BINAPANI DEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner was the Assistant Director of Health Services (Maternity and Child Welfare), Government of Orissa. Her date of birth is 10th April, 1910. She completed her 55th year on 10th of April, 1965 and 58th year on 10th April, 1968. THE State Government asked her to show cause why her date of birth should not be accepted as 4th April, 1907. After some correspondence, Government by their letter dated 27th of June, 1963 determined her date of birth as 16th April, 1907 and declared that she should be deemed to have retired on 16th April, 1962 subject, however, to extension of service granted from 16th April, 1962 till afternoon of July 15, 1963. Thus the petitioner was deemed to have retired on 15th July, 1963 though she should have retired on 10th April, 1968. Against the order of the Government retiring her prematurely, the petitioner filed O. J. C. No. 254 of 1963 in the High Court. THE order was quashed by the judgment reported in AIR 1965 Orissa 81 (Dr. Miss Binapani Dei v. State of Orissa). THE appeal filed by the State of Orissa against the judgment of the High Court was dismissed (AIR 1967 SC 1269 State of Orissa v. Dr. (Miss) Binapani Dei). In the Supreme Court Appeal No. 56 of 1964 filed by the State of Orissa, the State took the stand that they were entitled to leave being granted by the High Court as on the basis of its judgment the petitioner was to retire on 10th of April, 1968 whereby she would get a financial benefit to the extent of about Rs. 48,000/-. THE valuation being more than Rs. 20,000/-, on the aforesaid basis leave was granted by the High Court under Article 133 of the Constitution. After the petitioner's success in the Supreme Court she was allowed to join her post. Sometimes thereafter, the notice (Annexure - 1) (hereinafter to be referred to as the impugned notice) dated 11th August, 1967 was issued to her. It runs thus :

(2.) MR. Mohanty for the petitioner raises the following contentions : (i) The petitioner by virtue of Resolution No. 7406-Gen. - 2R/-1-23/63 dated 21st of May, 1963 (hereinafter to be referred to as the 1963 Resolution) of the Government of Orissa, Political and Services Department, had a right to continue in service till the expiry of her 58th year and the impugned notice is contrary to law. (ii) In view of the stand taken by the opposite parties in the application for leave to Supreme Court that the petitioner was entitled to continue in service till the expiry of her 58th year, they are estopped from resorting to a plea that the services of the petitioner can be terminated earlier by issue of the impugned notice. (iii) The impugned order is mala fide. The aforesaid contentions require careful examination.

(3.) THE action of the Government is also attacked as being mala fide on the ground that the termination was vindictively done on account of previous litigation which went to the Supreme Court. THE failure of the Government in the previous litigation does not debar it from exercising its power under the Resolution. THE fact that there was a previous litigation, by itself is not enough to establish mala fides. No other materials have been pleaded or proved in support of the case of mala fide exercise of power. We find no substance in this contention. Reliance is placed by Mr. Mohanty on AIR 1964 SC 72 (S. Partap Singh v. State of Punjab) in support of his contention that as the opposite parties have not filed any counter, the averment of the mala fide pleaded in the writ application stands unchallenged and the Court is bound to hold that the impugned notice was mala fide. In the aforesaid case the petitioner was a Civil Surgeon in the employment of the Punjab Government who had been granted leave preparatory to retirement. He was subsequently recalled to duty and was simultaneously placed under suspension pending the result of an inquiry in certain charges of misconduct. THE Civil Surgeon challenged every one of the orders as being mala fide having been passed at the instance of the Chief Minister of the Punjab who was personally hostile to him by reason of certain incidents and circumstances which were set out. He alleged that the impugned orders were prompted by the desire on the part of the Chief Minister to wreak vengeance on the petitioner. No affidavit was filed by the Chief Minister. In the facts and circumstances of that case the majority of the learned Judges held that the mala fide was established and in so doing the absence of the affidavit was considered as a determining factor. THE facts of this case tell altogether a different story and are clearly distinguishable. Even if the allegations of mala fide in the writ application are accepted in toto, no case of mala fide is made out. All that the petitioner averred was that there was a previous litigation and the petitioner was singled out in the matter of termination of service. Even if both the facts are accepted, no mala fide is established. When the petition itself does not make out a case of mala fide the absence of a counter affidavit would not improve the matter and would not invest the petitioner with a right which she herself failed to make out. THE absence of the counter affidavit does not assist the petitioner's case. THE Supreme Court decision has no application to the facts of the case.