Dismissed

Bhikari Ch.Kar v. State and Ors.

Orissa HC20 Aug 2015WP(C)/16537/2010

Case brief

AI extract

What is this about?

In a writ petition, the Supreme Court examined the petitioner's claim for salary arrears rejected by the Director. The Court held that the State Education Tribunal, which had directed reinstatement without intervening wages, had not been reversed or interfered with. Relying on the Tribunal's judgment and the petitioner's own undertaking not to claim prior arrears, the Court dismissed the petition

What did the court decide?

Petitioner directed to file representation within three weeks; authorities directed to consider same within four months on merits of Tribunal judgment and undertaking claim.

Bhikari Ch.Kar Vs State and Ors. — Pension and Retirement Benefits | Orissa HC (2015)

¶1

W.P. (C) No.16537 of 2010
20.8.2015 Heard.

¶2

 The petitioner has challenged the order dated 20.08.2010 as contained in Office Order
No.42371 passed by the Director, Secondary Education, Orissa, Bhubaneswar by which the arrears
 of salary for the intervening period from 21.04.1992 to 18.07.1993 has been declined.

¶3

 Case of the petitioner is that he was appointed as Classical Teacher on 01.09.1986 by
the Managing Committee and thereafter started discharging his duty, his service was terminated
 by the Managing Committee on 21.04.1992.

¶4

 The petitioner being aggrieved with the order of termination dated 21.04.1992 filed an
 appeal before the State Education Tribunal, Orissa, Bhubaneswar bearing No.10 of 1992, the ju
dgment was rendered on 07.07.1993 directing for reinstatement of the petitioner with the obser
vation that in the event of reinstatement he is not entitled to wages in the intervening perio
d but he would avail other service benefits.

¶5

 The petitioner had approached this Court by way of writ application being O.J.C. No.15
57 of 1996 assailing the judgment dated 07.07.1993 passed by the State Education Tribunal and
this Court vide order dated 12.12.2007 has directed the authorities to consider representation
 regarding claim of the petitioner for salary of intervening period, in terms thereof the peti
tioner has made a representation before the Director, Secondary

¶6

Education, Odisha, Bhubaneswar. The claim of the petitioner has been rejected vide order dated
 20.08.2010 which is under challenge in this writ petition.

¶7

 The ground of challenge of the order dated 20.08.2010 is that the petitioner has not g
iven any concession regarding foregoing arrears of salary for the intervening period before th
e Tribunal and as such the judgment passed by the Tribunal is absolutely incorrect and thereby
 since the order dated 20.08.2010 is based upon the order passed by the Tribunal, it cannot be
 said to be legal.

¶8

 Learned counsel for the petitioner has further contended that while deciding the repre
sentation, the authorities have taken into consideration the undertaking given by the petition
er regarding no claim of arrears of salary but the same undertaking was given under compelling
 circumstances and as such the same may not be taken in the way of non-release of the arrears
of salary for the intervening period.

¶9

 On the other hand, learned counsel for the School and Mass Education Department has su
bmitted that the petitioner has challenged his order of termination before the State Education
 Tribunal in which judgment has been rendered regarding reinstatement but with the observation
 that in the event of reinstatement he is not entitled to wages in the intervening period but
he would avail other service benefits.

¶10

 He further contends that the judgment passed by

¶11

the State Education Tribunal has been challenged by the petitioner before this Court being in
O.J.C. No.1557 of 1996 but in this Court, the petitioner himself has made prayer to make repre
sentation before the authority and on the prayer of the petitioner for filing representation b
efore the authority, this Court has directed the authority to consider representation and take
 a final decision hence the judgment passed by the State Education Tribunal will be said to be
 not interfered with by this Court.

¶12

 It has further been contended that the petitioner has given undertaking of his own not
 to claim for foregoing salary for the intervening as would be evident from Annexure-A/3. Henc
e he cannot claim the salary for the intervening period.

¶13

 He disputes the contention of the petitioner that under threat and coercion undertakin
g has been given and to substantiate his stand he has submitted that the State Education Tribu
nal has also observed that in case of reinstatement, the petitioner cannot claim for arrears o
f salary.

¶14

 Heard learned counsel for the parties and perused the documents on record.
 Undisputed fact in this case is that the petitioner was appointed on 01.09.1986 termin
ated on 21.04.1992 assailing the order of termination before the State Education Tribunal wher
ein the judgment has been rendered on 07.07.1993 directing for reinstatement of

¶15

the petitioner with the observation that in the event of reinstatement he is not entitled to w
ages in the intervening period but he would avail other service benefits.

¶16

 The petitioner has challenged the judgment of the Tribunal dated 07.07.1993 before thi
s Court in O.J.C. No.1557 of 1996 wherein this Court without going into the merit of the case

¶17

regarding the legality and propriety the judgment dated 07.07.1993 has been pleased to dispose
 of the same by passing the order which is quoted herein below:-

¶18

 Heard learned counsel for the petitioner and learned Standing Counsel. None appears fo
r opposite party no.4 even though noticed.

