Orissa High Court
Tapaswini Pattnaik vs State Of Odisha & Others .... Opp. ... on 13 November, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 24111 OF 2023
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
Tapaswini Pattnaik .... Petitioner
-Versus-
State of Odisha & Others .... Opp. Parties
Advocates appeared in this case:
For Petitioner : M/s. S.K. Mishra & B.P. Pradhan,
Advocates
For Opp. Parties : Mr. S.B. Mohanty,
Addl. Government Advocate
[OP Nos.1 to 3]
M/s. S.S. Pratap & G.C. Paikaray,
Advocates [OP No.5]
CORAM:
THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
JUDGMENT
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Date of hearing : 10.11.2025 :: Date of judgment : 13.11.2025
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PER DIXIT KRISHNA SHRIPAD,J.
Petitioner is invoking writ jurisdiction of this Court seeking
quashment of the order dated 28.07.2023 passed by OP No.2 at
Annexure-9. The relevant part of the said order reads as under:
"In such view, I am of the opinion that there is no dispute that, Smt.
Tapaswini Pattnaik was appointed in the college as a Lect. in
Sanskrit Vyakaran. But due to her long absence since October,
2002, the managing committee of the college vide G.B. Resolution
47 dated 09.03.2003 and G.B. Resolution 48 dated 28.06.2003
unanimously terminated her service which was communicated to
her vide the college letter no. 195(A) dated 29.06.2003 with prior
notice vide letter No. 85 dated 15.04.2002 and appointed Ms.
Saralabala Nanda against the vacancy arose due to Smt. Pattnaik's
long absence. Ms. Nanda has been working sincerely in the college
since her joining till date. Therefore, the claim of Smt. Tapaswini
Pattnaik in W.P. (C) No. 17833/2018 to implement the erstwhile
DHE(O) Order No. 25884 dated 19.07.2018 and allow her to
resume her duty in the College as usual in her original post is
rejected being devoid of any merit. On the other hand, Ms.
Saralabala Nanda is allowed to continue her duties against the 2nd
post of Lecturer in Sanskrit Vyakarana in the college."
2. Brief facts of the case:
2.1. Petitioner joined service as Lecturer in Sanskrit Vyakarana vide
letter of appointment dated 15.04.1998. Petitioner was prevented from
discharging the duties w.e.f. 16.03.2004. She had filed appeal before the
Director-OP No.2 that was kept unconsidered. A co-ordinate Bench of
this Court in her WP(C) No. 11860 of 2010 disposed off on 26.07.2010
directed consideration of the appeal. Accordingly, the Director on
19.07.2018 allowed the appeal and instructed Sub-Collector to permit
petitioner to rejoin her duties in the College. Petitioner reported for duty
on 20.07.2018.
2.2. OP No.5 filed WP(C) No.16089 of 2018 challenging appeal
order dated 19.07.2018 made by the Director. Petitioner too filed WP(C)
No.17833 of 2018 seeking implementation of said order. Both the
petitions were heard and disposed of by a Co-ordinate Bench of this
Court vide common order 22.07.2022, whereby matter was remitted back
for de novo consideration. The Director, vide order dated 28.07.2023,
having considered the matter, rejected petitioner's claim and favoured
that of OP No.5. He further instructed the Governing Body of the
Institution to submit papers for approval of her appointment. Aggrieved
thereby, petitioner has filed this petition.
3. Submission of counsel for petitioner:
3.1. Learned counsel for the petitioner argued that:
(i) There is no reason or rhyme for his client to abandon the job,
that too in these difficult days of employment; petitioner was appointed
after due selection. Her appointment was ratified by the Governing
Body, vide Resolution dated 31.05.1998. She was forcibly prevented
from discharging her duties w.e.f. 16.03.2004 and this act on the part of
Management amounted to removal from service vide Narendra Kumar
Choudhury v. State of Orissa, 1994 (II) OLR 218.
