instead, she filed the present writ petition.
4. As regards the allegation that she had not been
allowed to join in her duties, it is stated that though she
claims to have submitted several representations, yet she
did not think it proper to bring it to the notice of this
Court in the earlier writ application. As regards the delay
in complying with the order, it is stated that the same was
caused because of pendency of the litigation before this
Court. In any case, the break in her service for 963 days,
i.e. from 25.01.2010 to 11.02.2015 has been regularized,
but as per government norms, it is without entitlement to
salary cost GIA but qualifies for counting of service for
other purposes.
5. Heard Mr. J.K. Khuntia, learned counsel for the
petitioner and Mr.S.N. Patanaik, learned Additional
Government Advocate for the State.
6. Mr. Khuntia would argue that despite clear direction
of this Court in the earlier writ petition, the Opposite Party
-Authorities delayed the matter without any justified
reason for as long as three years. In the meantime, the
petitioner was not allowed to perform her duties in the
earlier school. Her repeated complaints submitted in this
regard fell on deaf ears. She is therefore, entitled to full
salary cost for the period during which she was illegally
kept out of employment. Therefore, according to Mr.
Khuntia, though the break period in her service has been
regularized belatedly yet, non-payment of salary cost GIA
to her is wholly unjustified and not tenable in the eye of
law.
7. Mr. S.N. Patanaik, learned State Counsel, on the other
hand, would submit that the order in the earlier writ
petition was passed on 24.04.2012. The petitioner herself
challenged said order in the Writ Appeal which came to be
disposed of on 20.08.2014 confirming the order passed in
the writ petition. The petitioner was transferred to Nikirai
Girls High School with effect from 11.02.2015, which is
within a reasonable period after disposal of the Writ
Appeal. Further, if the petitioner was prevented from
attending her service for as long as five years, it amounts
to termination of service. Since the litigation was pending
till 20.08.2014, she should have brought such fact to the
notice of this Court or independently challenged the same
before the appropriate authority. But not having done so,
she cannot raise any claim for salary cost for the period
during which, she evidently did not render any work to the
institution.
8. It is borne out from the pleadings of the parties that
this Court by order dated 24.04.2012 passed in W.P.(C)
No.18110 of 2009, directed the petitioner to be transferred
to any other school. The petitioner challenged the said
order in Writ Appeal, being W.A. No.271 of 2012, which
was ultimately dismissed confirming thereby the order of
the Single Judge. The order in the Writ Appeal was passed
on 20.08.2014 whereupon the order passed in the writ
application was complied by transferring the petitioner to
Nikirai by order dated 11.02.2015. In view of the fact that
the litigation was pending, it cannot be said that there was
any unreasonable delay on the part of the Authorities in
complying with the order directing transfer of the
petitioner to any other school.
9. In the earlier writ application, liberty was granted to
the petitioner to agitate her claim of arrear salary after
reconstitution of the Managing Committee. The petitioner,
on the other hand, claims to have been prevented from
performing her work in the school and from signing in the
attendance register. She further claims to have submitted
repeated complaints in this regard to the Inspector of
School, i.e. on 03.05.2010, 11.05.2010, 30.07.2010,
20.08.2010, 06.12.2010, 05.02.2011, 30.03.2011,
01.04.2011, 02.05.2011, 27.07.2011, 28.10.2011,
14.12.2011, copies of which are collectively enclosed as
Annexure-8 series to the writ petition. The petitioner
however, chose not to bring the above facts to the notice of
this Court even though the earlier writ application was
pending at the relevant time till 24.04.2012. It is also trite
law that multiple representations alleging the same issue
without challenging the action before the appropriate
forum is of no avail. That part, it is well settled that
refusal of employment amounts to termination, which as
already stated, the petitioner never challenged. It has been
contended that the petitioner remained absent for a long
time, i.e. on 25.01.2010 to 11.02.2015 and then she was
transferred to Nikirai Girls High School. In view of the fact
that the petitioner has never challenged the so called
refusal of employment or the inaction of the concerned
authorities on her repeated representations, it cannot be
construed that she had rendered any work to the
establishment during the relevant period or that she was
unlawfully prevented from doing so. Notwithstanding the
above, the government has been magnanimous enough to
regularize the long break in her service notionally for other
purposes. From what has been stated hereinbefore, there
is nothing to find fault in such decision taken by the
government.
10 For the foregoing reasons therefore, this Court
finds no reason to interfere with the impugned order dated
21.11.2022. Resultantly, the writ petition is found to be
devoid of merit and is therefore, dismissed but in the
circumstances without any costs.
...............................
Sashikanta Mishra,
Judge
B.C. Tudu
Signed by: BHIGAL CHANDRA TUDU
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-May-2024 18:50:28
