Orissa High Court
Swarnalata Dei vs State Of Odisha & Ors. .... Opposite ... on 10 September, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 26515 of 2024
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Swarnalata Dei .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : Mr. J. Patnaik, Sr. Advocate
Mr. B. Routray, Sr. Advocate
Mr. H.P. Rath, Advocate
Mr. T.K. Pattanayak, Advocate
Ms. S. Mohapatra, Advocate
For Opp. Parties : Mr. C.K. Pradhan
Addl. Govt. Advocate
Mr. S.K. Patra, Advocate
(Opp. Party No. 4)
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------------
Date of Hearing: 24.06.2025 & Date of Judgment: 10.09.2025
---------------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
The present writ petition has been filed inter alia challenging the impugned order dtd.28.06.2024 so passed by Opp. Party No. 2 // 2 // under Annexure-1 and with a further prayer to treat the Petitioner as a taken over employee in view of the Govt. Resolution/Notification dtd.17.09.2016 w.e.f.16.01.2016 and with a further prayer to extend the benefit of promotion to the rank of OES (S.B.) Group-B w.e.f.16.11.2020, with all consequential service and financial benefits.
2. It is the case of the Petitioner that Petitioner was initially appointed as against a vacant post of TGT Science (CBZ) in Padmalav Balika Uchha Bidyalaya, Dahijanga in the district of Cuttack vide order of appointment issued on 02.01.1992. By the time Petitioner was so appointed, the School in question was an Aided Educational Institution within the meaning of Sec. 3(b) of Odisha Education Act, 1969.
3. It is contended that Petitioner while continuing as against a sanctioned TGT post, the then Managing Committee in its Resolution dtd.21.02.1994, resolved to appoint the Petitioner as Headmistress-in- Charge of the School and proposal was also submitted for approval of the same on 29.04.1995. On the face of such proposal being submitted by the Managing Committee, the then Inspector of Schools, Cuttack Circle, Cuttack did not approve the appointment of the Petitioner as Headmistress-in-Charge and instead allowed one Girija Nandini Devi Page 2 of 71 // 3 // to work as Headmistress-in-Charge, who at the relevant point of time was working as a Classical Teacher.
3.1. Being aggrieved by such action of the then Inspector of Schools, Cuttack Circle, Cuttack, Petitioner approached this Court by filing OJC No. 6621 of 1995. The said writ petition was disposed of vide order dtd.28.11.1997, directing the Opp. Parties to consider the claim of the Petitioner for approval of her services. 3.2. It is contended that on receipt of such order from this Court, Opp. Party No. 2 while submitting a report to Opp. Party No. 1 vide his letter dtd.01.12.1997, recommended to approve the services of the Petitioner as against the post of TGT Science (CBZ) w.e.f. her initial date of appointment i.e.02.01.1992. However, on the face of such report submitted by Opp. Party No. 2 and further action taken in the matter, services of the Petitioner was never approved and was kept pending.
3.3. However, basing on the letter issued by the Govt. on 10.02.1999 and 17.03.1999, services of the Petitioner though was ultimately approved vide order dtd.06.03.1999 prospectively, but the said order was only served on the Petitioner on 01.07.1999. Not only that even though services of the Petitioner was approved on 06.03.1999 Page 3 of 71 // 4 // prospectively, but Petitioner was released with the benefit of Grant-in- aid w.e.f. July, 1999.
3.4. It is contended that since services of the Petitioner was not approved from her initial date of appointment i.e.02.01.1992 and it was instead approved prospectively vide order dtd.06.03.1999 with release of Grant-in-aid from the month of July 1999, Petitioner made several representations inter alia seeking approval of her services w.e.f.02.01.1992. As no action was taken on the claim of the Petitioner, Petitioner approached this Court by filing W.P.(C) No. 3549 of 2004.
3.5. However, in the meantime vide order dtd.23.08.2005, Petitioner was transferred and posted to Odisha Police High School, Tulasipur, Cuttack. Writ Petition in W.P.(C) No.3549 of 2004 however was disposed of vide order dtd.09.07.2009, with a direction on the State- Opp. Parties to take a decision on the claim of the Petitioner for approval of her services w.e.f.02.01.1992, in place of prospectively w.e.f.06.03.1999.
3.6. As the direction issued by this Court was not complied, Petitioner filed CONTC No. 200 of 2010. However, in the meantime when claim of the Petitioner for approval of her services w.e.f.02.01.1992 was Page 4 of 71 // 5 // rejected vide order dtd.09.04.2010, Petitioner challenging the same, once again approached this Court by filing W.P.(C) No. 7476 of 2010. This Court vide order dtd.20.07.2010, while quashing order dtd.09.04.2010, directed the Opp. Parties to antedate the date of appointment of the Petitioner to 02.01.1992 and to release all consequential benefits. Direction contained in order dtd.20.07.2010 reads as follows:-
"On the face of the aforementioned documents annexed to the writ application, it is clear that the finding of the Principal Secretary to the Government of Orissa in the impugned order in paragraph-6 absolutely does not hold good. There is no material before the authority to come to such a conclusion. On the other hand, the note sheet obtained under the R.T.I. Act which shows that the relevant documents were produced by the Inspector of Schools before the Government.
In our considered opinion, the impugned order (Annexure-23) is liable to be quashed. Accordingly the same is quashed. The petitioner's date of appointment shall be ante-dated to 2.1.1992 and all other consequential benefits shall be granted to the petitioner within a period of three months from the date of communication of this order."
3.7. Learned Sr. Counsel appearing for the Petitioner contended that challenging order dtd.20.07.2010, State moved the Hon'ble Apex Court by filing SLP(C) No. 9391 of 2011. The said SLP was Page 5 of 71 // 6 // dismissed on the ground of delay as well as on merit vide order dtd.22.07.2011. After dismissal of the SLP, vide order dtd.08.08.2011 Govt. decided to antedate the date of appointment of the Petitioner to 02.01.1992 and to extend all consequential benefits as due and admissible. Accordingly, vide order dtd.11.08.2011 under Annexure-4 series services of the Petitioner was approved w.e.f.02.01.1992 and Petitioner was treated as a Trained Graduate Teacher in an Aided High School w.e.f. the said date.
3.8. It is contended that even though services of the Petitioner was approved as against a TGT post w.e.f.02.01.1992 vide order dt.08.08.2011 under Annexure-4 series, but while publishing the gradation list of TGTs on 08.11.2011 under Annexure-5 series, Petitioner was placed at Sl. No. 215 by taking the date of her initial appointment as 01.07.1999 in place of 02.01.1992. 3.9. Even though Petitioner raised her objection to such placement in the gradation list in taking her initial date of appointment as 01.07.1999 in place of 02.01.1992, which was already effected vide order dtd.11.08.2011, but without considering such objection, vide order dtd.11.10.2012 under Annexure-5 series, a no. of persons Page 6 of 71 // 7 // including juniors to the Petitioner got the benefit of promotion to the post of Headmaster.
3.10. It is contended that taking into account the position of TGT so published on 08.11.2011 Petitioner's initial date of appointment if would have been taken as 02.01.1992 in terms of order dtd.11.08.2011, Petitioner would have been placed in between Sl. No. 5 & 6 and she would have got the benefit of promotion to the rank of Headmaster on 11.10.2012 itself. However, because of the wrong committed by the Opp. Parties in placing the Petitioner at Sl. No. 215, Petitioner was deprived to get the benefit of promotion to the rank of Headmaster, when such promotion was extended in favour of various Trained Graduate Teachers vide order dtd.11.10.2012, which includes a no. of juniors.
3.11. Petitioner on being so aggrieved and seeking correction of the gradation list of TGTs, approached this Court by filing W.P.(C) No. 8053 of 2016. In the said writ petition, a prayer was also made to extend her the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 when similarly situated TGTs and persons junior to the Petitioner were given the benefit of promotion vide order dtd.11.10.2012 under Annexure-5 series.
Page 7 of 71
// 8 // 3.12. It is contended that W.P.(C) No. 8053 of 2016 was disposed of vide order dtd.18.05.2016 with a direction on the Opp. Party No. 2 to revise the gradation list and to consider the claim of the Petitioner for her promotion to the rank of Headmaster under Annexure-6. The direction contained in order dtd.18.05.2016 reads as follows:-
"In view of the fact that the SLP filed by the State Government has been dismissed on 22.7.2011, the Director, Secondary Education, Odisha shall do well to revise the gradation list and consider the case of the petitioner for promotion and grant all consequential benefits within a period of eight weeks from the date of production of certified copy of this order."
3.13. It is contended that on the face of the order passed by this Court in W.P.(C) No. 8053 of 2016, when grievance of the Petitioner was not considered, Petitioner filed CONTC No. 1234 of 2016 seeking compliance of the said order. However, in the meantime vide Resolution dtd.17.09.2016 under Annexure-7, Govt. in the Department of School & Mass Education took over the Management of Non-Govt. Fully Aided High Schools in receipt of full salary cost, which includes Odisha Police High School, Tulasipur, Cuttack so placed at Sl. No. 6 of Resolution dtd.17.09.2016. Since by the time Resolution dtd.17.09.2016 was issued, Petitioner was continuing as a TGT in Odisha Police High School, Tulasipur, Cuttack, Petitioner Page 8 of 71 // 9 // became eligible to be treated as a taken over employee w.e.f.16.01.2016.
3.14. It is also contended that after her transfer and posting to Odisha Police High School, Tulasipur, Cuttack as a TGT vide order dtd.23.08.2005, Petitioner though continued in the said School as a TGT, but because of the wrong placement of the Petitioner in the gradation list published by Opp. Party No. 2 on 08.11.2011 under Annexure-5 series, Petitioner was deprived to get the benefit of promotion w.e.f.11.10.2012, when similarly situated TGTs were extended with such benefit.