(ii) The extant Government Circular provides for departmental
appeal and accordingly petitioner's appeal in terms of this Court's
intervention, as mentioned above, came to be allowed on 19.07.2018
instructing the Sub-Collector to permit her to rejoin duty. Petitioner
submitted joining report on the following day. However, as already
mentioned, WPs of OP No.5 and of petitioner came to be disposed off by
a common order dated 22.07.2022 remanding the matter for fresh
consideration after hearing both the parties. The Director, without any
reason or rhyme, favoured claim of OP No.5 for approval of her
appointment and rejected petitioner's appeal.
(iii) There is abundant material to demonstrate that petitioner's
appeal was meritorious, and therefore ought to have been allowed. As a
consequence, the claim of OP No.5, that she has been appointed to the
eventual vacancy of petitioner, ought to have been rejected. In fact, OP
No.5 was appointed to another post much before the so called eventual
vacancy that arose allegedly because of petitioner's termination. In fact,
the said OP was allegedly appointed much before such termination.
(iv) At no point of time, petitioner was issued any call notice nor
anybody from the Management contacted the petitioner or her father, to
secure her back to the portals of employment. A copy of notice, which
OPs are harping upon, was never served on the petitioner and thus
impugned action is violative of principles of natural justice.
4. Submission of learned AGA appearing for official OPs, and
learned counsel representing private OPs.
(i) Petitioner has not filed any appeal under the extant Government
Circular and therefore the finding of the Director to the same effect is
unassailable. He has misled the co-ordinate Bench in securing an order for
remand & reconsideration.
(ii) OP No.5 was selected for appointment to the vacancy which
the petitioner was holding before abandoning the job, and that petitioner
having unauthorizedly remained absent, she has been rightly discharged
from service.
(iii) Having abandoned the job with no justification whatsoever and
having not responded to the call notice, the termination of petitioner and
consequential direction for approval of appointment of OP No.5 cannot be
faltered with in exercise of writ jurisdiction, especially when the
authorities having examined all aspects have rejected petitioner's claim.
5. Having heard learned counsel for the parties and having perused
the petition papers, this Court is inclined to grant indulgence in the matter
as under and for the following reasons:
5.1. The first contention of the petitioner, that she was prevented
from discharging her duties and that eventually amounted to removal from
service, is substantially established. For filing an appeal, there need not
be a positive order of removal, and that unlawfully preventing an
employee from discharging his/her duties amounts to removal vide
Narendra Kumar Choudhury supra. No explanation is offered by the
other side as to why a person, having been selected in the open
competition followed by regular appointment order dated 15.04.1998 and
having put in about 14 years of continuous & spotless service, would one
fine day disappear from employment. In these hard days of
unemployment, more particularly for women, there has to be a strong case
made out that the employee has abandoned the job. It is not the case of
other side that petitioner had got alternate means of livelihood with
honour and therefore, having been attracted to other means, she had quit
the job. This aspect of the matter has not been reflected in the impugned
order and that constitutes the first legal infirmity from which the
impugned order suffers.
5.2. The vehement contention of learned advocate appearing for OP
No.5, that at least the petitioner ought to have turned back to the precincts
of employment once the call notice was issued by the Management, is
liable to be rejected for more than one reason: The so called notice dated
20.10.2003, whereby petitioner is said to have been called back to report
for duty, is not shown to have been served on her. Who carried this
notice, on whom & when it was served have not been pleaded, much less
proved by placing on record any evidentiary material either before the
Director or before this Court. Abandonment of service cannot be readily
inferred, especially when the service of call notice, if any, is not
substantiated. An argument to the contrary would imperil persons in
employment, by placing them at the whims & fancies of unscrupulous
employers, whose number may be small; however, such employers do
obtain in all sectors, needs no research.
5.3. The vehement contention of learned counsel appearing for OP
No.5 that there was no appeal filed by the petitioner again does not gain
acceptance. Firstly, when the Director, vide order dated 19.07.2008, had
directed Sub-Collector to take the petitioner back to duty, no such
observation is made. Had there been no appeal, the Co-ordinate Bench
would have straightway dismissed petitioner's WP(C) No. 11860 of 2010.
