Orissa High Court
Subasini Dei vs State Of Odisha & Ors. .... Opposite ... on 30 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6660 of 2023
Subasini Dei .... Petitioner
Mr. U.K. Sahoo, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. S. Jena, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
30.01.2024 Order No
04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. U.K. Sahoo, learned counsel for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties.
3. Petitioner has filed the present writ petition inter alia challenging the order dtd.13.02.2023 so passed by the B.E.O., Ranapur-Opp. Party No. 5 under Annexure-9. Vide the said order claim of the Petitioner to get the benefit of salary for the period from 04.10.2015 to 18.06.2017 has been rejected.
4. It is the case of the Petitioner that Petitioner while continuing as an Assistant Teacher, she was put under transfer vide order dtd.06.08.2015. Challenging the said order Petitioner approached the Tribunal in O.A. No. 2888(C) of 2015. It is contended that the Tribunal while issuing notice of the matter vide order dtd.20.08.2015 passed an interim order holding therein that the // 2 // applicant shall not be relieved, if not already relieved. It is contended that in terms of the said order Petitioner though continued in the school in question, but she was not paid with his salary for the period w.e.f.04.10.2015. The Tribunal when finally disposed of the matter vide order dtd.21.03.2017, Petitioner was allowed to join in her post on 18.06.2017. It is contended that since Petitioner on the face of the interim order, continued till she was reposted vide order dtd.18.06.2017, Petitioner is eligible and entitled to get the benefit of salary for the period from 04.10.2015 to 18.06.2017. It is contended that without proper appreciation of the Petitioner's claim, the same has been rejected by Opp. Party No. 5 vide impugned order under Annexure-9.
5. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. Basing on the counter, learned AGA contended even though challenging the order of transfer passed on 06.08.2015 Petitioner approached the Tribunal in O.A. No. 2888(C) of 2015 and the Tribunal passed an interim order on 20.08.2015 to the effect that the applicant shall not be relieved, if not relieved, but by the time the interim order was passed on 20.08.2015, Petitioner had already been relieved from her post w.ef.06.08.2015 and in her place Opp. Party No. 5 therein had already joined on 10.08.2015. Taking into account the fact that Petitioner after being relieved w.e.f.06.08.2015, in her place Opp. Party No. 5 had already joined on 10.08.2015, the Tribunal held the break period of service as absent and while holding so, directed Opp. Party No. 4 therein to regularize the services of the Petitioner. The view of the Tribunal so indicated in Para 5 to 8 of the order is reproduced hereunder:-
Page 2 of 5// 3 // "5. Mr. S. Behera, appearing for respondent No. 5 submitted that as respondent No. 5 submitted that as respondent No. 5 has already joined on 10.08.2015, the grievance of the applicant has become infructuous and the O.A. should be dismissed.
6. Considering the submission, it may be noted that transfer is an incident of service and it does not adversely affect the status or emoluments or seniority of the employee and the employee has no vested right to get posting at a particular place and it is within the exclusive domain of the employer to determine as to at what place and how long the service of a particular employee is required and as no malafide has been alleged excepting that the guideline has been violated, there is hardly any scope for interference of the Tribunal. Moreover, the substitute of the applicant has already joined. The applicant has relied on the rationalization policy dtd.15.05.2012, but as submitted by learned standing counsel, the present order of transfer has been issued vide letter No. 14178 dtd.10.07.2015 and no statutory right of the applicant has been violated. It may be noted that the ailment from which the applicant is suffering is very common which cannot be a good ground to cancel the order of transfer. Accordingly, the grievance of the applicant merits no consideration and the O.A. is not maintainable.
7. It is submitted that the applicant hardly less than three years of service, unless the period of absence is regularized, she will face hardship in setting her pension and other retiral dues.
8. In view of such submission, we direct the respondent No. 4 to regularize the service of the applicant for the period she remained absent as per rule, expeditiously so that she will not face any difficulty to get her retiral dues."
5.1. It is contended that the Tribunal clearly held that Petitioner remained absent for the period from 04.10.2015 to 18.06.2017 and while holding so directed for regularization of the said period.
Pursuant to the order passed by the Tribunal under Annexure-3, the break period in service of the Petitioner accordingly was also regularized vide order dtd.29.08.2018 under Annexure-6. It is Page 3 of 5 // 4 // further contended that Petitioner at no point of time challenged the order passed by the Tribunal finally on 21.03.2017 in O.A. No. 2888(C) of 2015 under Annexure-3 nor the order of regularization passed in terms of the said order on 29.08.2018 under Annexure-6. Since the order passed by the Tribunal under Annexure-3 and consequential order passed by the B.E.O. under Annexure-6 was never challenged by the Petitioner by filing appropriate application, the claim of the Petitioner to get the benefit of salary for the period he remained admittedly absent has been rightly rejected vide the impugned order under Annexure-9.
6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner when was put under transfer on 06.08.2015, she approached the Tribunal in O.A. No. 2888(C) of 2015. The Tribunal by the time passed an interim order on 20.08.2015, Petitioner since was already relieved and in her place Opp. Party No. 5 had already joined on 10.08.2015, the Tribunal while disposing the matter finally vide order dtd.21.03.2017 held the Petitioner to have remained absent for the period in question. While holding so, the Tribunal directed for regularization of the break period of service of the Petitioner.
6.1. As found from the record the direction of the Tribunal was implemented by the B.E.O.-Opp. Party No. 5 vide order dtd.9.08.2018 under Annexure-6. Since the Tribunal clearly held that Petitioner remained absent for the period in question and that period was regularized in terms of the order by the Tribunal under Annexure-6 and Petitioner at no point of time has challenged either the final order passed by the Tribunal or the consequential order Page 4 of 5 // 5 // passed by the B.E.O. under Annexure-6, the claim of the Petitioner to get salary for the period in question as per the considered view of this Court has been rightly rejected. This Court is accordingly not inclined to interfere with the impugned order dt.13.02.2023 and dismiss the writ petition.
(Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 17:26:58 Page 5 of 5