3.15. It is contended that vide the said order dt.11.10.2012 one Pritimanjari Pattanayak was promoted as against the post of Headmaster and in the gradation list published on 08.11.2011 the said Pritimanjari Pattanayak was placed at Sl. No. 3. It is also submitted that taking into account the date of appointment of the Petitioner as 01.02.1992 and the stand taken by the Opp. Party No. 2 in the communication dt.29.05.2017 under Annexure-10 that Petitioner would have been placed in between Sl. Nos. 5 & 6, she would have got the benefit of promotion also along with Pritimanjari Pattanayak. But because of the wrong committed by the Opp. Parties in placing Page 9 of 71 // 10 // her at Sl. No. 215 of the gradation list, Petitioner was not given the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012. 3.16. It is contended that had the Petitioner been extended with such benefit of promotion to the rank of Headmaster vide order dtd.11.10.2012, on the retirement of Smt. Pritimanjari Pattanayak on 31.01.2013, Petitioner could have been adjusted as against the post of Headmaster in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013. But on the face of the order passed in W.P.(C) No. 7476 of 2010, Petitioner's services though was approved w.e.f.02.01.1992, but consequential service benefits were not extended and in the gradation list published under Annexure-5 series she was wrongly placed at Sl. No. 215 by taking her initial date of appointment as 01.07.1999, in place of 02.01.1992. It is accordingly contended that because of the deliberate latches committed by the Opp. Parties time and again, Petitioner was not only deprived to get the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, but also she was debarred to get the benefit of adjustment in the rank of Headmaster in Police High School, Tulasipur on retirement of the incumbent Headmaster of the School namely Pritimanjari Pattanayak on 31.01.2013 w.e.f.01.02.2013.
Page 10 of 71
// 11 // 3.17. It is further contended that pursuant to the Resolution issued on 17.09.2016 under Annexure-7, Govt.-Opp. Party No. 1 vide letter dtd.07.10.2016 under Annexure-8 created various teaching and non- teaching posts in all the 7 High schools, which includes Odisha Police High School, Tulasipur, Cuttack and in respect of Odisha Police High School, Tulasipur, Cuttack, various posts were created, which includes the post of Headmaster (Sr. SES).
3.18. Since it is not disputed that because of the wrong placement of the Petitioner in the gradation list so published on 08.11.2011, Petitioner was deprived from getting the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, taking into account the Resolution issued under Annexure-7 and the creation of the post vide letter dtd.07.10.2016 under Annexure-8 and the stand taken in letter dt.21.07.2017 under Annexure-12 and 24.07.2017 under Annexure-13, Petitioner could have been adjusted as against the post of Headmaster in Odisha Police High School, Tulasipur, Cuttack, since by that date post of Headmaster was lying vacant in Police High School, Cuttack w.e.f.01.02.2013. But on the face of the order passed by this Court in W.P.(C) No. 7476 of 2010 and further order passed in W.P.(C) No. 8053 of 2016, genuine grievance of the Petitioner for her promotion as Page 11 of 71 // 12 // against the post of Headmaster w.e.f.11.10.2012 with her adjustment in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013 was never allowed.
3.19. However, in the communication issued by the D.E.O., Cuttack on 06.05.2017 under Annexure-9, Petitioner's name was reflected having been in employment in Police High School, Cuttack with his date of appointment and date of approval being indicated as 02.01.1992.
3.20. It is also contended that vide letter dtd.29.05.2017 under Annexure-10, Opp. Party No. 2 forwarded the request made by Opp. Party No. 3 vide his letter dtd.06.05.2017, for the purpose of release of salary to the teaching and non-teaching staff of Odisha Police High School, Tulasipur, Cuttack as a taken over High School. 3.21. It is contended that on the face of such decision taken by the Govt. with issuance of the Resolution on 17.09.2016 under Annexure- 7 and further communications issued under Annexure-8 to 10, Petitioner was neither extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 nor she was adjusted as against the post of Headmaster in Odisha Police High School, Tulasipur, Page 12 of 71 // 13 // Cuttack w.e.f.01.02.2013 as a taken over employee w.e.f.16.01.2016, which post remained vacant all through w.e.f.01.02.2013. 3.22. Not only that in order to deprive the Petitioner to the benefit of promotion with due adjustment in Odisha Police High School, Tulasipur, Cuttack as a taken over employee in terms of the Resolution dtd.17.09.2016, vide order dtd.24.07.2017 under Annexure-13, Petitioner was provisionally promoted to the rank of Headmaster and posted as such in OSAP High School, OMP, Cuttack against the existing vacancy. Even though Petitioner was extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, but in violation to the order passed in W.P.(C) No. 7476 of 2010 as well as W.P.(C) No. 8053 of 2016, financial benefit w.e.f.11.10.2012 was extended notionally and it was indicated that the actual financial benefit will be allowed from the date she actual joins in the promotional post.
3.23. Learned Sr. Counsel appearing for the Petitioner contended that in order to deprive the Petitioner from being treated as a taken over employee of Odisha Police High School, Tulasipur, Cuttack in terms of Resolution dtd.17.09.2016, w.e.f.16.01.2016, Petitioner intentionally and deliberately was promoted to the rank of Headmaster Page 13 of 71 // 14 // though w.e.f.11.10.2012, but posted as such in OSAP High School, OMP, Cuttack and with another condition that financial benefit will be extended from the date she joins in the promotional post, which is contrary to the orders passed by this Court in W.P.(C) No. 7476 of 2010 and W.P.(C) No. 8053 of 2016.
3.24. It is contended that since by the time order dtd.24.07.2017 was issued under Annexure-13, post of Headmaster in Odisha Police High School, Tulasipur, Cuttack was lying vacant w.e.f.01.02.2013, taking into account the eligibility of the petitioner to get the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, Petitioner instead of being promoted and transferred to OSAP High School, OMP, Cuttack, could have been adjusted as Headmaster in Odisha Police High School, Tulasipur, Cuttack.
3.25. It is also contended that since by the time Notification dtd.17.09.2016 under Annexure-7 was issued, Petitioner was continuing in Odisha Police High School, Tulasipur, Cuttack, in terms of the said Resolution Petitioner is required to be taken as a taken over employee w.e.f.16.01.2016. Since it is not disputed that as on the date of issuance of Resolution dtd.17.09.2016, Petitioner was in Odisha Police High School, Tulasipur, Cuttack, she could not have been Page 14 of 71 // 15 // promoted and transferred to OSAP High School, OMP, Cuttack instead of adjusting the Petitioner as against the vacant post of Headmaster in Odisha Police High School, Tulasipur, Cuttack, which was lying vacant w.e.f.01.02.2013.
3.26. It is contended that since Petitioner's genuine claim to get the benefit of approval w.e.f.02.01.1992 and to get the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 was allowed by this Court, Opp. Parties more particularly Opp. Party No. 3 with malafide intention and just to deny the Petitioner the benefit of being treated as a taken over employee and consequential entitlement of the Petitioner to get the benefit of pension and other pensionary benefits as a Govt. employee, intentionally and deliberately passed the order dtd.24.07.2017 under Annexure-13.
3.27. It is also contended that while extending such benefit of promotion and transfer vide order dtd.24.07.2017, Petitioner was deemed to have been relieved w.e.f.24.07.2017. In view of such deemed relieve from the post, Petitioner had no other occasion than to join in OSAP High School, Cuttack on 11.09.2017, but without prejudice to her claim. However, considering the nature of order passed on 24.07.2017 under Annexure-13, this Court while dealing Page 15 of 71 // 16 // with CONTC No. 1234 of 2016 so filed challenging non-compliance of order dtd.18.05.2016 in W.P.(C) No. 8053 of 2016 passed the following order on 26.07.2017:-
"Mr. J. Pattnaik, learned Senior Counsel appearing along with Mr. B. Mohanty, learned counsel for the petitioner states that he has received the copy of the compliance report filed by the opposite party and he wants to file an affidavit.
Mr. A.K. Pandey, learned Standing Counsel for the School and Mass Education Department states that he will file an affidavit stating the names of the members, who are continuing in Orissa Police High School are senior to the petitioner. Whether the petitioner can be accommodate as Headmistress in the said High School, when the same has been taken over by the Government.
Put up this matter next week."
3.28. It is further contended that while dealing with CONTC No. 1234 of 2016 this Court passed the following order on 18.07.2017:-
"Heard Mr. J. Patnaik, learned Senior Counsel appearing along with Mr. B. Mohan ty, learned counsel for the petitioner; and Mr. A.K. Pandey, learned Standing Counsel for the School and Mass Education Department.
2. The petitioner files this application under Article 215 of the Constitution of India read with Section 12 of Contempt of Courts Act, 1972 against the opposite parties for violation of order dated 18.05.2016 passed by this Court Page 16 of 71 // 17 // in W.P.(C) No.8053 of 2016 so far as it relates to extension of consequential benefits.
3. The factual matrix of the case is that on 02.01.1992 the petitioner was appointed as Trained Graduate Teacher in Padmalav Balika Uchha Bidyapitha, Dahijanga. Subsequently, she was kept as Headmistress in-charge w.e.f.21.02.1994 by the Management. On 05.07.1994, in the form for renewal of recognition for the year 1994-95, the name of the petitioner was forwarded to Board of Secondary Education, Orissa indicating therein that the petitioner is a Trained Graduate Teacher. On 29.04.1995 the Secretary of the School forwarded the name of the petitioner for approval of her services along with other staff members of the School. On 12.06.1995, the Inspector of Schools decided to keep one Girijanandini Devi, who was terminated earlier by the Managing Committee, as Headmistress of the School. The petitioner filed O.J.C. No.6621 of 1995 challenging such action of the authority. During pendency of the said writ petition, the Inspector of Schools approved the services of the members of the staff of the School, except the petitioner. Ultimately, on 28.11.1997, O.J.C. No.6621 of 1995 was disposed of and on 01.12.1997 the Deputy Director (NGS) submitted his report recommending the case of the petitioner to the Government to approve her service as Trained Graduate Teacher from the date of joining in the School. However, on 14.01.1999 the Director of Secondary Education, Orissa directed the Inspector of Schools, Cuttack to approve the service of the petitioner, but the same was not complied with. Thereafter, the petitioner moved the authority and ultimately her service was approved by the Inspector of Schools on 06.03.1999, without giving any specific date and without approving the period of past service. When the Page 17 of 71 // 18 // petitioner was paid her salary w.e.f. July, 1999 at the initial scale of pay, she represented to the authority, on consideration of which, the Government directed the Inspector of Schools to approve the service of the petitioner w.e.f.02.01.1992. As no action was taken, the petitioner filed W.P.(C) No.3549 of 2004, praying for approval of her service with all consequential service and financial benefits, which was disposed of on 09.07.2009 directing the Government to take a decision with regard to approval of the past service of the petitioner from 02.01.1992 till June, 1999. Though this order was communicated, no action was taken within the time specified, for which CONTC No.200 of 2010 was filed. While the matter was subjudice, opposite party No.1 filed an affidavit before this Court that the claim of the petitioner regarding approval of her service from 02.01.1992 to 30.06. 1999 was considered and rejected, being devoid of merit, vide order dated 09.04.2010.