Secondly, no such contention was taken by the other side and no such
thing can be inferred merely because the learned Co-ordinate Judge had
directed the petitioner to file inter alia a copy of appeal memo with the
Director. It hardly needs to be stated that the Government Circular
providing for departmental appeal does not prescribe any form of appeal
and therefore, even if a representation is filed, the same has to be treated
as an appeal in terms of said Circular. In department appeal what one has
to see is not the form but the substance, inasmuch as form follows the
substance.
5.4. Once abandonment of employment is not substantiated, then
case of the petitioner travels to the realm of principles of natural justice,
which are held to be a part of Article 14 jurisprudence. In a society like
ours, job is the means of likelihood and tool of dignity. At times, the
employee happens to be the breadwinner of the family. Snatching job of a
duly selected & employed person after years of employment, sans a
reasonable opportunity of hearing, is grossly violative of these sacrosanct
principles. Even God is said to have given an opportunity of hearing to
Adam & Eve for consuming the proscribed fruit in the Eden Garden.
Then what justification can lie for mortal men not to follow the suit ? No
plausible explanation is offered to this point, passionately urged by
petitioner's counsel. The Apex Court's observations made in this regard
in S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 would come to the aid of
petitioner.
5.5. The passionate submission of learned counsel appearing for the
Management & OP No.5, that to the vacancy created by the alleged
abandonment of job, OP No.5 has been appointed, is an academic
question in the light of whatever has been observed above and therefore,
would pale into significance. When a person is appointed to a particular
vacancy created by removal of the incumbent, such an appointment is
always subject to outcome of the challenge to such removal. A kind of
doctrine of lis pendens (Sec.52 of the Transfer of Property Act, 1882)
would come into play. Otherwise, even if a person succeeds in challenge
to his removal, he cannot be reinstated, and that runs counter to the norms
of service jurisprudence. This is not to say that the new person appointed,
i.e., OP No.5 cannot be accommodated in some other place. In fact, it is
the case of petitioner that the said OP gained entry to the service much
before she was removed, and that the said OP had held some other post. It
appears to be that way, regardless of the contentions taken up by the other
side in the course of legal battle.
5.6. The impugned order has been made very casually and without
ascertaining the factuals from record and sans drawing appropriate
inferences from the demonstrable facts. Such a simple case of termination
has taken years, three rounds of legal battle, i.e., WP(C) No. 11860 of
2010, WP(C) No. 17833 of 2018 & WP at hands. At least, as a
concession to the shortness of human life and the miseries which the life
put as challenges, the legal battle should have been over long long ago.
Why the appeal on remand took three more years at the hands of the
Director, is un-understandable to any sensible mind. In disputes of
removal, be it by way of dismissal or otherwise, the authorities should
make all endeavours to resolve on a war footing, since it involves the
means of livelihood. At the same time, it needs to be borne in mind that
remand after remand would not augur well to the aggrieved citizens. The
powers of the Writ Court are ordinarily coextensive with that of the
authority whose proceedings are called in question for judicial review.
Thus, what order the Director ought to have passed, the Writ Court can
justifiably pass.
In the above circumstances, this petition succeeds. A Writ of
Certiorari issues quashing the impugned order and a consequential Writ of
Mandamus issues directing petitioner's reinstatement in service forthwith
and in any circumstances within eight (8) weeks with continuity of
service, but sans back wages. OP No.4-Managing Body shall pay to the
petitioner a cost of Rs.20,000/- (rupees twenty thousand) only within eight
(8) weeks, failing which it shall pay additional amount of Rs.100/- (one
hundred) only per day of delay.
Web copy of judgment to be acted upon by all concerned.
Dixit Krishna Shripad,
Judge
Orissa High Court, Cuttack
The 13th day of November, 2025/GDS
Designation: JOINT REGISTRAR-CUM-PRINCIPAL
Date: 14-Nov-2025 10:39:30