¶19

 Learned counsel for the petitioner states that termination of the petitioners service
with effect 21.04.1992 was set aside by the Education Tribunal in Appeal No.10 of 1992 as per
judgment dated 07.07.1993, but the learned Tribunal observed that in the event of reinstatemen
t he is not entitled to wages in the intervening period but he would avail other service benef
its. Learned counsel for the petitioner states that no reason has been assigned by the Tribuna
l to deprive his benefit for the intervening period and thereafter, petitioner shall make a re
presentation to the authorities for consideration of payment of his entitlement for the said i
ntervening period of illegal termination of service of the petitioner. Learned counsel for the

¶20

petitioner further states that petitioner shall make representation within a period of three w
eeks and opposite parties 1 and 2 may be directed to consider and dispose of the same within a
 stipulated period.

¶21

 Regard being had to the aforesaid facts and submission, we dispose of the writ petitio
n with a direction to opposite parties 1 and 2 to consider and dispose of the representation o
f the petitioner within a period of four months from the date of receipt of a copy of this ord
er, provided petitioner files his representation within a period of three weeks from today. Op
p. parties 1 and 2 shall bear in mind that we have expressed no opinion regarding entitlement
of the petitioner and they should consider the same strictly in accordance with law.

¶22

 From perusal of the order passed in O.J.C. No.1557 of 1996 it is evident that the peti
tioner himself has made statement to file representation and accordingly this Court has accord
ed liberty to the petitioner to file representation with direction to the opposite party no.2
to consider the same. Accordingly, the petitioner has represented before the authorities and t
he authorities had passed the order on 20.08.2010 (Annexure-3) rejecting the claim of the peti
tioner on the following grounds:-

¶23

(i) That the State Education Tribunal, Orissa, Bhubaneswar in their judgment dated

¶24

 07.07.1993 has observed that the petitioner is not entitled to get wages for the
intervening period i.e., from 21.04.1992 to 18.07.1993.

¶25

(ii) That the appointment of the petitioner has been approved by the Inspector of Schools,
Bolangir vide office order dated 16.07.1994 and at that time of approval the petitioner has su
bmitted an undertaking during counter signed by the Headmaster of the petitioner on 04.12.1995
 that the petitioner was not claim any arrear due prior to 01.06.1994.

¶26

 The contention of the learned counsel for the petitioner is that the ground taken in t
he order dated 20.08.2010 while rejecting the claim of the petitioner is improper and illegal
because merely on the basis of undertaking regarding non-claim of arrears of salary for the in
tervening period, the petitioner cannot be deprived from the arrears.

¶27

 This argument of the learned counsel for the petitioner cannot be accepted on the foll
owing grounds:-

¶28

(i) The petitioner has been terminated, the order of termination has been assailed by him befo
re the State Education Tribunal and the State Education Tribunal has passed the order of reins
tatement with the condition

¶29

that he will not claim any arrears of salary and the judgment of the Tribunal has been challen
ged by the petitioner before this Court in O.J.C. No.1557 of 1996 and this Court has not teste
d the merit of the judgment dated 07.07.1993 passed in appeal bearing no. 10 of 1992 rather on
 the basis of the statement made on behalf of the petitioner enabling him to make representati
on and the said writ application was disposed of.

¶30

(ii) This suggests that the judgment rendered by the State Education Tribunal in Appeal No.10
of 1992 dated 07.07.1993 has not been reversed. Moreover merely on account of according libert
y to the petitioner to make representation before the authorities for claiming his arrears for
 intervening period does not amount that the judgment rendered by the State Education Tribunal
 dated 07.07.1993 has been reversed.

¶31

(iii) The authority after taking into consideration the judgment passed by the State Education
 Tribunal dated 07.07.1993 rejecting claim of the petitioner for arrears of salary for the int
ervening period from 21.04.1992 to 18.07.1993.

¶32

 Considering the fact that this Court has also not reversed the judgment passed by the
Tribunal. The

¶33

authority have also taken into consideration the undertaking given by the petitioner at the ti
me of approval of his appointment which is at Annexure-A/3 to the counter affidavit, wherein i
t has been stated by the petitioner by way of undertaking which is being reproduced herein bel
ow:-

¶34

 I Sri Bhikari Charan Kar, Son of Sri Gangadhara Kar of village Manoharpur, P.S./Dist.-
Balangir, Asst. Teacher of Police High School, Manoharpur, Balangir do hereby undertake not to
 claim any arrear dues prior to 01.06.1994.

¶35

 Thus, the fact remains that when the State Education Tribunal has decided the issue di
sentitling the petitioner for arrears of salary for the intervening period and the same has no
t been reversed by this Court hence the petitioner cannot be said to be entitled for the salar
y for the intervening period.

¶36

 Considering the fact that the judgment passed by the State Education Tribunal has atta
ined its finality and in view of reasons given hereinabove, I find no infirmity in the order d
ated 20.08.2010 passed by the Director, Secondary Education, Odisha, Bhubaneswar.
 Accordingly, the writ petition is dismissed being devoid of merits.

¶37

S. N. Prasad, J.

¶38

¶39

Bhikari Ch.Kar v. State and Ors.

Case brief

What is this about?

What did the court decide?

Bhikari Ch.Kar v. State and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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