3.1 Aggrieved by the said order, the petitioner filed W.P.(C) No.7476/2010. After due adjudication, this Court vide order dated 20.07.2010 quashed the order dated 09.04.2010 an d directed for antedating the date of appointment of the petitioner. The operative portion of the order is quoted below:
"In our considered opinion, the impugned order (Annexure-23) is liable to be quashed. Accordingly the same is quashed. The petitioners date of appointment shall be antedated to 2.1.1992 and all other consequential benefits shall be granted to the petitioner within a period of three months from the date of communication of this order."Page 18 of 71
// 19 // Such direction of this Court was also not complied with, for which the petitioner filed CONTC No.1847 of 2010. This Court, by order dated 03.12.2010, directed to serve a copy of the contempt petition on learned Standing Counsel for the School and Mass Education Department. A show-cause was filed wherein it was stated that due to filing of review application, order of this Court could not be complied with. Consequentially, by order dated 25.04.2011, this Court initiated the contempt proceeding against the contemnors and placed the matter for hearing on the question of punishment and it was clarified that if the contemnors wanted an opportunity of hearing, they might avail it by appearing before this Court in person on 16.05.2011. On 16.05.2011, it was brought to the notice of this Court that against the order dated 20.07.2010, the Stat e preferred SLP (no number was furnished), but this Court rejected the show-cause filed and convicted the contemnors imposing fine of Rs.1,000/- each, in default, each of the contemnors would suffer civil imprisonment for seven days and disposed of the contempt application on 16.05 .2011. Then, Misc. Cases No.106, 107 and 108 of 2011 were filed by the opposite parties for modification/recall of the order dated 16.05.2011 and, on tendering unconditional apology and on payment of part of the dues, the order dated 16.05.2011 was modified with a hope and trust that the State Government would be careful enough to see that such type of situation would not arise in future.
3.2 After dismissal of SLP No.CC9391/2011 (State of Orissa & ors v. Swarnalata Dei) on 22.07.2011 by the apex Court, vide office order dated 11.08.2011, the appointment date of the petitioner was antedated to 02.01.1992 by approving the same in the scale of pay of Rs.1 400-40-1600- Page 19 of 71 // 20 // 50-2300-EB-60-2600, but no consequential benefit was extended. As such, for fixation of seniority and other benefits, the petitioner moved from pillar to post. As the order dated 20.07.2010 was not complied with in letter and spirit, the petitioner again approached this Court by filling W.P.(C) No.8053 of 2016 wherein she prayed for following relief:
" i) The opp. parties shall not be directed to correct the gradation list dated 08.11.2011 wherein the date of appointment of the petitioner was mentioned as 01.07.1999 instead of 02.02 .1002.
ii) The opp. parties shall not be directed to fix the seniority of the petitioner at Sl. No .6 just after one Nirmal Kumari Singh (Sl.No.5) and before Sarat Kumar Lenka (Sl.No.6).
iii) The opp. parties shall not be directed to consider the case of the petitioner for promotion after correcting the date of appointment as 02.01.1992 to the post of Head Master/Head Mistress of aided high schools.
iv) The opp. parties shall not be directed to release benefit under R.A.C.P. on completion of 20 years of service as per Orissa Revised Scale of Pay Rules, 2008.
v) The opp. parties shall not be directed to regularize the service book treating the petitioner's appointment as 02.01.1992 and further directed to grant periodical increments and other service benefits till today."
On the basis of the instructions, learned Standing Counsel for the School and Mass Education Department submitted that the order dated 20.07.2010 passed by this Court in W.P.(C) No.7476 of 2010, directing to antedate the appointment of the petitioner w.e.f.02.01.1992 and grant all other consequential Page 20 of 71 // 21 // benefits, was challenged before the apex Court and, the SLP having been dismissed, the petitioners service was regularized by antedating her joining w.e.f. 02.01.1992. But consequential benefits, such as, correction of gradation list, retrospective promotion, inter se seniority and RACP were not extended. Thereby, this Court, by order dated 18.05.2016, issued direction to the following effect:
"In view of the fact that the SLP filed by the State Government has been dismissed on 22.7.2011, the Director, Secondary Education, Odisha shall do well to revise the gradation list and consider the case of the petitioner for promotion and grant all consequential benefits within a period of eight weeks from the date of production of certified copy of this order."
Such direction was also not complied with, as a result of which, finding no other way out the petitioner filed the present contempt petition.
3.3 This Court, by order dated 30.08.2016, issued notice, pursuant to which the opposite parties filed show- cause affidavit stating therein that as per letter dated 26.08.1994 of the Government of Odisha in the Department of School and Mass Education it has been communicated to all concerned that after preparation of the gradation list it should be published in the notice board of the concerned C.I. of Schools and in such other manner so as to be wide publicity of the gradation list inviting objections and suggestions to the gradation list for a period of one month, and that the objections and suggestions should be heard on merit and disposed of within a period of another one month. Though a common gradation list was published, the same having not been objected to, reached its finality. The Page 21 of 71 // 22 // petitioner is a mere employee of Orissa Police High School, Cuttack, which was an aided educational institution receiving full grant in aid and, in the meantime, has been taken over by the Government in the Department of School and Mass Education, vide resolution dated 17.09.2016, w.e.f.16.01.2016 and, accordingly, the employees of the said institution have been declared as government employees w.e.f.16.01.2016. Therefore, the opposite parties sought for two months time to consider the claim of the petitioner. This affidavit was filed on 04.10.2016.
3.4 After expiry of two months, again a compliance report was filed on 18.11.2010 stating therein that the Director, Secondary Education, Odisha passed order on 17.11.2016, which is annexed as Annexure-A/3, the relevant part of which runs as follows:
"That, again the District Education Officer, Cuttack was requested to revise the gradation list at an early date in order to comply the order of Hon'ble High Court vide Directorate letter No. 31146/ dated 19.09.2016 and the District Education Officer, Cuttack vide his letter No. 14024/ND Dated 05.11.2016 submitted the gradation list of Trained Graduate teacher s of Non-Govt. Aided High Schools of Cuttack District in which the petitioner in W.P.(C) No. 8 053/2016 (Smt. Swarnalata Dei) is placed at Sl. No. 7 along with 07 other teachers of the said Odisha Police High School i.e., Sl. No. 2 Dipti Pratihari, Sl. No. 05 Janaki Sahoo, Sl. No. 76 Hemanta Kumar Singh, Sl. No. 176 Bidulata Sahoo, Sl. No. 177 Jyotirmayee Acharya, Sl. No. 18 0 Prasanna Kumar Nanda and Sl. No. 181 Prativa Swain.
That pursuant to the Govt. of Odisha in School & Mass Education Vide Resolution No. 18707/SME dtd.17.09.2016 notified 07 no's. of Page 22 of 71 // 23 // Police High Schools of the State including Odisha Police High School, Cuttack i.e. the petitioners School as taken over High School w.e.f.16.01.2016. In the said Resolution it is clearly mentioned that, the existing employees of those seven schools shall be guided as per the service condition applicable to a regular Govt. servant w.e.f. the date of taken over of such School to Govt. fold i.e. 16.01.2016.
That, after careful examination of the Resolution No. 18707/SME dtd.17.09.2016 of Govt of Odisha in School & Mass Education Department, it is clearly observed that, Smt. Swarnalata Dei the petitioner in W.P.(C) No. 8053/2016 will be treated as Govt. Teacher w.e.f.16.01.2016 and shall be guided as per the service condition laid down in the said resolution and as applicable to a regular Govt. Servant.
That, the name of the petitioner will be included in the gradation list of Govt. School T.G. Teachers w.e.f.16.01.2016 instead of gradation list of T.G. Teachers of Non Govt. Aided High Schools.
Hence, the prayer of the petitioner for inclusion of her name in the gradation list of Non- Govt. Aided School T.G. Teachers and to allow her promotion as non-Govt. School Teacher deserves no merit at this stage and thus, is hereby rejected. Accordingly, the order of the Hon'ble High Court, Odisha passed in W.P.(C) No. 8053/2016 is disposed of."
3.5 When such affidavit was filed by the opposite parties, this Court, having not satisfied with the reply, granted them opportunity to comply with the orders of this Court passed on 20.07.2010 and 18.05.2016. Thereafter, an affidavit was filed on 13.07.2017, wherein the Director of Secondary Education, Odisha relied upon its letter dated 05.07.2017 which reads as follows:
Page 23 of 71
// 24 // "On receipt of the above direction the District Education Officer, Cuttack was directed vide Directorate Letter No. 22764/dated 04.07.2016 to revise the gradation list pursuant to the direction of the Hon'ble High Court, Odisha.
When the revision of the gradation list was under process, Govt. in School & M ass Education Department, Odisha vide Resolution No. 18707/SME dtd.17.09.2016 notified 07 nos. of Police High Schools of the State as taken over High Schools w.e.f.16.01.2016. The School in which the petitioner is working at present i.e. Odisha Police High School, Tulsipur, Cuttack was placed at Sl. No. 07 in the list of the Seven Schools notified under the aforesaid Govt. Resolution. In the said Resolution, it is clearly mentioned that, the existing employees of t hose seven Schools shall be guided as per the service conditions applicable to a regular Govt. servant w.e.f. the date of taken over of such school to Govt. fold i.e. 16.01.2016.
It is pertinent to mention here that in obedience to the kind orders of the Hon'ble High Court dated 18.05.2016; it was under process to revise the gradation list in publishing the same for inviting objections. When this process was going on Govt. vide Resolution No. 18707/SME dtd.17.09.2016, declared to take over the said school to Govt. fold w.e.f.16.01.2 016. When things stood thus, it could not be possible to treat Smt. S. Dei as an employee serving under Non. Govt.
Aided School. Therefore, now the question arises, if Smt. S. Dei would be still treated as an employee serving under Non. Govt. Aided High School, she has to be transferred out of the school, as a result, her claim to come over to Govt. fold would cease, because she will no more continue to be a staff of the Police High School, Tulasipur, Cuttack, which has been declared for taken over by Govt.
w.e.f.16.01.2016.
Page 24 of 71
// 25 // On receipt of this resolution, it was presumed that, the petitioner working in the Odisha Police High School, Tulsipur, Cuttack will be treated as Govt. servant w.e.f.16.0 1.2016 and her service shall be guided as per service condition applicable to her counterparts in Govt. Schools. This was the main reason for rejecting the prayer of the petitioner for inclusion of her name in the Gradation List of Asst. Teacher of Aided High Schools."
