STATE OF ORISSA Vs. NARAYAN JENA

JUDGEMENT

(1.) The State-petitioners have filed this writ petition seeking to quash the order dtd. 9/2/2015 passed in O.A. No. 590 (C) of 2010, by which the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, by holding that the impugned order of disengagement dtd. 20/7/2002 was passed without complying the principles of natural justice, quashed the same so also the order dtd. 15/12/2009, rejecting the representation, and directed that the State-petitioners shall reinstate opposite party no.1 in service in the school, wherefrom he was disengaged, and that he will not be entitled to any pay during the period of disengagement. The tribunal, however, granted liberty to the petitioners to issue show cause notice to the opposite party no.1 giving him opportunity to submit his response before taking any further action in the matter.

(2.) The factual matrix of the case, in brief, is that opposite party no.1 was initially engaged as peon on daily wage basis for two years from November 1996 in the Board of Secondary Education, Orissa, Cuttack. Thereafter, vide letter dtd. 1/2/1999, the Secretary, Board of Secondary Education, Orissa requested the Director, Teacher Education and SCERT to absorb opposite party no.1 as Peon in any vacant post. As a consequence thereof, on the very same day, without following due procedure, the Director, TE and SCERT appointed opposite party no.1 as Peon on temporary basis in the office of the Headmaster, Radhanath Secondary Training School, Cuttack with a condition that the appointment is purely temporary and can be terminated without any reason assigned thereof. The said fact came to the notice of the authority in the year 2002 and, therefore, vide letters dtd. 11/2/2002, 26/2/2002 and 13/5/2002, the Director, TE and SCERT was instructed to take necessary action for removal of opposite party no.1, who was illegally appointed as Peon in Radhanath Secondary Training School, Cuttack. Accordingly, the Headmaster, Radhanath Secondary Training School, Cuttack disengaged the opposite party no.1, vide order dtd. 20/7/2002. Aggrieved by such order, opposite party no.1 approached the tribunal by filing O.A. No. 2137(C) of 2002, which was disposed of vide order dtd. 25/3/2009 remanding the matter back to the Director to treat the paper book and M.P. as representation and pass appropriate orders on merit within a period of two months from the date of receipt of the order. In compliance of the aforesaid order, the Director, TE and SCERT, vide order dtd. 15/12/2009, rejected the claim of the opposite party no.1 on the ground that the very appointment of opposite party no.1 was illegal and without following any recruitment procedure. As against the aforesaid order, opposite party no.1 approached the tribunal by filing O.A. No. 590(C) of 2010. The tribunal, vide order dtd. 9/2/2015, quashed the order of disengagement dtd. 20/7/2012 so also the order dtd. 15/12/2009 rejecting the representation of opposite party no.1, and directed that the State-petitioners shall reinstate opposite party no.1 in service in the school wherefrom he was disengaged, and that he will not be entitled to any pay during the period of disengagement. The tribunal, however, granted liberty to the petitioners to issue show cause notice to opposite party no.1 giving him opportunity to submit his response before taking any further action in the matter. Hence this application.

(3.) Mr. S. Jena, learned Standing Counsel for School and Mass Education Department appearing for the State-petitioners contended that the tribunal has committed gross error apparent on the face of record in passing the order impugned. It is contended that if the initial appointment of opposite party no.1 was in gross violation of the recruitment procedure itself, the authorities are well justified in passing the order of disengagement so also the order rejecting the representation. In such event, the tribunal should not have held that principles of natural justice were to be followed, before the order of disengagement was communicated to opposite party no.1. More so, the appointment order clearly indicates that the service of opposite party no.1 can be terminated without assigning any reasons. It is further contended that as the petitioner was appointed, without following due procedure of selection, the order of disengagement passed by the authority is well justified. To substantiate his contention, he has relied upon the judgment of the apex Court in the cases of Basudeo Tiwary v. Sido Kanhu University, (1998) 8 SCC 194; Pramod Kumar v. U.P. Secondary Services Commission, (2008) 7 SCC 153; State of Odisha v. Mamata Mohanty, (2011) 3 SCC 436; and of this Court in the case of M.C. Bhagabati Bidyapitha v. Rajkumar Dash, disposed of on 10/2/2016.