State of Odisha Vs Mahadev Behera

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.A. No. 801 of 2024

1. State of Odisha, represented by Commissioner-cum-Secretary to Govt., School & Mass Education Department, Bhubaneswar

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2. Director, Secondary Education, Odisha, Khordha

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3. District Education Officer, Cuttack Appellants

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Mr. Bimbisar Dash, AGA

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-versus-

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1. Mahadev Behera …. 2. Headmaster-cum-Secretary, Nandini Bidyaniketan Sidho, Cuttack Respondents Ms. Saswati Mohapatra, Advocate (For Respondent No.1)

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

ORDER

Order No.

18.11.2024

This matter is taken up through Hybrid mode.

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The present matter has a chequered history. The respondent

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no.1 was appointed as 4^th Peon by the Managing Committee of Nandini Bidyaniketan Sidho, Cuttack in 1991. He had joined the post on 17.12.1991. His engagement against the post of 4^th Peon was approved by the Inspector of Schools, Cuttack in the light of certain order passed by this Court dated 23.12.1995 in OJC No.

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8505 of 1994. As he was not being paid salary, he had filed OJC No. 11038 of 1999 for release of salary.

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Counter affidavit was filed in that case.

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The said School was subsequently taken over by the Government whereafter OJC No. 11038 of 1999 stood transferred to the State Administrative Tribunal, Odisha. The case was renumbered as T.A. No. 68 (C) of 2015. The Tribunal stood abolished in 2019 whereafter the said T.A. No. 68 (C) of 2015 stood transferred to this Court and re-numbered as WPC (TAC) No. 68 of 2015. The said WPC (TAC) No. 68 of 2015 has been disposed of by a learned Single Judge of this Court vide judgment and order dated 27.01.2023, which is under challenge in the present Intra-Court Appeal.

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The submissions which have been advanced on behalf of the State of Odisha in the present Intra-Court Appeal are that there was no sanction for the 4^th post of Peon and therefore the respondent no. 1 could not have been appointed against the said post. Secondly, the respondent no.1’s age on the date of appointment was less than 18 years so his appointment was illegal and the subsequent approval of his appointment by the Inspector of Schools, Cuttack on

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11.01.1996 was inconsequential. It has thirdly been argued by the

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learned Additional Government Advocate that in fact the respondent no.1 is not working in the School since August, 1998. Learned Additional Government Advocate also submits that the decision of this Court rendered in the case of State of Odisha & Others vrs. Rajendra Kumar Das & Another reported in (2003) 10 SCC 411 has been wrongly applied by the learned Single Judge in the present set of facts and circumstances.

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Basing on the said submissions, it is contended that the direction issued by the learned Single Judge to pay entire arrears of salary right from the date of engagement of the respondent no.1 till date is unsustainable. The learned Single Judge, according to him, ought to have considered the legal issue that in the absence of 4^th post of Peon, the respondent no.1 could not have been engaged against a non-existent post.

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Learned counsel appearing on behalf of the respondent no.1 has submitted, relying on the order dated 11.01.1996 passed by the Inspector of Schools, Cuttack that the approval of the petitioner’s appointment cannot be questioned by the State. She has submitted

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that the point that the respondent no. 1 was under 18 years on the

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date of engagement against 4^th post of Peon was not taken by the State in the writ proceeding. He contends that a point not taken by the appellants in the writ proceeding cannot be taken in the present Intra-Court Appeal.

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Taking a line of least resistance, learned counsel for the respondent no.1 has submitted that the order of the learned Single Judge on the point of payment of arrears of salary may be modified to the extent that the respondent no.1 shall be entitled to payment of salary only for the period, during which he had actually worked.

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Considering the facts and circumstances and the submissions advanced on behalf of the parties as noted above, we deem it fit and proper to dispose of the present writ appeal by modifying the impugned order passed by the learned Single Judge with a direction to the District Education Officer to determine the period during which the respondent no. 1 had actually worked in the School and the salary which the respondent no.1 would have been entitlement to receive for this period, within a period of two months from today. After computation of the amount of arrears of salary, the same shall be paid to the respondent no.1 within one month thereafter with interest @ 9%.

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We are not inclined to interfere with the impugned order any

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further. We observe that the respondent no.1 shall be entitled to all consequential, notional benefits for the purpose of determination of the respondent no.1’s service and post retirement benefits treating him to be in service from the date of his approval of his appointment by the Inspector of Schools, Cuttack vide order/letter dated 11.01.1996.

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