4. So far as antedating the date of petitioner's appointment, i.e., 02.01.1992 is concerned, the same has been done, but the benefits as claimed in the writ petition, i.e., fixation of seniority in the gradation list and promotion from the date, from which her juniors have been given, as per the gradation list published, have not been extended. Annexure-3 series annexed to the writ petition, i.e., the gradation list of Trained Graduate Teachers of Aided High Schools clearly indicates that if the petitioners date of appointment is antedated w.e.f.02.01.1992, her seniority should be fixed in between Sl. No.5 and 6, i.e., in between Nirmala Kumari Singh and Sarat Kumar Lenka. If inter se seniority is fixed, in that case the petitioner is also entitled to get promotion at par with the juniors to her who have already been promoted. Consequentially, she is also entitled to get revised scale of pay admissible to the post.
5. But fact remains, in the name of compliance of the order, different affidavits have been filed by opposite party no.2 by taking different stands and the last stand was take n that since the School has been taken over by the Government w.e.f. 16.01.2016, the benefit has not been extended and, thereby, the petitioner is now deprived of getting the benefit of consequential relief granted by this Court. Page 25 of 71
// 26 //
6. As it appears, time and again opportunities have been given to opposite party no.2 to comply with the orders passed by this Court in letter and spirit, but it is the deliberate and willful attempt of opposite party no.2 not to comply with the order by some plea or other. As such, there is gross violation of orders passed by this Court. Thereby, considering the compliance affidavits as well as show-cause reply filed by opposite party no.2, this Court is of the considered view that opposite party no.2 is guilty of violating the direction given by this Court.
7. The foregoing sequence of events would clearly indicate that the opposite parties, by occupying high posts in government offices, have shown scant regard towards the orders of the Courts and, as such, they deliberately and willfully have tried to violate the orders passed by this Court. More so, the letter dated 05.07.2017 clearly indicates that the opposite parties have tried not to extend the consequential benefits, such as fixation of inter se seniority, by stating that the school in question, namely, Police High School, Cuttack has been taken over by the State authority w.e.f.16.01.2016. But the fact remains, the order in W.P.(C) No.7476 of 2010, having been passed on 20.07.2010, should have been complied with while antedating the date of appointment of the petitioner by order dated 11.08.2011. Deliberately such fixation has not been made, though juniors to the petitioner have been given promotion on the basis of the gradation list prepared in Annexure-5 dated 08.05.2011. Now, completely a new case has been made out by the opposite parties vide letter dated 05.07.2017, which clearly states that the authorities are not willing to comply with the order passed by this Court. As such, opposite party no.2 has tried to shirk the responsibility to opposite party no.1 by stating that he has Page 26 of 71 // 27 // already forwarded the case of the petitioner to the Government with which the same is pending. The shirking of responsibility by opposite party no.2 to opposite party no.1, instead of discharging his duty in consonance with the orders passed by this Court, amounts to violation of Courts order. 8.
8. In the above backdrop, for flouting the orders of this Court, the proceedings of contempt are initiated against the contemnors and they are found guilty of committing contempt of this Court. Hearing on the question of punishment shall be held on 26.07.2017. If the contemnors so like, they may avail it by appearing before this Court in person at 10.30 A.M. on 26.07.2017 and by filing a show-cause as to why they will not be suitably punished for violation of orders passed by this Court. In the event the contemnors comply with the orders, by extending all the benefits to the petitioner, they may not appear on the date fixed.
Put up this matter on 26.07.2017.
A free copy of this order be handed over to Mr. A.K. Pandey, learned Standing Counsel for the School and Mass Education Department for compliance.
Urgent certified copy of this order be granted on proper application."
3.29. It is contended that taking into account the nature of order passed on 18.07.2017, Opp. Party No. 2 vide his communication dtd.21.07.2017 under Annexure-12, issued the following direction on Opp. Party No. 3:-
Page 27 of 71
// 28 // "With reference to the subject and letter mentioned above, I am to instruct you to comply with the order No. 3 dt.18.05.2016 passed in W.P.(C) No. 8053 of 2016 by revising the gradation list dt.08.11.2011 by way of inserting the name of the Petitioner Smt. Swarnalata Dei in the list post after Nirmala Kumari Singh (Sl. No.5) and before Sarat Kumar Lenka (Sl. No.6) taking her date of appointment in the post of TG Teacher as 02.01.1992. Consequently, she may be promoted to the post of Headmaster against an existing vacancy of any Aided High School. The financial benefit may be given notionally from the date of her juniors got such promotion and actual financial benefit may be allowed from the date she actually joins the new post. You are also instructed to regularize her service book and sanction increment, RACP and other service benefits as admissible to her under ORSP rules, 2008."
3.30. But on the face of the order passed in the Contempt Petition on 18.07.2017, Opp. Party No. 2 instead of requesting Opp. Party No. 3 to promote the Petitioner to the rank of Headmaster with due adjustment in Odisha Police High School, Tulasipur, Cuttack by treating her as a taken over employee w.e.f.16.01.2016, directed Opp.
Party No. 3 to promote the Petitioner against an existing vacancy of any Aided High School and to extend the benefit of promotion with all financial benefits from the date she actually joins in the said post. 3.31. Learned Sr. Counsel appearing for the Petitioner contended that since by the time Notification dtd.17.09.2016 was issued by the Govt., Page 28 of 71 // 29 // Petitioner was an employee in Odisha Police High School, Tulasipur, Cuttack, while complying the order passed in W.P.(C) No. 8053 of 2016 coupled with the order passed in W.P.(C) No. 7476 of 2010 and the order passed in the Contempt, Petitioner should not have been adjusted in OSAP High School, Cuttack as an aided employee. 3.32. However, pursuant to the letter issued by Opp. Party No. 2 on 21.07.2017 under Annexure-12, Petitioner was extended with the benefit of promotion and posted to OSAP High School, Cuttack vide office order dtd.24.07.2017 under Annexure-13. It is contended that taking into account the nature of order passed pursuant to order dtd.18.07.2017 under Annexure-11 and the subsequent order passed on 24.07.2017, the Contempt Petition was disposed of, but with the liberty that Petitioner can reiterate her claim, vide order dtd.25.09.2019.
3.33. Pursuant to such liberty, Petitioner when raised her claim to be treated as a taken over employee in Odisha Police High School, Tulasipur, Cuttack w.e.f.16.01.2016 pursuant to Annexure-7 in modification of order dtd.21.07.2017 and subsequent office order dtd.24.07.2017 in W.P.(C) No. 9798 of 2018. This Court vide order dtd.23.10.2019 under Annxure-17, when directed Opp. Party Nos. 1 & Page 29 of 71 // 30 // 2 to take a decision on such claim of the Petitioner, but claim of the Petitioner was rejected by Opp. Party No. 2 vide order dtd.04.11.2020 under Annexure-18.
3.34. Petitioner challenging the same once again approached this Court by filing W.P.(C) No. 5150 of 2021. This Court vide order dtd.13.04.2023 while quashing order dtd.04.11.2020, remitted the matter to Opp. Party No. 2 to take a fresh decision taking into account the nature of order passed on 23.10.2019 in W.P.(C) No. 9798 of 2018. However, without proper appreciation of the Petitioner's claim, the same was rejected vide the impugned order dtd.28.06.2024 under Annexure-1.
3.35. Learned Sr. Counsel appearing for the Petitioner vehemently contended that since from the stage of approval of her services Petitioner was harassed like anything and even though pursuant to the interference of this Court services of the petitioner was approved w.e.f.02.01.1992, but on the face of such approval Petitioner was wrongly placed in the gradation list of TGT so published on 08.11.2011 under Annexure-5 series.
3.36. It is contended that had the Petitioner been placed in the proper place by taking her date of joining as a TGT on 02.01.1992 in the Page 30 of 71 // 31 // gradation list published on 08.11.2011, she would have been placed in between Sl. No. 5 & 6 and would have got the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 with all consequential service and financial benefits in terms of order dtd.20.07.2010 in W.P.(C) No. 7476 of 2010. But because of the wrong committed by Opp. Party No. 2, Petitioner was deprived to get the benefit of promotion to the rank of Headmaster on 11.10.2012 and consequential adjustment in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013 from which date the post of Headmaster remained vacant in Odisha Police High School, Tulasipur, Cuttack on superannuation of the incumbent Headmistress namely Pritimanjari Pattanayak on 31.01.2013.
3.37. It is also contended that since by the time notification dtd.17.09.2016 was issued by the Govt. to take over the Odisha Police High School, Tulasipur, Cuttack w.e.f.16.01.2016, Petitioner was very much continuing in Odisha Police High School, Cuttack, on the face of the stipulation contained in the said Resolution, while extending the benefit of promotion to the Petitioner w.e.f.11.10.2012 vide order dt.24.07.2017 under Annexure-13, she could not have been transferred Page 31 of 71 // 32 // and posted to OSAP High School, OMP, Cuttack basing on the wrong direction issued by the Director on 21.07.2017 under Annexure-12. 3.38. It is also contended that while extending the benefit of promotion vide order dtd.24.07.2017 under Annexure-13, since Petitioner was deemed to be relieved from the said date, Petitioner had no alternative than to join in OSAP High School, Cuttack on 11.09.2017 under Annexure-16, but without prejudice to her rights and contention to get the benefit of adjustment as a taken over employee in Odisha Police High School, Tulasipur, Cuttack vide Annexure-16.
3.39. It is also contended that even though action of the Opp. Parties while complying order dtd.18.05.2016 in W.P.(C) No. 8053 of 2016 was held as contemptuous, but taking into account the nature of order issued under Annexure-13 and the joining of the Petitioner without prejudice to her claim under Annexure-16, though the Contempt Petition was disposed of vide order dt.25.09.2019, but with a liberty to the Petitioner to pursue her remedy if any cause of action still survives.
3.40. Since as on the date of publication of the Resolution dtd.17.09.2016 under Annexure-7, Petitioner was an employee in Page 32 of 71 // 33 // Odisha Police High School, Tulasipur, Cuttack, taking into account the nature of order passed by this Court in W.P.(C) No. 7476 of 2010 and W.P.(C) No. 8053 of 2016, Petitioner should have been extended with the benefit of promotion as against the post of Headmaster w.e.f.11.10.2012 with due adjustment of her in Odisha Police High School, Tulasipur, Cuttack, instead of transferring her to OSAP High School, OMP, Cuttack vide order dt.24.07.2017 under Annexure-13. 3.41. It is contended that because of the continuing wrong committed by the Opp. Parties, starting from the date of approval of the Petitioner's services till her adjustment and promotion to the post of Headmaster vide order under Annxure-13, Petitioner is eligible and entitled to be treated as a taken over employee in the rank of Headmaster with due adjustment in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013.
