Padma Lochan Dash vs State of Orissa and Others

R.N. Misra, J.—Petitioner joined service under the Durbar Administration of the ex-State of Mayurbhanj on 10-9-1948 and was in employment of the said State when the ex-State of Mayurbhanj merged with the Province of Orissa on 1-1-1949. Petitioner continued in service under the new administration and was treated as an employee of the State Government of Orissa. He received the National Award in the year 1965-66 for proficiency as a teacher. In May, 1973, Government by Resolution decided that teacher who received National or State Awards would be automatically given two years extension of service beyond the period of superannuation subject to mental and physical fitness. The District Inspector of Schools, Baripada, informed the Petitioner by office memo dated 6th of April, 1974, that the Petitioner was to superannuate with effect from 14-5-1974 on attaining the age of 58. Petitioner thereupon made a representation that under the Mayurbhanj State Law, Petitioner was entitled to continue in service until attaining the age of 60 and under the terms of merger, the said service condition is not to be altered to his prejudice. Again, Government having decided to give extension of two years service to National Awardees, Petitioner should also be given that benefit. Petitioner''s case was recommended by the local authorities; yet Petitioner was made to superannuate and on a subsequent representation, Petitioner was called back to service by order under Annexure-6 and was directed to continue in service till 14-5-1976 till completion of the 60th year of age. The State Government passed another order on 24-3-1976 to the following effect:

In inviting a reference to your letter No. 834-G, dated 17-2-1976 on the subject mentioned I am directed to say that Sri Padmalochan Dash, Ex-Head Pandit, Baniagan U. P. School, is eligible for two years'' extension in his service in accordance with Government Resolution No. 17000-E, dated 25-5-1973, subject to fulfilment of conditions laid down therein. Government have therefore, been pleased to decide that Sri Dash may be granted extension in his service from 15-5-1974 to 14-5-1976. The period of break in his service may be treated as lease without pay.

Petitioner made a representation against the aforesaid decision of treating the intervening period as leave without pay and his representation was duly forwarded with recommendation by the District Inspector of Schools to the Joint Director of Public Instruction (Schools) under Annexure-9 and as no orders were passed thereon, this application has been filed for a direction that the Petitioner is entitled to the service benefits during the intervening period and should be paid the same.

The opposite parties have made a return to the rule nisi and the Under Secretary in the Education Department has filed the counter affidavit. In paragraph 6 of the counter affidavit, it has been stated:

... It is true that the Petitioner submitted a representation dated 23-4-1974 (Annexure-3) wherein he pleaded that he was an employee of the ex-State of Mayurbhanj and as such he is entitled to remain in service upto the age of 60 years and also he was a National Awardee teacher of 1965 and as such he should be given extension of service for a period of 2 years. The Petitioner, however, did not submit any medical certificate in support of his physical fitness and mental alertness along with the said representations. In the resolution of the Government in the Education Department dated 25th of May, 73 (Annexure-1) it has been clearly stated that extension of service of two years to the National Awardee teacher would be given subject to his mental and physical fitness. As submitted earlier, the Petitioner did not submit any medical certificate in support of his mental and physical fitness along with his representation dated 23-4-1974. The Petitioner submitted a further representation on 30-5-1975 along with the medical certificate and accordingly a decision was taken to give him extension of service as per the resolution (Annexure-1) for a period of two years from the date of superannuation i. e., from 15-5-1974 to 14-5-1976....

Dealing with the claim of the Petitioner on the footing that he was an ex-Mayurbhanj State employee, in paragraph 9 of the counter affidavit, it has been stated:

... It is submitted that it is true that the Petitioner is an employee of ex-State of Mayurbhanj but he was not absorbed in Government service and as such his claim to retain him in service upto the age of 60 years has no legal basis and as such the same is liable to be rejected. Moreover, the Petitioner is not entitled to raise this question as his cause of action has arisen due to the impugned order (Annexure-7) which is based on the Government resolution (Annexure-1) and this has got no nexus to the fact whether the Petitioner is an employee of Ex-State of Mayurbhanj....

At the hearing of this application, Mr. Mohanty for the Petitioner raises two contentions:

(i) Petitioner is admittedly an ex-Mayurbhanj State employee and as has already been decided by a Special Bench of this Court in the case of Sudhir Kumar Gupta v. State of Orissa and Ors. ILR 1972 Cutt 843, Petitioner is entitled to continue in service until he attained the age of sixty years; and

(ii) Admittedly Petitioner is a National Awardee and, therefore, under Government Resolution in Annexure-1, Petitioner was entitled to two years'' extension in service. When Petitioner represented in time, in case medical certificate was necessary, Petitioner should have been asked to produce the same and on that ground along Petitioner should not be deprived, of the benefit.

It is admitted that Petitioner is an ex-Mayurbhanj State employee. The pleading in paragraph 3 of the writ petition that after merger Petitioner''s service was taken over and he was absorbed in the service under the State Government was not at all disputed in the counter affidavit. In paragraph 9 of the counter affidavit, there is a general denial in answer to the pleading in paragraph 15 of the writ petition. The several orders produced would go to show that Petitioner was an employee of the State Government. It has been held by the Special Bench in the reported decision that under the Mayurbhanj Service Regulations of 1939 which constituted the law relating to conditions of service in the ex-State, the age of retirement was 60 years. If the ex-State of Mayurbhanj had not merged in the Province of Orissa, Petitioner would have continued in service till he completed the age of 60. Under the Mayurbhanj Merger Agreement, the Regulations were to remain in force until altered or amended and those had not been altered. Petitioner''s age of superannuation on the ratio of the Special Bench decision thus continued to be as under the Mayurbhanj Regulations and he could be made to retire only on completion of his 60th year of age. The order of superannuation in this case was, therefore, contrary to law.

Even under Annexure-1, Petitioner was entitled to two years'' extension. As soon as Petitioner was communicated the fact that superannuation was due on 14-5-1974, he made a representation on both counts. He was never told that he was to produce a medical certificate. The Government Resolution (Annexure-I) nowhere indicated that a medical certificate was necessary in support of mental and physical fitness. It is contended by Mr. Mohanty that since Petitioner was in service and the inspecting authorities were always assessing his performance, they must have formed an appropriate impression of Petitioner''s mental and physical fitness. If the superior authorities in the Education Department wanted that Petitioner should produce a medical certificate, he should have been asked to do so. The representation of the Petitioner went unheeded which exhibits callousness on the part of the Directorate of Education.

When Petitioner made a representation in the month of May, 1975, almost a year after superannuation, he had occasion to enclose a medical certificate. The authorities took more than seven months to take the decision. In these circumstances, we see no justification as to why the Petitioner should have been deprived of the normal service advantages, particularly when the superannuation was without the least justification.

It is true, by lapse of time Petitioner has now retired. But in the facts indicated, there is no justification as to why the period from 14-5-1974 till Petitioner was re-employed in terms of Annexure-6 should be without pay. The writ application is allowed and the order superannuating the Petitioner with effect from 14th of May, 1974 is quashed. The Petitioner is deemed to have continued in service for the entire period upto 14-5-1976. He shall be entitled to all the advantages as a teacher until the aforesaid date of superannuation in 1976. A writ shall issue requiring the opposite parties to pay to the Petitioner the remaining dues of his after taking into account payments that may have been made subsequent to his re-employment in terms of Annexure-6. These payments be made within three months from the date of service of the writ. Petitioner shall be entitled to costs. Hearing fee is assessed at rupees one hundred.

K.B. Panda, J.

I agree.

Application allowed.