Petitioner sought quashing of an order regularizing her service break without salary.Court held pending litigation justified compliance delay. Refusal to earlier challenge non-performance barred salary claim. Impugned order regularizing break disallowed but dismissed without costs.
Writ petition dismissed; no costs awarded; quashing of regularization order refused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
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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.”
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 ExOfficio 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
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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
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11.02.2015 but no action was taken. . On such facts, the
petitioner has filed the present writ application.
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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.
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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.
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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.
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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
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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
Signature Not Verified
Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-May-2024 18:50:28
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2 issues framed by the court
Whether the petitioner is entitled to regularization of service break with salary arrears given pending litigation and alleged non-performance of duty.
Whether the transfer order under the earlier writ petition was complied with within a reasonable time despite the pendency of appeal.
Nandita Sutar
State of Odisha
Sashikanta Mishra
B.C. Tudu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