3.42. However, without proper appreciation of the Petitioner's claim since the same has been rejected vide the impugned order dt.28.06.2024 under Annexure-1, the same requires interference of this Court. It is also contended that Petitioner is in the fag end of her career and unless an appropriate order is issued by the Govt. as Page 33 of 71 // 34 // prayed for, Petitioner will be seriously prejudiced and will suffer irreparable loss and injury.
3.43. In support of his aforesaid submission, learned Sr. Counsel appearing for the Petitioner relied on the following decisions of the Hon'ble Apex Court:-
(i) Inder Pal Yadav & Ors. Vs. Union of India & Ors., 1985 (2) SCC 648
(ii) State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors., 2015 (I) SCC 347
(iii) Union of India & Ors. Vs. Munshi Ram, 2022 SCC Online SC 1493
(iv) Gurumeet Singh & Ors. Vs. State of Punjab & Ors., Civil Appeal Nos. 17529-17530 of 2017
(v) Lt. Col. Suprita Chandel Vs. Union of India & Ors., Civil Appeal No. 1943 of 2022 3.44. Hon'ble Apex Court in Para 6 of the decision in the case of Inder Pal Yadav has held as follows:-
"6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to Page 34 of 71 // 35 // reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
3.45. Hon'ble Apex Court in Para 22.1, 22.2 & 22.3 of the decision in the case of Arvind Kumar Srivastava has held as follows:-
"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other Page 35 of 71 // 36 // hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
3.46. Hon'ble Apex Court in Para 56, 57 & 58 of the decision in the case of Munshi Ram has held as follows:-
"56. It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer - Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. As rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/bearers working in the Northern Railway are entitled to the same benefits which are held to be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/bearers working in different Zones/Divisions, but working under the same employer.
57. The Railways/UOI/Railway Board cannot be permitted to repeat the same arguments which were raised before different Tribunals, High Courts and also before this Court. Under the circumstances, the respondents - Commission Vendors/bearers working in the Northern Railway shall also be entitled to the same benefits which the other Commission Vendors/bearers working in different Zones/Divisions are held to be entitled to. There cannot be discrimination among the similarly situated Commission Vendors/bearers. To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India.Page 36 of 71
// 37 //
58. Now so far as the submission on behalf of the appellants-UOI/Railways that there shall be huge financial burden on the Railways is concerned, it is required to be noted that the issue is with respect to pensionary benefits. Once it is found that the respondents - Commission Vendors/bearers working in the Northern Railway are also entitled to similar benefits which are given to the similarly situated Commission Vendors/bearers working in different zones/divisions and since they are already being paid the pensionary benefits by counting the benefit of 50% of their services rendered prior to their regularization, there is no reason to deny the similar benefits to the respondents - Commission Vendors/bearers working in the Northern Railway being similarly situated."
3.47. Hon'ble Apex Court in Para 13 & 14 of the decision in the case of Gurumeet Singh has held as follows:-
"13. In view of discussion made above and in the peculiar facts and circumstances of the instant case, we feel that the differential treatment could not have been meted out to the appellants herein who formed a part of the same establishment and were similarly situated to the employees who were granted the benefits under the Proficiency Step- up Scheme, 1988.
14. Resultantly, we hereby direct that the appellants shall be entitled to have their services in the work-charged establishment counted as qualifying service for Proficiency Step-up(s) in accordance with the Proficiency Step-up Scheme issued vide Government Circular dated 1st December, 1988. The monetary benefits flowing from the above direction shall be paid to the appellants within a period of six months from today."
3.48. Hon'ble Apex Court in Para 23 & 24 of the decision in the case of Lt. Col. Suprita Chandel has held as follows:- Page 37 of 71
// 38 // "23. We hold that the appellant was wrongly excluded from consideration when other similarly situated officers were considered and granted permanent commission. Today, eleven years have elapsed. It will not be fair to subject her to the rigors of the 2013 parameters as she is now nearly 45 years of age. There has been no fault on the part of the appellant.
24. On the peculiar facts of this case and since nothing adverse has been placed on record with regard to performance of the appellant, in exercise of powers under Article 142 of the Constitution, we direct that the appellant ought to be given Permanent Commission. We direct that the appellant's case be taken up for grant of Permanent Commission and she be extended the benefit of Permanent Commission with effect from the pursuant to the judgment dated 22.01.2014 in O.A. No. 111 of 2013 of the Principal Bench of the AFT. All consequential benefits like seniority, promotion and monetary benefits, including arrears shall be extended to the appellant. The above directions shall be implemented within a period of four weeks from today."
4. Even though notice of the writ petition was issued on 04.11.2024, but no counter affidavit has been filed by the State. However, pursuant to order dtd.03.01.2025, when instruction was provided by Opp. Party No. 3, the said instruction since was not found in terms of order dtd.03.01.2025, this Court passed a further order on 13.01.2025. Order dtd.03.01.2025 and 13.01.2025 reads as follows:-
03.01.2025 Page 38 of 71 // 39 // "2. Placing reliance on the document available under Annexure-9, learned counsel for the Petitioner contended that similarly situated employees transferred and adjusted in Police High School and placed at Sl. Nos.1 and 2 were treated as taken over employee in terms of the Resolution issued by the Government on 17.09.2016 under Annexure-7.
But Petitioner was discriminated and her claim has now been rejected vide the impugned order dtd.28.06.2024 under Annexure-1.
3. Taking into account the submission made by the learned counsel for the Petitioner, this Court directs learned ASC to obtain instruction as to whether persons placed at Sl. Nos.1 and 2 of Annexure-9 have been treated as taken over employees and allowed to retire as such as contended.
4. As requested by Mr. P.K. Panda, learned ASC, list this matter on 10th January, 2025."
13.01.2025 "2. Heard learned counsel appearing for the Parties.
3. Pursuant to the order passed by this Court on 03.01.2025, though the instruction has been provided by the DEO, Cuttack vide letter dated 13.01.2025 but the said instruction is not in terms of the order passed by this Court. The instruction be kept in record.
4. As requested by learned Addl. Govt. Advocate, list this matter on 16.01.2025."
4.1. Subsequently, Opp. Party No. 3 in his instruction dtd.13.01.2025 took the following stand:-
Page 39 of 71
// 40 // "With reference to the aforementioned subject in pursuance of order dated 03.01.2025 passed by the Hon'ble High court in WP(C) 26515 of 2024 filed by Swarnalata Dei Vs State of Odisha and others as far as Annexure-9 as to whether the persons placed Sl. No 1 & 2 mentioned in Annexure-9 have been treated as taken over employees and allowed to retire as such contended in the writ petition, the following instruction is submitted
1. That it is apt to submit that the petitioner, while continuing as Asst. Teacher in Orissa Police High School, Tulashipur as Trained Graduate teacher in Non-Govt Aided High School of Cuttack district, had filed one writ petition vide WP(C) No 8053 of 2016, with a prayer for correction of gradation list dated 08.11.2011 consequent upon correction of her date of appointment as 02.01.1992 and for promotion to the post of Head master of aided High Schools with consequential regularization of her service. The said case was disposed of on 18.05.2016 with a direction to the Director Secondary Education for correction of her date of appointment and corresponding revision of gradation list, for promotion and for grant of all consequential benefits within stipulated period.
2. That there was a notification of Govt as in Annexure-7 for taking over the management of 7 numbers of Aided Police High Schools throughout the State including Odisha Police High School, Tulasipur, Cuttack. vide Resolution dated 17.09.2016 of the govt, wherein it was resolved that the existing employees shall be guided as per the service conditions applicable to a regular Government Servant with effect from 16.01.2016 and all service rules applicable to Page 40 of 71 // 41 // Government Servants shall be applicable to the taken over employees.
3. The Director Secondary Education, Orissa, considering the resolution dated 17.09.2016 of the govt and in compliance to order dated 18.05.2016 passed in WP (C) No 8053 of 2016 for revision of gradation list and for promotion and for grant of all consequential benefits passed an order Vide Order No 38001 dated 17.11.2016 which is quoted hereunder for reference "that after careful examination of Resolution No 18707/ SME dated 17.09.2016of Govt of Odisha in School and Mass Education Department, it is clearly observed that, Smt. Swarnalata Dei the petitioner in WP (C) 8053 of 2016 will be treated as Govt. Teacher w.e.f.16.01.2016 and shall be guided as per the service condition laid down in the said Resolution and applicable to regular Government servant.
The name of the petitioner will be included in the gradation list of Govt. School TG Teachers w.e.f.16.01.2016 instead of Gradation list of TG Teachers of Non-Govt. Aided High Schools."
(The copy of the Order No 38001 dated 17.11.2016 of DSE, (0) attached)
4. That the petitioner being dissatisfied with the said order insisted to press for initiation of contempt proceeding against the contemnors. Thereafter this Hon'ble Court vide Order dated 18.07.2017issued contempt against the contemnors and held them guilty of committing contempt of Courts. Hearing on the point of punishment was posted to 26.07.2017 seeking for show cause however it was observed that in the event the Page 41 of 71 // 42 // contemnors comply with the orders by extending all the benefits to the petitioner they may not appear in person. (The copy of the Order dated 18.07.2017 passed in CONTC No 1234 of 2016 passed by the Hon'ble High Court is attached herewith)
5. That in view of such order passed by the Hon'ble High Court as above in CONTC 1234 of 2016 and in pursuance to order dated 18.05.2016 passed on WP 8053 of 2016 the petitioner was promoted to the post of Head master in an Aided School i.e. OSAP High School, OMP, Cuttack by the order of the DSE, Odisha vide letter dated 21.07.2017 which corresponds to letter of DEO, Cuttack dated 24.07.2017. The petitioner was regularized by antedating her promotion to the post of Headmaster w.e.f.11.10.2012 notionally and was directed to join at OSAP High School, Cuttack which is an aided school. The period from 11.10.2012 to 31.03.2017 was shown against the vacant post of headmaster in Biswa Bharati Bidyapitha, Karamuan in Cuttack district, and 01.04.2017 to 10.09.2017 at OSAP High school, Cuttack which was done in pursuance to order dated 18.05.2016 passed in WP (C) No 8053 of 2016 corresponding to Contempt case Vide CONTC No 1234 of 2016. The petitioner joined in the said OSAP School as Head master on dated 11.09.2017 and she has been continuing there till date. However, the notional fixation was modified to full duty vide Office Order no 17800 dated 20.09.2019 of the DEO, Cuttack.
6. That the petitioner had already taken promotion with effect. from 11.10.2012 ie much prior to Govt Resolution Dated 17.09.2016 vide Resolution no 18707 dated Page 42 of 71 // 43 // 17.09.2016 and issuance of letter No 20480 dated 7-10-2016 as in Annexure 7 & 8 of the writ petition respectively.
7. The Govt after creation of 22 Nos of posts both teaching and non-teaching for Orissa Police High School, Tulashipur names found in Sl. No 1 & 2 of Annexure-9 were approved as Govt. Employee w.e.f.16.01.2016 in pursuance to letter Of Govt dated 27.03.2018 by letter of DEO, Cuttack No 6436 Dated 28.04.2018( Annexure-26 of Writ petition) As per list appended in Annexure 9 of the writ petition the name of the petitioner is found in SL No-3 and the persons above them in Sl. No 1 &2 namely Smt. Janaki Sahoo and Smt. Dipti Pratihari respectively have been treated as Govt employee after the school was taken over by the Govt, in pursuance to letter No 18707/SME dated 17.09.2016 and letter no 20480/SME dated 07.10.2016 and order No 6436 dated 28.04.2018 (Annexure-26) with effective from 16.01.216. However the petitioner has already taken promotion at her own instance by virtue of order passed by the Hon'ble High Court in WP (C) No 8350 of 2016 vide Annexure-6 prior to approval of the said two employees in SL No-1 & 2 mentioned in Annexure-9 much prior to the letter issued by Govt dated 27.03.2018 as shown in Annexure-26 It is submitted that the said employees in Sl. No 1 & 2 mentioned in list in Annexure-9 as regards police High School Tulasipur, Cuttack have already retired from their service on attaining the age of superannuation as govt employee. The petitioner at her own instance has chosen to become Head master of an aided school and she has accepted the said order.
Page 43 of 71
// 44 // It is submitted that since the petitioner has refused to accept the proposal of the govt to consider her as Govt Employee since 16.01.2016 but accepted her promotion to Govt Aided School wef 11.10.2012 she is distinguished from the other employees. The petitioner is estopped to claim for taking benefit to become govt employee. The petitioner has deliberately suppressed the said fact to take some undue advantage and the same amounts to contempt of Courts.
The date chart with documents are attached herewith for perusal of the Hon'ble Court.
Therefore I would like to request that the same may kindly be apprised to the Hon'ble Court at the time of hearing of the case."
4.2. Basing on the instruction so provided on 13.01.2025, learned Addl. Govt. Advocate contended that since while complying the order passed in W.P.(C) No. 8350 of 2016, Petitioner was extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 vide order dt.24.07.2017 under Annexure-13 and posted to OSAP High School, OMP, Cuttack, which was duly accepted by the Petitioner with her joining on 11.09.2017 under Annexure-16, Petitioner has no other grievance and her claim to be treated as a taken over employee in Odisha Police High School, Tulasipur, Cuttack in terms of the Resolution dtd.17.09.2016 w.e.f.16.01.2016 cannot be extended. Page 44 of 71
// 45 // 4.3. Since on the face of such order passed under Annexure-13, Petitioner joined as Headmistress in OSAP High School, OMP, Cuttack on 11.09.2017 under Annexure-16, Petitioner has no further cause of action to raise any claim against the Govt.. It is also contended that CONTC No. 1234 of 2016 so filed by the Petitioner seeking compliance of order dtd.18.05.2016 in W.P.(C) No. 8053 of 2016, since was dropped vide order dtd.25.09.2019, Petitioner has got no further grievance against the State-Opp. Parties and the grievance so raised was duly considered with passing of the order under Annexure-1, which requires no interference. 4.4. It is also contended that since Petitioner never accepted the offer so offered vide order dt.07.11.2016 of Opp. Party No. 2 to treat her as a Govt. School T.G. Teacher w.e.f.16.01.2016, Petitioner cannot raise the claim to treat her as a taken over teacher w.e.f.16.01.2016. Since Petitioner in spite of being given an opportunity never accepted the benefit of order dt.17.11.2016, similar claim raised after accepting the benefit of promotion to the rank of Headmaster with her posting in OSAP High School, OMP, Cuttack vide order dtd.24.07.2017 is not at all entertainable. It is accordingly contended that Petitioner's claim as Page 45 of 71 // 46 // made has been rightly rejected vide the impugned order and it requires no interference.
5. To the submission made by the learned State Counsel, learned Sr. Counsel appearing for the Petitioner made further submissions contending inter alia that in the case in hand, Petitioner has been subjected to continuous harassment from the start of her service career and it is continuing as on date. It is accordingly contended that because of such continuous wrong inflicted on the Petitioner all through, Petitioner is eligible and entitled to get the benefit as prayed for in the present writ petition.
5.1. It is contended that on the face of her appointment by the Managing Committee of the erstwhile Padmanava Balika Uchha Bidyalaya in the year 1992, Petitioner' service was not approved initially, when services of other teaching and non-teaching staff of the School were approved. Not only that on the face of the order passed by this Court in OJC No. 6621 of 1995, though a direction was issued to approve the services of the Petitioner taking into account his appointment as against the vacant post of TGT Science (CBZ) so made on 02.01.1992, but the same was not followed and Petitioner's services was approved prospectively vide order dtd.06.03.1999. Page 46 of 71
// 47 // 5.2. Even though service of the Petitioner was approved prospectively w.e.f.06.03.1999, but Petitioner was released with the benefit of Grant-in-aid w.e.f. the month of July, 1999. Therefore, not only the Opp. Parties intentionally and deliberately did not approve the services of the Petitioner from her initial date of appointment i.e.02.01.1992, but also she was not released with the Grant-in-aid from the date of approval i.e.06.03.1999.
5.3. It is contended that when services of the Petitioner was approved prospectively vide order dtd.06.03.1999, Petitioner claiming approval of her services w.e.f.02.01.1992, again approached this Court by filing W.P.(C) No. 3549 of 2004. Even though this Court directed for consideration of the Petitioner's claim, but the same was rejected vide order dtd.09.04.2010. Petitioner when challenged the said order by filing W.P.(C) No. 7476 of 2010 and this Court allowed the writ petition vide order dtd.20.07.2010 with a direction on the Opp. Parties to approve the services of the Petitioner w.e.f.02.01.1992, but the same was carried out only after dismissal of the SLP with approval of her services w.e.f.02.01.1992 vide order dtd.08.08.2011. 5.4. It is contended that vide order dt.08.08.2011, Petitioner's initial date of appointment as a TGT, though was taken as 02.01.1992, but in Page 47 of 71 // 48 // the gradation list of TGTs so published under Annexure-5 series on 08.11.2011, Petitioner's initial date of appointment was wrongly shown as 01.07.1999 in place of 02.01.1992. Because of such wrong committed by the Opp. Parties in taking her initial date of appointment as 01.07.1999 in place of 02.01.1992, on the face of the order passed by the Opp. Parties on 08.08.2011, Petitioner was deprived to get the benefit of promotion to the rank of Headmaster while similarly situated TGTs including juniors to the Petitioner, were extended with the benefit vide order dtd.11.10.2012 under Annexure-5 series. 5.5. Petitioner though moved the Opp. Parties time and again with a request to correct her date of appointment as 02.01.1992 and to extend her the benefit of promotion w.e.f.11.10.2012, but the same was never considered by the Opp. Parties just to harass the Petitioner. Petitioner finding no alternative, once again approached this Court by filing W.P.(C) No. 8053 of 2016. Though this Court vide order dtd.18.05.2016 directed Opp. Party No. 2 to revise the gradation list and to consider the claim of the Petitioner to get the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, but the said order was not carried out.
Page 48 of 71
// 49 // 5.6. Not only that in the contempt filed by the Petitioner in CONTC No. 1234 of 2016, though this Court held that the action of the Opp. Parties as contemptuous, but on the face of such finding of this Court, Petitioner vide order dtd.24.07.2017 though was promoted to the rank of Headmaster w.e.f.11.10.2012, but instead of extending such benefit by treating the Petitioner as a taken over employee w.e.f.16.01.2016 in terms of the notification issued by the Govt. on 17.09.2016 under Annexure-7, Petitioner was transferred and posted as Headmaster to OSAP High School, Cuttack, which is an aided one. By doing so, Petitioner was once again harassed and her right to be treated as a taken over employee w.e.f.16.01.2016 in terms of notification dtd.17.09.2016 was flouted.
5.7. It is contended that all the teachers who were in Police High School, Tulasipur, Cuttack as on the date of notification on 17.09.2016, were treated as taken over employees w.e.f.16.01.2016. But Opp. Parties, in order to deprive the Petitioner from such legitimate right, though extended her the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 vide order dtd.24.07.2017, but transferred and posted to OSAP High School, Cuttack, which was an Aided Educational Institution.
Page 49 of 71
// 50 // 5.8. It is contended that taking into account the stipulation contained in the notification dtd.17.09.2016 under Annexure-7 and the benefit extended to all such employees who were in the pay roll in Police High School, Tulasipur, Cuttack as on the date of publication of the notification, Petitioner was not treated as a taken over employee w.e.f.16.01.2016 as against the post of Headmaster. 5.9. Since all the teaching and non-teaching staff who were continuing in Police High School, Tulasipur, Cuttack as on 17.09.2016 were treated as taken over employees, there was no justification in transferring and relieving the Petitioner while giving her the benefit of promotion to the post of Headmaster w.e.f.11.10.2012 vide order dtd.24.07.2017. Not only that while issuing such an order on 24.07.2017, Petitioner was also treated to have been relieved from the said date. Petitioner accordingly on compelling circumstances, joined in OSAP High School, OMP, Cuttack on 11.09.2017. 5.10. It is also contended that as on the date of issuance of order dtd.24.07.2017, there was a clear vacancy as against the post of Headmaster in Police High School, Tulasipur, Cuttack, because of the retirement of the previous incumbent namely Pritimanjari Pattanayak w.e.f.31.01.2013. But on the face of such clearly vacancy available as Page 50 of 71 // 51 // on 01.02.2013 and instead of accommodating the Petitioner as against the said post of Headmaster w.e.f.16.01.2016 in Police High School, Tulasipur, Cuttack, Petitioner was intentionally and deliberately transferred and posted to OSAP High School, OMP, Cuttack vide order dtd.24.07.2017.
5.11. It is also contended that even though the Contempt filed in CONTC No. 1234 of 2016, taking into account the order passed on 24.07.2017 was dropped, but Petitioner was given liberty to raise her claim, if any cause of action still subsists vide order dtd.25.09.2019. Basing on such liberty, Petitioner when raised her claim to treat her as a taken over employee w.e.f.16.01.2016, basing on the notification issued on 17.09.2016 and this Court directed for its consideration in W.P.(C) No. 9798 of 2018, but such claim of the Petitioner was rejected vide order dtd.04.11.2020.
5.12. This Court in W.P.(C) No. 5150 of 2021 though set aside order dtd.04.11.2020 and directed for consideration of the Petitioner's claim to be treated as a taken over employee, but the same was again rejected vide the impugned order dtd.28.06.2024 under Annexure-1. It is accordingly contended that from the aforesaid facts, it can be safely Page 51 of 71 // 52 // presumed that Petitioner all through has been made to suffer because of the illegal and wrong action of the Opp. Parties. 5.13. In view of such continuous wrong and the discrimination meted out to her, Petitioner is eligible and entitled to get the benefit as prayed for in the writ petition. Petitioner is entitled to be treated as a taken over employee w.e.f.16.01.2016 with due adjustment as against the post of Headmaster in Police High School, Tulasipur, Cuttack w.e.f.01.02.2013 with all consequential service and financial benefits. 5.14. It is also contended that Petitioner made a prayer to include her name in the gradation list of Non-Govt. Aided TGT Teachers, when in the gradation list published on 08.11.2011 under Annexure-5 series, Petitioner was wrongly placed at Sl. No. 215, by taking her initial date of appointment as 01.07.1999 in place of 02.01.1992, so corrected vide order dtd.08.08.2011 under Annexure-4 series. But the same was only corrected vide order dt.24.07.2017 under Annexure-13. Vide the said order Petitioner was extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012. However, since as on 24.07.2017, Petitioner was continuing at Police High School, Cuttack, in view of the notification dt.17.09.2016 so issued under Annexure-7 and consequential letter issued on 07.10.2016 under Annexure-8 and Page 52 of 71 // 53 // the vacancy as against the post of the Headmaster available in Police High school, Tulasipur w.e.f.01.02.2013, while issuing order dt.24.07.2017, Petitioner should have been treated as a taken over employee in the post of Headmaster w.e.f.01.02.2013. But Opp. Parties just to deprive the Petitioner from being treated as a taken over employee, intentionally and deliberately transferred and posted her as against the post of Headmaster though w.e.f.11.10.2012, but on notional basis to OSAP High School, OMP Square, Cuttack. 5.15. It is contended that just to circumvent the claim of the Petitioner and on the face of the stipulation contained in Resolution dt.17.09.2016, order dt.17.11.2016 was passed by Opp. Party No. 2. Since as on the date of issuance of the notification dt.17.09.2016, Petitioner was continuing in Police High School, Cuttack, Petitioner should have been treated as a taken over employee w.e.f.16.01.2016 and she should have been adjusted against the post of Headmaster w.e.f.01.02.2013 in the said School. Therefore, the stand taken by the Opp. Parties that Petitioner since did not accept the benefit of order dt.17.11.2016, she is not eligible to get the benefit as prayed for, is not acceptable. Stipulation contained in Resolution dt.17.09.2016 reads as follows:-
Page 53 of 71
// 54 // "Government had decided in principle on the 7th June 1994 to take-over the Non-
Government Aided High Schools in receipt of full salary cost. The managing Committee of these institutions were informed to comply with the terms and conditions of takeover as laid down in this Department letter No. 20645, dated the 24th June 1994. The following Non-Government Aided High Schools in receipt of full salary cost, could not resolve to handover the management along with approved teaching and non-teaching staff including assets as on the 7th June 1994 for which these High Schools could not be taken over at the relevant time.
Now in pursuance of Order Dt. 07.12.2009 of Hon'ble High Court of Odisha passed in WP (C) No. 7111/2003 WP (C) No. 2466/2005, WP(C) No.2467/2005 and WP(C)No. 2468/2005, Order dated 05.04.2010 in WP(C) No.20334/2009, Order dated 05.04.2010 in WP(C) 116/2010 & Order dated 05.04.2010 in WP (C) 569/2010 Govt. have decided to take over the management of these High Schools along with approved teaching and non-teaching staff and assets with effect from the 16th January, 2016 Government would not be liable to clear any liability whatsoever relating to the period prior to and or as on and after the 16th January, 2016 incurred by the Managing Committee.
Sl. Name of the School Name of the District
No.
1 Police High School, Balasore Balasore
2 Police Training College High School, Angul Angul
3 Police High School, Rourkela Sundargarh
4 Police High School, Baripada Mayurbhanj
5 N.S. Police High School, Keonjhar Keonjhar
Page 54 of 71
// 55 //
6 Police High School, Tulasipur, Cuttack Cuttack
7 Police High School, Puri Puri
2. The taken-over employees would be treated as Government Servants with effect from the 16th January, 2016 only and their Service conditions would be ad follows:-
2.1. Seniority:
The seniority of the taken-over employees in respective cadres under the State Government will be determined taking into account the 16th January, 2016 as the date of entry into Government Service and the inter-se-seniority of the taken-over employees prior to the 16th January, 2016 will be determined in accordance with the guidelines prescribed in this Department Letter No. 27236 dated the 26th August 1994 subject to decision of competent Court of Law where pending on the date of takeover.
2.2. Fixation of pay and date of Increment:
As the teachers are entitled to salary in the scales of pay applicable to their counterparts in the State Government, their pay shall be protected on their coming over to Government service without any change in the date of increment.
2.3.Retirement benefits:
The employees of such taken over High Schools shall be governed under two sets of rules Pension and other terminal benefits admissible to State Government servants shall be applicable to such employees for the period of their service rendered under the State Government i.e. with effect from the date of taking over. Such period shall be governed under the provisions of the OCS (Pension) Rules, 1992. Service period rendered in privately managed alded educational institutions prior to the date of taken over to Government fold shall be governed under the provisions of the Odisha Aided Educational Institutions Employees' Retirement Page 55 of 71 // 56 // Benefit Rules 1981. Such provision shall be applicable to the employees who have joined in service prior to 01.01.2005.
Provided that employees who have joined in service in Aided Educational Institutions on or after 01.01.2005 shall be governed under the New Restructured Defined Contribution Pension Scheme (NPS) for both spells of service i.e. under Aided Educational Institutions and State Government.
2.4. Provident Fund:
Employees who are eligible shall subscribe to the State Government Provident Fund as under the General Provident Fund (Odisha) Rules, 1938.
Provided that such G.P.F. Rules shall not be applicable in case of employees who are covered under the New Restructured Defined Contribution Pension Scheme (NPS).
2.5. Leave:
Leave benefit as admissible to Government servants shall be admissible to such employees on the basis of service rendered by them with effect from the 16th January, 2016.
2.6. House Rent Allowance:
House Rent Allowance as admissible to regular Government servants shall be admissible to such employees with effect from the date of joining in Government fold.
2.7. Age of superannuation:
The age of superannuation for all category of employees shall be 60 years.
3. The existing employees shall be guided as per the service conditions applicable to a regular Government servant with effect from the date of taken over of such Schools to Government fold.Page 56 of 71
// 57 //
4. All service rules applicable to Government servants shall be applicable to the taken-over employees.
ORDER-Ordered that the Resolution be published in the next issue of the Odisha Gazette and copies thereof be extended to all concerned with 100 spare copies to S & M.E Department for reference."
5.16. It is also contended that the placement of the Petitioner in Police High School as on 17.09.2016 vis-à-vis the other TGTs reflected in order dt.17.11.2016 is also prima facie wrong, taking into account the orders issued on dt.11.10.2012 under Annexure-5 series and order dt.24.07.2017 issued under Annexure-13. Since Petitioner vide order dt.24.07.2017 was extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012 and in order dt.11.10.2012, names of Janaki Sahoo (Sl. No. 1 in the information sheet attached to letter dt.06.05.2017 under Annexure-9) and Dipti Pratihari (Sl. No. 2 of Annexure-9) were not there, Petitioner was the senior most TGT in Police High School, Tulasipur, Cuttack as on 17.09.2016. 5.17. In support of the aforesaid submission, reliance was placed to the following decisions of the Hon'ble Apex Court:-
(i) Balakrishna Savalram Pujari Waghmare & Ors. Vs. Shree Dhyaneshwar Maharaj Sansthan & Ors., 1959 SCC Online 68
(ii) M.R. Gupta Vs. Union of India & Ors., 1995(5) SCC 628 Page 57 of 71 // 58 //
(iii) Samruddhi Co-operative Housing Society Limited Vs. Mumbai Mahalaxmi Construction Private Limited, 2022 (4) SCC 103
(iv) The Commissioner, Karnatak Housing Board Vs. C. Muddaiah, Civil Appeal No. 4108 of 2007 5.18. Hon'ble Apex Court in Para 31, 32 & 33 of the decision in the case of Balakrishna Savalram Pujari Waghmare has held as follows:-
"31. It is then contended by Mr Rege that the suits cannot be held to be barred under Article 120 because Section 23 of the Limitation Act applies; and since, in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment of time during which the said wrong continued. Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by Page 58 of 71 // 59 // the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked. Thus considered it is difficult to hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it.
32. We would now like to refer to some of the decisions which were cited before us on this point. The first case which is usually considered in dealing with the application of Section 23 is the decision of the Privy Council in Maharani Rajroop Koer v. Syed Abul Hossein [(1880) LR 7 IA 240] . In order to Page 59 of 71 // 60 // appreciate this decision it is necessary to refer, though briefly, to the material facts. The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land. It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstructions except two which were numbered No. 3 and No. 10. No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm trees so placed as to draw off water in the pyne for the purpose of irrigating the defendants' lands. It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiff's mohal wore in the nature of continuing nuisance as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. That is why the Privy Council allowed the plaintiff's claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf. In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiff's water and thereby committing fresh wrong every time. Thus this is clearly not a case of exclusion or ouster.
33. Similarly, in Hukum Chand v. Maharaj Bahadur Singh [(1933) LR 60 IA 313] the Privy Council was dealing with a Page 60 of 71 // 61 // case where the defendants' act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of, s. 23. The relevant dispute in that case arose because alterations had been made by the Swetambaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. "The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot. This the Digambaris refused to worship as being a representation of a detached part of the human body". The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong which the Digambaris were entitled to complain. The question which the Privy Council had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer [(1880) LR 7 IA 240] and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants."Page 61 of 71
// 62 // 5.19. Hon'ble Apex Court in Para 6 of the decision in the case of M.R. Gupta has held as follows:-
"6. The Tribunal misdirected itself when it treated the appellant's claim as "one time action" meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a government servant to be paid the correct salary throughout his tenure according to computation made in accordance with the rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao v. Mattapalli Raju [AIR 1950 FC 1 : 1949 FCR 484 : 50 Bom LR 181 : (1950) 1 MLJ 752] )."
5.20. Hon'ble Apex Court in Para 21 of the decision in the case of Samruddhi Co-operative Housing Society Limited has held as follows:-
"21. Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant Society. For this reason, a complaint was Page 62 of 71 // 63 // instituted in 1998 by the appellant against the respondent. Ncdrc on 20-8-2014 directed the respondent to obtain the certificate within a period of four months. Further, Ncdrc also imposed a penalty for any delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants, therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation."
5.21. Hon'ble Apex Court in Para 24 of the decision in the case of C. Muddaiah has held as follows:-
"24. We are unable to uphold the argument. In our judgment, the submission of the learned counsel for the writ-petitioner is well-founded that in the instant case also, express and unequivocal direction was issued by the Court to grant to the writ-petitioner "such other consequential benefits that he might get consequent upon the revision of ranking". It was also observed that such benefits should be paid to him by December 30, 1997 as the writ-petitioner was to retire in February, 1998. The said decision, to reiterate, has become final and binding. It is, therefore, not open to the appellant- Board to contend that the respondent is not entitled to such benefits under 1973 Act and hence no such direction could have been issued by the Court."Page 63 of 71
// 64 //
6. Having heard learned counsel appearing for the Parties, considering the submissions made and the materials available on record, this Court finds that Petitioner was initially appointed as a TGT in Padmalav Balika Uchha Bidyalaya on 02.01.1992, where she joined on the very same date. On the face of such appointment as against a vacant TGT post, services of the Petitioner when was not approved on the face of the proposal submitted by the Managing Committee of the School on 29.04.1995, Petitioner challenging such action of the then Inspector of Schools, Cuttack, approached this Court in OJC No. 6621 of 1995. 6.1. Pursuant to the order passed by this Court in the said the writ petition, services of the Petitioner though was approved as against a TGT post, but it was approved prospectively vide order dtd.06.03.1999, so served on the Petitioner on 01.07.1999. Even though services of the Petitioner was approved prospectively vide order dtd.06.03.1999, but Petitioner was released with the Grant-in-aid w.e.f. July, 1999 only.
6.2. Challenging such action of the Opp. Parties in approving the services of the Petitioner prospectively vide order dtd.06.03.1999 with release of Grant-in-aid from the month of July, 1999, Petitioner again approached this Court by filing W.P.(C) No. 3549 of 2004. This Court Page 64 of 71 // 65 // vide order dtd.09.07.2009, when directed to take a decision on the Petitioner's claim, the same was rejected vide order dtd.09.04.2010. However, in the meantime and in terms of order dtd.10.06.2005 of Opp. Party No. 1, Petitioner vide order dtd.23.08.2005 of Opp. Party No. 3, was transferred and posted as a TGT in Odisha Police High School, Cuttack.
6.3. Challenging the rejection of her claim to approve her services w.e.f.02.01.1992, so made vide order dt.09.04.2010, Petitioner again approached this Court by filing W.P.(C) No. 7476 of 2010. This Court vide order dtd.20.07.2010 under Annexure-2 while quashing order of rejection dtd.09.04.2010, directed the Opp. Parties to antedate the date of appointment of the Petitioner as 02.01.1992 and to grant all consequential benefits. On the face of such order passed on 20.07.2010, even after dismissal of the SLP so preferred by the State vide order dtd.22.07.2011 in SLP(C) No. 9391 of 2011, services of the Petitioner was only approved w.e.f.02.01.1992, vide order dtd.11.08.2011.
6.4. On the face of such approval of her service w.e.f.02.01.1992 vide order dtd.11.08.2011, in the gradation list of TGTs published by Opp. Party No. 2 on 08.11.2011, Petitioner was placed at Sl. No. 215, Page 65 of 71 // 66 // taking her initial date of appointment as 01.07.1999, in place of 02.01.1992. Because of such wrong committed by the Opp. Parties in placing the Petitioner wrongly in the gradation list of TGTs by taking her date of appointment as 01.07.1999, Petitioner was deprived to get the benefit of promotion to the rank of Headmistress, when persons similarly situated and junior to the Petitioner were so promoted vide order dtd.11.10.2012 under Annexure-5 series. 6.5. Challenging such placement of the Petitioner in the gradation list and seeking extension of the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, Petitioner approached this Court by filing W.P.(C) No. 8053 of 2016. This Court vide order dtd.18.05.2016 under Annexure-6 though directed to revise the gradation list by taking the date of appointment of the Petitioner as 02.01.1992 and to grant all consequential benefits, but the same was not considered within the time stipulated by this Court. Petitioner accordingly filed CONTC No. 1234 of 2016, seeking compliance of order dtd.18.05.2016.
6.6. It is found that prior to compliance of order dtd.18.05.2016, vide Resolution dtd.17.09.2016 under Annexure-7, Govt. decided to take over 7 High Schools which includes Odisha Police High School, Page 66 of 71 // 67 // Tulasipur, Cuttack we.f.16.01.2016. In the said Resolution dtd.17.09.2016, Odisha Police High School, Tulasipur, Cuttack was placed at Sl. No. 6. As found from the further communication issued by the Govt. on 07.10.2016 under Annexure-8, on the date of such taken over of Police High School, Tulasipur on 17.09.2016 w.e.f.16.01.2016, Petitioner was continuing as against the post of TGT in Odisha Police High School, Tulasipur, Cuttack. 6.7. Not only that various posts were created for the purpose of implementing Resolution dtd.17.09.2016 vide letter dtd.07.10.2016 under Annexure-8 and in the said letter, a post of Headmaster was also created in respect of Odisha Police High School, Tulasipur, Cuttack. 6.8. It is also found from the record that post of Headmaster in Odisha Police High School, Tulasipur, Cuttack remained vacant w.e.f.01.02.2013 because of the superannuation of the incumbent Headmistress namely Pritimanjari Pattanayk w.e.f.31.01.2013. However, on the face of such creation of the post vide letter dtd.07.10.2016 under Annexure-8 and the Resolution issued on 17.09.2016 and order passed in W.P.(C) No. 8053 of 2016 on 18.05.2016 coupled with order dt.20.07.2010 in W.P.(C) No. 7476 of 2010, Petitioner instead of being adjusted as against the post of Page 67 of 71 // 68 // Headmaster in Odisha Police High School, Tulasipur, Cuttack, was extended with the benefit of promotion to the rank of Headmaster though w.e.f.11.10.2012, but with her posting in OSAP High School, OMP, Cuttack vide order dt.24.07.2017 under Annexure-13. Vide the said order Petitioner since was treated as deemed relieved w.e.f.24.07.2017, Petitioner joined as Headmistress in OSAP High School, OMP, Cuttack on 11.09.2017 vide Annexure-16, but without prejudice to her claim for being treated as a taken over employee in Odisha Police High School, Tulasipur, Cuttack in terms of the order passed in W.P.(C) No. 7476 of 2010 and W.P.(C) No. 8053 of 2016. 6.9. It is also found that in CONTC No. 1234 of 2016 though this Court found the action of the Opp. Parties in not extending the benefit of promotion as contemptuous, but taking into account the order passed on 24.07.2017 under Annexure-13 and the joining of the Petitioner on 11.09.2017 under Annexure-16, the Contempt Petition was disposed of vide order dtd.25.09.2019, but by giving a liberty to the Petitioner to raise any claim, if any cause of action still survives. 6.10. As per the considered view of this Court by the time the Contempt Petition was dropped vide order dt.25.09.2019, Petitioner's claim for her adjustment as a taken over employee in Odisha Police Page 68 of 71 // 69 // High School, Tulasipur, Cuttack in terms of notification dt.17.09.2016 was very much alive and in terms of the liberty granted in the said order, Petitioner raised her claim for her adjustment in Odisha Police High School, Tulasipur, Cuttack as against the post of Headmaster and to be treated as a taken over employee w.e.f.16.01.2016. 6.11. It is found that, only on the ground that Petitioner since has accepted the benefit of order dtd.24.07.2017 with her joining in OSAP High School, OMP, Cuttack on 11.09.2017, Petitioner's claim has been rejected. It is also found that vide order dtd.17.11.2016 so enclosed to the instruction dtd.13.01.2025 though it was observed that Petitioner can be taken as a TGT in Odisha Police High School, Tulasipur, Cuttack w.e.f.16.01.2016, but on the other hand claim of the Petitioner in terms of order passed in W.P.(C) No. 8053 of 2016, was rejected. As per the considered view of this Court such an observation made by the Govt. in order dt.17.11.2016 since was not in terms of order dtd.18.05.2016 in W.P.(C) No. 8053 of 2016, the same has got no binding effect. Vide the said order Petitioner was never extended with the benefit of promotion to the rank of Headmaster w.e.f.11.10.2012, with due adjustment in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013.
Page 69 of 71
// 70 // 6.12. In view of the aforesaid analysis and since Petitioner was harassed and discriminated all through starting from approval of her services in the year 1995 to till date, this Court taking into account such discrimination and the continuous wrong inflicted on the Petitioner, placing reliance on the stipulation contained in Resolution dtd.17.09.2016 as well as the decisions cited supra on the issue of discrimination and continuous wrong and the admitted position that the post of Headmaster in Odisha Police High School, Tulasipur, Cuttack was vacant w.e.f.01.02.2013, is inclined to quash the impugned order dtd.28.06.2024 so passed by Opp. Party No. 2 under Annexure-1.
6.13. While quashing order dt.28.06.2024, this Court directs Opp. Party Nos. 1 & 2 to pass a fresh order by extending the benefit of promotion to the Petitioner to the rank of Headmaster w.e.f.11.10.2012 with modification of order dtd.24.07.2017 under Annexure-13 and adjustment of the Petitioner as against the post of Headmaster in any taken over High School w.e.f.11.10.2012 and in Odisha Police High School, Tulasipur, Cuttack w.e.f.01.02.2013. 6.14. This Court further directs Opp. Party Nos.1 & 2 to treat the Petitioner as a taken over employee w.e.f.16.01.2016 in terms of Page 70 of 71 // 71 // notification dt.17.09.2016, as against the post of Headmaster w.e.f.01.02.2013 in Odisha Police High School, Cuttack and extend the benefit of further promotion to the rank of Sr. S.E.S. w.e.f.29.05.2014, with all service and financial benefits as due and admissible to her. This Court directs Opp. Party Nos. 1 & 2 to complete the entire exercise as directed within a period of three (3) months from the date of receipt of this order.
7. The writ petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 10th September, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Sep-2025 16:51:16 Page 71 of 71